Sumesh P.P. v. Central University of Kerala and Others (WP(C) Nos. 42223 of 2022 & 6714 of 2023)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945** **WP(C) NO. 42223 OF 2022** ## **PETITIONER:** SUMESH .P.P. AGED 45 YEARS, S/O. P. GOPALAN C/O KAKKARAYIL HOUSE, UDINUR POST THRIKKARIPUR, KASARGODE, PIN - 671310 BY ADVS. K.SHIBILI NAHA A.LOWSY M.K.SUMOD ## **RESPONDENTS:** 1 THE CENTRAL UNIVERSITY OF KERALA REPRESENTED BY ITS REGISTRAR, VIDYANAGAR. P.O. KASARGODE, PIN - 671123 2 THE VICE CHANCELLOR CENTRAL UNIVERSITY OF KERALA, VIDYANAGAR P.O. KASARGODE, PIN - 671123 3 THE REGISTRAR CENTRAL UNIVERSITY OF KERALA VIDYANAGAR. P.O. KASARGODE, PIN - 671123 4 THE UNIVERSITY GRANTS COMMISSION REPRESENTED BY ITS MEMBER SECRETARY, UNIVERSITY GRANTS COMMISSION, NEW DELHI, PIN - 110001 5 THE UNION OF INDIA REPRESENTED BY THE SECRETARY TO MINISTRY OF HUMAN RESOURCES DEVELOPMENT, -2- WP(C)Nos. 42223 of 2022 & 6714 of 2023 SHASTHRI BHAVAN, DR.RAJENDRA PRASAD ROAD, NEW DELHI, PIN - 110001 BY ADVS. K.RAMAKUMAR (SR.) MANU S. DSG OF INDIA S.M.PRASANTH SRI.S.KRISHNAMOORTHY, CGC(CG-74) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 05.02.2024, ALONG WITH WP(C).6714/2023, THE COURT ON 09.02.2024 DELIVERED THE FOLLOWING: -3- WP(C)Nos. 42223 of 2022 & 6714 of 2023 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945 WP(C) NO. 6714 OF 2023** ## **PETITIONER:** P.P. SUMESH AGED 45 YEARS RESIDING AT KAKKARAYIL HOUSE, UDINUR POST THRIKKARIPUR, KASARGODE, PIN - 671310 BY ADVS. K.SHIBILI NAHA A.LOWSY M.K.SUMOD ## **RESPONDENTS:** 1 THE CENTRAL UNIVERSITY OF KERALA REPRESENTED BY ITS REGISTRAR, TEJASWINI HILLS PERIYA .P.O, KASARGODE, PIN - 671320 2 THE VICE CHANCELLOR CENTRAL UNIVERSITY OF KERALA, TEJASWINI HILLS PERIYA .P.O, KASARGODE, PIN - 671320 3 THE REGISTRAR CENTRAL UNIVERSITY OF KERALA TEJASWINI HILLS PERIYA .P.O, KASARGODE, PIN - 671320 4 THE UNIVERSITY GRANTS COMMISSION REPRESENTED BY ITS MEMBER SECRETARY, UNIVERSITY GRANTS COMMISSION, -4- WP(C)Nos. 42223 of 2022 & 6714 of 2023 NEW DELHI, PIN - 110001 5 THE UNION OF INDIA REPRESENTED BY THE SECRETARY TO MINISTRY OF HUMAN RESOURCES DEVELOPMENT, SHASTHRI BHAVAN, DR.RAJENDRA PRASAD ROAD, NEW DELHI, PIN - 110001 BY ADVS. SRI.S M PRASANTH SRI.K.RAMAKUMAR (SR.)(R-245) SRI.T.RAMPRASAD UNNI(K/962/1992) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 05.02.2024, ALONG WITH WP(C).42223/2022, THE COURT ON 09.02.2024 DELIVERED THE FOLLOWING: -5- WP(C)Nos. 42223 of 2022 & 6714 of 2023 ## **MOHAMMED NIAS C.P., J.** **- - - - - - - - - - - - - - - - - - - - -** WP(C)Nos. 42223 of 2022 & 6714 of 2023 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 9[th] day of February, 2024 ## **JUDGMENT** The petitioner is working as a Section Officer at the Central University of Kerala. The petitioner had applied for selection on the basis of the notification dated 26.9.2023 and was given the offer for appointment only on 7.11.2019 after a prolonged legal battle culminating in Ext.P3 judgment dated 7.11.2019. Earlier, the petitioner had filed WP(C)No.20312/2014, which was allowed directing the University to appoint the petitioner to the post of Section Officer in any existing vacancy, treating the said post as part of the notification, and if no vacancies exist, the petitioner was directed to be appointed in the future vacancy as and when it arises without subjecting him to other tests or evaluation. 