Partly allowed

Reenu George v. Sheela Thomas

Kerala HC1 Apr 2019WA/1803/2015

Case brief

AI extract

What is this about?

Two writ appeals were filed regarding the appointment of the appellant, made from a reserved category. The High Court originally quashed the appointment and directed fresh selection from the original applicants. Modifying the judgment, the Court held the respondent was not estopped from challenging the interview due to inducement by the University. The Court appointed the first respondent to the r

What did the court decide?

University directed to appoint the first respondent to the post of Lecturer in English prospectively within one month, treating past service as per rules.

Reenu George Vs Sheela Thomas — Service and Employment | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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MONDAY, THE 01ST DAY OF APRIL 2019 / 11TH CHAITHRA, 1941

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WA.No. 1677 of 2015

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JUDGMENT IN WPC 36116/2009 of HIGH COURT OF KERALA DATED 27-012015

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APPELLANT/3^rd RESPONDENT IN THE WRIT PETITION REENU GEROGE LECTURER, DEPARTMENT OF ENGLISH, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY PO, PIN-673 635, RESIDING AT KALATHIL PARAMBIL, PAMPADI PO, THRISSUR DISTRICT-680 597.

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BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH SRI.T.G.SUNIL (PRANAVAM)

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RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2 IN THE WRIT PETITION:

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1 SHEELA THOMAS W/O.V.V.SABU, RESIDING AT VILLANTHANATHU HOUSE, CHENAKKAL, CALICUT UNIVERSITY PO, MALAPPURAM DISTRICT, PIN-673 635.

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2 THE CALICUT UNIVERSITY REPRESENTED BY ITS REGISTRAR, UNIVERSITY ADMINISTRATIVE OFFICE, CALICUT UNIVERSITY PO, PIN673 635.

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3 THE SYNDICATE REPRESENTED BY ITS CHAIRMAN, UNIVERSITY OF CALICUT, UNIVERSITY ADMINISTRATIVE OFFICE, CALICUT UNIVERSITY PO, PIN-673 635.

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BY ADVS. SRI.P.K.IBRAHIM

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SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01.04.2019, ALONG WITH WA.1803/2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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W.A.Nos.1677 & 1803 of 2015

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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MONDAY, THE 01ST DAY OF APRIL 2019 / 11TH CHAITHRA, 1941

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WA.No. 1803 of 2015

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JUDGMENT IN WPC 15506/2005 of HIGH COURT OF KERALA DATED 27.1.2015

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APPELLANT/NOT A PARTY TO THE WRIT PETITION:

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REENU GEORGE

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LECTURER, DEPARTMENT OF ENGLISH, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY PO, PIN-673 635, RESIDING AT KALATHIL PARAMBIL, PAMPADI PO, THRISSUR DISTRICT-680 597.

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BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH SRI.T.G.SUNIL (PRANAVAM)

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RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2 IN THE WRIT PETITION:

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1 SHEELA THOMAS, W/O.V.V.SABU, RESIDING AT H-1 QUARTERS, CALICUT UNIVERSITY CAMPUS, CALICUT UNIVERSITY PO, PIN-673 635.

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2 UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTAR, UNIVERSITY ADMINISTRATIVE OFFICE, CALICUT UNIVERSITY PO, PIN-673 635.

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3 THE VICE CHANCELLOR UNIVERSITY OF CALICUT, UNIVERSITY ADMINISTRATIVE OFFICE, CALICUT UNIVERSITY PO, PIN-673 635.

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4 SHRI BIJU JUSTIN, RESIDING AT 079, MANI UDAYNAGAR, DOORVANI NAGAR PO, BANGALORE, PIN560 016. BY ADVS. SRI.P.K.IBRAHIM SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY SRI.SANTHOSH MATHEWSCCALICUTY UNIVERS

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OTHER PRESENT:

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SRI P.C SASIDHARAN SC

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01.04.2019, ALONG WITH WA.1677/2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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W.A.Nos.1677 & 1803 of 2015

JUDGMENT

V.G.ARUN, J.

These writ appeals are filed against the common judgment in two writ petitions, ie; W.P.(C) No.15506/2005 and W.P.(C) No.36116/2009, whereunder the 1^st respondent had challenged the process of selection adopted by the University for filling up the vacant post of Lecturer in English reserved for Latin Catholic/Anglo-Indian Community and the appointment of the appellant herein to the said post.

