Rankaswamy N v. Cochin University of Science & Technology & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 14TH DAY OF NOVEMBER 2016/23RD KARTHIKA, 1938** **WP(C).NO. 36354 OF 2015 (T) ----------------------------** **PETITIONER(S): -------------** **RANKASWAMY N RESEARCH SCHOLAR, DEPARTMENT OF HINDI, UNIVERSITY OF CALICUT, THENHIPALAM, MALAPPURAM DISTRICT-673 635.** **BY ADVS.SRI.P.LEELAKRISHNAN SRI.SHYAM KRISHNAN** **RESPONDENT(S):** - **--------------** **1. COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY REPRESENTED BY ITS REGISTRAR, KOCHI UNIVERSITY P.O., KOCHI-682022.** **2. THE GOVERNMENT OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIATE, THIRUVANANTHAPURAM PIN-695001.** **3. RAJKUMAR MEENA, ASSISTANT PROFESSOR, DEPARTMENT OF HINDI, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI UNIVERSITY P.O.,KOCHI-682 022.** **4. PRABIN BASANTHI, DEPARTMENT OF HINDI, PONDICHERRY UNIVERSITY, CHINNAKALPET, PONDICHERRY – 605014.** **5. SURESH JAGANNATHAM, EA2-304, SWAGRUHA, APARTMENT, PAPIREDDY COLONY, HYDERABAD19, TELENGANA STATE.** **6. SAJMON V.G., VALIPLACKAL HOUSE, VENGANTHANAM P.O., PAZHUMALA, KOTTAYAM, PIN – 686512.** **R3 BY ADV. SRI.C.HARIKUMAR** - **R3 BY ADV. SRI.RENJITH RAJAPPAN R3 BY ADV. SMT.SANU S MALAKEEL** **R1 BY ADV. SRI.SUNIL CYRIAC, SC, COCHIN UNIVERSITY R1 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAI,SC,COCHIN UNIVERSITY OF SCIENCE R BY GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH R BY SRI.MILLU DANDAPANI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C).NO.36354 OF 2015** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P1: TRUE COPY OF THE COMMUNITY CERTIFACATE DATED 05.03.2013 ISSUED BY THE TAHSILDAR OF MANNARKKAD, PALGHAT DISTRICT DISCLOSING THAT THE PETIITONER BELONGS TO THE IRULA-HINDU SCHEDULED TRIBE.** **EXT.P2: TRUE COPY OF THE NOTIFICATION DATED 24.04.2013 INVITING APPLICATIONS TO THE POST OF ASSISTANT PROFESSOR IN ITS HINDI DEPARTMENT EXCLUSIVELY RESERVED FOR THE SCHEDULED TRIBES.** **EXT.P3: TRUE COPY OF THE RE-NOTIFICATION OF POSTS OF ASSISTANT PROFESSORSHIP IN VARIOUS DEPARTMENTS, INCLUDING THAT OF HINDI.** **EXT.P4: TRUE COPY OF THE MEMO DATED 02.09.2015 ISSUED BY THE 1ST RESPONDENT CUSAT INIVITING THE PETITIONER FOR VERIFICATION OF HIS ORIGINAL CERTIFICATES ON 15.09.2015 AND FOR INTERVIEW ON 16.09.2015.** **EXT.P5: TRUE COPY OF THE RANK LIST PUBLISHED ON 28.09.2015 TO THE POST OF ASSISTANT PROFESSOR IN THE DEPARTMENT OF HINDI, CUSAT, EXCLUSIVELY RESERVED FOR THE SCHEDULED TRIBES.** **EXT.P6: TRUE COPY OF THE MEMO DATED 28.09.2015 INFORMING THAT THE 3RD RESPONDENT HAS BEEN SELECTED AS ASSISTANT PROFESSOR AND THAT HE IS TO REPORT FOR DUTY FORTHWITH** **EXT.P7: TRUE COPY OF THE REPRESENTATION DATED 16.10.2015 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT CUSAT TO TAKE IMMEDIATE ACTION TO ANNUL THE APPOINTMENT OF THE 3RD RESPONDENT AND TO TAKE STEPS TO CONDUCT A RE-SELECTION TO THE POST OF ASSISTANT PROFESSOR IN THE DEPARTMENT OF HINDI.** **EXT.P8: TRUE COPY OF THE UNIVERSITY ORDER DATED 07.11.2015 APPOINTING THE 3RD RESPONDENT AS ASSISTANT PROFESSOR OF HINDI IN CUSAT.** ## **RESPONDENTS' EXHIBITS:** **EXT.R3(A): TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 31.07.2008 ISSUED BY THE TAHSILDAR, GANGAPUR, RAJASTHAN ALONG WITH ITS ENGLISH TRANSLATION.** **EXT.R3(B): TRUE COPY OF THE RELEVANT PAGES OF PRESIDENTIAL ORDER EVIDENCING THE INCLUSION OF MINA COMMUNITY IN SCHEDULED TRIBE.** **EXT.R3(C): TRUE COPY OF THE CERTIFICATE OF EXPERIENCE DATED 06.01.2016.** **//TRUE COPY//** **P.A.TO JUDGE** **sm** ## **A.K.JAYASANKARAN NAMBIAR, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - ## **W.P.