W.P.(C) Nos. 36126 of 2008 and connected cases

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** **FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932** **WP(C).No. 36126 of 2008(A)** **------------------------------------** ## **PETITIONER(S):** - **------------------------** **1. BINITHA N.K., JAYASEY HOUSE,** - **P.O. KUTTIKKAKAM, EDAKKAD, KANNUR 670 663.** **2. SAMEER P.A., SONIYA, THIRUNAVAYA, MALAPPURAM 676 301.** **BY ADVS. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN** ## **RESPONDENT(S):** **-------------------------** **1. KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR 680 656 REPRESENTED BY ITS REGISTRAR.** **2. P.JAYARAJ, ASST. PROFESSOR (SOIL SCIENCE AND AGRICULTURAL CHEMISTRY), PEPPER RESEARCH STATION, KERALA AGRICULTURAL UNIVERSITY, PAYYANNUR.** **3. SHYLAJAKUARI M.S., ASST. PROFESSOR (SOIL SCIENCE AND AGRICULTURAL CHEMISTRY, K.V.K. KERALA AGRICULTURAL UNIVERSITY, KUMARAKAM, KOTTAYAM.** **4. T.THULASI, ASST. PROFESSOR (SOIL SCIENCE AND AGRICULTURAL CHEMISTRY), K.V.K. KERALA AGRICULTURAL UNIVERSITY,KANNUR.** **5. MINI V. ABILASH, ASST. PROFESSOR (SOIL SCIENCE AND AGRICULTURAL CHEMISTRY), OFFICE OF THE DIRECTORATE OF EXTENSION, KERALA AGRICULTURAL UNIVERSITY, MANNUTHY,THRISSUR.** - **ADDL. R6 TO R8 IMPLEADED** **svs** **..............2/-....** **...2...** ## **WPC. NO.36126/2008** - **6 ANINA SUSAN ZACHARIAH, AGED 39, D/O. P.T.ZACHARIAH, T & T COTTAGE, MEZHUVELI P.O., PATHANAMTHITTA.** **7. NAVEEN LNO, AGED 40 YEARS, S/O. LENO FERNADEZ, LIBRA, TC 30/1252, PETTAH, THIRUVANANTHAPURAM.** **8. VIVESWARAN S., AGED 42, S/O. M.K.SANKARANARAYANAN (LATE) NO.114, SHANKAR NAGAR, KAIMANAM P.O., THIRUVANANTHAPURAM. PIN – 695 040.** - **ADDL. R6 TO R8 ARE IMPLEADED AS OER ORDER DATED 01/07/2010 IN I.A NO.8805/2010.** **R1 BY ADV. SRI.K.P.MUJEEB S/C KAU R2 BY ADVS. SRI.N.SUGATHAN** **SMT.VARSHA BHASKAR SRI.S.PRASANTH (AYYAPPANKAVU) R6-8 BY ADV. SRI.S.MUHAMMED HANEEFF** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/08/2010, ALONG WITH WPC NO. 18637 OF 2010 WPC NO. 18681 OF 2010 WPC NO. 19468 OF 2010 THE COURT ON 25/02/2011 DELIVERED THE FOLLOWING:** **svs** **WPC. NO.36126/2008** **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF NOTIFICATION DATED 24/05/2000 ISSUED BY THE 1ST RESPONDENT.** - **P2: COPY OF NOTIFICATION DATED 24/09/07 VIDE NO.GA/K1-21606/07 ISSUED BY THE 1ST RESPONDENT.** - **P3: COPY OF NOTIFICATION DATED 28/06/2008 VIDE NO.GA/K1/2020/2001 ISSUED BY THE 1ST RESPONDENT.** - **P4: COPY OF NOTIFICATION DATED 28/06/2008 VIDE NO.GA/K1/21606/2007 (VIII) ISSUED BY THE 1ST RESPONDENT.** - **P5: COPY OF REPRESENTATION DATED 15/07/2008 BEFORE THE 1ST RESPONDENT SUBMITTED BY THE 1ST PETITIONER.** - **P6: COPY OF REPRESENTATION DATED 15/07/2008 BEFORE THE 1ST RESPONDENT SUBMITTED BY THE 2ND PETITIONER.** - **P7: COPY OF COMMUNICATION DATED 05/11/2008 VIDE NO.GA/K1/21606/2007 ISSUED BY THE 1ST RESPONDENT TO THE 1ST PETITIONER.** - **P8: COPY OF COMMUNICATION DATED 05/11/2008 VIDE NO.GA/K1/21606/2007 ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER.** - **P9: COPY OF APPOINTMENT ORDR DATED 19/07/2008 VIDE NO.GA/C2/21421/08(5) ISSUED BY THE 1ST RESPONDNT.** - **P10:** - **P11: COPY OF THE APPOINTMENT ORDER DATED 19/07/2008 VIDE NO.GA/C2/21421/08 (17) ISSUED BY THE 1ST RESPONDENT.** - **P12: COPY OF THE APPOINTMENT ORDER DATED 19/07/2008 VIDE NO.GA/C2/21421/08 (15) ISSUED BY THE 1ST RSPONDENT.** - **P13: COPY OF STATE AND SUBORDINATE RULES, 1958 (KRALA) AMENDED AS PER G.O.(P) NO.7/2006/P & ARD DATED 08/03/2006.** ## **RESPONDENTS EXHIBITS:** **R6(a):COPY OF THE INTERIM ORDER DATED 23/06/2010 IN WPC. NO.14123/2010 OF THIS HON'BLE COURT.** **R6(b):COPY OF THE INTERIM ORDER DATED 23/06/2010 IN WPC.NO.18637/2010 OF THIS HON'BLE COURT.** ## **/TRUE COPY/** ## **P.A. TO JUDGE** ## **svs** ## **C.T.RAVIKUMAR, J.** ----------------------------------------- W.P.