Sree Sankaracharya University Of ... vs Divyta Nedungadi Alias Divya ...
2022 Latest Caselaw 10877 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
          THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                                   &
             THE HONOURABLE MRS. JUSTICE C.S. SUDHA
 THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA,
                                  1944
                       WA NO. 1407 OF 2022
AGAINST THE JUDGMENT IN WP(C) 30548/2021 DATED 04.07.2022
                     OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS IN W.P.(C):

    1       SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,
            REPRESENTED BY ITS REGISTRAR, KALADY, ERNAKULAM
            DISTRICT-683 574.
    2       THE REGISTRAR,
            SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,
            KALADY, ERNAKULAM DISTRICT-683 574
            BY ADV DINESH MATHEW J.MURICKEN


RESPONDENTS/PETITIONERS IN W.P.(C):

    1       DIVYTA NEDUNGADI ALIAS DIVYA BALAKRISHNAN
            AGE NOT KNOWN TO THE APPELLANTS, D/O.
            BALAKRISHNAN NAIR, VISHNU KRIPA LALA NAGAR,
            PUTHUPARIYARAM P.O, PALAKKAD- 678 731
    2       ANJALI C,
            AGE NOT KNOWN TO THE APPELLANTS, D/O. S
            RAJAGOPAL, SREEVALSAM, KUZHIYAM SOUTH,
            CHANDANTHOPPU P.O, KOLLAM- 691 014.
            BY ADV.M.P.SREEKRISHNAN

        THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
03.11.2022,    THE   COURT   ON    THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 Writ Appeal No.1407 of 2022           2




             P.B.SURESH KUMAR & C.S.SUDHA, JJ.
              -----------------------------------------------
                  Writ Appeal No.1407 of 2022
              -----------------------------------------------
         Dated this the 3rd day of November, 2022.


                              JUDGMENT

P.B.Suresh Kumar, J.

This appeal is directed against the judgment dated

04.07.2022 in W.P.(C) No.30548 of 2021. The appellants were

the respondents in the writ petition. Parties and documents are

referred to in this judgment, as they appear in the writ petition.

2. The matter relates to the selection process

initiated by Sree Sankaracharya University of Sanskrit (the

University) for appointment to the post of Assistant Professor in

Mohiniyattam in terms of Ext.P2 notification. As per the

notification, the University invited applications from all eligible

and qualified hands against the sole vacancy earmarked for

candidates belonging to Ezhava Community. The petitioners

were qualified to be considered for appointment to the post,

but they do not belong to the Ezhava Community or any other

community to which reservation benefits are applicable.

Nevertheless, according to the petitioners, they cannot be

deprived of the opportunity to participate in the selection

process, for the rules of reservation are to be applied only at

the stage of making the appointment and not at the stage of

the notification inviting applications. The petitioners, in the

circumstances, challenged the notification in the writ petition

to the extent it provides that the vacancy is earmarked only for

candidates belonging to the Ezhava Community.

3. A counter affidavit has been filed in the writ

petition on behalf of the University. The stand taken by the

University in the counter affidavit is that in terms of the

provisions contained in Section 32 of the Sree Sankaracharya

University of Sanskrit Act, 1994 (the Act), the rules of

reservation and communal rotation provided for in clauses (a),

(b) and (c) of Rule 14 and the provisions of Rules 15, 16, 17 and

17A of the Kerala State and Subordinate Service Rules, 1958

(KS&SSR) as amended from time to time, are to be observed

category-wise in the selection process treating all the

departments of the University as one unit; that as per Ext.R1(c)

decision of the Syndicate of the University, the University is

maintaining separate roster registers for each category of posts

with rotation points in terms of the Annexure to Part II of

KS&SSR, in which details relating to posts are entered in the

order of the dates of occurrence of vacancy; that in terms of

the roster register maintained for the category of Assistant

Professor, the vacancy that arose on 01.05.2021 in respect of

which the selection process was initiated, goes to the turn of

candidates belonging to the Ezhava Community and that it is

on account of the said reason that it was mentioned in the

notification that the vacancy is earmarked for candidates

belonging to the Ezhava Community.

