Sreejith Kanholi v. Registrar, University of Calicut and University of Calicut

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942** ## **WA.No.12 OF 2020** **AGAINST THE JUDGMENT DATED 21.11.2019 IN WP(C) 19375/2016(V) OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **SREEJITH KANHOLI AGED 40 YEARS S/O.K.SREEDHARAN VAISAKH, MALADATH THAZHAM, POST KOTTOOLI, CALICUT-16, (ASSISTANT CURATOR (EMP LD3979), DEPARTMENT OF ZOOLOGY, UNIVERSITY OF CALICUT)** **BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SRI.RIJI RAJENDRAN SMT.NISHA GEORGE** ## **RESPONDENTS/RESPONDENTS:** **1 THE REGISTRAR UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., MALAPPURAM DISTRICT- 673635.** **2 THE UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY P.O., MALAPPURAM DISTRICT- 673635.** **R1-2 BY SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-01-2021, THE COURT ON 18-02-2021 DELIVERED THE FOLLOWING:** W.A.No.12/2020 2 ## **JUDGMENT** ## **Dated this the 18th day of February 2021** _**Gopinath, J.**_ The appellant/writ petitioner applied pursuant to a notification dated 17.12.2004 invited by the respondent University for selection to the post of Assistant Curator in the Department of Zoology. The selection pursuant to that notification took place in 2008. One Sudheer was selected and appointed. The appellant/writ petitioner challenged the appointment of the aforesaid Sudheer. The selection was set aside by this Court through judgment dated 3.11.2008 in W.P.(C)No.4300/2008, however, directing that a fresh selection shall be conducted and that Sri. Sudheer shall be continued in that post and paid for his services until the selection is completed. The judgment of this Court in W.P. (C)No.4300/2008 was initially set aside by a Division Bench on the ground that the present appellant/writ petitioner, who was also the writ petitioner in W.P.(C) No.4300/2008 did not have the _locus_ to challenge the selection of Sudheer because he himself was not qualified to be appointed. However, that finding of the Division Bench was set aside in a review petition filed by the present appellant/writ petitioner. In the meanwhile, the aforesaid Sudheer had resigned and left the job of Assistant Curator A subsequent selection was conducted, in which the appellant/writ petitioner was successful and he was appointed to the post of Assistant Curator on 31.1.2013. W.A.No.12/2020 3 2. The appellant/writ petitioner approached the University claiming that his appointment should relate back to the date of appointment of Sudheer, in the facts and circumstances of the case. This was rejected by the University through Ext.P5 memo dated 11.5.2016. The appellant/writ petitioner challenged Ext.P5 through the Writ Petition out of which this Writ Appeal arises. The learned Single Judge considered the claim raised on behalf of the appellant/writ petitioner and found that the appellant/writ petitioner was the 3[rd] rank holder in the list prepared by the University in the initial round of selection and that the 2[nd] rank holder was one Anitha P.V. The learned Single Judge also found that the judgments relied on by the learned counsel for the appellant/writ petitioner did not, in any manner, support his claim for an appointment albeit notional to the date on which Sudheer had been appointed following the initial process of selection. 3. Sri. George Poonthottam, learned Senior counsel who appears for the appellant/writ petitioner, on the instructions of Sri.Riji Rajendran, contends before us that on the basis of the principles laid down in _**Sanjay Dhar**_ v. _**J &K Public Service Commission and another; (2000) 8 SCC 182; Balwant Singh Narwal and others**_ v. _**State of Haryana and others; (2008) 7 SCC 728**_ **and** _**C. Jayachandran**_ v. _**State of Kerala and Ors.**_ **;** _**2020 (2) KLT 402,**_ we should set aside the judgment of the learned single Judge and W.A.No.12/2020 4 direct the University to grant to the appellant/writ petitioner the notional benefit of appointment as Assistant Curator from the date of the appointment of Sudheer. 4. In _**Sanjay Dhar**_ (supra) the issue related to the validity of a certificate produced by a candidate for a selection which according to the Public Service Commission was not acceptable. In paragraph 14 of that judgment on which considerable reliance was placed, by the learned Senior counsel it was held: - _“In this view of the matter the certificate dated 12-12-1992/17-31993 filed by the appellant before the J&K PSC satisfied the requirement of Rule 9 abovesaid and the J&K PSC was not justified in rejecting the application of the appellant holding him to be ineligible. As the appellant participated in the process of selection protected by the interim orders of the High Court and was also successful having secured third position in the select list, he could not have been denied appointment. The appellant is, therefore, fully entitled to the relief of his appointment being calculated w.e.f. the same date from which the candidates finding their place in the order of appointments issued pursuant to the select list prepared by the J&K PSC for 1992-93 were appointed and deserves to be assigned notionally a place in seniority consistently with the order of merit assigned by the J&K PSC.”