(C)Nos.36126 of 2008, 18637, 18681 & 19468 of 2010 ---------------------------------------Dated 25[th] February, 2011 ## **JUDGMENT** These writ petitions pertain to the appointment of Assistant Professors under the discipline of Soil Science & Agricultural Chemistry in the faculty of Agriculture under the Kerala Agricultural University (for short `the University'), the common respondent. This judgment is, in fact, an appendix to the common judgment in W.P.(C)No.14123 of 2010 and connected matters. The petitioners in W.P.(C)Nos.18637, 18681 and 19468 of 2010 have responded to the notification, issued by the first respondent University, with No.GA/K1/22966/99 dated 24.5.2000, produced as Ext.P1 in all these writ petitions. Though Ext.P1 notification was issued as early as on 24.5.2000 the respondent University did not proceed with the selection process till 2008 and at the same time, issued another notification No.GA/K1-21606/07 dated 9.10.2007 inviting applications for the same post, among other posts, confining it to the Krishi Vigyan Kendras and Externally aided projects. All of them have applied in response to the latter notification as well, but their applications were rejected on the ground of over age. However, they are included only in the rank list drawn pursuant to the former notification viz., ## WP(C).No.36126/2008 & connected cases 2 notification dated 24.5.2000. The concerned list viz., rank list in the discipline of Soil Science & Agricultural Chemistry under the faculty of Agriculture has been produced in all these writ petitions as Ext.P3. In Ext.P3 rank list the petitioners in these writ petitions hold rank Nos.7, 11 and 5 respectively. The said writ petitions are filed seeking issuance of a writ of mandamus commanding the first respondent University to appoint the petitioners as Assistant Professors in the discipline of Soil Science & Agricultural Chemistry in the faculty of Agriculture from Ext.P3 rank list. 2. W.P.(C)No.36126 of 2008 has been filed by two of the applicants who responded to the very same notification dated 24.5.2000 mentioned above that culminated in Ext.P3 rank list in the other writ petitions. The first petitioner belongs to Thiyya community and the second petitioner therein belongs to Muslim community. According to them, yet another notification dated 24.9.2007 was published by the first respondent University subsequent to the notification dated 24.5.2000, which is produced in the said writ petition as Ext.P2. As per Ext.P2, applications were again invited for appointment to the post of Assistant Professors in the discipline of Soil Science & Agricultural Chemistry. According to the petitioners, their names figured only in the rank list drawn pursuant to Ext.P2 notification dated 24.9.2007 respectively at rank Nos.8 and 10. The said rank list is produced in this writ petition as Ext.P4. This writ petition has been filed mainly seeking a declaration that ## WP(C).No.36126/2008 & connected cases 3 the action on the part of the first respondent University in keeping vacancies reserved for Ezhava and Muslim communities notified as per notification dated 24.5.2000 and Ext.P2 notification as unfilled without effecting appointment from Exts.P3 and P4 notwithstanding their availability as illegal and unconstitutional. They also seek a declaration that they are entitled for appointment as Assistant Professor in Soil Science & Agricultural Chemistry towards the 14[th] and 16[th] turns as per the roster for reservation set apart for Ezhava and Muslim communities. In fact, the petitioners in the other writ petitions have subsequently, got themselves impleaded in this writ petition as respondent Nos.6 to 8. 3. Earlier, W.P.(C)No.14123 of 2010 was filed by an applicant who responded to the notification dated 9.10.2007 mainly challenging the action on the part of the University in effecting appointments from the lists drawn pursuant to the said notification in excess of the notified number of vacancies. In the said writ petition, it was contended that his application for appointment to the post of Assistant Professor in the faculty of Agriculture was rejected on the ground that he did not possess the prescribed qualification, that too, after permitting him to attend the interview. On 18.5.2010 this Court passed an interim order in the said writ petition as hereunder:- WP(C).No.36126/2008 & connected cases 4 _“Post on 26.5.2010. Till such time no further appointments shall be made to the category of posts mentioned in Ext.P1 in excess of the notified vacancies.”