Shaji K.C vs Calicut University
2021 Latest Caselaw 16627 Ker

W.P.(C).No..13664/2021
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              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
 WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
                         WP(C) NO. 13664 OF 2021
PETITIONERS:

     1       SHAJI K.C.
             AGED 48 YEARS
             S/O RAMAN .K.C,POTTANALUNKAL
             HOUSE,CHENAKKAL,CALICUT UNIVERSITY.P.O,MALAPPURAM-
             673635.

     2       MOHAMMED SHAFI.V,
             AGED 36 YEARS
             S/O.ABOOBACKER,MANGUNGAL
             HOUSE,PARUTHIKOD,PALLIKKAL.P.O,
             MALAPPURAM-673634.

     3       AMITHAB.K,
             AGED 41 YEARS
             S/O.VASU.K,KOZHIKKATTIL HOUSE,
             OLIPRAM KADAVU THIRUTHI,KOLAKKATTUCHALIL.P.O,
             CHELAMBRA VIA,MALAPPURAM-673634.

     4       SUNIL KUMAR.N,
             AGED 44 YEARS
             S/O.UNNIKKARI,PATTAPULACKAL HOUSE,KARUVANKALLU,
             KARIPPOOR.PO,MALAPPURAM-673638.

     5       BASHEER.C.A,
             AGED 39 YEARS
             S/O.ANDEEL HAAJI,CHERAMCHERIAKKAL
             HOUSE,VARAPPARA,PARAMBIL
             PEEDIKA.P.O,THIRUR,MALAPPURAM-676017.
 W.P.(C).No..13664/2021
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     6          VINEESH.M.P,
                AGED 41 YEARS
                S/O.NAYADIKUTTI.M.P,MANIKULATH PARAMBIL
                HOUSE,OLIPRAM 14TH MILE,TENHIPALAM.P.O,
                MALAPPURAM-673635.

     7          SHARAFUDHEEN.K.C,
                AGED 44 YEARS
                S/O.KUNHIMOIDEEN.K.C,CHALIYIL
                HOUSE,KOHINOOR,THENHIPALAM.P.O,MALAPPURAM-673635.

                BY ADV P.K.IBRAHIM


RESPONDENTS:


      1         THE UNIVERSITY OF CALICUT,
                THENHIPALAM,CALICUT UNIVESITY.P.O,
                MALAPPURAM-673635,
                REPRESENTED BY ITS REGISTRAR.
      2         THE VICE CHANCELLOR
                UNIVERSITY OF CALICUT,THENHIPALAM,
                CALICUT UNIVERSITY.P.O,
                MALAPPURAM-673635.

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




         THIS     WRIT   PETITION    (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 4.08.2021, THE COURT ON 11.08.2021 DELIVERED
THE FOLLOWING:-
 W.P.(C).No..13664/2021
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                           ANU SIVARAMAN, J.
                      = = = = = = = = = = = = = = =
                         W.P.(C).No.13664 of 2021.
                     = = = = = = = = = = = = = = = =
                   Dated this the 11th day of August, 2021

                                    JUDGMENT

1. This writ petition is filed seeking the following reliefs:-

"i. Direct the respondents not to terminate the Service of the petitioners as driver so as to replace them by engaging fresh hands as drivers either on daily wages or on contract terms; ii. Issue of writ of mandamus or any other appropriate direction, permitting the petitioners to continue a drivers on daily wages/contract basis as found feasible by the respondents till regular hands are recruited in accordance with law; iii. Issue a writ of mandamus or any other appropriate writ restraining the respondents from selecting fresh hands for appointment as drivers on daily wage/contract basis to replace the petitioners;

iv. Declare that the petitioners are entitled to continue as drivers on contract basis until regular hands selected in accordance with the law report for duty."

2. Heard the learned counsel for the petitioners and the learned

standing counsel appearing for the respondent University. W.P.(C).No..13664/2021

3. It is submitted by the learned counsel for the petitioners that

the petitioners are drivers working under the University. They

had been engaged either on daily wage basis or on contract

after a due selection process. Ext.P1 is the memo of

appointment issued to the 5th petitioner. It is submitted that

similar memos have been issued to the other petitioners as

well. It is submitted that since the petitioners had been

working without break from 2013 and 2014 onwards, the

attempt of the University in seeking to replace the petitioners

with other similarly situated contract employees is completely

untenable and is liable to be interdicted.