(C) No.36354 of 2015** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of November, 2016 ## **JUDGMENT** The petitioner is a native of Sholayur, Attapadi, in Palakkad District, in the State of Kerala. He belongs to the Irula-Hindu community, which is notified as one of the Scheduled Tribes in the State of Kerala, as per the Schedule to the KS & SSR, 1958. The petitioner responded to Ext.P2 notification dated 24.04.2013, as subsequently re-notified by notification dated 06.02.2015, for the post of Assistant Professor in Hindi, in the respondent University. It is not in dispute that the notification was for a special recruitment of Scheduled Tribe candidates and there was one post of Assistant Professor in Hindi that was notified. In the selection process that ensued, Ext.P5 rank list was prepared, showing the names of the 3[rd] 4[th] and 5[th] respondents as the 1[st] , 2[nd] and 3[rd] rank holders. The petitioner as well as the 6[th] respondent were not ranked in the rank list, since, according to the respondent University, they failed to secure the minimum pass mark of 35, required for ranking. Based on the ranking in Ext.P5, the University issued Ext.P8 memo, appointing the 3[rd] respondent as Assistant Professor in Hindi, in the Department of Hindi under the respondent University. In the writ W.P.(c).No.36354 of 2015 : 2 : petition, Ext.P5 rank list and Ext.P8 memo are impugned by the petitioner, inter alia on the contention that the 3[rd] , 4[th] and 5[th] respondents, who are Scheduled Tribe candidates from other States, such as Rajasthan, Jharkhand and Andhra Pradesh, could not have been appointed pursuant to the notification that contemplated benefits of reservation to Scheduled Tribe candidates in Kerala. 2. A statement, as well as a counter affidavit, have been filed on behalf of the 1[st] respondent, wherein, the stand taken by the respondent University is that, the notification inviting applications from candidates to the post of Assistant Professor was published all over India, on the basis of UGC regulations 2010, which mandated that the recruitment of faculty in Universities had to be made through nationwide advertisements. It is stated that, inasmuch as the applications were called from candidates all over India, the reservation envisaged for Scheduled Tribe candidates had to be viewed in a pan India context and, therefore, even those candidates, who belonged to communities listed as Scheduled Tribe in other states in India, had to be considered for appointment to the post notified. 3. In the counter affidavit filed on behalf of the 3[rd] respondent, W.P.(c).No.36354 of 2015 : 3 : the details with regard to the certificates issued to the said respondent by the authorities in the State of Rajasthan are furnished. It is pointed out that the 3[rd] respondent belongs to the Mina community, which is included in the list of Scheduled Tribes, in relation to the State of Rajasthan. It is also pointed out that, in the past, appointments of Scheduled Caste and Scheduled Tribe candidates from outside Kerala have been made to the posts reserved, under the respondent University, for Scheduled Caste and Scheduled Tribe candidates. 3. I have heard the learned counsel for the petitioner, the learned standing counsel for the respondent University and the learned counsel for the 3[rd] respondent. 4. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, Ext.P2 notification, as also the subsequent re-notification, was issued by the respondent University, which, as per the terms of the Cochin University of Science and Technology Act, 1986, operates within the territorial jurisdiction of the State of Kerala. Section 7 (2) of the said Act also clarifies that, in making appointments for all posts as determined by the Syndicate in any service, class or category under W.P.(c).No.36354 of 2015 : 4 : the University, the University shall mutatis-mutandis observe the provision of Clause (a), (b) and (c)of Rule 14 and the provisions of Rule 15, 16 and 17 A of the KS & SSR 1958 as amended from time to time. The notifications issued by the University, in connection with the appointment to the post of Assistant Professor in Hindi, also indicate that the provisions of the KS & SSR 1958 are relevant, for the purposes of granting the benefit of reservation, and in the forms appended to the notification also, there is a clear indication that the benefit of reservation for Scheduled Tribe candidates would be confined to such candidates, who are residing within the State of Kerala. The principles