Allowed

Sajina Chidangil v. Rajitha M.P

Kerala HC2 Jul 2019WA/694/2017

Case brief

AI extract

What is this about?

Appeal against a declaration that appointments to stenographer posts in excess of notified vacancies were invalid. The High Court held that since excess appointments were for vacancies existing at the time of notification (due to omission), they should be regularized.

What did the court decide?

The judgment of the Learned Single Judge and the declaration passed therein are set aside; appointments of appellants are to be regularized.

Sajina Chidangil Vs Rajitha M.P — 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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TUESDAY, THE 02ND DAY OF JULY 2019 / 11TH ASHADHA, 1941

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W.A.No.694 of 2017

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AGAINST THE JUDGMENT IN WPC.35506/2010 OF HIGH COURT OF KERALA DATED 20-02-2017

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APPELLANTS/THIRD PARTY:

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1 SAJINA CHIDANGIL, STENOGRAPHER GR.I, O/O.VICE CHANCELLOR, KANNUR UNIVERSITY, KANNUR UNIVERSITY CAMPUS P.O., KANNUR-2.

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2 MEENAKUMARI C., STENOGRAPHER GR.I, O/O.PRO VICE CHANCELLOR, KANNUR UNIVERSITY, KANNUR UNIVERSITY CAMPUS P.O., KANNUR-2.

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3 RAJITHA P.K. STENOGRAPHER GR.I, O/O.CONTROLLER OF EXAMINATIONS, KANNUR UNIVERSITY, KANNUR UNIVERSITY CAMPUS P.O., KANNUR-2.

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BY ADV. SRI.P.C.SASIDHARAN

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RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2:

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1 RAJITHA M.P., W/O.PRASHEED KUMAR T., CHALUPOKKIL HOUSE, CHERUVANNUR P.O., MEPRAYUR VIA, KOZHIKODE DISTRICT, PIN-673524.

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2 KANNUR UNIVERSITY, KANNUR UNIVERSITY CAMPUS P.O., KANUR-670567, REPRESENTED BY ITS REGISTRAR.

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W.A.No.694 of 2017

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3 THE VICE CHANCELLOR AND CHAIRMAN, SELECTION COMMITTEE FOR THE POST TO STENOGRAPHER-II, KANNUR UNIVERSITY, KANNUR UNIVERSITY CAMPUS P.O., KANNUR-670567.

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BY ADVS. SRI.K.RAKESH ROSHAN SMT.THUSHARA.V R1 BY SRI.C.VATHSALAN R2 & R3 BY SRI.M.SASINDRAN, SC, KANNUR UNIVERSITY.

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

W.A.No.694 of 2017

JUDGMENT

Vinod Chandran, J.

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The appellants are aggrieved by the judgment of the learned Single Judge and the declaration passed, which would in effect interfere with their appointments made as far as back in 2010. The learned Single Judge accepted the contentions of the writ petitioner, who is the 1^st respondent herein, and relying on the decisions in Lakshmi v . State of Kerala [ (2012) 4 SCC 105 ] and Arul Das v . State of Assam [ (2012) 5 SCC 559 ] declared that the

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respondent-University was not entitled to make any appointment from the rank list prepared pursuant to Exhibit P1 notification in excess of the one vacancy of Stenographer Grade II notified in the said notification.

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2. Admittedly there have been more appointments made to the post of Stenographer Grade II, than that advertised; who are the appellants herein. The appellants were not parties to the writ petition. There was an interim order passed in the present writ petition that appointments if any, made shall be subject to the result of the writ petition. We were concerned with the action of the University insofar as the appointments made in excess of the vacancies notified. We have directed the University to

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W.A.No.694 of 2017

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file an affidavit, which has been filed producing the appointment orders of the three appellants. We see from the appointment orders, respectively issued on 04.12.2010, 14.02.2011 and 04.12.2010, that there is a specific reference to the pendency of the writ petition and the appointment being subject to the result of the same.

