Raju K. George v. University of Calicut

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **FRIDAY, THE 3RD DAY OF JUNE 2011/13TH JYAISHTA 1933** ## **WP(C).No. 7527 of 2010 (M)** **----------------------------------** ## **PETITIONER(S): -------------------** **RAJU.K.GEORGE, KANATHKATTIL HOUSE, CHENGAMMANAD P.O., ALUVA, ERNAKULAM DISTRICT-683 578 PROFESSIOAL ASSISTANT GRADE-II, CHMK LIBRARY CALICUT UNIVERSITY.** **BY ADVS.SRI.ABRAHAM VAKKANAL (SR.) SRI.BIJIMON C.CHERIAN SRI.DIJO SEBASTIAN SRI.PAUL ABRAHAM VAKKANAL** ## **RESPONDENT(S):** **--------------------** **1 THE UNIVERSITY OF CALICUT, REPRESENTED BY THE REGISTRAR CALICUT UNIVERSITY P.O., THENJIPPALAM CALICUT-673 635.** **BY ADV. SRI.P.C.SASIDHARAN, SC, CALICUT UTY.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2010, THE COURT ON 03-06-2011 DELIVERED THE FOLLOWING:** ## **svs** ## **W.P.(C). NO. 7527/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE LETTER OF UNIVERSITY.** - **P2: COPY OF THE ORDER NO.AD.F1/15677/2002 OF UNIVERSITY.** - **P3: COPY OF THE COMMON JUDGMENT IN WPC. NO.37461/2007 & WPC. NO.16367/2008.** - **P4: COPY OF THE ORDER.** - **P5: COPY OF THE COMMON JUDGMENT IN W.A. NO.2146/2008 & W.A. NO.2125/2008.** - **P6: COPY OF THE ORDER NO. AD.C2/603/06.** - **P7: COPY OF THE PETITION.** - **P8: COPY OF THE ORDER NO.AD.F1/434/2010.** - **P9: COPY OF THE REQUEST SEND BY PETITIONER TO RESPONDENT.** - **P10: COPY OF THE ORDER BEARING NO.AD.F1/1930/2009.** - **P11: COPY OF THE REQUEST SUBMITTED TO THE PUBLIC INFORMATION OFFICER.** - **P12: COPY OF THIS REPLY OF THE PUBLIC INFORMATION OFFICER.** ## **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A. TO JUDGE.** ## **svs** ## **C.T. RAVIKUMAR, J. -------------------------------------------W.P.(C). NO.7527 OF 2010** **--------------------------------------------** Dated this the 3[rd] day of June, 2011 ## **JUDGMENT** 1. The petitioner, a Professional Assistant Grade-II under the Calicut University filed this Writ Petition challenging Ext.P8 order. The further prayers in this Writ Petition are as follows:- (ii)to issue a mandamus a writ in the nature mandamus or other appropriate writ or direction commanding the respondent to grant all benefits to the petitioner by giving him appointment in the 48[th] place as directed in Ext.P3 & P5 judgments ie: from 8.7.2005, the date on which the other indigible candidates was given appointment by mistake, including seniority, salary and promotion as Prof.Assistant Grade-I from 1-4-2010 within a specified time. (ii)to declare that the petitioner who is directed vide Ext.P3 judgment to be appointed in the 48[th] place as Professional Assistant Grade-II, should be granted with the service seniority and all other benefits from 8.7.2005 and on that basis promotion as Prof.Assistant Grade-I from 1-42010 with all consequential benefits. 2. The facts, in succinct, necessary for considering the **W.P.(C) NO.7527/2010** 2 issues involved in this Writ Petition are as follows:- The petitioner responded to a notification issued by the respondent University inviting applications for selection to the post of Professional Assistant Grade-II. After a due selection process, a rank list was drawn on 6.1.2005 by the respondent University. The name of the petitioner appeared in the said rank list at serial No.202. According to the petitioner, she belongs to Cheramar Christian Community i.e., Scheduled Caste converted Christian (Other Backward Community). One Smt.Omana Thomas who was ranked at serial No.279 with community benefit of 'Other christian' was offered appointment on 8.7.2005. On being aggrieved by the same, the petitioner submitted a representation before the respondent University on 27.4.2007 and the University received the said representation on 30.4.2007. Essentially, the request made thereunder was to emend the mistake crept in the rank list as regards the entry of the community in respect of the petitioner and to grant him appointment. Though the petitioner belongs to Cheramar Christian, as against his name in the rank list, community was noted as Christian R.C. It was this mistake **W.P.(C) NO.7527/2010** 3 committed in the office of the respondent University that deprived him his rightful claim for appointment, it is contended. The inaction on the part of the respondents to act upon the representation dated 27.4.2007 made the petitioner to approach this Court by filing W.P. (C).No.37461/2007. This Court passed an interim order on I.A.No.1460/2008 directing the respondent University to pass order on the representation dated 27.4.2007 submitted by the petitioner. On such consideration, it was found that the grievance raised by the petitioner through representation dated 27.4.2007 is having substance. The University took a decision to oust Smt.Omana Thomas from the aforesaid post and to appoint the petitioner as against the said post. Challenging the said decision of the University, Smt.Omana Thomas approached this Court by filing W.P.