Full Judgment Text
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CASE NO.:
Appeal (civil) 4903 of 2000
PETITIONER:
VINODAN T. & ORS.
Vs.
RESPONDENT:
UNIVERSITY OF CALICUT & ORS.
DATE OF JUDGMENT: 26/04/2002
BENCH:
S. Rajendra Babu & Ruma Pal
JUDGMENT:
With
C.A. NOS. 4904/ 2000, 4905/2000, 4906/2000
J U D G M E N T
RUMA PAL, J
The appellants in the several appeals, seek to assail the
cancellation of a rank list prepared for the post of Assistant Grade-II
by the University of Calicut, the respondent No.1 before us. The
appellants had been selected pursuant to a notification issued on 1st
November 1991 inviting applications for preparation of a panel for
appointment as Assistants Grade-II in the University. The selection
was made after a written test and interviews and a rank list was
prepared on 25th October 1995. The appellants’ claim is that the rank
list should have been operative for a period of three years and that the
respondents were bound to appoint them to vacancies which had
arisen within that period.
The appellants in CA 4906/2000 challenged the action of the
University in curtailing the period of the validity of the rank list to two
years before the High Court of Kerala by filing a writ petition. The
learned Single Judge disposed of the writ petition on 7th January, 1998
by noting the submission of the University that:
"as and when necessity arises for
employing more persons, the University is
prepared to make appointments from Ext.P1 rank
list. But it is made clear that such appointees
will not have any claim either for future
appointment or for regular appointment. It is
purely a stop-gap arrangement pending regular
recruitment to the post".
These appellants challenged the order of the Single Judge by
filing an appeal before the Division Bench of the High Court. The other
appellants before us filed Original Petitions also assailing the action of
the University.
The University filed an application in the pending proceedings for
permission to engage 40 to 50 assistants on a provisional basis for
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three months to meet the exigencies of work arising in connection with
the annual examination. By an order dated 18th March, 1999 the
Division Bench granted the University:
"permission to engage purely on daily
wages basis 40 to 50 Assistants on work need
basis. Petitioners in OP 8743/98 and 22212/97
and the appellants in WA 520/98 will be sent
notices and if they respond to the said notice
they may also be considered for appointment
among the 50 persons on daily wages basis".
Pursuant to this order, the appellants were served notices by
the University and were appointed on daily wage basis.
The Division Bench disposed of the appeal and the Original
Petitions by a common judgment on 6th April, 2000. The Division
Bench was of the view that the issue had become academic but at the
same time directed that:
"when the next process of selection starts,
it would be appropriate if they (the appellants)
are given some credit for the services rendered
by them and also making relaxation so far as
their ages are concerned in case they have
become over aged in the meantime. It goes
without saying that they have the right to appear
at the requisite test and interview so that the
question of giving credit for the services rendered
by them and relaxation of age can be considered
by the University".
Not being satisfied, the appellants impugned the decision of the
High Court before this Court by way of separate special leave petitions.
Leave was granted by this Court on 4th September, 2000 and the
status quo was directed to continue until further orders.
In support of their case, the appellants have relied on a
resolution said to have been taken on 10th May, 1986 by the Syndicate
fixing the validity of rank lists for all future selections at three years.
Therefore, according to the appellants, all vacancies in the post of
Assistant Grade II till 1998 should have been filled up by the
respondents. The appellants’ claim that had the rank list continued for
a period of three years at least 209 vacancies could have been filled by
appointment of those whose names were in the 1995 Rank list. They
have relied upon a letter dated 18th November, 1997 written by the
Controller of Examinations to the Registrar of the University intimating
that there were 33 vacancies of Assistants and 4 vacancies of Clerical
Assistants in Pareeksha Bhavan which were required to be filled up
without any further delay. The appellants’ grievance is that instead of
filling up these vacancies a decision was taken by the Syndicate on
26th November, 1997 limiting the validity of the rank list prepared in
1995 to two years and cancelling the list altogether for no rational
reason. In the alternative it is urged that the appellants had been
serving continuously for the last several years and therefore should be
regularised in service.