4. The learned Single Judge allowed the writ

petition holding that this court has already declared in Exts.P9

and P10 judgments that reservation can be applied only at the

stage of appointment, and consequently disposed of the writ

petition directing the University to bring out an erratum

notification or issue a fresh notification inviting applications

without indicating the community turns. The University is

aggrieved by the said decision and hence, this appeal.

5. Heard the learned Standing Counsel for the

University as also the learned counsel for the petitioners.

6. The learned Standing Counsel for the

University submitted that since the vacancy notified is one

earmarked for candidates belonging to the Ezhava Community

in terms of the roster register maintained by the University,

candidates from open category cannot be appointed against

that vacancy and there is therefore nothing illegal in indicating

the community turns in the notification, so that those

candidates who do not get appointed against the said vacancy

will not be misled for preferring applications. The learned

Standing Counsel has elaborated the said submission by

referring to Rule 15(a) of Part II KS&SSR which precludes the

University from appointing candidates belonging to open

category against vacancies earmarked for reserved categories.

7. Per contra, the learned counsel for the

petitioners contended, placing reliance on Exts.P9 and P10

judgments, that the University is not justified in depriving them

an opportunity to participate in the selection process by

earmarking the vacancy to one of the reserved categories at

the stage of notification itself.

8. We have considered the arguments advanced

by the learned counsel for the parties on either side.

9. Section 32 of the Act reads thus:

"32. Reservation of appointments-- In making appointments to the teaching and non-teaching posts, the University shall, mutatis mutandis, observe the provisions of clauses (a), (b) and (c) of rule 14 and the provisions of rules 15, 16, 17 and 17A of the Kerala State and Subordinate Services Rules, 1958, as amended from time to time, and communal rotation shall be followed category- wise treating all the department as one unit"

In the light of the extracted provision, the rules of reservation

provided for in the KS&SSR are to be applied while making

appointments to teaching posts in the University category-wise,

treating all the departments of the University as one unit. It has

been held by the Apex Court in University of Cochin v. Dr. N.

Raman Nair, (1975) 3 SCC 628 that even though clause (c) of

Rule 14 of KS&SSR does not specifically say that the rule of

rotation will be applied in the order in which vacancies occur,

the rule is intended to be applied to vacancies in the order in

which they occur, and not meant to be applied with reference

to the date on which a vacancy is announced or advertised

because these are fortuitous matters over which those in power

in the University may, if so inclined, be able to exercise control.

It was also held by the Apex Court in the said case that the

whole object of such rules is to introduce fixity of principle and

of the method of its application so as to remove, so far as

possible, uncertainty and opportunities for abuse of power. In

the light of the decision aforesaid, the principle that

entitlement of the community to which benefits of reservation

is available, shall be fixed at the stage of occurrence of the

vacancy itself, cannot be doubted.

10. From the averments in the counter affidavit

filed by the University, it is evident that the University is

maintaining category-wise rosters with rotation points in terms

of the Annexure to Part II of KS&SSR and as per the said roster,

the subject vacancy goes to candidates belonging to the

Ezhava Community. As noted, the specific case of the

University is that insofar as candidates belonging to open

category are not entitled to be considered for appointment

against the said vacancy, there is no illegality in showing the

community turn in the notification, for if the University invites

applications from open category to posts that are to be filled up

from the reserved categories, the same would, in effect be

giving a false hope to candidates applying for those posts. The

University relies on Rule 15(a) of KS&SSR, in support of the said

contention. Rule 15(a) of the KS&SSR which is made applicable

for the appointments to be made in the University reads thus:

"15. (a) The integrated cycle combining the rotation in clause (c) of rule 14 and the sub-rotation in sub- rule (2) of rule 17 shall be as specified in the Annexure to this Part. Notwithstanding anything contained in any other provisions of these rules or in the Special Rules if a suitable candidate is not available for selection from any particular community or group of communities specified in the Annexure, such vacancy shall be kept unfilled, notified separately for that community or group of communities for that selection year and shall be filled by direct recruitment exclusively from among that community or group of communities. If after re- notification, repeatedly for not less than two times, no suitable candidate is available for selection from the respective community or group of communities, the selection shall be made from available Other Backward Classes candidates. In the absence of Other Backward Classes candidates, the selection shall be made from available Scheduled Castes candidates and in their absence, the selection shall be made from available Scheduled Tribes candidates."

