WA Nos.2106 & 2318/2018, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941** ## **WA.No.2106 OF 2018** ## **AGAINST THE JUDGMENT IN WP(C) 17639/2017(D) OF HIGH COURT OF KERALA** ## **APPELLANTS/PETITIONER:** |**1**|**MANOHARAN K.M.**| |---|---| ||**AGED 40 YEARS**| ||**S/O KRISHNAN NAIR K.M,**| ||**PALLOLIL HOUSE,**| ||**PANG-CHENDY POST,**| ||**KOLATHUR VIA,**| ||**MALAPPURAM-679338**| |**2**|**RINSHA A.K**| ||**THEKKATH HOUSE, KIZHISSERI, KUZHIMANNA,**| ||**MALAPPURAM-673 641**| |**3**|**NISHA P**| ||**PANAKKAL HOUSE, AZHINHILAM P.O, VEROKE COLLEGE**| ||**VIA, MALAPPURAM.**| ||**BY ADVS.**| ||**SRI.P.RAVINDRAN (SR.)**| ||**SMT.APARNA RAJAN**| ||**SRI.SREEDHAR RAVINDRAN**| WA Nos.2106 & 2318/18 -:2:- ## **RESPONDENTS/RESPONDENTS:** - **1 THE UNIVERSITY OF CALICUT CALICUT UNIVERSITY P.O, THENHIPALAM P.O, MALAPPURAM-673636, REPRESENTED BY ITS REGISTRAR.** - **2 THE REGISTRAR UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O, THENHIPALAM P.O, MALAPPURAM-673 636** **R1-2 BY ADV. MOHAMMED NIAS.C.P.(BY ORDER)** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 9.10.2019, ALONG WITH WA.2318/2018, THE COURT ON 23.10.2019 DELIVERED THE FOLLOWING:** WA Nos.2106 & 2318/18 -:3:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941** ## **WA.No.2318 OF 2018** **AGAINST THE JUDGMENT IN WP(C) 26372/2016(V) OF HIGH COURT OF KERALA** ## **APPELLANTS/PETITIONER:** **SHANOJ N.M. AGED 41 YEARS S/O.LATE NARAYANAN, NAMBOOTHIRI MADATHIL HOUSE, PAYYOLI P.O., KOZHIKODE DISTRICT, PIN - 673 522.** **BY ADVS. SRI.S.K.BALACHANDRAN SRI.V.K.NANDAKUMARAN SRI.K.M.BIJU SMT.N.D.DEEPA** ## **RESPONDENTS/RESPONDENTS:** - **1 THE UNIVERSITY OF CALICUT REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY P.O., PIN - 673 635.** **2 ADDL.R2 JAHASH ALI.M. KADEESA MANZIL, KUZHIVEEDU, CHANDA KADAVU, FAROOK P.O., KOZHIKODE (ADDL.R2 IMPLEADED VIDE ORDER DATED 4/9/2018 IN I.A.NO.02/2018) - 673 632.** **R1 BY ADV. SRI.P.C.SASIDHARAN (BY ORDER)** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 9.10.2019, ALONG WITH WA.2106/2018, THE COURT ON 23.10.2019 DELIVERED THE FOLLOWING:** WA Nos.2106 & 2318/18 -:4:- ## **J U D G M E N T** Dated this the 23[rd] day of October 2019 ## _**Shaffique, J.**_ The appellants/petitioners in the above case were aspirants for appointment to the post of Peon/Watchman in the University of Calicut. Their contention is that a rank list was published by the University pursuant to notification dated 20/6/2005 on 27/2/2016. From among the ranked list, 93 persons were already appointed. According to the petitioners, they obtained information under the Right to Information Act and it was noticed that there were 5 more vacancies. If the said 5 vacancies are filled up, petitioners will also get the opportunity to be appointed in terms of the said rank list. 2. The appellant/petitioner in WA No.2318/2018 is a differently abled person. His contention is that if the roster for appointment for differently abled persons are computed from points, 1, 34 and 67, the petitioner also could be accommodated whereas the University follows points 33, 66 and 99 as the roster WA Nos.2106 & 2318/18 -:5:- for appointing differently abled persons. However, it is submitted that if the five vacancies are filled up, the appellant will also get an opportunity to be appointed. 3. In the judgment impugned in WA No.2106/2018, the learned Single Judge while considering a batch of writ petitions held that in so far as the vacancies had arisen after 22/4/2016, i.e, after publication of the rank list on 27/2/2016, the same cannot be filled up, while in the judgment impugned in WA No.2318/2018, learned Single Judge observed that in so far as the University follows a particular criteria to fill up the posts of differently abled persons and they follow the roster points at 33, 66 and 99, a different view cannot be taken in the matter. 4. In both these appeals, the primary question that may arise is whether the rank list published on 27/2/2016 is still in force and whether any appointments could be made based on the said rank list. 5. The factual aspects involved in these cases would indicate that while the selection process was going on, which got delayed on account of various facts, the Kerala Public Service Commission (Additional Functions as Respects the Services under WA Nos.2106 & 2318/18 -:6:- the Universities) Act, 2015 (hereinafter referred to as the Act) came into force w.e.f. 29/9/2015. A batch of cases came to be filed before this Court wherein a direction was sought for compelling the University of Calicut not to proceed further with the selection process including preparation of the rank list and appointment to the various posts of integrated last grade servants, peon/watchman to the service of the University. The writ petitions as well as the writ appeals arising from a few orders were heard by Division Bench of this Court and as per judgment dated 8/4/2016 in WA No.426/2016 and connected cases. It was held that until 29/9/2015 when Act 18 of 2015 was implemented, it was well within the powers of the University to make appointments to the non-teaching posts. Such action of the University in conducting selection and finalising the same cannot be affected by a prospective enactment brought into effect from 29/9/2015. 