Shaji K.C. et al. v. University of Calicut and Vice Chancellor, University of Calicut

W.P.(C).No..13664/2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 11[TH] DAY OF AUGUST 2021 / 20TH SRAVANA, 1943** ## **WP(C) NO. 13664 OF 2021** ## **PETITIONERS:** 1 SHAJI K.C. AGED 48 YEARS S/O RAMAN .K.C,POTTANALUNKAL HOUSE,CHENAKKAL,CALICUT UNIVERSITY.P.O,MALAPPURAM673635. 2 MOHAMMED SHAFI.V, AGED 36 YEARS S/O.ABOOBACKER,MANGUNGAL HOUSE,PARUTHIKOD,PALLIKKAL.P.O, MALAPPURAM-673634. 3 AMITHAB.K, AGED 41 YEARS S/O.VASU.K,KOZHIKKATTIL HOUSE, OLIPRAM KADAVU THIRUTHI,KOLAKKATTUCHALIL.P.O, CHELAMBRA VIA,MALAPPURAM-673634. 4 SUNIL KUMAR.N, AGED 44 YEARS S/O.UNNIKKARI,PATTAPULACKAL HOUSE,KARUVANKALLU, KARIPPOOR.PO,MALAPPURAM-673638. 5 BASHEER.C.A, AGED 39 YEARS S/O.ANDEEL HAAJI,CHERAMCHERIAKKAL HOUSE,VARAPPARA,PARAMBIL PEEDIKA.P.O,THIRUR,MALAPPURAM-676017. W.P.(C).No..13664/2021 2 6 VINEESH.M.P, AGED 41 YEARS S/O.NAYADIKUTTI.M.P,MANIKULATH PARAMBIL HOUSE,OLIPRAM 14TH MILE,TENHIPALAM.P.O, MALAPPURAM-673635. 7 SHARAFUDHEEN.K.C, AGED 44 YEARS S/O.KUNHIMOIDEEN.K.C,CHALIYIL HOUSE,KOHINOOR,THENHIPALAM.P.O,MALAPPURAM-673635. BY ADV P.K.IBRAHIM ## **RESPONDENTS:** 1 THE UNIVERSITY OF CALICUT, THENHIPALAM,CALICUT UNIVESITY.P.O, MALAPPURAM-673635, REPRESENTED BY ITS REGISTRAR. 2 THE VICE CHANCELLOR UNIVERSITY OF CALICUT,THENHIPALAM, CALICUT UNIVERSITY.P.O, MALAPPURAM-673635. BY ADV SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 4.08.2021, THE COURT ON 11.08.2021 DELIVERED THE FOLLOWING:- W.P.(C).No..13664/2021 3 ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** **W.P.(C).No.13664 of 2021.** **= = = = = = = = = = = = = = = = Dated this the 11[th] day of August, 2021** ## **JUDGMENT** ## 1.This writ petition is filed seeking the following reliefs:- “i. Direct the respondents not to terminate the Service of the petitioners as driver so as to replace them by engaging fresh hands as drivers either on daily wages or on contract terms; ii. Issue of writ of mandamus or any other appropriate direction, permitting the petitioners to continue a drivers on daily wages/contract basis as found feasible by the respondents till regular hands are recruited in accordance with law; iii. Issue a writ of mandamus or any other appropriate writ restraining the respondents from selecting fresh hands for appointment as drivers on daily wage/contract basis to replace the petitioners; iv. Declare that the petitioners are entitled to continue as drivers on contract basis until regular hands selected in accordance with the law report for duty.” - 2.Heard the learned counsel for the petitioners and the learned standing counsel appearing for the respondent University. 4 ## W.P.(C).No..13664/2021 3. It is submitted by the learned counsel for the petitioners that the petitioners are drivers working under the University. They had been engaged either on daily wage basis or on contract after a due selection process. Ext.P1 is the memo of appointment issued to the 5[th] petitioner. It is submitted that similar memos have been issued to the other petitioners as well. It is submitted that since the petitioners had been working without break from 2013 and 2014 onwards, the attempt of the University in seeking to replace the petitioners with other similarly situated contract employees is completely untenable and is liable to be interdicted. 4. A counter affidavit has been filed by respondents 1 and 2. It is stated therein that on 19.7.2012 a press release was issued for preparation of a panel of drivers for engagement on daily wage basis. It is submitted that thereafter, a selection was conducted based on an interview and a list of 24 candidates was prepared. On the basis of their inclusion in the ranked list, the petitioners had been engaged as drivers by the issuance of Ext.R1(b) series of memos. It is stated that their engagement was renewed on executing agreements in the W.P.(C).No..13664/2021 5 nature of Exhibit R1(c). It is submitted that the Government issued a G.O. mandating that persons recruited for appointment on daily wages should be engaged only for 179 days and for further engagement, sanction of the Government is to be obtained. The University, thereafter implemented the Government Order by Ext.R1(e) dated 9.2.2018. It is submitted that by Government order dated 9.7.2019, which is produced as Ext.R1(f), it was directed that under no circumstances should the period of engagement of contract employees be extended beyond two years. It is submitted that thereafter, the University issued a notification inviting applications for appointment of contract employees in various posts including that of Driver-cum-Office Attendant by Ext.R1(g) dated 10.4.2018. With reference to the post of Driver, the Syndicate decided to finalise the selection based on skill test (driving test) and interview. It is submitted that the skill test was conducted on 14.1.2020 and 15.1.2020. A total of 67 candidates, including the 7 petitioners participated in the test. The University published a list of successful candidates as Ext.R1(i). It is stated that after the interview, the list will be finalised according to merit of the candidates and that the writ W.P.