As is evident from the extracted rule, if a suitable candidate is

not available for selection from a particular community, such

vacancy shall be kept unfilled, notified separately for that

community and shall be filled by direct recruitment exclusively

from among that community. It is also evident from the

extracted rule that if after re-notification, repeatedly for not

less than two times, no suitable candidate is available for

selection from that community, the selection shall be made

from available Other Backward Classes candidates. It is also

evident from the rule that in the absence of Other Backward

Classes candidates, the selection shall be made from available

Scheduled Castes candidates and in their absence, the

selection shall be made from available Scheduled Tribes

candidates. Therefore, it is evident from the said provision that

as contended by the University, candidates belonging to open

category are not entitled to be considered for appointment

against a vacancy earmarked for a particular community falling

under Other Backward Classes. It appears that the Rule does

not envisage a situation as to what should be done in a given

case where no suitable candidate is available for selection from

a particular community even after successive re-notifications

and where there is no suitable candidate either from the

Scheduled Castes or from Scheduled Tribes Communities. There

is, therefore, force in the contention of the University that if the

University invites applications from open category to posts that

are to be filled up from the reserved categories, the same

would, in effect, be giving a false hope to candidates who apply

for those posts. If there is a requirement for payment of fees for

the purpose of preferring applications and if it is not mentioned

that the vacancy for which selection process is initiated is

earmarked for a particular community, those candidates

belonging to open category would also be remitting fees for

participating in the selection process without knowing the fact

that they will not be considered for selection, irrespective of

their merit. That apart, if they are not informed that they will

not be considered for the vacancy earmarked for a reserved

category, the efforts they would take to participate in the

selection process by undertaking preparations, at times of

several months, would go in vain.

11. On a query from the court, the learned counsel

for the petitioners did not dispute the fact that the sole

vacancy for which selection is made being one earmarked for

candidates belonging to Ezhava Community, the petitioners are

not entitled to be considered for appointment against that

vacancy. Nevertheless, he asserted that the petitioners cannot

be deprived of the opportunity to participate in the selection

process. The learned counsel was unable to give a satisfactory

answer to the query made by the court as to the purpose for

which they should bother themselves by participating in the

selection process.

12. Let us now consider the question whether

Exts.P9 and P10 judgments have any bearing on the facts of

the present case. Ext.P9 is a common judgment in a batch of

appeals preferred against Ext.P8 judgment. Ext.P8 judgment

was one rendered in a batch of writ petitions challenging a few

notifications for selection issued by the University of Calicut. In

the notifications, as in the case on hand, the community turns

of the vacancies were indicated. One among the grounds raised

in those writ petitions, in the circumstances, was that

reservations cannot be made in the notification and the rules of

reservation are to be applied only at the time of appointment.

The learned Single Judge who dealt with the cases took the

view that such a provision would not only exclude eligible

candidates entitled to reservation but also open category

candidates from applying for the post and consequently set

aside the notifications. The said decision of the learned Single

Judge was affirmed in appeal by the Division Bench, in terms of

Ext.P9 judgment. Paragraph 11 of Ext.P9 judgment reads thus:

11. Of course, there is some justification on the part of the appellants to contend that in the peculiar situation where appointments are made in different streams of subjects, unless the candidate know as to whether it is in the Open Category or a particular classification of Other Backward Classes or SC/ST, there is no necessity for all the candidates to apply for the post. But as already stated, candidates having reservation can also compete against posts which are in unreserved category. Their appointments depend upon the merit of the respective candidates. Therefore, such a situation does not arise. But in respect of reserved categories, especially OBC and SC/ST, if it is limited to a particular class of candidate coming under OBC, if such a candidate is not available, and even after re-notification not less than two times, the appointing authority will have to go back to the original rank list to find out the next candidate available under OBC or SC/ST, as the case may be, for making appointments. In such an event, if the candidates confine themselves to the notified class in each post, they may not get the advantage of Rule 15(a) of KS &SSR.