The respondents on the other hand have contended that there
was no stipulation either in the rank list or in any University statutes
stipulating that a rank list would be valid for three years. It was
further stated that the University follows the procedure of the Kerala
Public Services Commission and other Universities. According to Rule
13 of the Kerala Public Service Commission Rules of Procedure, the
validity of a rank list was for a minimum period of one year and
maximum period of three years. It is submitted that the Syndicate
was fully empowered to fix the period of the rank list at 2 years. It is
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stated that the decision to cancel the rank list was taken in view of the
prevailing circumstances which included: a) carving out of the major
part of the territorial jurisdiction of Calicut University to form a new
University by the name of Kannur University on 9th November, 1995,
so that a large number of colleges which had been affiliated to Calicut
University were transferred to the jurisdiction of Kannur University; b)
the abolition of the Pre-Degree Courses by the Government of Kerala
and the consequent depletion of posts. c) a ban on the appointment
of non-teaching staff in the University by the Pre-Degree Course
(Abolition) Ordinance which was succeeded by the Pre-Degree Course
(Abolition) Act 1997 for a period of three years from the
commencement of the Act. The Act came into force with effect from
3rd June, 1997. It is submitted that in any event the appellants had no
right to insist on regular appointment merely because they formed
part of the rank list. The respondents also submitted that in any event
the appellants could not claim regularisation because they had worked
temporarily as daily wagers. According to the respondents what was
preserved by the order of status quo directed by this Court on 4th
September 2000 was the situation prevailing under the orders of the
High Court viz. provisional need based appointment as a purely stop-
gap arrangement pending regular recruitment to the posts. Although
the University had retained the appellants who were serving on 4th
September, 2000 as daily wagers with "short breaks", the University
did not need to engage assistants on daily wages any more. It is
stated that two rank lists were prepared in 1995. The main list
contained the names of 378 candidates. There was also a
Supplementary List containing the names of 394 candidates from
various communities. Sixty five candidates have been appointed from
the main list and eight from the supplementary list. The last candidate
appointed was ranked at Serial No. 66 in the main list. There were
many candidates above the appellants who were more meritorious and
that regular appointments could only be made after applying the rules
of communal reservation.
We may start with a consideration of the basis of the appellants
case viz. the validity of the rank list for three years i.e. from October
1995 to October 1998. The learned Single Judge found that there was
nothing on record to show that the rank list was valid for three years a
finding which was not upset on appeal. The appellants now seek to
rely on the minutes of the proceeding of the Syndicate of the
University on 10th May, 1986 in which a resolution was taken to the
following effect:
"*85.220 : Considered the question of
enhancing the maximum period of validity
of the ranked list of selected candidates for
appointment, up to three years.
Resolved that the new rules fixing the
validity of ranked list for three years, be
approved for implementation for all future
selections. The Validity of existing lists will
be two years only".
According to the respondents this resolution related to the
Supplementary List for communal reservation and not to the general
list. This has not been effectively traversed by the appellants. But
assuming that the Syndicate had the power to resolve in 1986 that the
general rank list would be valid for three years, they must equally be
conceded the power to amend that decision. Admittedly they did so by
the resolution passed on 26th November, 1997 by which they cancelled
the rank list for the reasons stated.
The principle that persons merely selected for a post do not
thereby acquire a right to be appointed to such post is well established
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by judicial precedent. Even if vacancies exist, it is open to the
concerned authority to decide how many appointments should be
made. However the selected candidates have a right to compel such
authority (i) not to make appointments by travelling outside the
list and (ii) to make the selection for appointment strictly in the order
the candidates have been placed in the list. This Court has placed two
further restrictions on the exercise of power by the appointing
authority, namely that the appointments to the vacancies must be
made in accordance with the Rules, if any, relating to reservations and
also that the appointing authority cannot scrap the panel of selected
candidates during the period of its validity, except for well founded
reasons .
It is not the appellants case that the University has made any
appointments to the post of Assistants outside the Rank List or not
strictly in order of merit. Let us then look at the justifiability of the
reasons given by the respondents for cancelling the 1995 rank list.
On 24th April 1997, the State Government affirmed a policy
decision taken in December 1996 to de-link pre-degree courses from
colleges in the State in a phased manner. The respondents have
produced a circular of the same date which contains the decision and
notes that the process would involve identification of pre-degree
batches in the college for de-linking, issue of executive orders,
orders stopping admission for the batches proposed to be
discontinued and suitable deployment of the staff both teaching and
non-teaching which may be rendered surplus. For protecting the
service interests of the existing teaching and non-teaching staff, it
was also decided that further appointments of teaching staff and
non-teaching staff in the colleges and university should be stopped
immediately. The circular also states that though the decision in this
regard was taken in December, 1996 "it is reported that the private
colleges and universities have been resorting to recruitment of
teaching and non-teaching staff which may become a great financial
burden for Government in future".
Following this Circular, the Pre-Degree Course (Abolition)
Ordinance, 1997 was issued in exercise of powers under Article 213
of the Constitution of India. The Ordinance (Ordinance No. 10 of
1997) provided for a phased abolition of the pre-degree course. For
this purpose an Empowered Committee was set up consisting of
a) the Principal Secretary to Government,
Higher Education Department Chairman
b) the Vice-Chancellor of one of the
Universities in the State nominated by the
Government Member;
c) the Secretary to Government, General
Education Department Member
d) the Director of Collegiate Education
Member Secretary;
e) the Director of Public Instruction Member;
and
f) the Director of Higher Secondary Education-
Member
The Empowered Committee was to specify from time to time
the colleges which were to do away with the pre-degree course. Any
college so specified and which did not comply with the directive to
abolish the pre-degree course under Section 3 of the Ordinance was
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debarred from affiliation. Section 6 of the Ordinance further provided
for an absolute ban on appointment of staff etc. in the following
words:
" Notwithstanding anything contained in
the University laws or in any agreement
on contract, no appointment of non-
teaching staff in any college shall be
made for a period of three years from
the date of commencement of this
Ordinance:
Provided that, in the exigencies of
service, such appointment may be
made, with the previous approval of the
Committee."
