Zeenath P.K. and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 20[TH] DAY OF JULY 2022 / 29TH ASHADHA, 1944** ## **WP(C) NO. 15504 OF 2022** ## **PETITIONERS:** 1 ZEENATH P.K., AGED 48 YEARS D/O.ABDUL AZEEZ, THIRUVATHOOR KUNNUMMAL HOUSE, ERUVALLUR, KOZHIKODE-673616. 2 RAJITHA T.K., D/O. GOPALAN T.K., AGED 35 YEARS, AMBALIPARAMBIL HOUSE, KADALUNDI P.O., KOZHIKODE-673302 3 JAFER C.C., AGED 37 YEARS S/O.MUHAMMED KUTTY ,CHERANCHERI CHANATH HOUSE, ULLANAM NORTH, PARAPPANANGADI-676 303. 4 SAKARIYYA C.V., AGED 47 YEARS S/O.KOYAMON, PERIYAPADAM HOUSE, CHETTIPPADI P.O., MALAPPURAM DISTRICT. PIN-676312 5 NISHAD M., AGED 44 YEARS S/O.KUNHI MOHAMMED, MALIYEKKAL HOUSE, MURIKKAL ROAD, P.O. ULLANAM-676 303, MALAPPURAM DISTRICT. 6 SARITHA A., AGED 40 YEARS D/O.VELAYUDHAN, VETTIPPARAMBIL HOUSE, KOZHAKKATTUR NORTH, AREACODE, MALAPPURAM DISTRICT, PIN-673639 . BY ADVS. K.K.SAIDALAVI I.J.AUGUSTINE K.K.NASRUL HAQUE WP(C) NO.15504 OF 2022 2 ## **RESPONDENTS:** |1|STATE OF KERALA,| |---|---| ||REPRESENTED BY THE SECRETARY, GENERAL EDUCATION,| ||SECRETARIAT, THIRUVANANTHAPURAM-695 001.| |2|THE DIRECTOR OF PUBLIC INSTRUCTION,| ||GENERAL EDUCATION DEPARTMENT, DPI JUNCTION, VAZHUTHACAUD,| ||THIRUVANANTHAPURAM-695014.| |3|DEPUTY DIRECTOR,| ||GENERAL EDUCATION DEPARTMENT, KOTTAPPADY DOWN HILL,| ||MALAPPURAM-678001.| |4|ADDL.R4. JISHA.T.,| ||AGED 39 YEARS, W/O. JAISON, KOZHIPURATH HOUSE, NEAR| ||NEDUVA VAYANASALA, CHETTIPPADI.P.O.,-676319.| |5|ADDL.R5. AKSHAYADAS.V.P.,| ||AGED 23 YEARS, D/O. MURALI MOHANDAS.V.P.,| ||VALIYORAPURAKKAL, VALIYORA.P.O., KACHERPADI, VENGARA,| ||MALAPPURAM DISTRICT, PIN-676304.| |6|ADDL.R6. VARUN.T.| ||AGED 36 YEARS, S/O. RAMAKRISHNAN, THAYYIL HOUSE,| ||CHETTIPPADI PO-676319, MALAPPURAM DISTRICT.| |7|ADDL.R7. JITHU.A.V.,| ||AGED 37 YEARS, S/O. VIJAYAKRISHNAN, ACHAMVEETIL P.O.,| ||NEDUVA-676303, MALAPPURAM DISTRICT.| |8|ADDL.R8. RANJITH,| ||AGED 27 YEARS, S/O. BALAN, KONDATH HOUSE,| ||CHETTIPPADI.P.O.,-676319, MALAPPURAM DISTRICT.| ||(ADDITIONAL R4 TO R8 ARE IMPLEADED AS PER ORDER DATED 24-| ||06-2022 IN IA 1/2022 IN WP(C) 15504/2022.| |9|ADDL.R9.C.NISAR AHAMMED| WP(C) NO.15504 OF 2022 3 AGED 45 YEARS, S/O. AHAMMED KUTTY, CHAIRMAN STANDING COMMITTEE FOR EDUCATION, PARAPPANANGADI MUNICIPALITY, MALAPPURAM DISTRICT, PIN-676303, RESIDING AT PALATHINGAL, ULLANAM.P.O., PARAPPANANGADI, MALAPPURAM DISTRICT, PIN676303. (ADDITIONAL R9 IS IMPLEADED AS PER ORDER DATED 7-7-2022 IN IA 4/2022). BY ADVS. K.P.SUDHEER E.S.ASHRAF SUNIL KURIAKOSE-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.15504 OF 2022 4 ## **JUDGMENT** Dated this the 20[th] day of July 2022 This writ petition is filed seeking the following reliefs:- i) To issue a writ of certiorari or any other appropriate writ or order quashing Exhibit- P4 notification. ii) Issue a writ of mandamus of any other appropriate writ, order or direction commanding the 2[nd] and 3[rd] respondents not to terminate the petitioners from the Present employment. iii) To declare that petitioners are not liable to be replaced by another set of temporary hands in the respective posts. 2. Heard the learned counsel for the petitioners, the learned Government Pleader appearing for the respondents, the learned counsel appearing for the contesting party respondents as well as the learned counsel appearing for the additionally impleaded 9[th] respondent. 