6. Pursuant to the said judgment, University made appointments. 93 persons were appointed. According to the appellant in WA No.2106/2018, no specific period had been prescribed for expiry of the rank list and when information was WA Nos.2106 & 2318/18 -:7:- sought for under the Right to Information Act, petitioners were informed that the rank list will remain in force for a period of three years. 7. In another batch of cases, WA No. 1987/2018 and connected cases decided on 22/8/2019, a question arose whether the University list would have force after the PSC list was published. It was held that once the PSC list came into force, the University list will have no force. In fact, the learned Single Judge who decided the matter earlier held that once the Act had come into force, only those vacancies which had arisen prior to the Act coming into force can be filled up. In other words, it was held that the list was valid only to the extent of appointing candidates in respect of vacancies that arose prior to 29/9/2015. The Division Bench however took a view that in respect of cases where PSC had prepared a ranked list, until such date, vacancies could be filled up from the University list. But this is a case in which PSC had not started any process at all. 8. In _**Mohanan K.R. v. Director of Homeopathy and Others**_ (2006 KHC 855), the Full Bench held at paragraph 22 as under: WA Nos.2106 & 2318/18 -:8:- _“22. In fact, we feel that it is the only reasonable conclusion possible, since, otherwise, the very purpose of amendment would be defeated. When the position that the Government is empowered to amend recruitment rules even retrospectively is unquestionable, it cannot also be forgotten that after the amended rules have come into force if appointments are allowed to be made from the list prepared in accordance with the unamended rules, notwithstanding the amendment, that would amount to postponing of the date of commencement of the amended rule itself, which no authority other than the Government can do. Therefore, we have no doubt in our mind that once an amendment regarding qualifications and method of appointment etc., in respect of a particular post comes into force, any vacancy which arises subsequent to the commencement of the amended rules can be filled up only in accordance with the amended rules notwithstanding the currency of any rank list published by the P.S.C., selection of which was initiated prior to the amendment of the rules”._ 9. This is a case in which the method of selection had been changed by promulgation of the Act effective from 29/9/2015. Therefore, under normal circumstances, no vacancy that has arisen after 29/9/2015 could have been filled up from the existing list. But this is a peculiar case in which the rank list came to be published only on 27/2/2016 and a Division Bench in its WA Nos.2106 & 2318/18 -:9:- judgment in WA No.426/2016 had permitted the University to complete the process. Once that process is completed by preparation of the rank list, we are of the view that only those vacancies which had arisen until the preparation of the rank list qualifies for appointment under the said rank list and nothing more. In WA No.1987/2018 and connected cases, which was decided on 22/8/2019, Division Bench took note of the fact that the list published by PSC had come into effect only from 10/8/2016. In that case, the Division Bench approved the appointments made from the list of the University as permitted by the Government until the list of PSC had not come into effect. But, those cases had been decided on the peculiar set of facts. In such circumstances, we do not think that the petitioners are entitled for claiming that the list prepared by the University still survives and they are entitled to get appointed in respect of vacancies that had arisen subsequent to the preparation of the said list. 10. With reference to the claim in WA No.2318/18, learned Single Judge had made it clear that the appellant/petitioner cannot aspire for changing the roster points for differently abled WA Nos.2106 & 2318/18 -:10:- persons as the University was following a particular roster point. We do not find any reason to interfere with the said judgment as well. Consequently, the appeals are dismissed. Sd/- Rp **A.M.SHAFFIQUE JUDGE** Sd/- **T.V.ANILKUMAR JUDGE** WA Nos.2106 & 2318/18 -:11:- ## **APPENDIX OF WA 2318/2018** **APPELLANT'S EXHIBITS:** **ANNEXURE 1 TRUE COPY OF THE INTERIM ORDER DATED 7/9/2016. ANNEXURE 2 TRUE COPY OF THE INTERIM ORDER DATED 18/7/2017. ANNEXURE 3 TRUE COPY OF THE JUDGMENT DATED 8/12/2017 IN W.A.NO.2177/2017.** True Copy PS to Judge