Vipinraj N. v. Kannur University, The Vice Chancellor and Chairman, Syndicate of Kannur University, and Kerala Public Service Commission

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY, THE 5TH DAY OF JANUARY 2018 / 15TH POUSHA, 1939** **WA.No. 1418 of 2017 IN WPC. 30750/2016** **---------------------------------------** **AGAINST THE JUDGMENT IN WP(C) 30750/2016 of HIGH COURT OF KERALA DATED 29-03-2017** ## **APPELLANT/ PETITIONER :** **-----------------------** **VIPINRAJ.N., NIRAPPEL HOUSE, CHERALPALLA, MATHAMANGALAM BAZAR P.O., KANNUR DISTRICT, PIN – 670 306.** **BY ADVS.SRI.P.K.IBRAHIM SMT.K.P.AMBIKA SMT.A.A.SHIBI SRI.A.L.NAVANEETH KRISHNAN** ## **RESPONDENTS/ RESPONDENTS :** **---------------------------** **1. KANNUR UNIVERSITY, REPRESENTED BY ITS REGISTRAR, KANNUR UNIVERSITY P.O., MANGATTUPARAMBA, KANNUR – 670 567** **2. THE VICE CHANCELLOR AND CHAIRMAN, SYNDICATE OF KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR – 670 567.** **3. KERALA PUBLIC SERVICE COMMISSION, KPSC OFFICE, THULASI HILL, PATTOM, THIRUVANANTHAPURAM, KERALA – 695 004 REPRESENTED BY ITS SECRETARY.** **R1 & R2 BY SRI.M.SASINDRAN, SC, KANNUR UNIVERSITY R3 BY SRI.P.C.SASIDHARAN, SC, KPSC** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2018 ALONG WITH W.A.NOS.1445 & 1446 OF 2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :** ## **RKM** ## **K. SURENDRA MOHAN & ANNIE JOHN, JJ.** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=== ## **W.A.Nos. 1418, 1445 & 1446 of 2017** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 5[th] day of January, 2018** ## **JUDGMENT** ## _**K. Surendra Mohan, J.**_ The common judgment dated 29.03.2017 of the learned Single Judge finally disposing of W.P.(C).Nos. 30620, 30750 & 33192 of 2016 is under challenge in these writ appeals. W.A. Nos.1445 & 1446 of 2017 are filed by the common appellant, who was not a party to W.P.(C).Nos.30620 & 33192 of 2016 after obtaining leave from this Court. The appellant claim to be a person, who has been included in the ranked list prepared by the Kerala Public Service Commission ('PSC', for short) for being appointed to the post of Assistants in the various Universities in the State, pursuant to a selection conducted. The dispute in these appeals relate to selection and appointment of Assistants to the University. W.P.(C).Nos.30620 & 33192 of 2016 were filed by the low paid employees of the Kannur University seeking a direction to make appointments to the post of Assistant, giving effect to the 4% quota earmarked for appointments from the category of low paid employees. Those two writ petitions have been allowed by the learned Single Judge. W.P.(C). No.30750 of 2016 was filed by the appellant in W.A.No.1418 of 2017 questioning the appointments made to the post of Assistants from the category of low paid employees, by the University. W.A.Nos. 1418, 1445 & 1446 of 2017 **==> picture [7 x 9] intentionally omitted <==** 2. The case of the petitioner in W.P.(C).No.30750 of 2016 was that he was a candidate included in the rank list published by the PSC for appointment to the post of Assistants in the Universities of Kerala. It was contended by the said person, who is the appellant in W.A.No.1418 of 2017 that, the method of appointment provided in the ordinance of the University was by direct recruitment. The power to make direct appointments was with the Syndicate. However, once such power was handed over to the PSC, it is contended that the University cannot resort to any other method of appointment. Reliance is placed on Section 3 of the KPSC (Additional functions as respects the services under the Universities) Act 2015, to point out that after the selection was handed over to the PSC, the Government had issued an order, evidenced by Ext.P1 in W.P.(C).No.30750 of 2016 prescribing qualifications and method of appointment to the post of Assistants in the University. It was contended that, as per a Government Order, the power to make appointments to the category of Assistants to all the Universities in the State of Kerala was entrusted to the PSC by the Government. Consequently, the University lost all rights to make any appointment to the said post. Therefore, it is contended that, the appointment made as per Ext.P4 dated 12.09.2014 (in W.P.(C).No.30750 of 2016) was illegal. The W.A.Nos. 1418, 1445 & 1446 of 2017 **==> picture [7 x 10] intentionally omitted <==** complaint of the persons who are ranked by the PSC are that they are deprived of their chances of getting appointments by the action of promoting persons from the category of low paid employees, which is against the rules. 3. In W.P.