Somalal T.M. v. Sree Sankaracharya University of Sanskrit & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 27TH DAY OF AUGUST 2013/5TH BHADRA, 1935** ## **WP(C).No. 10582 of 2011 (W)** **-----------------------------------------** ## **PETITIONER(S):** **--------------------------** **SOMALAL T.M.,RESEARCH SCHOLAR,DEPARTMENT OF MALAYALAM, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, (RESIDING AT THEVALIL VETTILAPPARA, .P.O, THRISSUR DISTRICT-680721).** **BY ADV. SRI.V.VARGHESE** ## **RESPONDENT(S):** - **----------------------------** **1. SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, ERNAKULAM DISTRICT, REPRESENTED BY, ITS REGISTRAR.** **2. STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION, DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM-I.** **3. DR.G.REGHUKUMAR,LECTURER(ASSISTANT PROFESSOR), DEPARTMENT OF MALAYALAM, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, REGIONAL, CENTRE THIRUVANANTHAPURAM(RESIDING AT RAJI BHAVAN KACHANI.P.O, THIRUVANANTHAPURAM-13).** **4. THE SECRETARY,KERALA LEGISLATIVE, SECRETARIAT, THIRUVANANTHAPURAM-695033.** **R1 BY ADV. SRI.ARUN B.VARGHESE,SC, SREE SANKARACHARYA UTY. BY ADV. SRI.P.K.VIJAYAMOHANAN,SC,SANKARACHA.UTY R2 BY SR.GOVT.PLEADER SRI.MANILAL R3 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2013, ALONG WITH WPC. 18129/2011, THE COURT ON 27/08/2013 DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) NO.10582/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1:- COPY OF THE APPOINTMENT ORDER NO.AD.A3/2291/SSUS/2011 DTD. 1.3.2011 OF THE IST RESPONDENT APPOINTING THE 3RD RESPONDENT AS LECTURER (ASSISTANT PROFESSOR) IN THE DEPARTMENT OF MALAYALAM OF THE UNIVERSITY.** ## **P2:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.A. 2229/2006.** **P3:- COPY OF THE JRF AWARD LETTER NO.F.15-6(DEC. 2009)/2010(NET) DTD.19.8.2010 ISSUED TO THE PETITIONER BY THE UGC.** ## **RESPONDENT'S EXHIBITS** **R1(a):- COPY OF THE SCHEDULE SHOWING THE SERVICE DETAILS OF THE PETITIONER IN THE UNIVERSITY IN VARIOUS CAPACITIES AS LECTURER ON REGULAR BASIS, LECTURER IN CONTRACT BASIS AND AS GUEST LECTURER.** **R1(b):- COPY OF THE NOTICE NO.14831/PETITION/A1/10/LEGI. DTD 7.7.2010 FROM THE 4TH RESPONDENT.** **R1(c):- COPY OF THE COMMUNICATION NO.AD.A3/4840/SSUS/05 DTD. 22.7.2010 TO THE 4TH RESPONDENT.** **R1(d):- COPOY OF THE COMMUNICATION NO.25201/B4/10/H.EDN. DTD.19.10.2010 OF THE 2ND RESPONDENT TO THE UNIVERSITY.** **R1(e):- COPY OF THE REPORT FURNISHED BY THE UNIVERSITY VIDE COMMUNICATION NO.AD.A3/4849/SSUS/05 DTD. 4.11.2010 ADDRESSED TO THE 2ND RESPONDENT.** **R1(f):- COPY OF THE NOTICE NO.25201/B4/10/H.EDN. DTD.18.1.2011 OF THE 2ND RESPONDENT .** **R1(g):- COPY OF THE CONFIRMED MINUTES OF THE SYNDICATE HELD ON 4.2.2011.** **R1(h):- COPY OF THE COMMUNICATION NO.14831/PETITION A1/2010/LEGI. DTD.22.2.2011 OF THE 4TH RESPONDENT.** **R1(i):- COPY OF THE COMMUNICATION NO.25201/B4/10/EDN. DTD. 26.2.2011 OF THE 2ND RESPONDENT.** **R1(j):- COPY OF THE JUDGMENT DTD.27.11.2002 IN OP. NO.9613/1998.** **R3(a):- COPY OF THE BIO DATA OF THE 3RD RESPONDENT.** **R3(b):- COPY OF THE ORDER NO.078/ESTT.1/96/SSUS DTD. 8.5.1996 OF THE UNIVERSITY.** **tss** ## **W.P.(C) 10582/2011** **R3(c):- COPY OF THE G.O.(RT) NO.302/1997/H.EDN. DTD.17.3.1997.** **R3(d):- COPY OF THE SERVICE CERTIFICATE DTD. 6.10.1997 ISSUED BY THE DIRECTOR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, REGIONAL CENTRE, THURAVOOR.** **R3(d):- COPY OF THE CERTIFICATE DTD. 4.5.1998 ISSUED BY THE DIRECTOR , SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, REGIONAL CENTRE, THURAVOOR.** **R3(e):- COPY OF THE CERTIFICATE DTD. 4.5.1998 ISSUED BY THE DIRECTOR SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, REGIONAL CENTRE, THURAVOOR.** **R3(f):- COPY OF THE CERTIFICATE DTD. 21.5.1999, ISSUED BY THE DIRECTOR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, REGIONAL CENTRES, THIRUVALLA.** **R3(g):- COPY OF THE CERTIFICATE DTD. 10.5.2000 ISSUED BY THE DIRECTOR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, REGIONAL CENTRES, PALAKKAD.** **R3(h):-COPY OF THE CERTIFICATE DTD. 26.6.2001 ISSUED BY THE DIRECTOR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, REGIONAL CENTRES, PALAKKAD.** **R3(i):- COPY OF THE CERTIFICATE DTD. 10.12.2002 ISSUED BY THE DIRECTOR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, REGIONAL CENTRES, THIRUR.** **R3(j):- COPY OF THE EXPERIENCE CERTIFICATE DTD. 12.7.2006 ISSUED BY THE DIRECTOR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, REGIONAL CENTRES, THRISSUR.