MINIMOL C.D. v. MALABAR CHRISTIAN COLLEGE, CALICUT, AND OTHERS

**“CR”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY,THE 05TH DAY OF DECEMBER 2019/14TH AGRAHAYANA,1941** ## **WP(C).No.16655 OF 2012(F)** ## **PETITIONER:** **MINIMOL C.D. AGED 41 YEARS W/O. JOHNYKUTTY K.A., CHENAKALYIL HOUSE, M.E.VELLOOR, P.O.VELLOOR, KOTTAYAM DISTRICT686609 NOW RESIDING AT GREESHMAM HOUSE, NEAR SSUS REGIONAL CENTRE, NADUVATHOOR P.O., KOYILANDI, KOZHIKODE-673620.** **BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA** ## **RESPONDENTS:** |**1**|**THE MANAGER, MALABAR CHRISTIAN COLLEGE**| |---|---| ||**MALABAR CHRISTIAN COLLEGE, CALICUT-673001.**| |**2**|**THE PRINCIPAL**| ||**MALABAR CHRISTIAN COLLEGE, CALICUT-673001.**| |**3**|**THE CHAIRMAN**| ||**MALABAR CHRISTIAN COLLEGE MANAGEMENT COMMITTEE,**| ||**AND BISHOP OF CHURCH OF SOUTH INDIA NORTH**| ||**KERALA DIOCESE BISHOP HOUSE, CSI DIOCESAN**| ||**OFFICE, PB 104, SHORANUR, KERALA-679121.**| |**4**|**PROF.JAYAPRAKASH RAGHAVIAH**| ||**THE MANAGER, MALABAR CHRISTIAN COLLEGE,**| ||**CALICUT-673001.**| W.P.(C).No.16655/12 2 - **5 THE DIRECTOR KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE, VIKAS BHAVAN, THIRUVANANTHAPURAM695033.** - **6 REGIONAL DEPUTY DIRECTOR OF COLLEGIATE EDUCATION MANJIRA P.O., KOZHIKODE.** - **7 THE DIRECTOR DIRECOTRATE OF COLLEGIATE EDUCATION, 6TH FLOOR, VIKAS BHAVAN, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033.** - **8 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** - **9 THE CALICUT UNIVERSITY THENJIPALAM, MALAPPURAM DISTRICT, REPRESENTED BY ITS REGISTRAR.** - **R1 BY ADV. SRI.A.RANJITH NARAYANAN R1, R6 BY GOVERNMENT PLEADER R1 BY ADV. SRI.S.K.SAJU** ## **OTHER PRESENT:** ## **SR. GP. SHRI. S. GOPINATHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.11.2019, THE COURT ON 05.12.2019 DELIVERED THE FOLLOWING:** W.P.(C).No.16655/12 3 ## **JUDGMENT** **Dated this the 5th day of December 2019** - 1.This writ petition is filed with the following prayers:- “i) To call for the records leading to and pursuant to Exhibits P1 to P7 and set aside the proceedings leading to Exhibit P6 and all proceedings pursuant thereto for appointment of Assistant Professor in Sanskrit under open vacancy category by issuing a writ of certiorari or any other appropriate writ, direction or order. ii) To declare that the respondents are not entitled to effect appointment of Assistant Professor in Sanskrit advertised as per Exhibit P1 from open vacancy category. iii). To direct the respondents to select candidates based on Exhibit P1 Advertisement relating to community vacancy without considering Exhibit P6 Advertisement by issuing a writ of mandamus or an other appropriate direction or order. iv)To direct the respondents to consider the claim of the petitioner under community vacancy category and appoint the petitioner as Assistant Professor in Sanskrit based on Exhibit P1 Advertisement by issuing a writ of mandamus or any other appropriate direction or order.” 2.Heard the learned counsel for the petitioner, the learned Government Pleader as well as the learned counsel for respondents 1 to 3. W.P.(C).No.16655/12 4 3. The learned counsel for the petitioner submits that the petitioner belongs to the Church of South India (CSI for short) community and is entitled for appointment under the community quota to vacancies arising in the Malabar Christian College, Calicut. It is submitted that the petitioner had applied for appointment pursuant to Exhibit P1 notification as Assistant Professor in Sanskrit. It is stated that Exhibit P1 notification specified that one vacancy in Sanskrit is available in the community quota and the petitioner, being a member of the community which established the college, is entitled for consideration for appointment in the community quota. It is submitted that by Exhibit P6, a fresh notification has been issued showing the post of Assistant Professor in Sanskrit under the open quota. Complaining of illegal conversion of the community quota seat to open category, the petitioner submitted complaints which were forwarded to the Management for consideration, but no steps have been taken thereon. It is contended by the learned counsel for the petitioner that the respondents have converted the vacancy available in the community quota to the open quota and that 5 ## W.P.(C).No.16655/12 such action is unwarranted. It is stated that since the petitioner a member of the minority community, she is entitled to appointment as Assistant Professor in Sanskrit in community quota. 4. A counter affidavit has been placed on record by the 1[st] respondent stating that the college was established in the year 1901 by the Basel Evangelical Mission and that the management of the college is vested with the CSI, North Kerala Diocese. It is stated that the petitioner is not a member of CSI, North Kerala Diocese and she is not, therefore, entitled to appointment in the community quota. It is stated that since there was no application from any eligible candidate, the management was constrained to cancel the vacancy notified in the community quota and notified the same in the open category. It is stated that Exhibit P2 application also does not disclose any claim for appointment in the community quota. Resultantly, fresh applications were invited and the petitioner submitted application to the post when it was notified as open vacancy. It is stated that it was only after attending the W.P.