Koliyoor Gopi vs The University Of Kerala
2021 Latest Caselaw 3195 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                  &

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

      FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942

                      WP(C).No.39309 OF 2017(S)


PETITIONER:

               KOLIYOOR GOPI
               PRESIDENT, MAHATMA AYYANKALI SAAMSKAARIKA SAMITHY,
               RESIDING AT T.C 66/1934, BODHI, KOLIYOOR,
               MUTTAKKADU P.O, THIRUVANANTHPURAM - 695 523.

               BY ADVS.
               SRI.P.K.IBRAHIM
               SMT.K.P.AMBIKA
               SRI.A.L.NAVANEETH KRISHNAN
               SRI.K.THOMAS ALIAS

RESPONDENTS:

      1        THE UNIVERSITY OF KERALA
               REPRESENTED BY ITS REGISTRAR,
               SENATE HOUSE CAMPUS, PAALAYAM,
               THIRUVANANTHAPURAM - 34.

      2        THE SYNDICATE OF THE UNIVERSITY OF KERALA
               REPRESENTED BY ITS CHAIRMAN/VICE CHANCELLOR,
               SENATE HOUSE CAMPUS, PAALAYAM,
               THIRUVANANTHAPURAM 34

               R1-2 BY SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD           ON
29-01-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.39309 of 2017-S
                                      2

                                JUDGMENT

Dated this the 29th day of January, 2021

S.Manikumar, C.J.

Instant public interest litigation is filed, being aggrieved by the

delay in the process of appointment of faculty members in the reserved

category vacancies in the University of Kerala. It is stated that there are

many attempts to thwart the appointment of SC/ST candidates in the

service of Kerala University by employing certain ingenious methods of

malpractices such as delay in recruitment process and cancellation of

notifications on account of time lapse etc. According to section 6(2) of

the Kerala University Act 1974, the communal rotation in the matter of

appointment is to be followed category wise treating all the departments

as one unit. Thus all the existing teaching vacancies in various

departments is brought under pooling. The selection process pursuant to

notifications issued reserving the vacancies to SC/ST and other weaker

section, have often been thwarted by one reason making their

representations in the service of the universities very negligible. The

University has informed the State Scheduled Caste Schedule Tribe

Commission that 110 teaching post have been identified pursuant to Ext

P1 complaint of the petitioner and later Ext P5 series notification was

issued. University issued separate notifications dated 27.11.2017 for the W.P.(C)No.39309 of 2017-S

post of Assistant Professors, Associate Professors and Professors

notifying the communal rotation to the vacancies in all these posts. The

temporary/ad-hoc/Contract appointees are exerting their influence to

delay the selection process following Ext P5 series notification. There is a

concerted move to pass a resolution by the syndicate for stalling the

selection process posts notified in Ext P5 series are now been occupied

by temporary hands and some posts remains vacant. There are serious

political pressure on the Vice-chancellor and the syndicate to delay the

changeover of recruitment process to the system under the mandate of

section 6(2) of the Kerala University Act. Hence the writ petition is filed

seeking the following relief:

"i) Issue a writ of mandamus commanding the respondents to complete the selection and appointment to the posts notified against the reserved categories in Ext P5 series expeditiously and within such reasonable time as may be fixed by this Hon'ble court."

2. In support of the prayers, the petitioner has inter alia raised the

following grounds:

A. The representation of Scheduled Caste and Scheduled Tribes in the

University service is affected by the calculated move from certain vested

interested peoples including person appointed on temporary/ad-

hoc/contract basis. The temporary/ad-hoc/Contract appointees are W.P.(C)No.39309 of 2017-S

exerting their influence to delay the selection process following Ext P5

series notification. There is a concerted move to pass a resolution by the

syndicate for stalling the selection process posts notified in Ext P5 series

are now been occupied by temporary hands and some posts remains

vacant. The syndicate meeting is scheduled to be on 06.12.2017.

B. According to section 6(2) of the Kerala University Act 1974, the communal

rotation in the matter of appointment is to be followed category wise

treating all the departments as one unit. Thus all the existing teaching

vacancies in various departments is brought under pooling. There are

serious political pressure on the Vice-chancellor and the syndicate to delay

the changeover of recruitment process to the system under the mandate

of section 6(2) of the Kerala University Act.

C. Ext P2 mandates the notification for selection for all existing teaching

vacancies which are not notified and which are notified but pending for

more than 10 years without the selection and the posts notified but

applicants not available giving effect to Section 6(2) of the Act. Ext P2

also stipulates the system of category wise communal rotation treating all

the departments as one unit shall start as afresh dropping the

compensation of back log vacancies due to the weaker Sections.

