W.P.(C).No.17631/2018 & con.cases

## **3IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 19TH DAY OF SEPTEMBER 2018 / 28TH BHADRA, 1940** ## **WP(C).No. 17631 of 2018** ## **PETITIONER/S:** - **1 LINESH.K., S/O PADMANABHAN K.K., SREEPADMAM HOUSE, MANIKKULATHPARAMB, THENHIPALAM P.O., MALAPPURAM-673 636.** - **2 MINSHA. N.,D/O SATHYANATHAN.N, SURYA HOUSE, CHETTIPPADI P.O., MALAPPURAM-676 319.** - **3 SIDNHU. A., D/O. ARUMUGHAN. K, "THIRUVONAM", A.V.M. COLONY, VADAKKANTHARA P.O., PALAKKAD-678 012.** - **4 SONY S.N., D/O NARAYANAN KUTTY K.V., CHERIYA KIZHAKKEDATH HOUSE, ARUR P.O., KAKKATTIL (VIA), VADAKARA, PIN-673 507.** - **5 SIGI C.K., D/O CHANDRAN C.K., CHETTIYARKANDY HOUSE, MARUDONKARA P.O., KAVILUMPARA VIA, KOZHIKODE DISTRICT, PIN-673 513.** - **6 ANU.N., W/O RENISH. A, AAYILIAM HOUSE, MALALILPARAMBA, MARUDONKARA P.O., KAVILUMPARA VIA., PIN-673 513.** - **7 SUDHEESH N.P., S/O BALAKRISHNAN N.P., NADUVILIDAMPARAMBIL HOUSE, KADIYANGAD P.O., KOZHIKODE DISTRICT, PIN-673 525.** - **8 SHIBINA K.M., D/O NARAYANAN K.M., PUTHUKKODE, VAZHAYUR, MALAPPURAM DISTRICT, PIN-673 633** - **9 SAMESH.K., S/O VELAYUDHAN.K, KATTUNGAL HOUSE, CHETTIPPADI P.O., PIN-676 319** - **10 RIJESH .P., S/O CHANDRAN.P, JITHU NIVAS, KADAMBODE P.O., PANDIKAD VIA, MALAPPURAM-676 521.** **BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH** **WP(C).No. 17631 of 2018 & Connected Cases 2** ## **RESPONDENT/S:** **1 STATE OF KERALAREP. BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE UNIVERSITY OF CALICUT - REPRESENTED BY ITS REGISTRAR, THENHIPALAM P.O., MALAPPURAM - 673 636. 3 THE REGISTRAR, UNIVERSITY OF CALICUT, THENHIPALAM P.O., MALAPPURAM-673 636. 4 THE KERALA PUBLIC SERVICE COMMISSION- REP. BY ITS SECRETARY, PATTAM PALACE P.O., THIRUVANANTHAPURAM - 695 004. ADDL. R5 NIKHIL V. PARAMESWAR, AGED 26 YEARS, S/O V.N. PARAMESWARAN, RANK NO.1873, RESIDING AT VELIPARAMBIL HOUSE, NETTOR P.O., MARADU, ERNAKULAM - 682 040. ADDL. R6 AKHIL T.K., S/O THULASIDHARAN, AGED 26 YEARS, RANK NO.1548, KUMARY BHAVAN, MUKKOLA, ARASUPARAMBU, NEDUMANGAD, THIRUVANANTHAPURAM - 695 541. ADDL. R7 AMEER A.K., S/O ABOOBAKAR KUNJU, AGED 32 YEARS, ROSELAND, NETTAYAM P.O., THIRUVANANTHAPURAM - 695 013.** **(ADDL. R5, R6 & R7 ARE IMPLEADED AS PER ORDER DATED 26.06.2018 IN I.A. NO.11351/2018)** **BY ADVS.** **SRI.MOHAMMED NIAS C.P., SC, UNIVERSITY OF CALICUT SRI.P.C. SASIDHARAN, SC, K.P.S.C. SRI.P.NANDAKUMAR** **SMT. NISHA BOSE, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.09.2018, ALONG WITH WP(C)NOS.18590/2016, 23306/2016, 34381/2016, 35993/2016, 17639/2017, 27157/2017, 37627/2017, 1816/2018 & 11359/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## A. MUHAMED MUSTAQUE, J. ## ========================= W.P. (C) Nos. 18590/2016, 23306/2016, 34381/2016 & 35993/2016; 1816/2018, 11359/2018 & 17631/2018; 17639/2017, 27157/2017 & 37627/2017 ========================= Dated this the 19[th] day of September, 2018 ## J U D G M E N T These writ petitions are related to selection, recruitment and appointment of employees to the post of Assistants in the University of Calicut except W.P.(C).No.17639/2017. There are two sets of petitioners in the category of Assistants; one set of petitioners, who are included in the Rank List prepared by the University prior to the enactment of the Kerala Public Service Commission (Additional Functions as Respects The Services under the Universities) Act, 2015 (hereinafter referred to 'Act 18 of 2015') and other set is included in the list prepared by the P.S.C. after the Act of 18 of 2015. W.P.(C).No.17639/2017 is filed by candidates, who are included in the rank list prepared by the University of Calicut for appointment as Peon/Watchman. Their case will be separately considered in the later part of the judgment. 2. Petitioners in all these writ petitions are aspirants for appointment to vacancies in University of Calicut. The conflict of claim ## **`W.P.(C).No.17631/2018 & con.cases`** ## **-:4:-** among the candidates are related to two different rank lists, one prepared by University and other one prepared by P.S.C. in context with the Act of 18 of 2015. This enactment came into force with effect from 29.09.2015. 