(C).No. 16367/2008. Those two writ petitions were jointly heard and were disposed of as per Ext.P3 common judgment. As per Ext.P3 judgment, the University was directed to appoint the petitioner herein at the 48[th] place against which the said Smt.Omana Thomas was appointed as Professional Assistant Grade II. Consequently, W.P.(C).No.16367/2008 was dismissed. **W.P.(C) NO.7527/2010** 4 Thereupon, the University passed Ext.P4 order on 1.11.2008. Pursuant to Ext.P4 order of appointment, the petitioner joined duty as Professional Assistant Grade II on 3.11.2008. Thereafter, the petitioner filed Ext.P7 representation with a request to grant him service seniority with all consequential benefits with effect from 8.7.2005, the date of mistaken appointment of the said Smt.Omana Thomas. The said representation was considered by the University and ultimately, it was rejected as per Ext.P8. It is challenging Ext.P8 and seeking further consequential reliefs that this Writ Petition has been filed. 3. A counter affidavit has been filed in this Writ Petition by the respondent University. Evidently, entitlement of the petitioner for appointment against the turn of 'Other Christian' was not disputed. In fact, it is recognising the same that Ext.P4 was passed in compliance with Ext.P3 judgment. It is also not in dispute that pursuant to Exts.P3 and P4, Smt.Omana Thomas was ousted from the said post and the petitioner was given appointment as Professional Assistant **W.P.(C) NO.7527/2010** 5 Grade II against the vacancy reserved for 'Other Christian'. It is contended by the respondent University that as regards the question of fixation of seniority, it is to be fixed in terms of the provisions under Rule 27(a) of Part II of the Kerala State & Subordinate Services Rules (for short ' KS & SSR'). Going by the said provision, one can claim seniority only from the date of his first appointment to such service, class, category or grade. In short, the contention of the respondent/University is that in terms of the provisions of Rule 27 (a) of Part II of K.S. & S.S.R., the petitioner could claim seniority and other consequential service benefits only with effect from 01.11.2008, the date on which day he was actually appointed as Professional Assistant Gr.II as per Ext.P4. There can be no doubt that under normal circumstances, one can claim seniority only in terms of the aforementioned provision taking note of the date of order of appointment. The respondent cannot contend that it is an inviolable position at all circumstances in the light of Exts.P3 and P5 judgments. The indisputable and undisputed factual position in this case would reveal that the petitioner was illegally deprived of an **W.P.(C) NO.7527/2010** 6 opportunity to work from 2005 onwards. Admittedly, in the place of the petitioner, one Smt.Omana Thomas was wrongly given appointment and based on such wrong appointment she joined duty on 8.7.2005. Though the petitioner has brought it to the notice of the respondent- University and sought for appropriate action, no prompt action was taken on his representation. Later, in the hearing conducted based on the interim order passed by this Court in W.P. (C) No.37461/2007 University took a decision to oust Smt.Omana Thomas from service and to post the petitioner in her place. That decision of the University was unsuccessfully challenged by Smt.Omana Thomas. W.P.(C) No.16367/2008 filed by Smt. Omana Thomas and W.P.(C) No.37461/2007 filed by the petitioner were jointly heard and disposed of as per Ext.P3 common judgment with a specific direction to appoint the petitioner at the 48[th] place against which the petitioner in W.P.(C) No.16367/2008 viz., Smt. Omana Thomas was appointed as Professional Assistant Gr.II. As against the said common judgment, Writ Appeal Nos. 2146/2008 and 2125/2008 were filed by the said Omana Thomas.They were heard **W.P.(C) NO.7527/2010** 7 jointly and were dismissed as per Ext.P5 judgment. Admittedly, in compliance with the directions in Ext.P3 judgment, the petitioner was appointed as per Ext.P4 on 01.11.2008. It can only be construed as an order appointing the petitioner against the 48[th] place in which Smt.Omana Thomas was appointed earlier, it is contended. To resist the contentions and claim of the petitioner for consequential benefits including seniority based on Ext.P3 judgment, the University has taken up the contention that the petitioner has not impleaded persons who are likely to be affected in case of granting of such seniority to the petitioner in this writ petition. That apart, it is contended by the learned counsel for the respondent that the benefit of reservation is given to the community and therefore the petitioner cannot contend that he should be given all benefits with retrospective effect. In this case, admittedly the benefit of reservation was wrongly given to Smt.Omana Thomas and later, the said wrong was rightened and the appointment was given to the petitioner in place of Smt.Omana Thomas after ousting her from service. Had the benefit been given to the petitioner correctly, definitely he would have been appointed in **W.P.