2. The petitioner, as well as the University, filed appeals against the judgment and by Ext.P3 judgment, the appeals were dismissed. The petitioner had again filed another writ petition, WP(C)No.38750/2017, to -6- WP(C)Nos. 42223 of 2022 & 6714 of 2023 implement the earlier directions, and accordingly, this Court, through Ext P3 judgment, directed the petitioner to be appointed in the next vacancy in tune with the directions in the earlier judgment, irrespective of the ratio fixed in the cadre rules. The petitioner submits that the petitioner ought to have been appointed as the 5th candidate based on the selection already done. The judgments of this Court were not implemented for nearly five years, as a result of which the petitioner has lost seniority and service benefits to which he would have been entitled had the respondent University complied with the directions on time. The petitioner had represented before the University, claiming notional seniority. The request of the petitioner was turned down by Ext.P8, and later the Executive Council of the University also affirmed the same. The petitioner challenges the said decision in so far as it approves the decision of the Committee denying notional seniority to the petitioner. He also claimed seniority at par with the candidates who joined as Section Officers from the merit list published in the year 2014. 3. WP(C)No.42223/2022 was filed when the University decided to conduct a departmental test for promotion to the post of Assistant Registrar. The petitioner contended that the appeal he preferred against the rejection of his request for granting notional seniority was pending. Therefore, he challenged the notification publishing the final seniority list and Ext.P11 notifying the date for the departmental test. This Court had -7- WP(C)Nos. 42223 of 2022 & 6714 of 2023 permitted the petitioner to appear for the departmental examination taking note of the fact that no final decision was taken in the appeal preferred by the petitioner seeking notional seniority. However, it was ordered that the result of the petitioner shall not be disclosed without orders from this Court and the selection pursuant to Ext.P9 was made subject to the result of the writ petition. Thereafter, by order dated 5.4.2021, this Court directed the result of the examination to be published. The University submits that the petitioner was ranked three in the departmental test, and the person who came first was appointed as Assistant Registrar (officiating). The submission of Sri Ramakumar, learned Senior counsel who appeared for the University, is that there is no challenge to the appointment of the successful candidate by impleading him, and the entire case rests on the claim for notional seniority. The seniority was only one of the factors, apart from the marks in the departmental test. Since the petitioner was ranked only third, he could not have been appointed as Assistant Registrar even if his claim for seniority was upheld. I accept the argument of the learned senior counsel for the University that the selection could not have been impugned without the appointed candidate in the party array with the requisite pleadings to mount a challenge to the selection process. 4. The prayers sought in WP(C)No.42223/2022 for quashing Ext.P11 notification and also for keeping in abeyance all selection -8- WP(C)Nos. 42223 of 2022 & 6714 of 2023 processes pursuant to Ext.P9 seniority list cannot be granted for the reasons stated above. However, there is a prayer for declaring the notional seniority of the petitioner at par with the candidates who joined as Section Officers from the merit list published in the year 2014. 