S. Lekshmy v. State of Kerala, Kerala University, Director of Collegiate Education and NSS Colleges Central Committee

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931** **WP(C).No. 30211 of 2007(V)** **--------------------------** ## **PETITIONER(S):** - **------------------** **S.LEKSHMY, ANOOR HOUSE, EDAVATTOM, KARUVELIL P.O., KOLLAM DISTRICT.** **BY ADV. SRI.RAJESH NAIR** ## **RESPONDENT(S):** ## **-------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION (D) DEPARTMENT, THIRUVANANTHAPURAM.** **2. KERALA UNIVERSITY, REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM.** **3. THE DIRECTOR OF COLLEGIATE EDUCATION, O/O THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM.** **4. NSS COLLEGES CENTRAL COMMITTEE REPRESENTED BY ITS SECRETARY, O/O THE SECRETARY, CHANGANASSERY-2.** **ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. FOR R2 SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE FOR R4 SRI.P.GOPAL FOR R4 GOVT.PLEADER SRI.V.MANU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/03/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WPC NO.30211/2007** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1: TRUE COPY OF ADVERTISEMENT APPEARED IN THE MATHRUBHOOMI DAILY DT 28.4.2004.** **EXT.P2: TRUE COPY OF MEMO DT 25.4.2006 ISSUED TO THE PETITIONER.** **EXT.P3: TRUE COPY OF GOVT.ORDER LETTER NO.GO(MS) 95/2006/H.EDN. DTD.10.8.2006.** **EXT.P4: TRUE COPY OF NEWS ITEM PUBLISHED IN THEM ATHRUBHOOMI DAILY DT 1.8.2007.** **EXT.P5: TRUE COPY OF LETTER DTD.20.8.2007 OF THE PETITIONER.** **EXT.P6: PHOTOSTAT COPY OF THE APPLICATION SENT BY THE APPLICANT BEFORE THE 4TH RESPONDENT UNDER THE RIGHT TO INFORMATION ACT.** **EXT.P7: PHOTOSTAT COPY OF THE REPLY TO EXT.P6 BY THE 4TH RESPONDENT ADDRESSED TO THE 4TH RESPONDENT.** ## **EXTS. OF R4** **EXT.R4(a): TRUE COPY OF THE MIUTES OF THE SELECTION COMMITTEE DTD.16.5.2006.** **EXT.R4(b): TRUE COPY OF THE ORDER NO.F/4317/2007 ISSUED BY THE 4TH RESPONDENT DT 30.5.2007.** ## **//TRUE COPY//** **PA TO JUDGE** ## **Rp** ## **ANTONY DOMINIC, J. ================ W.P.(C) NO. 30211 OF 2007 (V) =====================** ## **Dated this the 2[nd] day of March, 2010** ## **J U D G M E N T** The prayer sought in the writ petition is to direct the respondents to appoint the petitioner as Lecturer in Zoology on the basis of her rank in Ext.R4(a) select list. 2. Briefly stated, the facts of the case are that the 4[th] respondent, an educational agency, issued Ext.P1 vacancy notification inviting applications from qualified candidates for the post of Lecturer in the subjects mentioned therein. In so far as it is relevant, in response to Ext.P1, petitioner submitted an application for the post of Lecturer in Zoology in the Colleges under the Kerala University. By Ext.P2 memo, the petitioner was required to appear for an interview to be held on 16/5/2006. Petitioner appeared for the interview and in Ext.R4(a) select list published by the 4[th] respondent on 16/5/2006 itself, petitioner's name was included at Sl.No.4 among open merit candidates for the post of Lecturer in Zoology. 3. In terms of Clause 10(5) of the Kerala University, First Statutes 1979, Ext.R4(a) select list had a validity period of one **WPC No. 30211/07** **:2 :** year, i.e., till 15/5/2007. On 29/5/2006, Rank Nos.1 and 2 among the open merit candidates and Rank No.1 in the community merit quota were appointed, Rank No.2 from the community merit quota was appointed on 7/6/2006 and Rank No.3 in the open merit quota was appointed on 22/6/2006. Again on 1/7/2006, Rank No.3 from the community merit quota was appointed, but however her appointment was not approved by the University and is a matter of dispute. 4. While the select list was valid, on 31/3/2007, one retirement vacancy of Lecturer, Zoology arose at the M.G College, Thiruvananthapuram and another vacancy arose at the NSS College for Women at Karamana. However, on the ground that the academic year was ending on that day, appointments were not made to the vacancies thus arose w.e.f 01/04/2007. The position continued as such, and meanwhile, the validity of Ext.R4 (a) select list expired on 15/5/2007. Subsequently, Ext.R4(b), general transfer order was issued by the 4[th] respondent on 30/5/2007 and the aforesaid two retirement vacancies were filled up w.e.f. 5/6/2007. 5. When the petitioner came to know that during the **WPC No. 30211/07** ## **:3 :** currency of the select list, two retirement vacancies arose and that appointments were not made from the select list, she submitted Ext.P5 representation for appointment, and as no response was forthcoming, she sought the details of the vacancies by filing Ext.P6 application by invoking the provisions of the Right to Information Act. Thereupon, the 4[th] respondent took the stand that the provisions of the Right to Information Act are inapplicable to it and on that basis gave Ext.P7 reply. It was thereupon that this writ petition was filed. 