D. The attempt to delay the recruitment is against the direction issued by the

UGC to fill the vacant faculty position or else UGC may be forced to

withhold the general development grants to the university. Also the NAAC

team visited the university for granting have raised their concern over the W.P.(C)No.39309 of 2017-S

delay in regular appointments in the existing vacancies and delay in filling

these vacancies. The respondents have kept posts vacant which were

sanctioned during the period 1974 to 2005 and even thereafter. Many of

the posts in Ext P6 are of the reserved category and belong to SC/ST.

3. Controverting the averments made by the petitioner in the writ

petition, the Registrar of the Kerala University and the Chairman of the

Syndicate of the Kerala University, respondents, have filed a statement

and counter affidavits. In paragraph 3 of the counter affidavit dated

5.2.2020, they contended thus:

"3. The UGC had requested all the Universities in July 2018 to postpone the recruitment process until further direction, while the question of whether reservation to teaching posts are to be executed by taking Subject/Department as a Unit/Institution as a Unit was under the consideration before the Hon'ble Supreme Court of India. The above restriction was later withdrawn in March 2019 with a direction to follow the Central Educational Institutions Ordinance, 2019, wherein provisions were made for reservation treating the institution as a Unit. The University had thereafter started processing the applications. As on date, Selection Committee in respect of the Departments of Geology, Tamil, Aquatic Biology & Fisheries and Library & Information Science has been conducted on January 22, 24, 27 & 29 of 2020 respectively.

The recommendations of the Selection Committee will be placed before the Syndicate which would make the appointments. The Selection Committee in respect of the Departments of Statistics, Botany, Mathematics, Environmental Sciences, Law & Hindi have W.P.(C)No.39309 of 2017-S

also been scheduled on February 01, 03, (04 and 05), 10, 11 and (12 and 13) respectively. As and when the initial processing is completed, interview will be scheduled with regard to the vacancies in other Departments."

4. Respondents have also filed an additional counter affidavit dated

15.2.2020. Relevant portions of the same are extracted:

"3. When the matter came up before this Hon'ble Court on 13.2.2019, the petitioner disputed the contention taken by the University that the University Grants Commission had sent communications to the University to stop the selection process and further contended that the Central Educational Institutions Ordinance has no relevance with respect to the University of Kerala. As such, the production of the aforesaid communications and ordinance has become essential.

4. The amendment of the Kerala University Act, 1974 by the State Government vide Act 26 of 2014 had enabled application of reservation by pooling of posts under each category of teaching posts, considering University as a single unit. The University issued notifications in November 2017 following the reservation system as per the Amended Act. The amendment to the University Act was challenged in W.P.(C)No. 1592 of 2018, W.P.(C) No.4592 of 2018 and W.P.(C) 8334 of 2018 and the said writ petitions are still pending.

5. In the meanwhile, the University Grants Commission vide letter dated 19.7.2018 requested the University to postpone the recruitment process if it was already underway. The true copy of the letter No. F-1-5/2006(SCT) dated 19.7.2018 sent by the University Grants Commission is produced herewith and marked as Exhibit R1(e). (Exhibits R1(a) to R1(d) filed along with the W.P.(C)No.39309 of 2017-S

earlier counter affidavit). A perusal of Exhibit R1(e) would reveal that the same contained reference to the letter No. 1 -7/2017-CU- V(pt.) dated 18.7.2018 of the Ministry of Human Resource Development, Government of India sent to the University Grants Commission. The true copy of the said letter No.1-7/2017- CU- V(pt) dated 18.7.2018 of the Ministry of Human Resource Development, Government of India is produced herewith and marked as Exhibit R1(f). In Exhibit R1(f), reference is made to the filing of SLPs by the MHRD and UGC before the Hon'ble Supreme Court and the need to issue directions to postpone the recruitment process already underway.

6. Later the aforesaid restriction was withdrawn by the University Grants Commission as per the letter dated 7.3.2019 and directed the Universities to start recruitment. The true copy of the said letter dated 7.3.2019 issued by the UGC is produced herewith and marked as Exhibit R1(g). A perusal of Exhibit R1(g) would reveal that the same has been sent to the Registrars of all Central Universities, State Universities receiving grant-in-aid and the Deemed to be Universities receiving grant-in-aid. The said letter contained reference to the Central Educational Institutions (Reservation in Teachers Cadre) Ordinance, 2019. The true copy of the gazette notification dated 7.3.2019 of the Central Educational Institutions (Reservation in Teachers' Cadre) Ordinance, 2019 is produced herewith and marked as Exhibit R1(h).