3. The precise dispute essentially revolve around vacancies in which both categories of candidates claim for appointment. Candidates included in the P.S.C. list stake claim for all that vacancies that arose in the University. Candidates included in University list are claiming appointment based on the Rank List published on 30.1.2016. The notification leading to the rank list was published on 04.06.2010. According to them, as long as the Rank List published by the Calicut University is in force, no appointment can be made from the list published by P.S.C. Apart from that, arguments were also raised on the validity of operation of the provisions in the Act of 18 of 2015. 4. The University rank list was published on 30.1.2016. The Syndicate of the University by decision dated 23.4.2016 decided to have the validity of the rank list extended for one more year from the date of its publication Thereafter, by yet anot her decision on 31.5.2016, it was decided to extend validity of the rank list as two years from the date of publication of the rank list. Thus, the rank list expired on 30.1.2018. ## **`W.P.(C).No.17631/2018 & con.cases`** ## **-:5:-** 5. It is to be noted that there are no challenges against the vires of the Act of 18 of 2015. 6. The Act of 18 of 2015 was enacted to prepare select list for appointment by direct recruitment of employees to the non-teaching post of a University. Section 3 therein commence with a _non-obstante_ clause which states “Notwithstanding anything contained in the University Acts". Therefore, it is needless to state that all other provisions contained in the University Act would stand abrogated as on the date of the Act 18 of 2015 coming into force. Section 3 specifically states about the duties cast upon the Public Service Commission _inter alia_ for preparation of selection list for appointment by direct recruitment. There are three stages for appointment in any Public employment; they are selection, recruitment and actual appointment. First stage of selection is the preparation of a list of eligible candidates. Recruitment arises only after the preparation of the select list. Recruitment means approval for appointment. It also means 'enlist' (see the judgment of the Hon'ble Supreme Court in **K. Narayanan and Others** **v. State of Karnataka and Others [AIR 1994 SC 55], and Ex.Capt.Ashok Kumar Sawhney v. Union of India [AIR 1982 SC 795].** The recruitment is a decisive factor in making appointment. The recruitment would depend upon the vacancies that exist as on the date of ## **`W.P.(C).No.17631/2018 & con.cases`** ## **-:6:-** approval for appointment. Mere inclusion in the selection list would only give him a chance of consideration for any vacancies. Inclusion of a candidate in the list for approval of appointment will give him a vested right for consideration for appointment. If there exists no vacancies, no question of approval for appointment would arise. 7. In this case, the question revolves around preparation of select list and recruitment thereon by the University after the enactment of the Act 18 of 2015. As adverted in the afore-noted paragraph, the power of the University for preparation of select list and recruitment has been abrogated as on 29.9.2015 i.e. the date on which the Act 18 of 2015 came into force. The existence of vacancies is integral for consideration for approval for appointment. Merely because a process has begun prior to the enactment of the Act 18 of 2015, the University could not have assumed the power to select and recruit candidates unless such ongoing process is saved in Act 18 of 2015. The University has no power for selection or recruitment as on 29.9.2015. The Legislature has intentionally taken away such power of the University for selection and recruitment after 29.9.2015. When the University has no power to prepare a select list and recruit candidates, it cannot approve any candidates for appointment after 29.9.2015. It is only when a valid list is in existence, the University could ## **`W.P.