3. This writ petition had been filed on 28/4/2022 on this specific pleading that the petitioners, who were appointed in the Government Special School Teacher Training Centre, Parappanangadi are being disengaged for appointing other similarly situated WP(C) NO.15504 OF 2022 5 temporary employees. The specific contentions raised was that, the 2[nd] respondent issued Ext.P3 letter directing the filling up of the vacancies in the Government Special School Teacher Training Centres, and that on the basis of Ext.P3, Ext.P4 notification had been issued. It was the specific contention that, Ext.P4 notification was dated 25/4/2022 and last date for filing the application was on 27/4/2022 at 12.00pm. The interview was to be conducted on 28/4/2022 and though the petitioners are fully qualified, there was no time for making their applications. It was contended that, there were no vacancies in the institutions at present, since the petitioners and similarly situated employees were continuing in service and that the vacancies are not reported to the PSC. It is therefore, contended that the procedure for filling up the posts held by the petitioners on a temporary basis, by other temporary employees is illegal and is against the dictum laid down by the Apex Court in _**State of Haryana and others V Piara Singh and others [1992(4)SCC 118].**_ 4. This Court had, by order dated 19/5/2022 directed that WP(C) NO.15504 OF 2022 6 the petitioners shall be retained in their posts, if they have not been relieved from service till now. The learned Government Pleader was also directed to get instructions on the contention that Ext.P4 notification was not published in the manner prescribed and that the time limit between the publication of the notification and the interview was less than two days. 5. The learned counsel for the petitioner would contend that the petitioners have all the qualifications provided in Ext.P4 for appointment to the posts against which they are presently working and that there is no deficiency in their services. It is further contended that Ext.P3 order only directed the filling up of vacancies by notifying the vacant posts and that since the petitioners were actually holding the posts there were no vacancies or vacant posts. Reliance is placed on the decisions in Piara Singh 1992(4) SCC 118 and on a decision of Division Bench this Court is _**Abdul Haleem V.**_ _**State of Kerala [2022 (3) KLT 47].**_ 6. A detailed counter affidavit has been placed on record by the 3[rd] respondent. It is contended that the petitioners had been WP(C) NO.15504 OF 2022 7 appointed on purely temporary basis on contract and without reference to the qualification prescribed by the Rehabilitation Council of India. From 2021-22, the Rehabilitation Council of India had revised the curricula of the programmes as per the Rights of Persons with Disabilities Act, 2016 and the National Educational Policy, 2020. Fresh appointments, therefore had to be made meeting the revised guidelines. The Director General of Education had issued letter dated 22/4/2022 to fill up all posts in the centres before 30/4/2022 based on which notification were issued. It is stated that all the petitioners had submitted their applications pursuant to Ext.P4 notification. It is further contended that apart from Ext.P4 as produced by the petitioners, the notification along with the press note was forwarded to the Public Relations Department on 25/4/2022. On the next day, an advertisement was published in all news papers as evident from R3(a) and R3(b). It is stated that several applications were received for all the posts and that all six petitioners and all other staff of the Special Education Centre had submitted their applications pursuant to Ext.P4. The copies of the applications are also produced. It is further WP(C) NO.15504 OF 2022 8 contended that all the petitioners had participated in the interviews conducted on 28/4/2022 and 30/4/2022 and that the final list had been published. It is stated that the said facts were also published in newspapers and that appointment orders had been issued to the candidates who got top ranks in the rank list on 20/5/2022 directing them to join duty on 1/6/2022. It