_ As is evident, that was a case where the candidate had come out successful in the selection in which he had participated on account of interim orders. Here, the appellant was not successful in the first round of selection. Therefore, the _ratio_ of W.A.No.12/2020 5 ## _**Sanjay Dhar**_ does not aid the appellant/writ petitioner. 5. _**Balwant Singh Narwal**_ (supra) was also a case that arose in completely different circumstances. The principle in that case as is evident from a reading of paragraph 9 of that judgment is that those candidates who were selected against earlier vacancies but who could not be appointed along with others of the same batch due to certain technical difficulties, when appointed subsequently, will have to be placed above those who were appointed against subsequent vacancies. This principle is also not applicable to the facts of this case. 6. _**C. Jayachandran**_ (supra) was also a case where the candidate for selection to the post of District & Sessions Judge was found to have been wrongly denied appointment on account of _‘illegal and arbitrary grant of moderation of marks’_ in the written examination. The candidate was subsequently appointed to a vacancy that had been earlier wrongly filled up by another candidate who got the benefit of moderation of marks. The question considered was one of consequential seniority. In the facts of the present case, the appellant/writ petitioner was not selected or appointed in the first round of selection. 7. It is settled law that judgments of Courts cannot be read as statutes and that they cannot be read completely divorced from the facts of the individual cases. The classic statement of the law is found in the opinion of Lord MacDermott in London Graving Dock Co. Ltd. v. Horton; [1951] A.C. 737 in the W.A.No.12/2020 6 ## following words: - _“The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge; but the inquiry is to ascertain the applicable rule of the common law and cannot, as I regard the position, be confined to a problem of construction.”_ We have already found that the facts of the cases decided by the Supreme Court and relied on by the Learned Senior Counsel are completely different from the facts of this case. Therefore, we find ourselves unable to apply the _ratio_ in those cases to the facts of this case. 8. Still further we are not in a position to accept the contentions of the learned Senior Counsel for the appellant/writ petitioner for the following reasons:- - i) In the initial round of litigation, which led to the judgment in W.P. (C)No.4300/2008, this Court, while setting aside the selection of the aforesaid Sudheer, specifically directed the University to continue him in service and also to pay him all service benefits till a new selection was conducted; - ii) The appellant/writ petitioner did not have any right to an appointment at the time when Sudheer was appointed, as he was W.A.No.12/2020 7 only included as Rank No.3 in a select list for appointment to a single post and had, at best, only an aspiration to be appointed to that post; - iii) The reliefs sought in the present writ petition are clearly barred by the principles of constructive _res judicata_ as there was a clear omission to sue or failure to sue for those reliefs in the earlier round of litigation which clearly attracts Explanation (iv) to Section 11 of the Code of Civil Procedure, the principles of which have been found applicable in writ jurisdiction also. (See the judgment of the Constitution Bench in _**Devilal Modi v. STO**_ ; _**AIR 1965 SC 1150** )_ The Writ Appeal fails and is accordingly dismissed. No costs. **Sd/-** ## **A.K.JAYASANKARAN NAMBIAR** **JUDGE** **Sd/GOPINATH P. JUDGE** **==> picture [22 x 9] intentionally omitted <==** **----- Start of picture text -----**<br> Acd<br>**----- End of picture text -----**<br> W.A.No.12/2020 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT UNIVERSITY IN W.P. (C)NO.4300 OF 2008 BEFORE THIS HON'BLE COURT. ANNEXURE II TRUE COPY OF THE RANK LIST PUBLISHED ON JANUARY 19, 2013. ANNEXURE III TRUE COPY OF THE ORDER U.O.NO.235/2013/CU DATED JANUARY 30, 2013 ISSUED BY THE RESPONDENT UNIVERSITY.**