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The chequered history of the case goes back to the year 2002, when the Calicut University published a notification inviting applications to fill up two vacancies of Lecturer in English, one of which was reserved for Latin Catholic/Anglo-Indian community. The 1^st respondent herein had the requisite qualification and therefore submitted her

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application. The Academic Council of the University, the competent body, had notified the Guidelines for awarding index marks for the selection of Lecturers in the private affiliated Arts and Science Colleges in the University Teaching Departments. But the selection pursuant to the notification under which the 1^st respondent had applied was conducted contrary to the Guidelines. Based on that selection, one Biju Justin was appointed.

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The 1^st respondent challenged the selection and appointment of Biju Justin in O.P.No. 16620 of 2002 successfully and this Court, by judgment dated 12.08.2003, allowed the writ petition, quashing the appointment of Biju Justin and directed the University to conduct fresh selection following the guidelines prescribed by the Academic Council and to make recommendations within a period of three

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months from the date of receipt of a copy of the judgment. It was directed that the Syndicate shall, thereafter, pass appropriate orders appointing the suitable candidate within one month. Writ appeal filed by Biju Justin against that judgment was dismissed.

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After dismissal of the writ appeal, the University conducted fresh interview on 10.1.2005 in purported compliance of the directions in the judgment. Being a reservation post, only two candidates from the reserved community, the first respondent and another, attended the interview. Surprisingly, instead of awarding marks in terms of the norms laid down by the Academic Council, the Selection Committee recommended to re-notify the vacancy, finding that the two candidates, who had attended the interview, were not suitable for the post. Thereafter, the vacancy was

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again notified vide notification dated 18.04.2005, and thereupon the 1^st respondent filed W.P.(C) No. 15506 of 2005, challenging the fresh notification and seeking a declaration that the action of the Selection Committee in having refused to award marks and to prepare the select list on the basis of the norms laid down by the Academic Council, was arbitrary and illegal.

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This Court, while admitting W.P.(C) No. 15506 of 2005, ordered as follows:

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“Petitioner is free to submit her application pursuant to Exhibit P10 (the notification under challenge), without prejudice to the contentions raised in the writ petition.”

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In terms of the order, the 1^st respondent submitted her

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application. Later, by Ext.P5 order dated 06.09.2005, this Court allowed the University to proceed with the interview of the candidates who had applied pursuant to the notification

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dated 18.04.2005. The order dated 06.09.2005 reads as follows:

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“University is free to proceed with the selection and to conduct the interview of the candidates applied for the post pursuant to Exhibit P10 notification. Petitioner also shall be allowed to participate in the interview. But the interview will be subject to the result of this writ petition. The result of the interview shall not be announced without further orders from this Court.”

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Thereafter, the University fixed the interview on

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two different occasions, but on both occasions the interview was adjourned. Nothing further was done in the matter till 29. 07.2008, on which date the University re-notified the post of Lecturer in English, reserved for Latin Catholic/AngloIndian, along with other teaching posts. Immediately, the first respondent made a representation to the University, pointing out that its action is illegal inasmuch as the refusal to select a

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candidate from among the applicants who had applied earlier and the consequent fresh notification issued on 18.04.2005 are matters pending adjudication before the High Court in W.P. (C) No. 15506 of 2005. After submission of the representation, the 1^st respondent was served with a memo requiring her to attend the interview to the post of Lecturer in English, scheduled on 22.11.2008. In the said communication, specific reference was made to the interim order passed in W.P.(C) No. 15506 of 2005. The 1^st respondent attended the interview on the impression that she had been called for the interview based on her application in response to the notification dated 18.04.2005. Later, from a news item, the first respondent came to know that the Syndicate of the University had decided to make appointment based on the interview conducted on 22.11.2008, and that the University had ranked one Dr.

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Vincent B. Netto as rank No.1, the appellant as rank No.2 and the first respondent as rank No.3.

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The 1^st respondent again represented to the University pointing out that its action was in contempt of the interim order of this Court dated 6.9.2005, whereby this Court had directed that the result of the interview shall not be announced without further orders from the Court. Despite such representation, the University proceeded with the selection and since the first rank holder failed to join, appointed the appellant herein to the notified post as per order dated 28.08.2009. Thereupon, the 1^st respondent filed W.P.(C) No. 36116 of 2009 seeking to quash the notifications dated 18.04.2005 and 29.07.2008 and the order dated 28.08.2009 by which the appellant was appointed.