is contended that after the publication of the rank list also, absolutely no complaints were raised against the list till date. 7. Respondents 4 to 8 have also placed a detailed counter affidavit on record, contending that the allegation in the writ petition was only as to the lack of time for making applications pursuant to Ext.P4 and the manner of publication of Ext.P4. It is submitted that the fact that the petitioners had submitted their applications and participated in the interview held on 28/4/2022 and 30/4/2022 was suppressed while filing the writ petition and that even after filing the counter affidavit by the 3[rd] respondent, the said fact was not disclosed. It is contended that after participating in the selection process and after appearing for the interview and after being WP(C) NO.15504 OF 2022 9 unsuccessful in selection process, the petitioners cannot turn around and contend that the selection was not proper. It is contended that the earlier appointment of the petitioner was purely provisional and that the petitioners were admittedly not qualified in accordance with the RCI norms. 8. The 9[th] respondent has filed counter affidavit, contending that he is the elected Councilor of the Parappanangadi Municipality and the Chairman for the Standing Committee for Education. It is contended that he had attended the interview on behalf of the Municipality. In the interview, only the Deputy Director had asked questions and the other Board Members remained as mute spectators. It is stated that the deponent was not permitted to ask questions and that the interview was therefore not bonafide. 9. Detailed additional affidavits have also been placed on record by the petitioners producing documents in support of their contentions that they were fully qualified to hold the posts. 10. I have considered the contentions advanced on all sides. The fact that the petitioners had submitted applications pursuant to WP(C) NO.15504 OF 2022 10 Ext.P4 was not disclosed in the writ petition. Even though the writ petition was filed on 28/4/2022 and came up repeatedly thereafter before this court, the fact that the petitioners had participated in the interview conducted on 28/4/2022 and 30/4/2022 was not disclosed. It was only when counter affidavits were filed on behalf of the 3[rd] respondent and respondents 4 to 8 and 9 that the fact that an interview had been conducted and that all the petitioners had participated in the same was disclosed before this Court. 11. The learned counsel appearing for respondents 4 to 8 would also point out that the certificates produced by the petitioners along with the reply affidavits and the additional affidavits filed would show that many of the petitioners had acquired the qualifications only long after their appointments. It is therefore contended that the appointments of the petitioners were clearly back door appointments without the prescribed qualifications and in view of the fact that the appointments were clearly temporary in nature, there can be no contentions raised by the petitioners that they are eligible to continue in the posts. WP(C) NO.15504 OF 2022 11 12. On a consideration of the contentions raised, I notice that the initial appointments of the petitioners were clearly temporary in nature. By Ext.P3 communication dated 22/4/2022, the DPI had directed the Deputy Directors to conduct fresh selections for the posts available in the Government Special School Teacher Training Centres for the year 2022-2023. Ext.P4 is the notification issued by the 3[rd] respondent, on the basis of Ext.P3. It is now not in dispute that all the petitioners had submitted their applications pursuant to Ext.P4 and had also participated in the interview. After having submitted applications and participated in the selection process, it is not open for the petitioners to contend that the selection should not have been conducted. Even otherwise, the petitioners, who are only temporary employees are not entitled to contend that their appointments cannot be terminated and fresh selection cannot be conducted in accordance with revised RCI guidelines and as provided in Ext.P3. 