(C).Nos.30620 & 33192 of 2016, the low paid employees sought for the issue of a direction for their appointment to the post of Assistants under the 4% quota earmarked for them. 4. The learned Single Judge considered the respective contentions and it was found that the orders passed by the University deciding to continue with the 4% quota earmarked for being filled up from the category of low paid employees were passed even before the rank list was prepared by the PSC. Mere inclusion in the rank list would not confer any right on them. Therefore, they were not entitled to any of the reliefs sought for by them. The learned Single Judge has issued a direction to the University to make appointment from the 4% quota reserved for the low paid employees, without further delay. It is aggrieved by the said direction that these appeals are filed. 5. According to Adv. Navnit Krishnan, who appear for the appellants, the ordinance of the Kannur University stipulates filling up of the posts in the category of Assistants through direct recruitment. Therefore, the University is not entitled to resort to W.A.Nos. 1418, 1445 & 1446 of 2017 **==> picture [7 x 9] intentionally omitted <==** any other method for filling up the vacancies in the said category. It is contended that, the Government Order on the basis of which low paid employees are promoted to the post of Assistants is one which applies only to the employees of Secretariat. Therefore, it was not open to the University to make any promotions on the basis of such Government Order. It is further pointed out that upon the PSC being entrusted with the power to make selection and appointments to the post of Assistants in all the Universities, the University was denuded of the power to make any appointments. In spite of the above, the Syndicate took a decision on 30.06.2016 to continue with the procedure of appointing qualified low paid employees to the post of Assistants and also enhancing the quota that is stipulated for the said purpose from 2% to 4%. This, according to the learned counsel is without any justification. The Syndicate meeting was conducted on 08.09.2000. The learned Single Judge ought to have interfered with the said proceedings of the University and granted the reliefs to the appellant, it is contended. 6. Adv. Sreedhar Ravindran, who appears for the low paid employees, points out on the other hand that Ext.P1 dated 26.02.2016 on which reliance is placed by the appellants is not actually special rules for the reason that, the said order specifically W.A.Nos. 1418, 1445 & 1446 of 2017 **==> picture [7 x 10] intentionally omitted <==** provides that special rules would be issued separately, later. Therefore it is contended that the same is only an executive order issued by the Government. Since Section 113 of the Kannur University Act, 1996 confers power on the Vice Chancellor to appoint employees to the University, which is permitted to be delegated also, there was sufficient power with the authorities of the University to make the appointments. Reliance is placed on Section 25 of the Act particularly subsections viii and xxvii to point out that the power to appoint teachers and other employees and to prescribe terms and conditions of their service was with the Syndicate. The provisions of an executive order cannot negate the above statutory provisions, it is contended. According to the learned counsel, the category of Assistants earlier designated as Grade (I) and (II) were merged to form a common cadre in 2014. The cadre strength of the Assistants is 189. 71 vacancies have already been reported to the PSC for appointment by direct recruitment. The quota of 4% stipulated for being filled up from the cadre of low paid employees works out to only 7. Therefore, it is contended that the impugned proceedings do not cause any prejudice to the persons who are ranked by the PSC. We also heard Adv. Sri.V. Varghese as well as Standing Counsel for the Kannur University, Sri.M. Sasindran. W.A.Nos. 1418, 1445 & 1446 of 2017 **==> picture [7 x 10] intentionally omitted <==** 7. We have considered the contentions advanced before us, anxiously. We notice that, in view of Section 25 of the Kannur University Act, the Syndicate has got power to stipulate the terms and conditions of service of its employees. It has also got the power to appoint teachers and other employees of the Universities and to prescribe their duties. Though it is true that Ext.P6 Government Order dated 25.01.2006 (in W.P.