(C).No..13664/2021 6 petition filed without disclosing these facts as well as the factum of the petitioners participation in the selection proceedings is an abuse of process of court. It is further submitted that the judgments relied on by the petitioners have no relevance in the instant case, since the petitioners were persons selected for daily wage engagement after an interview and appointed on the specific condition that they are not entitled to claim any future appointments, temporary or permanent. It is submitted that preparation of ranked list for engagement of persons on contract basis is ongoing and the petitioners claim will be considered along with other candidates. It is stated that they have no independent right for engagement and no enforceable right for further appointments either. The decision of the Apex Court in **Sarojakumari D v. R.Helen Thilalom and others** [2017 (4) KHC 898] is relied upon in support of the contention that the petitioners, who have participated in the selection process without demur, cannot challenge the process on the apprehension that they may not be successful. W.P.(C).No..13664/2021 7 5.I have considered the contentions advanced. From the counter affidavit filed by the University, it is clear that the steps for conducting a selection for contract appointment for several posts in the University, including the post of drivers was initiated as early as in 2018. The petitioners have apparently participated in the selection procedure by undergoing the driving test conducted in October 2020. The petitioners' initial appointments were apparently on ad hoc basis after the conduct of an interview. The University has raised a specific contention that the Government had directed the disengagement of persons appointed after a selection only through interview after the expiry of 179 days and had interdicted their continuance after two years. In the instant case, the fact that a notification had issued in 2018 calling for appointments and that the petitioners had participated in the selection had not been specifically brought to the notice of this Court in the writ petition. In any view of the matter, since the petitioners have applied pursuant to the notification and have participated in the selection process by appearing for the driving test, I am of the opinion that this writ petition now W.P.(C).No..13664/2021 8 filed with the prayers, as sought for, is not maintainable. The petitioners who have applied pursuant to a notification cannot turn around and challenge the notification itself midway through the selection process. 6.In the above view of the matter, I am of the opinion that the prayers as sought for, cannot be granted. The writ petition fails and the same is accordingly dismissed. However, in view of the fact that the petitioners are continuing on daily wage basis, the respondents shall permit them to continue till the selection process as has been initiated by the University is completed and appointments are made pursuant thereto. **==> picture [25 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No..13664/2021 9 ## **APPENDIX OF WP(C) 13664/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE APPOINTMENT MEMO ISSUED TO THE 5TH PETITIONER DATED 15.03.2013. Exhibit P2 TRUE COPY OF THE AGREEMENT EXECUTED BY THE 5TH PETITIONER ON 29.08.2017 IN REGARD TO HIS ENGAGEMENT ON CONTRACT BASIS Exhibit P3 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT UNIVERSITY DATED 29.06.2020 EXTENDING THE PERIOD OF CONTRACT FOR 1 YEAR FROM 2020 IN RESPECT OF PETITIONERS 1 AND 3 TO 6 Exhibit P4 TRUE COPY OF THE ORDER DATED 27.06.2021 ISSUED TO THE 4TH PETITIONER ENGAGING ON DAILY WAGE BASIS FOR A FURTHER PERIOD OF 89 DAYS Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 02.02.2012 IN WP(C)NO.15981/2011 FILED BY THE AFORESAID PERSONS NAMELY SUKUMARAN.K,MOHAMMED ALI.K.C,KRISHNAPRASAD.K.C,ANOOP KUMAR.V.K,MOHAMMED HANEEFA.A,SASIDHARAN.P ETC. TRUE COPY PS TO JUDGE