Writ Appeal Nos. 1711 of 2011 & 1715 of 2011 (Bineesh Gopal C.G. & Arifa P.A. v. State of Kerala, Cochin University of Science and Technology & Pro-Vice Chancellor)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 WA.No. 1711 of 2011() --------------------AGAINST THE ORDER IN WPC.29072/2011 Dated 03/11/2011 .................... APPELLANT(S): PETITIONERS: ------------------------------------------- 1. BINEESH GOPAL.C.G., CHERATTU VIDAKUZHA, THAIKKATTUKARA.P.O., ALUVA, ERNAKULAM DISTRICT. 2. ARIFA.P.A., PLACKAL HOUSE, KOCHUKADAVU, ERAVATHOOR, THRISSUR. BY ADV. SRI.C.P.SUDHAKARA PRASAD, SENIOR ADVOCATE SRI.S.RAMESH RESPONDENT(S): RESPONDENTS: ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION(B) DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695001. 2. COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY.P.O., KOCHI-22, REPRESENTED BY ITS REGISTRAR. PIN-682022. 3. THE PRO-VICE CHANCELLOR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY.P.O., KOCHI-22, PIN 682 022. R1 BY ADVOCATE GENERAL SRI.K.P.DANDAPANI R2, R3 BY ADV.SRI.S.P.ARAVINDAKSHAN PILLAI. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11/11/2011, ALONG WITH WA 1715/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.M. JOSEPH &** ## **A. M. SHAFFIQUE, JJ.** **-----------------------------------------** ## **W.A.NOS.1711 OF 2011 & 1715 OF 2011** **------------------------------------------** ## **Dated this the 11th November, 2011** ## **JUDGMENT** ## **K.M. Joseph, J.** The Writ Appeals being connected, we dispose of the same by this common Judgment. 2. Appellants are the writ petitioners. They approached the learned Single Judge impugning the order passed by the Government of Kerala purportedly exercising the powers available to it under Section 50 of the Cochin University of Science and Technology Act (hereinafter referred to as the Act). 3. Briefly put, the case of the appellants/writ petitioners is as follows: The Cochin University invited applications for appointment to the post of Sweeper-cum-Cleaner in the University vide Exhibit P1 notification. The appellants applied pursuant to the notification. _**W.A Nos.1711 & 1715/2011**_ _**-2-**_ They were called for the written test. They were successful and Exhibit P2 short list of the candidates provisionally found eligible to be called for interview was published. There was a challenge to the selection proceedings in W.P(C) No.27495 of 2010 by three candidates alleging, inter alia, that the selection and appointment is vitiated by illegality, irregularity and leakage of question paper. The said Writ Petition came to be dismissed. So was the Writ Appeal carried as W.A No.1885 of 2010. There was a change in the Government and a representation was given by the Cochin University Employees' Union alleging malpractice in the recruitment process. Purporting to act under the same, the Government of Kerala issued Ext.P6. By the impugned order, the Government, referring to the representation, states that it intends to conduct an enquiry on the allegations in connection with the recruitment of Sweeper-cum-Cleaner proposed to be conducted from 04/10/2011. The Vice Chancellor to whom it was addressed, was requested to stop further proceedings in connection with the ## _**W.A Nos.1711 & 1715/2011**_ _**-3-**_ recruitment until further orders. It is also stated therein that formal orders appointing Enquiry Officer will be issued separately. 4. In the Writ Petitions, interim relief was sought .The appellants sought stay of the operation and implementation of the impugned order and also a direction was sought to the University and its Pro-Vice Chancellor to conduct the interview to the post of Sweeper-cum-Cleaner with effect from 04-11-2011 to 08-11-2011 as scheduled. 5. It was the said applications which were considered and which culminated in the impugned common order passed in both the Writ Petitions. The learned Single Judge proceeded to direct the Director of Collegiate Education to complete the inspection and enquiry within 45 days from the date of the order. It was made clear that the University will be heard in the matter and the enquiry will be conducted with notice to all the parties concerned. 6. We heard Shri C.P.Sudhakara Prasad, learned Senior Counsel for the appellants in W.A No.1711 of 2011 and also Shri _**W.A Nos.1711 & 1715/2011**_ _**-4-**_ Asok.M.Cherian, learned Counsel for the appellants in W.A No.1715 of 2011, Shri K.P.Dandapani, learned Advocate General and also Shri S.P.Aravindakshan Pillai, learned counsel for the Cochin University. 7. Learned Senior Counsel for the appellants would contend that having regard to the facts which we have already adverted to, namely the filing of the earlier Writ Petition culminating in its dismissal after finding that there was no irregularity which was affirmed in appeal by the dismissal of the Writ Appeal, it is not open to the Government to have invoked its alleged powers under Section 50 of the Act. He further drew our attention to Section 18 of the Act to point out that the power of the Syndicate includes only the power to appoint teachers etc. He points out that in this context it is pertinent to note that the post in question is Sweeper-cum-Cleaner. Most pertinently, he would submit that the power under Section 50 is not available to interfere with the functioning of the selection committee which has been _**W.A Nos.1711 & 1715/2011**_ _**-5-**_ duly constituted by the Vice Chancellor in exercise of his powers under Section 31. According to him, the power is exercised malafide. He would submit that in the circumstances of the case, the learned Single Judge ought not have issued the direction to virtually act in terms of the impugned order and to complete the enquiry which itself is what is impugned in the Writ Petition. He would reiterate