5. Coming to the question of notional seniority, the petitioner relies on the judgment of the Supreme Court in **Jayachandran C. v. State of Kerala** [2020 (2) KHC 478] for the proposition that since the appointment was unduly delayed despite orders of this Court, the petitioner's seniority must be at par with those appointed in the year 2014. The decision of the University not to grant her notional seniority was made without considering any of the contentions raised by the petitioner for claiming notional seniority. It is seen that the only reason given in Ext.P8, in WP(C)No.42223/2022, is that 'the court has not directed to give seniority on a date prior to his joining'. The University has not considered the impact of three judgments in favour of the petitioner and also the fact that after the first judgment, the petitioner had to wait for nearly 5 years to get the offer for appointment. The petitioner's contention that if the judgment had been implemented on time, he would not have lost the seniority is to be considered by the University. The decisions of the Supreme Court, which the petitioner relied on for the proposition that if a candidate is wrongly refused appointment, he/she is entitled to notional seniority from the date he/she should have been appointed, has to be considered. -9- WP(C)Nos. 42223 of 2022 & 6714 of 2023 6. The petitioner had also submitted that he was not claiming salary for the period during which he did not work, but it was on account of the delay that he lost the valuable seniority of more than 5 years. The petitioner had also pointed out that he had been placed even below the persons subsequently promoted to the post of the Section Officer. It is on these grounds that the petitioner claimed notional seniority at par with the candidates who joined as Section Officer from the merit list in question and sought fixation of payment at par with the candidates who joined as Section Officer from the merit list. The Petitioner had also requested the University to declare his probation after one year, which was permissible under DoPT guidelines, the benefits of which were extended to the other candidates who joined as Section Officers from the same merit list. The University ought to have considered these claims and passed a speaking order. Though I am not inclined to grant any relief with respect to the petitioner's claim for promotion as Assistant Registrar based on Ext.P9, his claim for notional seniority on the grounds raised above should be reconsidered by the University with notice to him and to other parties who are likely to be affected. The petitioner will be free to submit a fresh representation highlighting his grievances on the question of the grant of notional seniority within two weeks from today, which the University will consider afresh after affording a reasonable opportunity of hearing to the petitioner as well as other affected parties within two months from the -10- WP(C)Nos. 42223 of 2022 & 6714 of 2023 date of receipt of the representation. Needless to say that the University will pass a speaking order dealing with the contentions of the petitioner. The writ petitions are disposed of as above. Sd/- **MOHAMMED NIAS C.P. JUDGE** dlk/6.2.2023 -11- WP(C)Nos. 42223 of 2022 & 6714 of 2023 ## **APPENDIX OF WP(C) 6714/2023** PETITIONER'S EXHIBITS EXHIBIT P1 A TRUE COPY OF THE OFFER LETTER DATED 07.11.2019 ALONG WITH THE ACCEPTANCE LETTER. EXHIBIT P2 A TRUE COPY OF THE JUDGMENT IN WP(C) NO. 20312/2014 DATED 12.11.2014 OF THE HON'BLE HIGH COURT OF KERALA. EXHIBIT P3 A TRUE COPY OF THE JUDGMENT DATED 24.10.2016 IN W.A. NO. 589/2015 OF THE HON'BLE HIGH COURT OF KERALA. EXHIBIT P4 A TRUE COPY OF THE JUDGMENT DATED 05.03.2019 IN WPC NO. 38750/2017 OF THE HON'BLE HIGH COURT OF KERALA. EXHIBIT P5 A TRUE COPY OF THE APPEAL SUBMITTED BY THE PETITIONER DATED 20.10.2020 SUBMITTED BEFORE THE 2ND RESPONDENT. EXHIBIT P6 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER AGAINST THE PROVISIONAL SENIORITY LIST DATED 08.12.2020. EXHIBIT P7 A TRUE COPY OF THE REQUESTS