** **R3(k):-COPY OF THE LETTER NO.13469/B4/06/H.EDN. DTD. 7.2.2007 OF THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT.** **R3(l):- COPY OF THE RANK LIST DTD 21.5.1998 PUBLISHED BY THE UNIVERSITY.** **R3(m):- COPY OF THE JUDGMENT DTD. 27.11.2002 IN OP. 9613/1998.** **R3(n):- COPY OF THE ORDER NO.1140/ADA3/06/SSUS DTD. 3.2.2006 OF THE UNIVERSITY.** **R3(o):- COPY OF THE MINUTES OF THE MEETING OF THE STANDING OMMITTEE HELD ON 14.3.2011.** **R3(p):- COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE HELD ON 17.3.2011.** **R3(q):- COPY OF THE ORDER NO.4345/AD A3/2011/SSUS DTD. 20.4.2011 OF THE UNIVERSITY.** **TRUE COPY** **P.A. TO JUDGE** **tss** ## **A.M.SHAFFIQUE, J** ## *** * * * * * * * * * * * *** W.P.C.Nos.10582 od 2011 and 18129 of 2011 ---------------------------------------- Dated this the 27[th] day of August 2013 ## **J U D G M E N T** These writ petitions are filed challenging the action of the first respondent University appointing the party respondents namely the third respondent in W.P.C.No.10582 of 2011 and the second respondent in W.P.C No.18129 of 2011 as Lecturer/Assistant Professor in the Malayalam Department of the University. 2. According to the petitioner, the party respondents were not appointed following the procedure prescribed under the University Act and the statutes framed thereunder. It is contended that when the University started functioning in the year 1993, several appointments were made by the Vice Chancellor of the University even before framing the First Statutes of the University. This action came to be challenged by several persons and a learned Single W.P.C.Nos.10582/2011 & 18129 of 2011 2 Judge of this Court had set aside the said selection. The said judgement was upheld by a Division Bench of this Court in **Sree Sankaracharya University of Sanskrit v. State** _[1996 (2) KLT 378]_ . In fact the party respondents were also persons who were appointed as Lecturers and who lost their employment on account of the judgement of this Court. A further selection process was undertaken by the University in 1998. But the party respondents were lower in rank and therefore they did not get the appointment in the said selection process. Later, those persons who lost their job were appointed by the University as Guest Lecturers in Malayalam for regular periods. Several of those Lecturers subsequently left the University on getting regular jobs. Those persons who could not get any other employment on account of various factors were accommodated in the University either as Guest Lecturers or on contract basis. 3. In the meantime, third respondent in W.P.C.No.10582 of 2011 approached the Petitions Committee of the Legislative Assembly and on their 3 W.P.C.Nos.10582/2011 & 18129 of 2011 recommendation the University issued Ext.P1 order regularising the third respondent as Assistant Professor in the Department of Malayalam with effect from 01/03/2011. The second respondent in W.P.C.No.18129 of 2011 submitted a representation before the University for regularising her service on account of the factors stated in the representation. She filed W.P.C.No.9246 of 2006 and by judgment dated 03/04/2006, this Court directed the said representation to be considered. Pursuant to the said representation, the University regularised her service as per Ext.P1 dated 20/04/2011 appointing her as Assistant Professor in the Department of Malayalam. 4. It is the contention of the petitioner that under Section 31 of the Sree Sankaracharya University of Sanskrit Act, 1994 (hereinafter referred as the Act) a teacher can be appointed in the University by the Vice Chancellor on the advice of appropriate Selection Committee constituted in the manner prescribed by the Statutes. As per Chapter III of the Statutes, the procedure prescribed for appointment of W.P.C.Nos.10582/2011 & 4 18129 of 2011 teachers inter alia indicates that the posts concerned are to be notified in newspapers and after the applicants undergo a selection process by a Selection Committee and on the basis of the recommendation of the Selection Committee the Syndicate shall make the appointment. It is the case of the petitioner that while appointing the party respondents herein no such procedure has been followed and they were not qualified to the post. 5. The petitioner contends that he is a person fully qualified to undergo a selection process in the event applications are invited by the University for appointment of Lecturers/Assistant Professors in the Malayalam Department. On account of the respondent University not undertaking a selection process as envisaged under the University Act and the Statutes framed thereunder, the petitioner has lost the said opportunity for public employment and hence challenges the orders issued by the University in favour of the party respondents as illegal, arbitrary and unconstitutional and seeks to quash the said orders. W.P.C.Nos.10582/2011 & 5 18129 of 2011 Petitioner also seeks for a direction to the first respondent to notify the post of Lecturer/Assistant Professor in Malayalam in accordance with the procedure prescribed. 