7. In continuation of Exhibit R1(g) letter, yet another letter No.F.1- 5/2006(SCT) dated 8.3.2019 was issued by the University Grants Commission wherein it was clarified that for the purpose of reservation of posts in direct recruitment in Teachers' Cadre, the University/College/Institution shall be regarded as one unit. The W.P.(C)No.39309 of 2017-S

true copy of the said letter No.F.1-5/2006(SCT) dated 8.3.2019 issued by the University Grants Commission is produced herewith and marked as Exhibit R1(i).

8. It was the first time that the University had notified a total of 105 vacancies together and the processing of applications including those of Associate Professor and Professor was a time consuming process. The various stages at which the selection process in various departments have reached is enumerated in Exhibits R1(a) to Exhibit R1(d) documents produced along with the earlier counter affidavit filed by the University. The selection process in the following notified posts, up until placing the same before the Syndicate, has already been completed as on 13.2.2020:

(i) Geology - Assistant Professor and Associate Professor

(ii) Tamil - Assistant Professor and Associate Professor

(iii) Aquatic Biology & Fisheries - Assistant Professor, Associate Professor & Professor

(iv) Library & Information Science - Assistant Professor

(v) Statistics - Assistant Professor and Associate Professor

(vi) Botany - Professor

(vii) Mathematics - Assistant Professor and Associate Professor

(viii) Environmental Sciences - Associate Professor

(ix) Law - Assistant Professor and Professor

(x) Hindi - Assistant Professor, Associate Professor and Professor

The results of the selection process are intended to be placed before the Syndicate at its meeting tentatively scheduled for the second week of March, 2020."

5. On this day, when the matter came up for further hearing,

representation has been made on behalf of the University of Kerala that

the letter issued by the University Grants Commission to postpone the W.P.(C)No.39309 of 2017-S

recruitment, was later on withdrawn, and that consequently, the

recruitment process is continued. He further submitted that the process

would be completed as expeditiously as possible.

6. In the light of the above submission, University of Kerala is

directed to complete the process of recruitment, at the earliest.

Writ petition is disposed of accordingly.

Pending interlocutory applications, if any, shall stand closed.

Sd/-

S.Manikumar Chief Justice

Sd/-

Shaji P.Chaly Judge vpv W.P.(C)No.39309 of 2017-S

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PETITION DATED 31-08-2017 BEFORE KERALA STATE SCHEDULED CASTE SCHEDULED TRIBE COMMISSION

EXHIBIT P2 TRUE COPY OF THE ORDER DATED 25.10.2017 ISSUED BY THE UNIVERSITY.

EXHIBIT P3(A) TRUE COPY OF THE NOTIFICATION DATED 26-2-

2007 NOTIFYING VACANCIES AGAINST VARIOUS RESERVED CATEGORIES MANY OF WHICH REMAIN STILL UNFILLED FOR THE DELAY IN RECRUITMENT

EXHIBIT P3(B) TRUE COPY OF THE NOTIFICATION DATED 26-03-

2008 NOTIFYING VACANCIES AGAINST VARIOUS RESERVED CATEGORIES MANY OF WHICH REMAIN STILL UNFILLED FOR THE DELAY IN RECRUITMENT

EXHIBIT P3(C) TRUE COPY OF THE NOTIFICATION DATED 09-09-

2008 NOTIFYING VACANCIES AGAINST VARIOUS RESERVED CATEGORIES MANY OF WHICH REMAIN STILL UNFILLED FOR THE DELAY IN RECRUITMENT

EXHIBIT P3(D) TRUE COPY OF THE NOTIFICATION DATED 30-01-

2009 NOTIFYING VACANCIES AGAINST VARIOUS RESERVED CATEGORIES MANY OF WHICH REMAIN STILL UNFILLED FOR THE DELAY IN RECRUITMENT

EXHIBIT P3(E) TRUE COPY OF THE NOTIFICATION DATED 15-06-

2009 NOTIFYING VACANCIES AGAINST VARIOUS RESERVED CATEGORIES MANY OF WHICH REMAIN STILL UNFILLED FOR THE DELAY IN RECRUITMENT

EXHIBIT P3(F) TRUE COPY OF THE NOTIFICATION DATED 14-09-

2009 NOTIFYING VACANCIES AGAINST VARIOUS RESERVED CATEGORIES MANY OF WHICH REMAIN STILL UNFILLED FOR THE DELAY IN RECRUITMENT

EXHIBIT P3(G) TRUE COPY OF THE NOTIFICATION DATED 03-05-

2010 NOTIFYING VACANCIES AGAINST VARIOUS RESERVED CATEGORIES MANY OF WHICH REMAIN STILL UNFILLED FOR THE DELAY IN RECRUITMENT W.P.(C)No.39309 of 2017-S