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The University, through its statement, attempted to

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defend its actions contending that in the fresh interview conducted on 10.01.2005, pursuant to the judgment of this Court in O.P. No.16620 of 2002, the Selection Committee had, on a consideration of the performance of the two candidates who had attended the interview, unanimously found both candidates unsuitable for selection to the post of Lecturer. That, the Selection Committee did not award any marks for qualification, experience, additional degrees and publications. In the interview as per the guidelines, even without award of such marks, the Selection Committee is competent to judge as to whether the candidates, who appeared for the interview, are suitable for selection or not. That, having found both the candidates unsuitable, the selection committee had recommended to re-notify the post. The challenge against the re-notification dated 29.07.2008 was sought to be met by

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contending that the 1^st respondent had challenged the earlier notification dated 18.04.2005 in W.P.(c) No. 15506 of 2005 and that, during the pendency of the writ petition, the notification had lapsed and hence the University had renotified the post on 29.07. 2008. It was contended that the first respondent, after having attended the interview conducted pursuant to the notification dated 29.07.2008, cannot, thereafter, challenge the notification. It was contented that the interview held on 22.11.2008 was conducted strictly in accordance with the guidelines framed by the Academic Council and that with the appointment of the appellant, the challenge against the notifications and the process of selection had become infructuous.

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The appellant also filed a counter affidavit justifying her appointment raising similar contentions as that

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of the University. It was contended that since the appellant had been appointed by a detailed order dated 16.10.2009, the challenge against the earlier proceedings was rendered nugatory.

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The learned Single Judge, after elaborate consideration of the contentions urged by the parties, found that the directions contained in the judgement in O. P. No. 16620 of 2002 had been flagrantly flouted by the Syndicate and the Selection Committee, with mala fid e intent ensured that the first respondent is not selected and appointed to the notified post. The learned Single Judge found that the specific direction of this Court in O. P. No. 16620 2002 was to conduct the selection based on the 1^st notification dated 08.05.2002 strictly in accordance with the guidelines formulated by the Academic Council. It was found that the guidelines formulated

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by the Academic Council specifically prescribed the method for awarding Index Marks at the time of selection and that the guidelines prescribed 40% marks to be assigned for qualifications, 15% marks for publications, 15% marks for experience, 5% marks for additional degrees and 25% marks for interview. The guidelines further provided for split up details of marks to be awarded for qualifications. The learned Single Judge found that the University did not have a case that either the 1^st respondent or the other candidate, who had attended the interview, did not possess any of the prescribed qualifications to be appointed to the post. It is found that going by the guidelines, the 1^st respondent ought to have been awarded 25 marks for the qualification of PG degree with 1^st rank, and that she was also eligible for getting 5% additional marks for the B.Ed. degree and for the experience she had

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acquired, working as a lecturer in the collegiate education department. It was hence found that there was absolutely no justification for the selection committee to observe that both candidates were not suitable for appointment to the post of Lecturer and to recommend re-notification of the post. Based on the said findings, the challenge against the subsequent notification dated 18.04.2005 was upheld.

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With respect to the notification dated 29.07.2008 and appointment of the appellant based on the selection pursuant to the notification, the learned Single Judge found a deliberate attempt on the part of the University to see that the notification dated 18.04.2005 lapses, so as to circumvent the interim orders passed by this Court in W.P. (C) No.15506 of 2005. It is found that the University was following a hostile and inimical attitude against the 1^st respondent and was

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practicing crooked methods to see that the 1^st respondent is in no manner considered for the selection. It was therefore held that the issuance of the notification dated 18.04.2005 and the selection and appointment made pursuant to the notification was totally illegal, erroneous and improper. Consequently, the selection and appointment of the appellant was quashed and the University directed to comply with the directions contained in the judgment in O. P. No. 16620 of 2002 by conducting selection to the post in question following the guidelines prescribed by the Academic Council of the University, by constituting a new selection committee. It is further directed that such selection shall be made from among the four candidates who had applied to the post based on Exhibit P1 Notification dated 08.05.2002. It is also clarified that if no candidate, other than the 1^st respondent, from

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among those who had applied pursuant to the notification dated 18.04.2005, turns up to attend the interview, the 1^st respondent shall be appointed to the post in question.

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The challenge in these appeals is mainly on the ground that after having appeared for the interview held on 22.11.2008, based on the notification dated 29.7.2008, the first respondent cannot thereafter turn around and challenge the notification and the selection made based on the interview, since the said action is hit by the principle of estoppel . The other ground of challenge is that the first respondent had not questioned the constitution of the selection committee or the rank list published by the selection committee on the ground of malafides and therefore, the learned Single Judge should not have interfered with the selection and appointment of the appellant. The direction

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contained in the impugned judgment to conduct selection based on the first notification dated 8.5.2002 is also challenged, contending that in none of the interviews, the first respondent had secured first rank. A plea is also raised based on equity, pointing out that the first respondent is working as Lecturer in the Collegiate Education Department, whereas, the appellant had resigned from the post of Vocational Teacher in the Education Department to join the post of Lecturer in the University and hence, the direction to straight away remove the appellant from service metes out injustice.