(C).No.17631/2018 & con.cases`** ## **-:7:-** have recruited such candidates in respect of vacancies which arose prior to 29.9.2015. When the candidates have not been selected, they have no vested right for consideration. A vested right in law means a right independent of any contingency and can be taken away only if the laws specifically or by necessary implication provide for such a course. (See **Yadav J.S. v. State of U.P. And Another (** 2011 KHC 4393)]. It is appropriate to quote the definition of the words vested and vested rights in this context. ## 'Vested' as defined under the Blacks Law Dictionary is as follows: “Vested. Fixed; accrued; settled; absolute; complete. Having the character or given the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are "vested" when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute "vested right." Vaughn v. Nadel, 228 Kan. 469, 618 P.2d 778, 783. See also Accrue; Vest, and specific types of vested interests infra.” ## 'Vested right' is defined in Blacks Law dictionary as follows: “Vested rights. In constitutional law, rights which have so completely and definitely accrued to or settled in a person that they are not subject to be defeated or canceled by the act of any other private person, and which it is right and equitable that the government should recognize and protect, as being lawful in them selves, and settled according to the then current rules of ## **`W.P.(C).No.17631/2018 & con.cases`** ## **-:8:-** law, and of which the individual could not be deprived arbitrarily without injustice, or of which he could not justly be deprived otherwise than by the established methods of procedure and for the public welfare. Such interests as cannot be interfered with by retrospective laws; interests which it is proper for state to recognize and protect and of which individual cannot be deprived arbitrarily without injustice. American States Water Service Co. of California v. Johnson, 31 Cal.App.2d 606, 88 P.2d 770, 774. Immediate or fixed right to present or future enjoyment and one that does not depend on an event that is uncertain. A right complete and consummated, and of such character that it cannot be divested without the consent of the person to whom it belongs and fixed or established, and no longer open to controversy. State ex rel. Milligan v. Ritter's Estate, Ind.App 46 N.E.2d 736, 743.” When the University is having no power for selection, no right could have accrued to such candidates so as to claim for recruitment for such vacancies that arose prior to 29.9.2015. This is a proposition of law {See the Division Bench judgments of this Court in **Sahadeva Valigan v. State of Kerala** [1988 (1) KLT 202] and **Vazhithala Service Co-operative Bank v. The Registrar of Co-operative Societies** [2003 (2) KLT 653]}. ## **`W.P.(C).No.17631/2018 & con.cases`** ## **-:9:-** 8. In the light of the above, the University could not have prepared a select list and recruit candidates after 29.9.2015. An argument has been raised that in the absence of the Rules framed, the statutory provisions under the Act could not be given effect. If the Statue itself had not stayed the operation of the Statutes until the rules have been framed, it cannot be contended that the statutory provision would come into operation only if rules are framed under Act 18 of 2015. 9. However, a Division Bench of this Court in a matter arising in a similar issue in W.A.No.426/2016 and connected matters, on 8.4.2016, after referring to the precedents referred as above, have taken a view that the process initiated by the University prior to the Act 18 of 2015 can go on as the Act 18 of 2015 would operate only prospectively. This judgment arises in an issue relating to the appointment of candidates to the last grade servants (Peon/Watchman) in the Calicut University. The selection process commenced on 20.6.2005 and the University published rank list on 27.2.2016, admittedly, after the Act 18 of 2015 came into force on 29.9.2015. In such circumstances, I am also bound by the Division Bench judgment. Therefore, the only question that has to be considered is pertaining to the vacancies in which the candidates in the University rank list can be considered for recruitment. ## **`W.P.(C).No.17631/2018 & con.cases`** ## **-:10:-** 10. The Full Bench of this Court, in _**Mohanan K.R. v. Director of Homeopathy & Others**_ [2206 KHC 855] considered a question in the light of Special Rules for Homeopathy Subordinate Service 1999. The Full Bench was of the view that vacancies which arose after commencement of Special Rules can be filled up only in accordance with the Special Rules. Thus, the University cannot recruit any candidates in such vacancies which arose after 29.9.2015. The University can recruit only to such vacancies which arose prior to 29.9.2015. 