governing the grant of reservation in the context of benefits conferred by a particular State have been laid down in the Constitution Bench decisions of the Supreme Court in **Marri Chandra Shekhar Rao v. Dean, Seth G.S.Medical College and Others [(1990) 3 SCC 130]** and **Action Committee v. Union of India [(1994) 5 SCC 244]** . The principles laid down therein have subsequently been reiterated in **UP Public Service Commission v. Sanjay Kumar Singh [(2003) 7 SCC 657]** . In the context of the Kerala State and Subordinate Service Rules, this Court also considered the aforesaid Constitution Bench decisions of the Supreme Court in **Pushpa Devi v. Public Service Commission [1996 (1) KLT 56].** The crux of the ratio in the said decisions is that, the W.P.(c).No.36354 of 2015 : 5 : considerations for specifying a particular Caste or tribe or class for inclusion in the list of Scheduled Caste / Scheduled Tribe or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that Caste, tribe or class in that State, which may be totally non est in another State, to which persons belonging thereto may migrate. While it may be possible that a Caste or tribe bearing the same nomenclature is specified in two States, the considerations, on the basis of which they have been specified, may be totally different. So also, the degree of disadvantages of various elements, which constitute the input for specification may also be totally different. It was found, therefore, that merely because a given Caste is specified in State A as a scheduled Caste, it would not necessarily follow that if there be another Caste bearing the same nomenclature in another state, the person belonging to the former would be entitled to the rights, privileges and benefits admissible to the members of the Schedule Caste of the latter state, for the purposes of the Constitution. It is evident therefore that, under the Constitution, a member of the Scheduled Tribe, going outside the scheduled area or tribal area, would not be entitled to carry with him the privileges that he is entitled to, when he is residing in a scheduled area or in a tribal area. In the context of the notifications issued by the respondent University, W.P.(c).No.36354 of 2015 : 6 : it is evident that, since it is a notification issued by the Cochin University, which operates within the territorial limits of the State of Kerala, and the posts notified are also within the state of Kerala, the benefit of reservations to Scheduled Tribes, that is extended in the notification, can apply only to those persons, who are members of the Scheduled Tribes listed in relation to the State of Kerala. This intention on the part of the respondent University, of confining the benefit of reservation under the notification to Scheduled Tribes listed in relation to the State of Kerala, is also evident from the wordings in the notification itself, as also the format appended to the notification, in which the certificate showing the inclusion in a Scheduled Tribe community had to be presented. Inasmuch as the 3[rd] , 4[th] and 5[th] respondents, who were considered and ranked as rank Nos. 1, 2 and 3 in Ext.P5 rank list, are persons who are admittedly not members of a Scheduled Tribe listed in relation to the State of Kerala, I am of the view that, it was not open to the respondent University to have offered appointment to any of the said candidates. I note in this connection that, since there was only one post notified, the appointment, pursuant to the selection process, was given to the 3[rd] respondent by Ext.P8 memo. Inasmuch as I have found that the benefit of reservation could not have been extended to the 3[rd] , 4[th] and 5[th] respondents for the reasons mentioned above, I quash Ext.P8 order as W.P.(c).No.36354 of 2015 : 7 : also Ext.P5 rank list, and direct the respondent University to carry out a fresh selection process for filling up the vacancy to the post of Assistant Professor in Hindi, reserved for Scheduled Tribe candidates. The writ petition is allowed as above. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** sm/