6. Counter affidavit is filed by the University and according to the University also the third respondent was appointed as Lecturer in the service of the University with effect from 10/06/1996. When the appointment of the teaching staff was set aside by the High Court, those teachers whose appointments were terminated were engaged on contract basis. Several of the teachers, who lost the appointments by virtue of the cancellation of the selection by the High Court, approached the University. The Syndicate declined to grant regularisation but resolved to give two marks for each completed year of service as Guest Lecturer or teacher on contract basis in the University, subject to a maximum of 20 marks as weightage to those who were working in the University, for any selection to the teaching post. It is further indicated that the third respondent in W.P.C No.10582 of 2011 was regularised in W.P.C.Nos.10582/2011 & 18129 of 2011 6 service based on the directions issued by the Petitions Committee of the Legislative Assembly. It is also indicated that a Division Bench of this Court in the judgment dated 27/11/2002 in O.P.No.9613 of 1998 directed to regularise the petitioner in that case, who was not even in the select list prepared by the University while the third respondent was a person included in the select list. According to the University the approach of the Division Bench of this Court in directing regularisation of another teacher in the aforesaid original petition, ought to have weighed in the mind of the members of the Petitions Committee to direct the University to give regularisation to the third respondent. 7. As far as the counter affidavit in W.P.C No.18129 of 2011 is concerned, similar contentions have been urged by the University especially regarding the appointment made to one Smt.Dr.Sheeja.R.S. who was rank No.36 whereas the second respondent was rank No.25. Reference is also made to the appointment given to the third respondent in W.P.C.No.10582 of 2011. W.P.C.Nos.10582/2011 & 7 18129 of 2011 8. The party respondents have filed counter affidavits supporting the stand taken by the University. According to them, their appointments were regularised on account of special circumstances that had arisen in the matter and the petitioner has no locus standi to challenge their appointments. It is contended that the petitioner has several opportunities for getting employment which is not available to the party respondents as they have advanced in their age and if the impugned orders are set aside they will be put to severe hardship. 9. Having regard to the nature of contentions raised, it is not disputed that the appointments were made by the University as per the impugned orders, without complying with the procedure prescribed under the University Act or the Statutes framed thereunder. Therefore the question to be considered would be whether the petitioner has any locus standi to challenge the regularisation of appointment made in favour of the party respondents by the University and whether this Court should interfere in the said decision of W.P.C.Nos.10582/2011 & 18129 of 2011 8 the University. 