13. The Apex Court in _**Ashok Kumar and Another v. State of Bihar and Others [2016 KHC 4506 (SC)]**_ had specifically WP(C) NO.15504 OF 2022 12 ## considered the precedents on the point and held as follows:- _11. The appellants participated in the fresh process of selection. If the appellants were aggrieved by the decision to hold a fresh process, they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that they challenged the result in the writ petition. This was clearly not open to the appellants. The principle of estoppel would operate._ 14. In _**Karnati Ravi and Another v. Commissioner Survey Settlements and Land Records and Others [2017 KHC 6502]**_ the Apex Court held that the law is well settled that once a person takes part in the process of selection and is not found fit for appointment, the said person is estopped from challenging the process of selection. 15. In _**Ranjith K.K and Another v. Kannur University and others [2012)(1)KHC47]**_ this Court held that the power of appointment includes the power to take various steps with regard to the completion of selection process and that unsuccessful candidates cannot turn around and challenge the selection. WP(C) NO.15504 OF 2022 13 13. The decisions relied on by the petitioners are also not applicable to the facts of the instant case since the Apex Court in Piara Singh's case was considering a situation where regular posts were being filled up by successive temporary employees and the direction was to conduct a regular selection. The Division Bench in _**Abdul Haleem v. State of Kerala [2022 (3) KLT 47]**_ was considering a direct challenge to the appointment of a particular candidate in the selection and not a challenge to the selection process, as in the instant case. Moreover, the petitioners who approached this Court without divulging their participation in the selection process would not be entitled to the discretionary remedy from this Court. In the above view of the matter, I am of the opinion that the contentions raised in the writ petition cannot be accepted, this writ petition fails and according dismissed. Sd/- **ANU SIVARAMAN JUDGE** ska WP(C) NO.15504 OF 2022 14 ## **APPENDIX OF WP(C) 15504/2022** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE ORDER NO. C2/8648/2012 DATED| ||02.08.2013 ISSUED BY THE 3RD RESPONDENT| ||APPOINTING PETITIONERS 1,3,4 TO 6.| |Exhibit P1(A)|TRUE APPOINTMENT ORDER NO. B/5602/17 DATED| ||5.3.2018 ISSUED TO THE 2ND PETITIONER.| |Exhibit P2|TRUE COPY OF THE RELEVANT PAGE OF ACQUITTANCE| ||REGISTER (MARCH, 2022) TO SHOW THE LAST SALARY| ||OBTAINED BY THE PETITIONERS.| |Exhibit P3|TRUE COPY OF THE LETTER NO. MI/451708/2022/DGE,| ||DATED 22.4.2022 ISSUED BY THE 2ND RESPONDENT.| |Exhibit P4|TRUE COPY OF THE NOTIFICATION NO. C2/8648/2012| ||DATED 25.4.2022 ISSUED BY THE 3RD RESPONDENT.| |Exhibit P5|TRUE COPY OF THE CERTIFICATE OF| ||M.A(ECONOMICS),DATED 28/2/2000 , OF THE 1ST| ||PETITIONER .| |Exhibit P5(a)|TRUE COPY OF THE CERTIFICATE OF B.ED.(MR),| ||DATED 24/7/2005 ,OF THE PETITIONER.| |Exhibit P5(b)|TRUE COPY OF THE CERTIFICATE OF D.ED .(MR) ,| ||DATED 16/4/2000,OF THE 1ST PETITIONER.| |Exhibit P5(c)|TRUE COPY OF THE RCI REGISTRATION CERTIFICATE ,| ||DATED 16/3/2016 , OF THE 1ST PETITIONER.