(C).No.16655/12 6 interview and finding that there are better candidates in the general quota that the petitioner turned around to make a claim that she was eligible for selection in the community quota. It is stated that Exhibit P7 produced by the petitioner would show that she is a member of the Church of South India (Madhya Kerala Diocese) and she would therefore not be entitled for appointment in the community quota. 5. A counter affidavit has been filed on behalf of the 6[th] respondent. It is stated in paragraph 4 of the counter affidavit as under:- - “4.It is submitted that the Malabar Christian College was established by the Basel Evangelical Mission in the year 1909. The Management of the College is vested with the Church of South India (CSI), North Kerala Diocese. The Community of the College denotes only the followers of Church of South India, North Kerala Diocese. The petitioner belongs to Christian religion and CSI Madhya Kerala Diocese community. She belongs to the community other than that of the College management authorities. It has been told that no eligible candidate had applied under community quota, the management was constrained to decide to cancel the vacancy notified in the community quota and further decided to fill up the vacancy by notifying the same in the open category.” W.P.(C).No.16655/12 7 6. I have considered the contentions advanced. The learned counsel for the petitioner would contend that she is a Christian belonging to the CSI and that as such, she is entitled for appointment in the community quota. Admission of students in the community and management quotas and appointment of teachers in the community quota stand on a different footing, going by the decisions of the Apex court and of this Court. However, in the instant case, I am of the opinion that the claim of the petitioner for appointment against the community quota does not require a consideration, since it is the specific contention of the 1[st] respondent that after the notification of the post in the open quota, the petitioner had participated in the selection and attended an interview for appointment to the post in the open quota. It is only on finding that there were better claimants in the open quota that she had raised a challenge against the notification. 7. Exhibit P6, which is the notification under challenge, was dated 16.4.2012. The petitioner admits in the writ petition that she had attended an interview on 8.6.2012 This can only have been W.P.(C).No.16655/12 8 an interview pursuant to the notification challenged by the petitioner, that is notification dated 16.4.2012. Though a counter affidavit has been filed specifically contending that the petitioner had participated in the selection pursuant to the notification dated 16.4.2012, no reply affidavit has been filed by the petitioner. Therefore, the factual situation is that the petitioner having made an application for the post and attended the interview conducted on 8.6.2012 pursuant to notification of the post in the open category has chosen to challenge the notification. The petitioner, who participated in the selection cannot challenge the notification after having undergone the selection process on the ground that the notification specified that the post is in the open quota. In case the petitioner had a real ground of challenge against the re-notifying of the post in the open quota, it should have been made immediately after such re-notification and not after participating in the interview and undergoing the selection process. The decision of the Apex Court in Vijendra Kumar Verma v. Public Service Commission, Uttarakhand and others. [2011(1) SCC 150] and in Ashok Kumar v. State of Bihar [2017 (4) SCC 357] are authorities on the point. W.P.(C).No.16655/12 9 In the above view of the matter, I am of the opinion that the petitioner is not entitled to succeed in the writ petition. The writ petition fails and the same is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF TH ADVERTISEMENT DATED 05/03/2012 PUBLISHED IN NEW INDIAN EXPRESS DAILY ON 07/03/2012 IN WHICH THE ASSISTANT PROFESSOR IN SANSKRIT POST WAS NOTIFIED AS COMMUNITY VACANCY POST BY THE FIRST RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR THE POST OF ASSISTANT PROFESSION IN SANSKRIT BEFORE THE FIRST RESPONDENT. EXHIBIT P3 A TRUE COPY OF THE DEMAND DRAFT DATED 13/03/2012 SUBMITTED BY THE PETITIONER IN FAVOUR OF THE MANAGER OF THE MALABAR CHRISTIAN COLLEGE. EXHIBIT P4 A TRUE COPY OF THE NOTICE DATED 17/05/2012 OF THE FIRST RESPONDENT INVITING THE PETITIONER FOR THE INTERVIEW. EXHIBIT P5 A TRUE COPY OF THE NOTICE DATED 22/05/2012 SEND BY THE FIRST RESPONDENT TO THE PETITIONER REGARDING THE CHANGE OF VENUE OF THE INTERVIEW. EXHIBIT P6 A TRUE COPY OF THE ADVERTISEMENT DATED 16/04/2012 AS PUBLISHED IN THE NEW INDIAN EXPRESS DAILY DATED 18/04/2012 ISSUED BY THE FIRST RESPONDENT. EXHIBIT P7 A TRUE COPY OF THE CERTIFICATE ISSUED BY ST. PAUL'S C.S.I. CHURCH DATED 29/05/2012 IN FAVOUR OF THE PETITIONER.** **EXHIBIT P8 A TRUE COPY OF THE LETTER ISSUED BY THE BISHOP OF C.S.I. DIOCESE OF NORTH KERALA TO THE MANAGER DATED 15/06/2012.** True copy PS to Judge