10. The University has taken a view that the party respondents were working as Guest Lecturers in the University since their appointments were cancelled by this Court and they were not successful in the selection process conducted subsequently. Most of the persons who lost their employment on account of the judgment of this Court, got other employments. Certain persons who did not get other employments were accommodated in the University as Guest Lecturers or on contract basis. Only a few persons remained in that position. Dr.Sheeja is also a person who was ranked much below the party respondents herein and a Division Bench of this Court directed her to be regularised in the service of the University. According to the University when an appointment has been given on regular basis to Dr.Sheeja who was ranked much below the party respondents, an equal treatment ought to have been given to the party respondents which was the main reason for issuing Ext.P1. W.P.C.Nos.10582/2011 & 9 18129 of 2011 11. Before going into the correctness or otherwise of the impugned orders, the locus standi of the petitioner is required to be considered. The petitioner is a person who is looking forward for a job. The petitioner contends that the respondent University is not notifying the posts for appointment after regularising the party respondents in the above writ petitions. If the appointment of party respondents are found to be illegal, necessarily that would amount to availability of posts which could be notified by the University. 12. It is held by the Supreme Court in **Ayaaubkhan Noorkhan Pathan v. The State of Maharashtra & Ors.** [2012(11) SCALE] as under: _“22. Thus, from the above it is evident that under ordinary circumstances, a third person, having no concern with the case at hand, cannot claim to have any locus-standi to raise any grievance whatsoever. However, in the exceptional circumstances as referred to above, if the actual persons aggrieved, because of_ W.P.C.Nos.10582/2011 & 10 18129 of 2011 _ignorance, illiteracy, inarticulation or poverty, are unable to approach the court, and a person, who has no personal agenda, or object, in relation to which, he can grind his own axe, approaches the court, then the court may examine the issue raised by him, in the opinion of the court, requires consideration, the court may proceed suo-motu, in such respect.”_ Reliance has been placed in the above judgment by the learned counsel for the respondent. The said judgment also considers the legal position with reference to the person aggrieved. It is held that only a person who has suffered or suffers from legal injury can challenge the act/action/order etc. in a court of law. It is also held that court can enforce the performance of a statutory duty by a public body using its writ jurisdiction at the behest of a person provided that such person satisfies the court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. W.P.C.Nos.10582/2011 & 11 18129 of 2011 13. The petitioner does not claim any enforcement of his legal right, whereas the petitioner seeks enforcement of a statutory duty or performance by the University. He challenges the impugned orders in favour of the party respondents by contending that if a selection procedure is notified, he is entitled to apply for the said post. This, by itself, may not constitute infringement of a legal right. But it is contended by the learned counsel for the petitioner that there is violation of Articles 14 and 16 of the Constitution of India as equal opportunity has not been granted to him. He claims the constitutional protection under Article 16 which indicates that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. According to the petitioner that fundamental right had been lost when the party respondents are being appointed. 14. The learned counsel for the petitioner relies upon the judgment in **Union Public Service Commission v. Girish Jayanti Lal Vaghela and Others** [(2006) 2 SCC W.P.C.Nos.10582/2011 & 18129 of 2011 12 482] wherein the Supreme Court having regard to the scope of Article 16 of the Constitution held as under: _“_ _**12.** Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words “employment or appointment” cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation, etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or_ W.P.C.Nos.10582/2011 & 13 18129 of 2011 _Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. (See B.S. Minhas v. Indian Statistical Institute.)_ 15. Further reference is made to the judgment in **Secretary, State of Karnataka v. Umadevi** [2006(4) SCC 1] wherein the Supreme Court held that all public employments are to be made in accordance with the procedure prescribed. Paragraph 41 and 43 are relevant which reads as under: “ _**41.