The Ordinance was replaced by the Pre-Degree Course
(Abolition) Act, 1997 (Act 3 of 1998). The Act substantially
reproduces the language of the Ordinance which it replaced.
The Empowered Committee set up under the Ordinance
completed its task of phased specification of colleges during the
academic year 1997-98. On 3rd July, 1997, the Empowered
Committee issued an order which it inter alia provided for relaxation
on the ban of appointments of non-teaching staff to a limited extent,
by allowing only provisional appointment through the Employment
Exchange in the Universities "in already sanctioned vacancies".
In our opinion, this blanket ban on regular appointments
statutorily imposed for three years was by itself sufficient ground for
the University to cancel the rank list.
In addition to this circumstance was the creation of Kannur
University by which several colleges which earlier fell within the
jurisdiction of Calicut University came under the aegis of Kannur
University. This took place after the publication of the 1995 Rank List,
and cannot be said to be an irrelevant reason for cancelling the 1995
Rank List. According to the respondents, the formation of Kannur
University had rendered about 130 Assistants as excess staff in Calicut
University. It is true that the Calicut University made internal
adjustments pursuant to the creation of Kannur University by which
certain Assistants were required to discharge the function of Section
Officers but this would not take the case of the appellants much
further. Matters were clearly in a state of flux. What the position
would be once the transfer of the Colleges and personnel took place
could not be determined.
The third reason given by the respondents for canceliing the
1995 rank list were allegations of corruption in the preparation of this
list. It appears that there were Press reports which questioned the
fairness with which the 1995 rank list had been prepared. Although
this figured in the decision of the Syndicate to cancel the rank list, it
does not appear to have been the prime motive to do so. There was a
statutory ban, with a limited relaxation allowing provisional
appointment on the one hand and the administrative and financial
consequences of the creation of Kannur University on the other. The
appellants have not also been able to establish that there were any
permanent vacancies which existed during that period which could
have been filled by the University in accordance with law. In the light
of all these circumstances, the reason for cancellation of the Rank List
given by the respondents cannot be termed to be arbitrary or unjust.
The ban on regular appointments under the Act came to an end
in 2000. The respondents have also stated that the de-linking of the
pre-degree courses was completed by the academic year 2000-2001
with the publication of the pre-degree results in June 2001. The
period of validity of the 1995 Rank List, even according to the
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appellants, had long since expired. The University issued a fresh
notification on 25th March, 2000 to prepare a panel of qualified
assistants in anticipation of the lifting of the ban for vacancies that
existed and those that would arise on retirement of existing
employees. Some candidates in the 1995 Rank List sought to thwart
this and approached the High Court. On 9th March, 2001 the High
Court said:
"Since the test is scheduled on 10.3.2001
I do not find any ground to stay the test. But I
make it clear that the declaration of the result
and further proceedings will be only subject to
the result of the Original Petition".
The test was duly held. The results have been published in April
2001. The appellants seek to hold up the appointment of the
successful candidates by claiming regularisation on the ground that
they had been serving the University albeit on a daily wage basis
pursuant to orders of Court. In support of this prayer the appellants
have relied on the decision of this Court in State of Haryana v.
Piara Singh (1992) 4 SCC 118 . The reliance is misplaced. In that
case the Government itself had appointed ad hoc/temporary
employees who had continued for years together under orders passed
by the Government from time to time. The situation was brought
about because there was no Subordinate Service Selection Board
(SSB) in existence in the State during this period. After the SSB was
set up the Government was faced with a large number of ad hoc
employees already appointed by it and serving continuously for a
period of ten years or more. To meet the situation, the Government
formulated a scheme for regularisation of such employees subject to
certain conditions. The High Court set aside the conditions and
directed unconditional whole scale regularisation of ad hoc employees
who had put in at least one year service. This Court set aside the
direction of the High Court and said:
"Such directions have also the effect of
disregarding and violating the rule
relating to reservation in favour of
backward class of citizens made under
Article 16(4). What cannot be done
directly cannot be allowed to be done in
such indirect manner".
This Court upheld the scheme for regularisation formulated by
the Government itself.
The facts of this case are totally at variance with those in Piara
Singh. In this case there was a complete statutory ban on
appointments by the University from 1997 till 2000. The appellants
were appointed provisionally only pursuant to orders of Court purely
by way of interim relief because of the then existing need of the
University. There is no scheme for regularisation formulated by the
University. Besides regularisation in the appointment of the
appellants would mean appointment contrary to the order of merit in
the Rank List. There is also nothing to show that such regularisation
would be in keeping with the reservation rules. The appellants
cannot stand in the way of the candidates who successfully competed
in the 2001 selections for the post of Assistants. The alternative
prayer of the appellants is, therefore, unsustainable.
For all these reasons the appeals are dismissed and the interim
order vacated without any order as to costs.
..J
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(S. Rajendra Babu)
..J
(Ruma Pal)
Dated : April 26, 2002