_ Subsequently, certain candidates included in the lists drawn pursuant to the said notification dated 9.10.2007 got themselves impleaded in the said writ petition and some of them filed separate writ petitions. Contending that the interim order dated 18.5.2010 is virtually delaying their appointments they moved for modification of the interim order and subsequently as per order dated 23.6.2010, taking note of the decision in _**Suresh**_ v. _**M.G. University**_ (2009 (1) KLT 950) and also the note in the notification dated 9.10.2007 to the effect that the vacancies mentioned thereunder are purely provisional and subject to variation, the order dated 18.5.2010 was modified and clarified to the effect that appointments could be effected from the lists drawn pursuant to the notification dated 9.10.2007 against vacancies available under the Krishi Vigyan Kendras and Externally aided projects subject to the availability of vacancies based on the seniority and subject to the rules of reservation. The petitioners in W.P.(C)Nos.18637, 18681 and 19468 of 2010 thereupon moved this Court contending that on account of the interim order dated 18.5.2010 in W.P.(C)No.14123 of 2010 the respondents are refusing to issue appointment orders and that Ext.P3 rank list would expire on 27.6.2010. On 23.6.2010 this Court passed an interim order ## WP(C).No.36126/2008 & connected cases 5 in the said writ petitions. In fact, on the same day I had modified the interim order dated 18.5.2010 passed in W.P.(C)No.14123 of 2010. Therefore, taking note of the modified interim order dated 23.6.2010 in W.P.(C)No.14123 of 2010 it was made clear that subject to the observations made in the said modified interim order dated 23.6.2010 in W.P.(C)No.14123 of 2010 the petitioners in these writ petitions could be issued orders of appointment subject to the availability of vacancies in the concerned discipline and their placement in the rank list and according to the rules of reservation. It is apposite to note that as in the case of the notification dated 9.10.2007 Ext.P1 notification dated 24.5.2000 also contained a note and the same reads thus:- _“The number of vacancies noted above is provisional and is liable to vary.”_ In the said circumstances, in the light of the decision reported in **2009 (1) KLT 950** (supra) and in view of the interim order dated 23.6.2010 there was no impediment at all for effecting appointments from Ext.P3 list against the existing vacancies and also the vacancies occurred up to the date of its expiry. According to the petitioners, they were informed that on account of the interim order dated 9.9.2009 in W.P.(C)No.36126 of 2008 orders of appointment could not be issued to them despite the interim order dated 23.6.2010. As per the interim order dated 9.9.2009 in I.A.No.9648 of 2009 in W.P.(C)No.36126 of 2008 this Court allowed ## WP(C).No.36126/2008 & connected cases 6 the prayer in the said I.A. and as such there was a stay for filling up of vacancies of Assistant Professor (Soil Science & Agricultural Chemistry) without appointing the petitioners in W.P.(C)No.36126 of 2008. Therefore, the petitioners in the other three writ petitions got themselves impleaded in this writ petition as respondents 6 to 8. They have moved I.A.No.8806 of 2010 seeking for a clarification to the effect that the interim order dated 9.9.2009 in I.A.No.9648 of 2009 in W.P.(C)No.36126 of 2008 would not stand in the way of their appointment as Assistant Professors (Soil Science & Agricultural Chemistry) as ordered in the interim order dated 23.6.2010. In fact, in the meanwhile, all the lists viz., Ext.P4 list in W.P.