** In the earlier decision in Indra Sawhney v. Union of India B.P. Jeevan Reddy, J. speaking for the majority, while acknowledging that equality_ W.P.C.Nos.10582/2011 & 18129 of 2011 14 _and equal opportunity is a basic feature of our Constitution, has explained the exultant (sic exalted) position of Articles 14 and 16 of the Constitution in the scheme of things. His Lordship stated: (SCC pp. 633-34, paras 644-45)_ _“644[6]. The significance attached by the Founding Fathers to the right to equality is evident not only from the fact that they employed both the expressions ‘equality before the law’ and ‘equal protection of the laws’ in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18._ _…_ _645[7]. Inasmuch as public employment always gave a certain status and power—it has always been the repository of State power—besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1) expressly declares that in the matter of public employment or appointment to any office under the State, citizens of this country shall have equal opportunity while clause (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex,_ W.P.C.Nos.10582/2011 & 15 18129 of 2011 _descent, place of birth, residence or any of them. At the same time, care was taken to declare in clause (4) that nothing in the said article shall prevent the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State.” (See paras 6 and 7 in SCR pp. 544 and 545.)_ _These binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment._ ” _**43.** Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant_ W.P.C.Nos.10582/2011 & 18129 of 2011 16 _rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not_ W.P.C.Nos.10582/2011 & 17 18129 of 2011 _ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as “litigious employment” in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.”_ W.P.C.Nos.10582/2011 & 18 18129 of 2011 16. Learned counsel for the respondents relied upon the judgments of a Division Bench of this Court in **Ajet Kumar and others v. K.V.Sunil Kumar and another** _[1993(2) ILR Kerala 765]_ in which this Court held that when there is no plea or proof of any mala fides the persons who were selected cannot be blamed for the peculiar procedure adopted by the Selection Committee and it would be wholly inequitable to set aside the select list after several years. That was a case where a selection list was prepared on 19/09/1988 and the judgment was passed on 26/03/1992. 17. Another judgment relied upon by the Learned counsel for the respondent is **Gurpal Singh v. State of Punjab** _[2005(3) KLT 588 (SC)]_ in which it is inter alia held that there cannot be any public interest litigation with reference to service matters and therefore the writ petition is liable to be dismissed on that ground. 18. This issue is more or less settled by the judgment of the Supreme Court in _**Prem Singh v. Haryana SEB,**_ _[(1996) 4 SCC 319]_ _**.**_ In that case Supreme Court was W.P.C.Nos.10582/2011 & 19 18129 of 2011 considering the question whether persons who were not selected could challenge the appointment made to more than the notified vacancies. It is held as under: _**“11.** It was next contended by the learned counsel for the appellants that selection of candidates in excess of the number of posts advertised does not per se offend the equality guaranteed by Articles 14 and 16 of the Constitution. It was submitted that in view of delay which was likely to take place in the process of selection and appointments it was permissible to the Board to take into consideration anticipated vacancies and make provision for the same also. They further submitted that the High Court should not have quashed the selection and set aside the appointments at the instance of the original writ petitioners as in any case they were not selected by the Selection Committee and, therefore, were not likely to get any benefit by getting the selection and appointments invalidated. The learned counsel also questioned the locus standi of the writ petitioners as all of them except one had taken part in the process of selection without any objection. They also pointed out that_ W.P.C.Nos.10582/2011 & 20 18129 of 2011 _Petitioner 3 in Writ Petition No. 4012 of 1993 was not even eligible to be considered for the post on the last date for receiving applications._ _**12.** In our opinion, there is no substance in the objection raised with respect to locus standi of the original writ petitioners. The candidates could not have anticipated when they appeared for the interview that the Selection Committee would recommend candidates and the Board would make appointments far in excess of the advertised posts. The petitioner who was not eligible had a just grievance that due to appointments of candidates in excess of the posts advertised he was deprived of the right of consideration for appointment against the posts which would have become vacant after he acquired eligibility.”