(C).No.30750 of 2016) is issued in respect of Secretariat service, it is the case of the University that the same was adopted and made applicable to the service of the University by the Syndicate. As already found about, the Syndicate has got the power to stipulate the conditions of service of the employees. Therefore, it cannot be said that adoption of Ext.P6 Government Order and the terms thereof by the University is faulty in any manner. The appointments of the contesting respondents made on 12.09.2014 as per Ext.P4 following the procedure 'by transfer' cannot therefore be found fault with, being permissible, as per the Government Order referred to above. It is also worth noticing that at the time of issuing the said order, the power to make selection and appointments to the post of Assistants had not been conferred on the PSC. As rightly held by the learned Single Judge, filling up of the vacancies that arose in 2014, was rightly done in accordance with the rules as they stood at W.A.Nos. 1418, 1445 & 1446 of 2017 **==> picture [7 x 10] intentionally omitted <==** that time. Therefore, we find no infirmity in the said conclusion, arrived at by the learned Single Judge. 8. Another contention put forward is that the University has no authority to enhance the quota that was stipulated for the low paid employees from 2% to 4%. The Syndicate decision of 08.09.2016 evidenced by Ext.P9 in W.P.(C).No.30750 of 2016 is attacked on the above ground. Here it is necessary to notice that, though the power to make selection to the post of Assistants has been entrusted to the PSC, no amendment to the University Act has been effected. Therefore, the power to make appointments still remains with the Syndicate and the Vice Chancellor as provided by Sections 11 and 25 of the Kannur University Act. In view of the above, the Syndicate has the power to earmark a portion of the posts available, as done in the present case for being filled up from the category of low paid employees. The quota of 2% that was already in existence and was being followed, has been enhanced to 4%, which cannot be described as without any authority. As rightly contended by the counsel appearing for the low paid employees, the cadre strength of Assistants being 189, the number of such employees works out to only 7 or it is only a very small portion. It is common knowledge that, many qualified persons are available in the category of low paid employees and therefore, the concern of W.A.Nos. 1418, 1445 & 1446 of 2017 **==> picture [7 x 10] intentionally omitted <==** the University in providing them with an opportunity to advance their career prospects by fixing a quota providing for promotions from them cannot be found fault with. 9. The learned counsel for the appellants has drawn our attention to the provisions of the Kerala Public Service Commission (Additional Functions as respects the services under the Universities) Act, 2015. We do not consider it necessary to deal with the provisions thereof at any length for the reason that the Act has admittedly come into force only in 2015. As already noticed above, in the absence of any amendments to the Kannur University Act, the provisions of the said enactment would continue to be operative. Therefore, we are not satisfied that anything turns on the basis of the provisions contained the said enactment. 10. The learned counsel has placed reliance on the decisions of this Court in _**Vazhithala Service Co-operative Bank v. The Registrar of Co-operative Societies [2003 (2) KLT 653]**_ & _**Suhail P.M. v. University of Calicut and Others [2010**_ _**(3) KHC 230]**_ to contend that, where the Statutes prescribed a particular mode of appointment of employees no other mode could be resorted to. We are not satisfied that the said decisions have any application to the facts of the present case for the reason that, the appointments have been made, as noticed by us above, in W.A.Nos. 1418, 1445 & 1446 of 2017 9 accordance with the mode prescribed by law. What has been done here is only to earmark a portion of the cadre strength for being filled up by the promotion of qualified persons from the category of low paid employees, adopting the Government Order that is applicable to the employees of the Government Secretariat. The University has the power to do so. The stand of the University going by the statement filed is also to the said effect. It is also worth noticing that the appellants are only persons included in the rank list of the PSC. They do not have any claim over any of the posts in the University. The above being the position, we find no grounds to interfere with the judgment of the learned Single Judge. These appeals fail and are accordingly dismissed. Sd/- **K. SURENDRA MOHAN JUDGE** Sd/- **ANNIE JOHN JUDGE** True Copy PA to Judge RKM