As we entertained a doubt as to whether candidates entitled to

be considered for appointment, in the event suitable

candidates were not available from reserved categories, have

been given an opportunity to participate in the selection

process, we have called for and verified the Judges Papers in

the said cases. It has been found on the said verification that

only those candidates who belonged to categories to which the

vacancies were earmarked were permitted in terms of the

notifications to apply for selection. Needless to say, it is in that

context, Exts.P8 and P9 judgments have been rendered in the

light that rules of reservation are to be applied only at the

stage of making the appointment and not at the stage of the

notification inviting applications. As far as the case on hand is

concerned, the University maintains that despite the indication

of community turns, the University has mentioned in the

notification that all eligible candidates are permitted to apply

for selection. We have perused the notification and found that

the University has indicated in the notification itself, though not

satisfactorily, that all eligible candidates are entitled to prefer

applications. As such, according to us, merely for the reason

that community turns of the vacancies notified are indicated in

the notification, it cannot be said that the notification is bad, if

it is specifically mentioned in the notification, the particulars of

the categories of candidates who are entitled to apply for

selection against those vacancies in the event suitable

candidates are not available from the concerned backward

classes. Exts.P8 and P9 judgments, in the circumstances,

cannot have any bearing on the facts of the case on hand. It is

all the more so since the petitioners are candidates belonging

to open category who are not entitled to be considered for

appointment in the absence of any candidate from the Ezhava

community. Ext.P10 is only a judgment rendered following

Ext.P8 judgment.

13. Even while accepting the fact that a vacancy

earmarked for a particular reserved category cannot be filled

up by a candidate belonging to open category, having regard to

the provisions contained in Rule 15(a) of KS&SSR, in a

contingency where a suitable candidate is not available for

selection from a particular reserved category even after

successive re-notifications, the selection shall be made from

the available Other Backward Classes candidates. In the

absence of Other Backward Classes candidates, the selection

shall be made from available Schedules Castes candidates and

in their absence, the selection shall be made from available

Scheduled Tribes candidates. In other words, even if a vacancy

is earmarked for a particular community falling under the

category "Other Backward Classes", when a selection is made

for filling up of that vacancy, candidates belonging to other

Other Backward Classes as also candidates belonging to

Scheduled Castes and Scheduled Tribes are entitled to be

considered for appointment against that vacancy and they

cannot, therefore, be deprived of the opportunity to apply for

selection. To a query made by the Court to the learned

Standing Counsel for the University in this regard, the learned

Standing Counsel pointed out, placing reliance on the

statement "All eligible candidates can apply", in the notification

that, it enables all such candidates to make applications for

participating in the selection process. As this Court entertained

a doubt as to whether the statement aforesaid would serve the

purpose intended, the learned Standing Counsel submitted that

if the same is not adequate to communicate the entitlement of

other Other Backward Classes candidates, Scheduled Castes

and Scheduled Tribes candidates to participate in the selection

process, appropriate erratum notifications can be issued in

order to make that position clear.

In the circumstances, the writ appeal is allowed, the

impugned judgment is set aside and the writ petition is

disposed of with a direction that the University, before

proceeding further with Ext.P2 notification, shall issue an

erratum for the same, indicating clearly the particulars of the

candidates who are entitled to apply for selection against the

vacancy earmarked, if no candidate is available from the

Ezhava community even after successive re-notifications.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

C.S.SUDHA, JUDGE.

Mn