_ 19. Hence I am of the view that the writ petition is maintainable and the petitioner has locus standi to approach this court. 20. The next question to be considered whether the University is under obligation to invite application for appointment to the said post even if the regular W.P.C.Nos.10582/2011 & 21 18129 of 2011 appointment of the party respondents are cancelled. All along, even according to the petitioner, the party respondents were appointed in the University either as Guest Lecturers or as Contract Lecturers. This Court cannot call upon the University to notify the available vacancies as it shall be open for the University to decide whether the appointment shall be made by fresh notification or by engaging Guest Lecturers or on contract basis. 21. In **Sree Sankaracharya University** (supra), a Division Bench of this Court while setting aside the selection of candidates held that the candidates, who got the appointment as a result of the arbitrary exercise of power by the first Vice Chancellor, cannot be heard to urge that they will be put to irreparable loss and hardships on account of the interference by this Court. Therefore, the University could have made appointment only based on the provisions of the University Act or the Statutes framed thereunder. 22. Learned counsel for the petitioner also relied upon judgment of this Court dated 15/03/2007 in W.A.No.233 of W.P.C.Nos.10582/2011 & 22 18129 of 2011 2007 and connected cases to contend that the Legislature Petition Committee is not a statutory authority with reference to registration of documents by the Sub Registrar and therefore the Sub Registrar cannot act on the dictates of the Petition Committee. In this case also, one of the impugned order was passed on the ground that the order was issued on the basis of directions issued by the Petitions Committee. 23. The learned counsel for the petitioner also relied upon **Official Liquidator v. Dayanand and others** _[(2008) 10 SCC 1]_ which did not appreciate the deviation made to **Umadevi'** s case by two Judge Bench of the Supreme Court in **U.P.State Electricity Board v. Pooran Chandra Pandey and others** [(2007)11 SCC 92] In **Dayanand** 's case (supra) the Supreme Court held in paragraph 78 and 92 as under: _**“** 78. There have been several instances of different Benches of the High Courts not following the judgments/orders of coordinate and even_ W.P.C.Nos.10582/2011 & 18129 of 2011 23 _larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system. In Mahadeolal Kanodia v. Administrator General of W.B. this Court observed: (AIR p. 941, para 19)_ _“19. … If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another’s decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another Single Judge on a question of law is wrong and_ W.P.C.Nos.10582/2011 & 24 18129 of 2011 _gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court.”_ _“92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judge Bench in U.P. SEB v. Pooran Chandra Pandey should be read as obiter and the same should neither be treated as binding by the High Courts, tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench.”_ 24. Having regard to the facts as narrated above, the question is whether the University was justified in regularising the service of the party respondents. No doubt, as held by a Division Bench of this Court in W.A.No.233 of 2007 the Petitions Committee cannot issue any direction, nor could they direct the University to appoint a person W.P.C.Nos.10582/2011 & 25 18129 of 2011 overlooking the regular process of selection. It is clear that the appointment of the party respondents is not based on a regular selection process. The University cannot appoint them on regular basis without conducting a normal selection process as is evident from **Umadevi** (supra), **Sree Sankaracharya University** (supra) and **Dayanand** (supra). In that view of the matter I have no hesitation to hold that the impugned orders are liable to be set aside. In the result these writ petitions are allowed as under: i) Ext.P1 in W.P.C.No.10582 of 2011 and Ext.P1 in W.P.C.No.18129 of 2011 are quashed. ii) Respondent University shall make appointments to regular vacancies only after complying with the provisions of the Act and the statutes framed thereunder. ## **(A.M.SHAFFIQUE, JUDGE)** jsr |W.P.C.Nos.10582/2011 &|26| |---|---| |18129 of 2011||