EXHIBIT P3(H) TRUE COPY OF THE NOTIFICATION DATED 29-09-

2010 NOTIFYING VACANCIES AGAINST VARIOUS RESERVED CATEGORIES MANY OF WHICH REMAIN STILL UNFILLED FOR THE DELAY IN RECRUITMENT

EXHIBIT P3(I) TRUE COPY OF THE NOTIFICATION DATED 18-12-

2010 NOTIFYING VACANCIES AGAINST VARIOUS RESERVED CATEGORIES MANY OF WHICH REMAIN STILL UNFILLED FOR THE DELAY IN RECRUITMENT

EXHIBIT P(J) TRUE COPY OF THE NOTIFICATION DATED 13-06-

2011 NOTIFYING VACANCIES AGAINST VARIOUS RESERVED CATEGORIES MANY OF WHICH REMAIN STILL UNFILLED FOR THE DELAY IN RECRUITMENT

EXHIBIT P3(K) TRUE COPY OF THE NOTIFICATION DATED 17-09-

2012 NOTIFYING VACANCIES AGAINST VARIOUS RESERVED CATEGORIES MANY OF WHICH REMAIN STILL UNFILLED FOR THE DELAY IN RECRUITMENT

EXHIBIT P4 TRUE COPY OF THE ORDER OF THE KERALA STATE SCHEDULED CASTE SCHEDULED TRIBE COMMISSION DATED 24-11-2017 WITH ENGLISH TRANSLATION.

EXHIBIT P5(A) TRUE COPY OF THE NOTIFICATION DATED 27-11-

2017 ISSUED BY THE UNIVERSITY IN RESPECT OF ASSISTANT PROFESSORS

EXHIBIT P5(B) TRUE COPY OF THE NOTIFICATION DATED 27-11-

2017 ISSUED BY THE UNIVERSITY IN RESPECT OF ASSOCIATE PROFESSORS

EXHIBIT P5(C) TRUE COPY OF THE NOTIFICATION DATED 27-11-

2017 ISSUED BY THE UNIVERSITY IN RESPECT OF PROFESSORS

EXHIBIT P6 A LIST OF POSTS REMAINS UNFILLED WITH REGULAR HANDS SINCE 1974 TO 2017

RESPONDENTS' EXHIBITS:

EXHIBIT R1(A) TRUE COPY OF THE TABULATED FORM CONTAINING THE DETAILS OF THE POSTS NOTIFIED IN 2017 FOR SELECTION OF ASSISTANT PROFESSORS.

EXHIBIT R1(B) TRUE COPY OF THE TABULATED FORM CONTAINING THE DETAILS OF THE POSTS NOTIFIED IN 2017 FOR SELECTION OF ASSOCIATE PROFESSORS.

W.P.(C)No.39309 of 2017-S

EXHIBIT R1(C) TRUE COPY OF THE TABULATED FORM CONTAINING THE DETAILS OF THE POSTS NOTIFIED IN 2017 FOR SELECTION OF PROFESSORS.

EXHIBIT R1(D) TRUE COPY OF THE TABULATED FORM CONTAINING THE DETAILS OF THE POSTS NOTIFIED IN 2018 AND 2019 FOR SELECTION OF ASSISTANT PROFESSORS, ASSOCIATE PROFESSORS AND PROFESSORS.

EXHIBIT R1(E) TRUE COPY OF THE LETTER NO.F-1-5/2006(SCT) DATED 19.7.2018 SENT BY THE UNIVERSITY GRANTS COMMISSION REQUESTING UNIVERSITY TO POSTPONE RECRUITMENT.

EXHIBIT R1(F) TRUE COPY OF THE LETTER NO.1-7/2017-CU-V(PT) DATED 18.7.2018 OF THE MINISTRY OF HUMAN RESOURCE DEVELOPMENT, GOVERNMENT OF INDIA ISSUED TO UGC.

EXHIBIT R1(G) TRUE COPY OF THE LETTER DATED 7.3.2019 ISSUED BY THE UNIVERSITY GRANTS COMMISSION DIRECTING TO START RECRUITMENT.

EXHIBIT R1(H) TRUE COPY OF THE GAZETTE NOTIFICATION DATED 7.3.2019 OF THE CENTRAL EDUCATIONAL INSTITUTIONS (RESERVATION IN TEACHERS' CADRE) ORDINANCE, 2019.

EXHIBIT R1(I) TRUE COPY OF THE LETTER NO.F.1-5/2006(SCT) DATED 8.3.2019 ISSUED BY THE UNIVERSITY GRANTS COMMISSION CLARIFYING THAT UNIVERSITY SHALL BE REGARDED AS ONE UNIT FOR THE PURPOSE OF RESERVATION.

/TRUE COPY/

P.A. TO JUDGE