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At the outset, it has to be noticed that the University has not challenged the judgments and therefore, the findings in the impugned judgment with regard to the illegal manner in which interview was conducted by the Selection Committee on 10.01.2005 has attained finality. The challenge on the

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ground that the first respondent, after participating in the interview conducted on 22.11.2008, in terms of the notification dated 29.07.2008, is estopped from challenging the notification has to be considered with reference to the circumstances under which the 1^st respondent had attended the interview. A reading of Exhibit P8 memo dated 11.11.2008 by which the 1^st respondent was called for the interview held on 22.11.2008 leaves no room for doubt that there was a deliberate attempt on the part of the officials of the University to dupe the 1^st respondent into believing that the interview to be held on 22.11.2008 was scheduled on the basis of the interim orders issued in W.P. (C) No 15506 of 2005. That, in her subsequent communication sent to the University she had succinctly stated this fact and the silence on the part of the officials of the University in replying to the communication

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sent by the 1^st respondent speaks volumes about their complicity in the matter. Having enticed the 1^st respondent into attending the interview on 22.11.2008, neither the University, nor for that matter the appellant can raise a contention that the 1^st respondent is estopped from challenging the notification dated 29.07.2008 and the selection made based on that notification. For the same reason, the decisions relied on by the first respondent are inapplicable, since those decisions were rendered in the context of the candidate having voluntarily attended/participated in the interview/written test and having thereafter challenged the process of selection. Moreover, as correctly held in the impugned judgment, the participation of the first respondent in the interview was subject to the final outcome of W.P.(C) No.15506 of 2005. In

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such circumstances, there is no reason for us to interfere with the findings in the impugned judgment.

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We are made to understand that the appellant has been appointed as Lecturer at the Vimala College, Thrissur and has been relieved from the post of Assistant Professor (English), Department of English, Calicut University with effect from 30.8.2018. Hence, the plea of equity is no longer available to the appellant. In view of the fact that the appellant is no longer in the service of the University, there need not be a direction to terminate the appellant from service. To that extent, the impugned judgment is interfered with. The interest of the appellant is sufficiently safeguarded by the impugned judgment, wherein the University has been restrained from recovering and withholding any of the benefits already granted to the appellant.

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By the impugned judgment, the learned Single Judge has directed the University to comply with the directions contained in the judgment in O.P.No.16620 of 2002 by conducting selection to the post in question following the guidelines prescribed by the Academic Council of the University, by constituting a new Selection Committee. It is further directed that the selection shall be made from among the four candidates who have applied for the post on the basis of Ext.P1 notification dated 8.5.2002 published by the University. It is further observed that if no candidate, other than the first respondent, from among those who had applied on the basis of the notification dated 8.5.2002 turns up to attend the selection process, the first respondent shall be appointed to the post in question. Considering the fact that from among the four candidates, none other than the first

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respondent had challenged the subsequent notifications, which is indicative of the fact that the other candidates have given up their claim for appointment based on the notification dated 8.5.2002, we are of the opinion that no purpose would be served by conducting a fresh selection at this point in time based on the notification dated 8.5.2002. Moreover, the first respondent has already undergone two interviews. She was also ranked third once, when the first rank holder did not take up the offer of appointment and the appellant was appointed. Both the first rank holder and the appellant were not applicants under the earlier notification. The judgment in O.P.No.16620 of 2002 has clearly directed only the applicants under that notification to be interviewed. The interim orders issued on the instant notification was also on similar tenor.

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In such circumstances, we deem it appropriate to direct

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the University to appoint the first respondent to the post of Lecturer in English, reserved for Latin Catholic/Anglo Indian candidates, as per Ext.P1 notification dated 8.5.2002. This shall be done within a period of one month from the date of receipt of a copy of this judgment. Taking into consideration the fact that the 1^st respondent has been working in the Collegiate Education Department during the pendency of the writ petitions and appeals, the appointment of the first respondent consequent to this judgment shall be prospective, but entitled to treat the past service as per the extant rules. Writ appeal is partly allowed with the above directions. No order as to costs.

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Sd/K. VINOD CHANDRAN Sd/- V.G.ARUN JUDGE

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Scl/1.04

Reenu George v. Sheela Thomas

Case brief

What is this about?

What did the court decide?

Reenu George v. Sheela Thomas

Case brief

What is this about?

What did the court decide?

What the court decided

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