(C) NO.7527/2010** 8 place of Smt.Omana Thomas from 8.7.2005. It is not on account of any flow or lapses on the part of the petitioner that he was not able to join its service. The mistake was solely of the respondentUniversity. Therefore, it can safely be said that the petitioner was wrongly deprived of an opportunity to get a berth in service at the appropriate time and when that be the case, the University cannot deny a benefit flowing from Ext.P3 judgment, that too, by citing its own lapse as a reason. 4. The learned senior counsel appearing for the petitioner relied on a plethora of decisions to canvass the position that when a person was illegally deprived of appointment at the appropriate time and when that person subsequently given appointment after setting right the said illegality committed at the first instance there is no reason to deny that person all consequential benefits. To buttress the said contention the learned senior counsel relied on the decision of the Hon'ble Apex Court in **Vasant Rao Raman** v. **Union of India** (1993 Suppl.(2) SCC 324 and this Court in **State of Kerala** v. **W.P.(C) NO.7527/2010** 9 **Bhaskaran Pillai** [(2003) 1 KLT 60]. As already noticed hereinbefore, the contention of the respondent-University is that the other employees who are likely to be affected in case of a change in the seniority of the petitioner was not made parties to this writ petition and therefore, the petitioner is not entitled to the said relief. In this case, it is to be noted that as per Ext.P3 judgment this Court has already directed the University to grant appointment to the petitioner at the 48[th] place, that too, in place of Smt.Omana Thomas, the petitioner in W.P.(C) No.16367/2008 because the said Smt. Omana Thomas was given appointment on 8.7.2005 in place of the petitioner against the 48[th] place. When such a specific direction was given by this Court, the respondent was bound to comply with the same. The indisputable and undisputed position is that it was in the place of Smt. Omana Thomas that the petitioner was given appointment taking into account the fact that he was wrongly denied the appointment and the said Omana Thomas was wrongly given appointment in his place. As regards the others, who are placed below Smt.Omana Thomas in the rank list, they cannot have any **W.P.(C) NO.7527/2010** 10 grievance at all because they were already placed below Smt.Omana Thomas because she was the appointee against the 48[th] place. It was in place of Smt.Omana Thomas that the petitioner was brought in. Such persons cannot legally stake any claim for seniority over the appointee against the 48[th] place and merely because the petitioner came in place of the said Omana Thomas cannot and will not create any grievance for them as regards seniority. Therefore, those who are placed below the appointee against the 48[th] place cannot have any grievance on account of the change-in- person at the said slot. The subsequent posting of the petitioner will not and cannot, in any way, alter their seniority position. Therefore, non-impleadment of such persons cannot be held as fatal and in fact, they are not necessary parties to this litigation. In view of such indisputable position, the appointment of the petitioner can only be against the 48[th] place. When once the petitioner is pitted against the 48[th] place after ousting the wrong appointee against the said slot, being the rightful claimant, the petitioner cannot be deprived of seniority available by virtue of holding the said placement. The contention of the **W.P.(C) NO.7527/2010** 11 respondents that the benefit of reservation is to the community can only strengthen the claim of the petitioner. At the same time, Ext.P3 judgment would reveal that a direction was given by this Court to disburse the salary to Smt.Omana Thomas for the period she had actually worked. It is a fairly settled position that double payment cannot be effected in any post during any particular period for whatsoever reason. Therefore, he is not justified in claiming salary for the period from 8.7.2005 till 2.11.2008. However, as regards the service benefits, in view of Exts.P3 and P5, there is no reason to deprive the petitioner's service benefits including seniority with effect from 8.7.2005 lest the effect and impact of the direction of the Division Bench to assign him the 48[th] place would be nullified. Resultantly, it is declared that the petitioner is entitled to get service benefits reckoning his date of entry in service as 8.7.2005 in the post of Prof.Assistant Grade-II. 5. In view of the aforesaid discussion, findings and declaration in Ext.P8 order is set aside to enable the respondents to work out the **W.P.(C) NO.7527/2010** 12 benefits flowing from this judgment. The respondents shall complete the whole exercise in that behalf expeditiously, at any rate, within a period of three months from the date of receipt of a copy of this judgment. The writ petition is disposed of accordingly. ## **(C.T. RAVIKUMAR, JUDGE)** **spc /rka** 13 ## **W.P.(C) NO.7527/2010** **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **W.P.(C) NO.7527/2010** 14