the well settled principle that when a statute commands that a thing should be done in a particular manner, it could be done only in the said manner and not in any other manner. He would contend, with reference to the provisions of Section 50 of the Act that the Government had absolutely no authority to command stopping of the proceedings of the selection committee and if at all, after the enquiry is conducted, it may have been open to the authority to veto the appointment if the situation so warranted and such a direction could be issued only to the Syndicate, he submits. He would in fact submit that he whole game plan is to sabotage the proceedings of the selection _**W.A Nos.1711 & 1715/2011 -6-**_ committee which was upheld by this Court which itself is not permissible, at any rate, even by the Government though it is not a party without seeking a review of the judgment of the Division Bench. He would submit that this is a fit case where the learned Single Judge ought to have directed the interview to be held as scheduled. 8. The learned counsel for the appellants in W.A No.1715 of 2011 would adopt the arguments of the learned Senior Counsel for the appellants in W.A No.1711 of 2011. 9. The learned Advocate General, on the other hand, would submit that there is power under Section 50 of the Act and at this stage when the Government received a complaint about the irregularities, it only ordered an enquiry which it is entitled to do under Section 50. Pending enquiry the Government felt, with reference to the inherent power available to it, that it should keep in abeyance further proceedings and that is all what has happened in this case. Having regard to the period of time fixed by the _**W.A Nos.1711 & 1715/2011**_ _**-7-**_ Government and in interest of justice all that the learned Single Judge directed is that the enquiry should be completed within a lesser period of 45 days instead of three months. He would also invoke the principle that no candidate has an indefeasible right to be appointed to a particular post. He also relied on the decisions of the Apex Court in S.S.Balu and Another v. State of Kerala and Others (2009 (2) SCC 479), State of U.P and Others v. Rajkumar Sharma and Others (2006 (3) SCC 330), Shankarsan Dash v. Union of India (1991 (3) SCC 47) and Aryavrat Gramin Bank v. Vijay Shankar Shukla (2007 (12) SCC 413). He would point out that the original dates on which the interview was to be held have been postponed and more pertinently he submits that the appellants were to be interviewed on 04/11/2011, 08/11/2011 and 11/11/2011 and, therefore, at any rate, this Court may not direct the interview to be held in respect of the appellants. Learned counsel appearing on behalf of the Cochin University would, of course, submit that the selection process was held in a proper manner. He would also _**W.A Nos.1711 & 1715/2011**_ _**-8-**_ submit that the interview has been postponed indefinitely. 10. Having heard the learned counsel for the parties, we are of the view that the impugned cannot be allowed to stand. The appellants had approached this Court by filing Writ Petitions impugning the order of the Government. They had sought to stay the impugned order and also a direction that they be interviewed on the scheduled days. The learned Single Judge has not only refused to stay the order, but has given a positive direction to the Director of Collegiate Education to complete the enquiry within a period of 45 days. No doubt, we note that what has apparently weighed with the learned Single Judge was the urgency of the situation whereby the University was expected to make appointments to the post. But then, we should bear in mind that the Writ Petitions were filed challenging the very authority of the Government to issue the order which was the fountain head for the enquiry being done. At the admission stage itself, as we are informed by the learned Advocate General that as the Government has not yet filed its counter _**W.A Nos.1711 & 1715/2011**_ _**-9-**_ affidavit also, we feel that the learned Single Judge ought not have directed the inspection and enquiry to be held, no doubt after hearing the University and with notice to all. We would think that in the circumstances of this case, the learned Single Judge ought to have proceeded to hear the matter. We would think that in the circumstances of the case the learned Single Judge ought to have actually stayed the proceedings and proceeded to hear the matter with, no doubt, the urgency attending the same. 11. In regard to the further prayer that the appellants be interviewed on the dates originally scheduled, we notice that on facts while as on the dates on which the Writ Petitions were moved, it may have been open to pass such orders, as things stand, since the original dates have already elapsed, it may not be appropriate for us to direct the interview to be held. We may have been inclined to pass such an order with the safeguard that the appointments would not be made. But we feel that we should stay our hands in view of the fact that the original dates have already _**W.A Nos.1711 & 1715/2011**_ _**-10-**_ elapsed. Accordingly, we allow the Writ Appeals and set aside the impugned orders and stay the further proceedings pursuant to the impugned orders till the disposal of the Writ Petitions and direct that there will be no enquiry pursuant to the order till the disposal of the writ petitions. In view of the urgency in the matter, we request the learned Single Judge to finally dispose of the Writ Petitions at the earliest. We record the submission of the learned counsel for the appellants on the one hand and the learned Advocate General on the other, that the pleadings will be completed within three weeks from today. **K.M. JOSEPH, JUDGE** **A. M. SHAFFIQUE, JUDGE** **kbk.**