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3. We are, however, disturbed with the writ petition itself, on several counts. Firstly, the writ petitioner was not a person in the rank list at all. The writ petitioner had even not applied for the post as per the notification. She admits that she was qualified as per the advertisement. The contention of the learned Counsel for the 1^st respondent-writ petitioner is that the writ petitioner had not applied since there is only one post; which we fail to comprehend. Though not a person who had applied under the notification, the writ petitioner filed the above writ petition and obtained an interim order. The writ petition can at best be treated as a Public Interest Litigation. We see that the University had complied with the specific direction of this Court. Definitely the appellants who were informed of the writ petition, could have impleaded themselves in the writ petition. However, it has to be noticed that the writ petitioner, who was

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W.A.No.694 of 2017

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espousing a public cause rather than a private cause, has deliberately not impleaded the persons who would be prejudiced, if the reliefs sought in the writ petition are granted. In fact, in the writ petition we see the averment

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in Ground-A that the petitioner was harbouring an apprehension that the respondent-University would fill up all the seven posts which are vacant at that point of time. The writ petition was filed on 25.11.2010 and the select list was published on the very next day. The writ petitioner could have impleaded at least the first seven persons in the list, immediately.

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4. We also notice that the petitioner's Counsel was no more at the time of hearing. The learned Standing Counsel for the University submits that at the time of hearing there was no appearance and in fact notice was specifically issued to the petitioner. The petitioner did not record appearance after that.

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5. One other factor which is pointed out by the learned Counsel for the appellants is that the rank list, produced at Annexure-A1, indicates that it was valid for one year from the date of its publication, i.e., from 26.11.2010 to 25.11.2011. We see that the appellants have been appointed during the validity of the rank list. In

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W.A.No.694 of 2017

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fact, the vacancies had arisen earlier and the University had committed a mistake insofar as not notifying all the vacancies as on the date of notification. We cannot find any mala fides on the University and it is only an omission.

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6. The learned Counsel for the petitioner/ respondent referred to 2008(1)SCC 798 Nagendra ChandravV.

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State of Jharkhand where even after 14 years of appointment, the incumbents were sent out of emloyment. However that was a case where appointments were made without any advertisement to the public and merely notified in the notice board. We cannot draw a parallel here.

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7. We also notice the judgment of the Hon'ble Supreme Court in Prem Singh v . Haryana State Electricity Board [ (1996) 4 SCC 319 ], wherein we specifically refer to the following observation in paragraph 26:

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"Even when filling up of more posts than advertised is challenged the Court may not, while exercising its extra ordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case".

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W.A.No.694 of 2017

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There the Hon'ble Supreme Court had considered a number of decisions of that Court in similar situation, where on facts in certain cases the appointments made in excess of the notification were upheld and where it was not interfered with, on grounds of equity. We are of the opinion that in the present case the writ petitioner's contentions are to be rejected. The University has explained the circumstances in which the posts were filled up in addition to the one notified. Those are posts which were available at the time of notification, but omitted to be notified. The posts filled up were not future vacancies which arose after the notification; which identical situation also arose in the above cited decision, the filling of which vacancies were not interfered with. The appointments to the future vacancies alone were set aside in the above-cited decision.

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8. We also reiterate that the writ petitioner has

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no personal grievance insofar as the writ petitioner having not even applied for the post. In the cited decision there was one applicant who had acquired the eligibility after the last date of application. The challenge made to his locus standi stood rejected by the Supreme Court since it was held that that he had a reasonable expectation to apply

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W.A.No.694 of 2017

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for the future posts arising. Here the petitioner was admittedly qualified but did not apply for the post.

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9. Considering all the above circumstances, we are

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of the opinion that the above extracted declaration of the Hon'ble Supreme Court squarely applies in the instant case. The judgment of the learned Single Judge shall stand set aside. The appellants' appointments should be regularized.

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The Writ Appeal is allowed. Parties are left to suffer their respective costs.

Sd/-

K.VINOD CHANDRAN

JUDGE

Sd/-

V.G.ARUN

JUDGE

Vku/-

W.A.No.694 of 2017

APPENDIX

APPELLANTS'ANNEXURES:

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ANNEXURE A1 TRUE COPY OF THE RANKED LIST. ANNEXURE A2 TRUE COPY OF THE ADVISE MEMO.

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RESPONDENT'S/S ANNEXURES:

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ANNEXURE R2(A) TRUE COPY OF THE MEMO DATED 04/12/2010 ISSUED TO THE 1ST APPELLANT. ANNEXURE R2(B) TRUE COPY OF THE MEMO DATED 14/02/2011 ISSUED TO THE 2ND APPELLANT. ANNEXURE R2(C) TRUE COPY OF THE MEMO DATED 04/12/2010 ISSUED TO THE 3RD APPELLANT.

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[ TRUE COPY ]

Sajina Chidangil v. Rajitha M.P

Case brief

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Sajina Chidangil v. Rajitha M.P

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