(C)No.36126 of 2008 and Ext.P3 list in the other writ petitions got expired on 27.6.2010. 4. A counter affidavit was filed by the first respondent University in W.P.(C)No.36126 of 2008. Respondents 6 to 8 viz., the petitioners in the other writ petitions have also jointly filed a counter affidavit. In paragraph 5 of the counter affidavit filed by the first respondent University it is stated thus:- _“ - It is submitted that notification No.GA/K1 21606/07 dated 24.09.2007 which was modified vide notification dated 9.10.2007 was issued for filling up five vacancies in Krishi Vigyan Kendras ” and Externally Aided Projects._ (emphasis supplied) Notification No.GA/K1-21606/07 dated 9.10.2007 has been produced as WP(C).No.36126/2008 & connected cases 7 Ext.P2 in the other writ petitions. In Ext.P2 therein it is stated thus:- _“The notification of even No. dated 24.9.2007 stands modified as given below.”_ It is thus obvious that notification dated 24.9.2007 referred as Ext.P2 in W.P.(C)No.36126 of 2008 was, in fact, modified and published as notification dated 9.10.2007 viz., Ext.P2 in all the other writ petitions. Respondents 6 to 8 in W.P.(C)No.36126 of 2008 viz., the petitioners, in their counter affidavit specifically stated that the petitioners in W.P.(C) No.36126 of 2008 were included only in the list drawn pursuant to notification dated 9.10.2007. These facts were not disputed by the petitioners in W.P.(C)No.36126 of 2008. Appointments from the list drawn pursuant to the said notification dated 9.10.2007 was the subject matter in W.P.(C)No.14123 of 2010 and connected matters. In essence, according to the first respondent University, Ext.P4 rank list can be construed only as a rank list drawn pursuant to the notification dated 9.10.2007 referred as Ext.P2 in the other three writ petitions. The said notification was admittedly confined only for appointments against the posts of Assistant Professors in Krishi Vigyan Kendras and Externally aided projects. Evidently, vacancies notified under notification dated 24.5.2000 and the vacancies notified as per notification dated 9.10.2007, which is the modified notification dated 24.9.2007, cannot be the same. As already pointed out the latter was issued only for appointment of WP(C).No.36126/2008 & connected cases 8 Assistant Professors under the various disciplines including Soil Science & Agricultural Chemistry, in Krishi Vigyan Kendras and Externally aided projects. Ext.P1 notification in the other writ petitions viz., notification dated 24.5.2000 would reveal that the said notification was issued for appointment to the post of Assistant Professor in various disciplines, including the discipline of Soil Science & Agricultural Chemistry, in the faculty of Agriculture and Veterinary & Animal Sciences in the Kerala Agricultural University. In short, appointments from Ext.P4 list, wherein the petitioners in W.P.(C)No.36126 of 2008 were included, could have been effected only against the vacancies occurred/occurring in Krishi Vigyan Kendras and Externally aided projects in terms of notification dated 9.10.2007. The petitioners therein did not have a case that notification dated 24.9.2007 was not modified as per notification dated 9.10.2007 though such a fact is discernible from Ext.P2 in the other writ petitions and was reiterated in the counter affidavit filed by the first respondent - University. In fact, the petitioners in W.P.(C)No.36126 of 2008 did not dispute the factum of such a modification. At any rate, there cannot be dispute with respect to the position that vacancies could be filled up only in terms of the respective notifications viz., notifications dated 24.5.2000 and 9.10.2007. In short, according to me, the petitioners in W.P.(C)No.36126 of 2008 could lay claim for consideration only against vacancies available for filling up in terms of notification WP(C).No.36126/2008 & connected cases 9 dated 9.10.2007 and as such, the vacancies available for filling up from Ext.P3 list in the other writ petitions in terms of notification dated 24.5.2000 cannot be claimed by them. 5. As already noticed hereinbefore, Ext.P3 rank list drawn pursuant to notification dated 24.5.2000 and Ext.P4 list referred above drawn pursuant to notification dated 9.10.2007 had expired on 27.6.2010. Despite the existence of vacancies the petitioners in W.P.