4. A counter affidavit has been filed by respondents 1 and 2. It is

stated therein that on 19.7.2012 a press release was issued for

preparation of a panel of drivers for engagement on daily wage

basis. It is submitted that thereafter, a selection was

conducted based on an interview and a list of 24 candidates

was prepared. On the basis of their inclusion in the ranked

list, the petitioners had been engaged as drivers by the

issuance of Ext.R1(b) series of memos. It is stated that their

engagement was renewed on executing agreements in the W.P.(C).No..13664/2021

nature of Exhibit R1(c). It is submitted that the Government

issued a G.O. mandating that persons recruited for

appointment on daily wages should be engaged only for 179

days and for further engagement, sanction of the Government

is to be obtained. The University, thereafter implemented the

Government Order by Ext.R1(e) dated 9.2.2018. It is

submitted that by Government order dated 9.7.2019, which is

produced as Ext.R1(f), it was directed that under no

circumstances should the period of engagement of contract

employees be extended beyond two years. It is submitted that

thereafter, the University issued a notification inviting

applications for appointment of contract employees in various

posts including that of Driver-cum-Office Attendant by

Ext.R1(g) dated 10.4.2018. With reference to the post of

Driver, the Syndicate decided to finalise the selection based on

skill test (driving test) and interview. It is submitted that the

skill test was conducted on 14.1.2020 and 15.1.2020. A total of

67 candidates, including the 7 petitioners participated in the

test. The University published a list of successful candidates as

Ext.R1(i). It is stated that after the interview, the list will be

finalised according to merit of the candidates and that the writ W.P.(C).No..13664/2021

petition filed without disclosing these facts as well as the

factum of the petitioners participation in the selection

proceedings is an abuse of process of court. It is further

submitted that the judgments relied on by the petitioners have

no relevance in the instant case, since the petitioners were

persons selected for daily wage engagement after an interview

and appointed on the specific condition that they are not

entitled to claim any future appointments, temporary or

permanent. It is submitted that preparation of ranked list for

engagement of persons on contract basis is ongoing and the

petitioners claim will be considered along with other

candidates. It is stated that they have no independent right for

engagement and no enforceable right for further appointments

either. The decision of the Apex Court in Sarojakumari D v.

R.Helen Thilalom and others [2017 (4) KHC 898] is relied

upon in support of the contention that the petitioners, who

have participated in the selection process without demur,

cannot challenge the process on the apprehension that they

may not be successful.

W.P.(C).No..13664/2021

5. I have considered the contentions advanced. From the counter

affidavit filed by the University, it is clear that the steps for

conducting a selection for contract appointment for several

posts in the University, including the post of drivers was

initiated as early as in 2018. The petitioners have apparently

participated in the selection procedure by undergoing the

driving test conducted in October 2020. The petitioners'

initial appointments were apparently on ad hoc basis after the

conduct of an interview. The University has raised a specific

contention that the Government had directed the

disengagement of persons appointed after a selection only

through interview after the expiry of 179 days and had

interdicted their continuance after two years. In the instant

case, the fact that a notification had issued in 2018 calling for

appointments and that the petitioners had participated in the

selection had not been specifically brought to the notice of this

Court in the writ petition. In any view of the matter, since the

petitioners have applied pursuant to the notification and have

participated in the selection process by appearing for the

driving test, I am of the opinion that this writ petition now W.P.(C).No..13664/2021

filed with the prayers, as sought for, is not maintainable. The

petitioners who have applied pursuant to a notification cannot

turn around and challenge the notification itself midway

through the selection process.

6. In the above view of the matter, I am of the opinion that the

prayers as sought for, cannot be granted. The writ petition

fails and the same is accordingly dismissed. However, in view

of the fact that the petitioners are continuing on daily wage

basis, the respondents shall permit them to continue till the

selection process as has been initiated by the University is

completed and appointments are made pursuant thereto.

sd/-

Anu Sivaraman, Judge

sj W.P.(C).No..13664/2021

APPENDIX OF WP(C) 13664/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE APPOINTMENT MEMO ISSUED TO THE 5TH PETITIONER DATED 15.03.2013.

Exhibit P2 TRUE COPY OF THE AGREEMENT EXECUTED BY THE 5TH PETITIONER ON 29.08.2017 IN REGARD TO HIS ENGAGEMENT ON CONTRACT BASIS

Exhibit P3 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT UNIVERSITY DATED 29.06.2020 EXTENDING THE PERIOD OF CONTRACT FOR 1 YEAR FROM 2020 IN RESPECT OF PETITIONERS 1 AND 3 TO 6

Exhibit P4 TRUE COPY OF THE ORDER DATED 27.06.2021 ISSUED TO THE 4TH PETITIONER ENGAGING ON DAILY WAGE BASIS FOR A FURTHER PERIOD OF 89 DAYS

Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 02.02.2012 IN WP(C)NO.15981/2011 FILED BY THE AFORESAID PERSONS NAMELY SUKUMARAN.K,MOHAMMED ALI.K.C,KRISHNAPRASAD.K.C,ANOOP KUMAR.V.K,MOHAMMED HANEEFA.A,SASIDHARAN.P ETC.

TRUE COPY

PS TO JUDGE