SUBMITTED BY THE PETITIONER DATED 29.11.2022. EXHIBIT P8 A TRUE COPY OF THE LETTER NO. CUK/NT/PF90/SPP/2019(PT)/I4082 DATED 07.12.2022. EXHIBIT P9 A TRUE COPY OF THE NOTIFICATION NO. CUK/ESTNT/932/SENIORITY/2022/I4312 DATED 14.12.2022. EXHIBIT P10 A TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER DATED 19.12.2022 TO THE 3RD RESPONDENT. EXHIBIT P11 A TRUE COPY OF THE NOTIFICATION NO. CUK/EST/CRR/2017/VOL. III ISSUED FOR CONDUCTING -12- WP(C)Nos. 42223 of 2022 & 6714 of 2023 SELECTION PROCEEDINGS PUBLISHED BY THE UNIVERSITY DATED 19.12.2022 EXHIBIT P12 A TRUE COPY OF THE INTERIM ORDER DATED 23.12.2022 IN WP.C NO. 42223/2022 OF THE HON'BLE HIGH COURT OF KERALA. EXHIBIT P13 A TRUE COPY OF THE MINUTES OF THE EXECUTIVE COUNCIL MEETING OF THE 1ST RESPONDENT HELD ON 3.01.2023 -13- WP(C)Nos. 42223 of 2022 & 6714 of 2023 ## **APPENDIX OF WP(C) 42223/2022** PETITIONER'S EXHIBITS |EXHIBIT P1|TRUE COPY OF THE OFFER LETTER DATED 07.11.2019| |---|---| ||ALONG WITH THE ACCEPTANCE LETTER| |EXHIBIT P2|TRUE COPY OF THE JUDGMENT IN WP(C) NO. 20312 OF| ||DATED 12.11.2014| |EXHIBIT P3|TRUE COPY OF THE JUDGMENT DATED 24.10.2016 IN| ||W.A. NO. 589/2015| |EXHIBIT P4|TRUE COPY OF THE JUDGMENT DATED 05.03.2019 IN| ||WPC NO. 38750/2017| |EXHIBIT5|TRUE COPY OF THE APPEAL SUBMITTED BY THE| ||PETITIONER DATED 20.10.2020| |EXHIBIT P6|TRUE COPY OF THE OBJECTION FILED BY THE| ||PETITIONER AGAINST THE PROVISIONAL SENIORITY| ||LIST DATED 08.12.2020| |EXHIBIT P7|TRUE COPY OF THE REQUEST SUBMITTED BY THE| ||PETITIONER DATED 29.11.2022| |EXHIBIT P8|TRUE COPY OF THE LETTER NO. CUK/NT/PF-| ||90/SPP/2019(PT)/I4082 DATED 07.12.2022| |EXHIBIT P9|TRUE COPY OF THE NOTIFICATION NO.| ||CUK/ESTNT/932/SENIORITY/2022/I4312 DATED| ||14.12.2022| |EXHIBIT P10|TRUE COPY OF THE LETTER DATED 19.12.2022 TO THE| ||3RD RESPONDENT| |EXHIBIT P11|TRUE COPY OF THE NOTIFICATION NO.| ||CUK/EST/CRR/2017/VOL. III ISSUED FOR CONDUCTING| ||SELECTION PROCEEDINGS PUBLISHED BY THE| ||UNIVERSITY DATED 19.12.2022| |EXHIBIT P12|TRUE COPY OF THE CALL LETTER FOR DEPARTMENTAL| -14- WP(C)Nos. 42223 of 2022 & 6714 of 2023 TEST ISSUED BY THE UNIVERSITY DATED 16.12.2022 EXHIBIT P13 THE DECISION OF THE EXECUTIVE COUNCIL HELD ON 11.11.2022 RESPONDENTS EXHIBITS EXHIBIT R1(a) TRUE COPY OF REPLY NO. CUK/NT/PF-90/SPP/2019 DT. 30..05..2022 EXHIBIT R1(b) TRUE COPY OF MINUTES OF THE SELECTION COMMITTEE RELATING TO THE PREVIOUS APPLICATION TO THE POST OF OFFICE ASSISTANT EXHIBIT R1(c) TRUE COPY OF CERTIFICATE NO. BS-95 DATED 25..09..2020 EXHIBIT R1(d) TRUE COPY OF CERTIFICATE NO. F.310294/ADMN/KVPNR/2019-20 DATED 21..11..2019 EXHIBIT R1(e) TRUE COPY OF CRR FOR THE POST OF ASSISTANT REGISTRAR OF THE FIRST RESPONDENT UNIVERSITY EXHIBIT R1(f) TRUE COPY OF MINUTES OF THE MEETING HELD ON 03..01..2023 OF THE EXECUTIVE COMMITTEE OF THE 1ST RESPONDENT UNIVERSITY PETITIONER'S EXHIBITS EXHIBIT P14 A TRUE COPY THE ANNUAL PERFORMANCE APPRAISAL REPORT DATED 20.10.2020 EXHIBIT P15 A TRUE COPY OF THE ORDER GRANTING CHARGE OF THE ACADEMIC BRANCH TO THE PETITIONER DATED 30.08.2022 EXHIBIT P16 A TRUE COPY OF THE E-MAIL COMMUNICATION GRANTING CHARGE OF THE ACADEMIC BRANCH TO THE PETITIONER DATED 23.01.2023 EXHIBIT P17 A TRUE COPY OF THE LETTER NO. F-7-1/2022 (JCRC) DATED 27.09.2022 -15- WP(C)Nos. 42223 of 2022 & 6714 of 2023 EXHIBIT P18 A TRUE COPY OF THE CRR FOR THE POST OF ASSISTANT REGISTRAR AS APPROVED BY THE EXECUTIVE COUNCIL DATED 02.03.2018. RESPONDENTS EXHIBITS EXHIBIT R1(g) TRUE COPY OF NOTIFICATION NO. CUK/EST/CRR/2017/VOL II DATED 10..04..2023 PUBLISHING THE RESULTS OF THE WRITTEN EXAMINATION BY THE CENTRAL UNIVERSITY OF KERALA EXHIBIT R1(h) TRUE COPY OF RECOMMENDATIONS OF THE DEPARTMENTAL PROMOTION COMMITTEE (DPC) HELD ON 27..12..2022