| |Exhibit P5(d)|TRUE COPY OF THE EXPERIENCE CERTIFICATE WORKING| ||FROM 2013 AUGUST ONWARDS , OF THE 1ST| ||PETITIONER , ASST.EDUCATIONAL OFFICER ,| WP(C) NO.15504 OF 2022 15 PARAPPANANGADI. |Exhibit P5(e)|TRUE COPY OF THE EXPERIENCE CERTIFICATE , DATED| |---|---| ||17/8/2013 ,ISSUED BY THE ASSOCIATION OF WELFARE| ||OF THE HANDICAPPED.| |Exhibit P6|TRUE COPY OF THE MSC (PSYCHOLOGY)CERTIFICATE ,| ||DATED 25/1/2011 , ISSUED BY THE CALICUT| ||UNIVERSITY, TO THE 2ND PETITIONER.| |Exhibit P6(a)|TRUE COPY OF THE P.G DIPLOMA IN REHABILITATION| ||PSYCHOLOGY , DATED 24/6/2019 , ISSUED BY THE| ||CALICUT UNIVERSITYE , TO THE 2ND PETITIONER.| |Exhibit P6(b)|TRUE COPY OF THE REGISTRATION CERTIFICATE ,| ||DATED 12/12/2015 , ISSUED BY THE RCI , NEWDELHI| ||, TO THE 2ND PETITIONER.| |Exhibit P6(c)|TRUE COPY OF THE CLINICAL POSTING CERTIFICATE ,| ||DATED 24/02/2015 , ISSUED BY THE CALICUT| ||UNIVERSITY , TO THE 2ND PETITIONER.| |Exhibit P7|TRUE COPY OF THE B.COM DEGREE CERTIFICATE ,| ||DATED 9/2/2022 , ISSUED BY THE CALICUT| ||UNIVERSITY , TO THE 3RD PETITIONER.| |Exhibit P7 (a)|TRUE COPY OF THE PGDCA CERTIFICATE , DATED| ||8/6/2010 ,ISSUED BY THE LOPUZ LEARNING SYSTEM,| ||TO THE 3RD PETITIONER.| |Exhibit P7 (b)|TRUE COPY OF THE CERTIFICATE CEO (CERTIFICATE| ||OF ELECTRONIC OFFICE), DATED 6/7/2021,ISSUED BY| ||THE CDIT, TO THE 3RD PETITIONER.| |Exhibit P7 (c)|TRUE COPY OF THE CERTIFICATE PROFESSIONAL| ||ACCOUNTANT (CPA),DATED 20/4/20008,ISSUED BY THE| ||IPA, TO THGE 3RD PETITIONER.| |Exhibit P7 (d)|TRUE COPY OF THE EXPERIENCE CERTIFICATE ,DATED| ||26/4/2022 , ISSUED BY GOVT. SPECIAL TEACHERS| WP(C) NO.15504 OF 2022 16 ||TRAINING CENTRE, PARAPPANAGADI , TO THE 3RD| |---|---| ||PETITIONER.| |Exhibit P8|TRUE COPY OF THE RELEVANT PAGES OF SSLC BOOK ,| ||OF THE 4TH PETITIONER.| |Exhibit P8(a)|TRUE COPY OF THE HIGHER SECONDARY| ||CERTIFICATE ,ISSUED TO THE 4TH PETITIONER.| |Exhibit P8 (b)|TRUE COPY OF THE EXPERIENCE CERTIFICATE ,DATED| ||26/4/2022 , ISSUED BY GOVT. SPECIAL TEACHERS| ||TRAINING CENTRE, PARAPPANAGADI , TO THE 4TH| ||PETITIONER.| |Exhibit P9|TRUE COPY OF THE ABSTRACT OF TRANSFER| ||CERTIFICATE , DATED 18/6/90 ISSUED TO THE 5TH| ||PETITIONER.| |Exhibit P9(a)|TRUE COPY OF THE EXPERIENCE CERTIFICATE , DATED| ||26/4/2022 , ISSUED TO THE 5TH PETITIONER.| |Exhibit P10|TRUE COPY OF THE M.A. HISTORY CERTIFICATE ,| ||DATED 2/7/2008, ISSUED BY THE CALICUT| ||UNIVERSITY , TO THE 6TH PETITIONER.| |Exhibit P10(a)|TRUE COPY OF THE CERTIFICATE IN LIBRARY &| ||INFORMATION SCIENCE , DATED 30/3/2013 , ISSUED| ||BY THE INSTITUTE OF HUMAN RESOURCE| ||DEVELOPMENT , GOVT. OF KERALA , TO THE 6TH| ||PETITIONER.| |Exhibit P10(b)|TRUE COPY OF THE CERTIFICATE OF DIPLOMA IN| ||COMPUTER APPLICATION, DATED 19/8/2013 , ISSUED| ||BY THE CDIT , GOIVT. OF KERALA , TO THE 6TH| ||PETITIONER.| |Exhibit P10(c)|TRUE COPY OF THE EXPERIENCE CERTIFICATE , DATED| ||26/04/2022, ISSUED BY THE GOVT. SPECIAL| ||TEACHERS TRAINING CENTRE, PARAPPANANGADI , TO| WP(C) NO.15504 OF 2022 17 ## THE 6TH PETITIONER. Exhibit P11 TRUE COPY OF THE RELEVANT PAGES OF RCI GUIDELINES (PAGE NO. 8,9,10) Exhibit P12 TRUE COPY OF THE LETTER DATED 23/5/2022, BYPETITIONERS LAWYER. Exhibit P12(a) TRUE COPY OF THE LETTER DATED 23/5/2022, BY E- MAIL. Exhibit P12(b) TRUE COPY OF THE LETTER DATED 23/5/2022, BY E- MAIL. RESPONDENT EXHIBITS EXHIBIT R3A TRUE COPY OF THE NEWSPAPER ADVERTISEMENT DTD 26.04.22 EXHIBIT R3B TRUE COPY OF NEWSPAPER ADVERTISEMENT DTD 27.04.22 EXHIBIT R3c TRUE COPIES OF THAT APPLICATION DTD 26.04.22 EXHIBIT R4 A TRUE COPY OF NOTIFICATION NO. C2/8648/2012 (1) DATED 26/04/2022 ISSUED BY THE 3RD RESPONDENT. EXHIBIT R4 B TRUE COPY OF THE RANK LIST PUBLISHED BY THE 3RD RESPONDENT IN THE POST OF SPECIAL EDUCATOR. EXHIBIT R4 A TRUE COPY OF NOTIFICATION NO. C2/8648/2012 (1) DATED 26/04/2022 ISSUED BY THE 3RD RESPONDENT. EXHIBIT R4 B TRUE COPY OF THE RANK LIST PUBLISHED BY THE 3RD RESPONDENT IN THE POST OF SPECIAL EDUCATOR.