(C) Nos. 18637, 18681 and 19468 of 2010 were not appointed only because of the interim order dated 9.9.2009 in W.P.(C)No.36126 of 2008, even after the interim order dated 23.6.2010 in those cases, according to the petitioners therein. In the said circumstances, the question is whether expiry of Ext.P3 list in those writ petitions could be assigned as a reason for denying appointments to eligible candidates from Ext.P3 list in those cases. In the light of the judgment in W.P.(C)No.14123 of 2010 and connected matters such a reason cannot stand against such eligible candidates for consideration against vacancies occurred prior to the expiry of Ext.P3 list. In short, the respondent - University is bound to consider the entitlement of candidates included in Ext.P3 list viz., Ext.P3 list in W.P.(C)Nos.18637, 18681 and 19468 of 2010, including that of the petitioners therein, against such vacancies. In view of the judgment in W.P.(C)No.14123 of 2010 and connected matters such a consideration is to be made by the respondent- University. In the circumstances, W.P. WP(C).No.36126/2008 & connected cases 10 (C)Nos.18637, 18681 and 19468 of 2010 are disposed of with a direction to the first respondent University to consider the candidates in Ext.P3 list therein, including the claim of the petitioners in the said writ petitions, in terms of the notification dated 24.5.2000 against vacancies occurred prior to the expiry of Ext.P3 list, subject to their ranks in Ext.P3 and the rules of reservation. I have already found that the petitioners in W.P.(C)No.36126 of 2008 cannot lay claim against the vacancies available for appointment in terms of the notification dated 24.5.2000 as long as they are not rank holders in Ext.P3 list referred to in W.P.(C)Nos.18637, 18681 and 19468 of 2010 which was drawn pursuant to the notification dated 24.5.2000. In view of the fact that the petitioners in W.P.(C)No.36126 of 2008 were included in Ext.P4 list mentioned in the said writ petition that was, in fact, drawn pursuant to the modified notification of 24.9.2007 viz., notification dated 9.10.2007 the claims of the petitioners therein for the 14[th] and 16[th] turns as per the roster for reservation set apart for Ezhava and Muslim communities or against open vacancies on the strength of their rank in Ext.P4 list, have to be considered in terms of the notification dated 9.10.2007. In other words, their claims could be considered only against vacancies available for filling up in terms of the notification dated 9.10.2007 from Ext.P4 list in W.P.(C)No.36126 of 2008. Expiry of Ext.P4 list also cannot be a reason for refusing such a consideration in view of WP(C).No.36126/2008 & connected cases 11 the judgment in W.P.(C)No.14123 of 2010 and connected matters. Therefore, W.P.(C)No.36126 of 2008 is disposed of with a direction to the first respondent University to consider the claims of the petitioners therein against the turns as per the roster for reservation set apart for Ezhava and Muslim communities if such turns are due and also against open vacancies, viz., against vacancies occurred prior to the expiry of Ext.P4 list (Ext.P4 list in W.P.(C)No.36126 of 2010) in terms of the notification dated 9.10.2007. It is made clear that expiry of the lists mentioned above, viz., Ext.P3 in W.P.(C)Nos.18637, 18681 and 19468 of 2010 and Ext.P4 list in W.P.(C)No.36126 of 2008, shall not impede consideration of eligible candidates from Exts.P3 and P4 for appointments including the petitioners, in terms of the above directions. This shall be done by the respondent - University expeditiously, at any rate, within a period of one month from the date of receipt of a copy of this judgment. _Sd/-_ Judge C.T.RAVIKUMAR TKS