6. The contention raised by the counsel for the petitioner is that the select list was valid till 15/5/2007 and two retirement vacancies arose on 31/3/2007 and that she ought to have been appointed against one of those vacancies. The case of the management is that the vacancies arose w.e.f. 01/04/2007, the day on which the vacation started and the academic year started only w.e.f. 1/6/2007. It is stated that teachers being vacation staff, appointments cannot be made during the vacation and that during the vacation, the select list expired, and therefore, they could not make appointment to the vacancies on the commencement of the academic year. From the additional **WPC No. 30211/07** **:4 :** counter affidavit, it is seen that, two vacancies are available even as of now, one at NSS College, Pandalam and the other at NSS College, Kottiyam. 7. Thus, from the submissions made by both sides, the fact that a select list was prepared by the 4[th] respondent, that the petitioner was the 4[th] candidate in the open merit list for the post of Lecturer-Zoology, that all the first three candidates have been appointed, that before the expiry of the list, on 31/3/2007, two vacancies arose and that appointments have not been made to those vacancies are not matters of dispute between the parties. The only issue is whether the management should have on the occurrence of the vacancy w.e.f. 01/04/2007, appointed the petitioner, having regard to the fact that she was the next candidate to be appointed as per her ranking in Ext.R4(a) select list. As rightly pointed out by the counsel for the petitioner, although the fact that a candidate who has been included in the ranked list has no right to claim appointment, a candidate is entitled to be duly considered, if there are vacancies available for appointment, and if those vacancies are required to be filled up. This position has been settled by the Apex Court in a series of **WPC No. 30211/07** **:5 :** judgments and one such judgment in _**Director, SCTI for Medical Science and Technology v. M.Pushkaran**_ (2008) 1 SCC 448). 8. In this case, apart from the management's contention that since the vacation started from 01/04/2007, it was not in a position to make appointments to the existing vacancies, no statutory provision preventing the management from making appointments to the existing vacancies is shown to me. In the absence of any statutory interdiction preventing the management from offering appointment, in my view, the management should have and could have, appointed the petitioner based on her ranking in Ext.R4(a) select list soon after the vacancy arose on 01/04/2007. True, such appointments could not have been made effective during the vacation, but that difficulty could have been got over by the management easily by making the appointment effective from the commencement of the academic year, viz., 1[st] of June, 2007. In the absence of any legal bar in making such an appointment, the management had no reason to apprehend that if such appointment was made, the University would not have approved such appointment also. I also find contradiction in the **WPC No. 30211/07** **:6 :** stand of the management in as much as it is stated in para 5 of the counter affidavit filed by the 4[th] respondent that Rank Nos.1 and 2 from the open merit and Rank No.1 from the community merit were appointed on 29.5.2006, when the colleges were on vacation and these appointments were made effective from 1[st] of June, when the academic year commenced. If such a course was open in respect of some candidates, similar method could have been adopted in the case of the petitioner who was Rank No.4 in the open merit quota. If that be so, nothing had prevented the management from making such appointment from Ext.R4(a) select list. Counsel for the petitioner also made reference to the judgments of this Court in _**A.N.Padmanabhan v. State of Kerala**_ (ILR 1982(1) Kerala 346) and _**Raman Namboodiri v. Rajan**_ (ILR 1984(2) Kerala 641). In both these judgments, the principle laid down is that in a case of this type, this Court is perfectly within its power to require the appointing authority to offer appointment to the candidate, who has been included in the ranked list, as otherwise for technical and invalid reasons, the candidate will be losing forever the right to be appointed. These judgments, in my view, fully supports the view I have taken that **:7 :** ## **WPC No. 30211/07** the petitioner is entitled to appointment in one of the vacancies. 9. Having regard to the above and as according to the management, there are two vacancies existing even as of now, the writ petition is disposed of directing the 4[th] respondent to offer appointment to the petitioner to one of the existing vacancies to the post of Lecturer, Zoology in their Colleges under the Kerala University based on the petitioner's inclusion in Ext.R4(a) select list. This shall be done as expeditiously as possible, at any rate within 4 weeks of production of a copy of this judgment. Writ petition is disposed of as above. ## **ANTONY DOMINIC, JUDGE** Rp