11. In the absence of any challenge to the provisions of Act 18 of 2015, efficacy of its implementation cannot be decided in these writ petitions. Therefore, that question is left open. 12. There are certain claims based on NJD vacancies. The Unniversity has power to appoint candidates in NJD vacancies if such vacancies pertain to the period prior to 29.9.2015. If any candidates are appointed to such vacancies after 29.9.2015 before expiry of the list, such appointments will have to be treated as valid. If such NJD claims are related to any vacancies that arose after 29.9.2015, those claims will have to be rejected. 13. By an interim order, certain appointments were made subject to the result of the writ petitions under consideration. If those ## **`W.P.(C).No.17631/2018 & con.cases`** ## **-:11:-** appointments are in relation to vacancies that arose after 29.09.2015, that has to be cancelled, forthwith since this court permitted to make such appointment subject to the outcome of the writ petition, none of such appointees can claim any equity for continuation. 14. W.P.(C).No.17639/2017: This matter is relating to filling up of vacancies of Peon/Watchman based on the notification issued by the University dated 20.6.2005. The rank list was published on 27.2.2016. According to the petitioner, there are five vacancies that arose on 22.4.2016 and therefore, on the strength of Ext.P3 rank list they should be considered for appointment. The University in para.7 of the counter affidavit dated 22.7.2017 have given the details of 5 vacancies. All these vacancies arose after 22.4.2016. In the light of the above, the writ petition is only to be dismissed. In the light of the discussions as above, W.P.(C).No.17639/2017 is dismissed. The other writ petitions are disposed of with the following directions: _**1. It is declared that the University is not entitled to make any appointment in such vacancies which arose after 29.09.2015.**_ _**2. University is directed to cancel any such appointments made to vacancies which arose after 29.09.2015.**_ _**3. All the appointments made based on NJD claim in vacancies which arose prior to 29.9.2015 and before the**_ ``` W.P.(C).No.17631/2018 & con.cases ``` ## **-:12:-** _**expiry of the University rank list is declared as legal and valid.**_ _**4. Claims for appointments to NJD vacancies after the expiry of the University rank list is rejected.**_ _**5. University shall report such vacancies available after 29.09.2015 to P.S.C. within 2 weeks after receipt of a copy of this judgment.**_ _**6. PSC is directed to advise such candidates in accordance with the vacancies reported for appointment, in accordance with law.**_ ## **Sd/-** A. MUHAMED MUSTAQUE, JUDGE ## **`W.P.(C).No.17631/2018 & con.cases`** ## **-:13:-** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1: TRUE COPY OF THE NOTIFICATION ISSUED BY THE UNIVERSITY DATED 4.6.2010. EXHIBIT P2: TRUE COPY OF THE RELEVANT EXTRACT OF THE LIST PUBLISHED ON 30.1.2016 BY THE UNIVERSITY. EXHIBIT P3: TRUE COPY OF THE JUDGMENT DATED 8.4.2016 IN W.A.NO.439/2016 OF THIS HON'BLE COURT. EXHIBIT P4: TRUE COPY OF THE COMMUNICATION OF THE 3RD RESPONDENT TO THE 4TH RESPONDENT DATED 23.3.2016. EXHIBIT P5: TRUE COPY OF THE DECISION OF THE UNIVERSITY 23.4.2016. EXHIBIT P6: TRUE COPY OF THE ORDER DATED 17.6.2016 ISSUED BY THE UNIVERSITY. EXHIBIT P7: TRUE COPY OF THE NOTIFICATION ISSUED BY THE UNIVERSITY. EXHIBIT P8: TRUE COPY OF THE COMMUNICATION OF THE PSC TO THE REGISTRAR OF THE UNIVERSITY DATED 27.9.2016. EXHIBIT P9: TRUE COPY OF THE ORDER DATED 26.10.2016 IN WPC NO.34381/2016. EXHIBIT P10: TRUE COPY OF THE ORDER DATED 29.11.2016 IN WPC NO.34381/2016. EXHIBIT P11: TRUE COPY OF THE ORDER DATED 6.4.2017 ISSUED BY THE GOVERNMENT. EXHIBIT P12: TRUE COPY OF THE ORDER DATED 26.2.2016 ISSUED BY THE GOVERNMENT. EXHIBIT P13: TRUE COPY OF THE ORDER DATED 15.11.2017 IN WPC NO.34381/2016 OF THIS HON'BLE COURT.** ## **`W.P.(C).No.17631/2018 & con.cases`** ## **-:14:-** **EXHIBIT P14: TRUE COPY OF THE JUDGMENT DATED 19.12.2017 IN W.A.NO.2455/2017 OF THIS HON'BLE COURT.** **EXHIBIT P15: TRUE COPY OF THE JUDGMNET DATED 2.3.2018 IN R.P.NO.117/2018 IN WPC NO.27157/2017 OF THIS HON'BLE COURT.** ## **RESPONDENTS EXHIBITS :** **EXHIBIT R4(A) TRUE COPY OF QUESTIONS SUBMITTED UNDER RTI ACT TO THE 1ST RESPONDENT DATED 15.01.2018 EXHIBIT R4(B) TRUE COPY OF REPLY GIVEN BY THE INFORMATION OFFICER OF THE 1ST RESPONDENT DATED 14.02.2018.** **EXHIBIT R4(C) TRUE COPY OF INTERIM ORDER DATED 11.06.2018 IN W.P.(c) NO.34381/2016** //TRUE COPY// SKK P.A. TO JUDGE