Kerala High Court
Nair Service Society vs State Of Kerala on 12 January, 2023
W.P.(C). Nos.8535 & 20616 of 2014 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
WP(C) NO. 8535 OF 2014
PETITIONER/S:
NAIR SERVICE SOCIETY
REPRESENTED BY ITS GENERAL SECRETARY, NSS HEAD OFFICE,
PERUNNAI, CHANGANACHERRY.
BY ADVS.
SRI.P.GOPAL
SRI.B.MURALEEDHARAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 DEPARTMENT OF HIGHER EDUCATION
REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
3 THE DIRECTOR OF COLLEGIATE EDUCATION
OFFICE OF THE DIRECTOR OF COLLEGIATE EDUCATION,
THIRUVANANTHAPURAM - 695 001.
4 CALICUT UNIVERSITY
CALICUT UNIVERSITY P.O., KOZHIKODE DISTRICT, REPRESENTED
BY ITS REGISTRAR-673 635.
BY ADV SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL
R1 TO R3 BY SRI. JOBY JOSEPH, SR. GOVERNMENT PLEADER
R4 BY SRI. SATHISH MATHAI, SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.01.2023, ALONG WITH WP(C).20616/2014, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P.(C). Nos.8535 & 20616 of 2014 :2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
WP(C) NO. 20616 OF 2014
PETITIONER/S:
SAVITHRI A.
D/O.APPUKUTTAN C, OTTAKKAL HOUSE, PERUVEMBA POST,
PALAKKAD DIST, PIN-678531
BY ADVS.
SRI.K.T.SHYAMKUMAR
SMT.M.S.KIRAN
RESPONDENT/S:
1 STATE OF KERALA
REP BY ITS SECRETARY, HIGHER EDUACATION DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001
2 THE DIRECTOR OF COLLEGIATE EDUCATION
THIRUVANANTHAPURAM-PIN-695 001.
3 ADDL. R3 & R4 IMPLEADED:
SECRETARY,
CORPORATE MANAGEMENT OF MOC COLLEGES,
DEVALOKAM, KOTTAYAM - 686 038.
4 NAIR SERVICE SOCIETY,
REPRESENTED BY ITS GENERAL SECRETARY,
NSS HEAD QUARTERS,
PERUNNA P.O.,
CHANGANACHERRY - 686 001.
[ADDL. R3 & R4 ARE IMPLEADED AS PER ORDER DATED
23.03.2015 IN I.A. NO. 2020/15 AND I.A.NO. 2390/2015
RESPECTIVELY)
5 ADDL.R5: AKHIL K.NAIR,
AGED 32 YEARS
S/O.K.K.KRISHNAN NAIR, MORMADATHIL HOUSE, KOTTAPADY
P.O., KOTHAMANGALAM-686 692, ASST. PROFESSOR OF
CHEMISTRY, SREE VYASA NSS COLLEGE, WADAKANCHERRY.
6 ADDL.R6: VINEETH.M.,
AGED 31 YEARS
S/O.SETHUMADHAVAN, THULASI HOUSE, THACHAMPOYIL P.O.,
THAMARASSERY, KOZHIKODE, ASST.PROFESSOR OF CHEMISTRY,
NSS COLLEGE, OTTAPALAM.
7 ADDL.R7: INDU R.PILLAI,
W.P.(C). Nos.8535 & 20616 of 2014 :3:
ANASWARA, KUNNAMTHANAM, THIRUVALLA, PATHANAMTHITTA
DISTRICT, WORKING AS ASST.PROFESSOR OF ENGLISH, NSS
COLLEGE, MANJERI.
8 ADDL.R8: GAYATHRI SOMASEKHARAN,
SIVAGANGA LAKE VIEW APARTMENTS, FLAT NO.C6, NEAR
VADAKKESTAND, THRISSUR, WORKING AS ASST. PROFESSOR OF
ECONOMICS, SREE VYASA NSS COLLEGE, WADAKKANCHERRY.
9 ADDL.R9: DHANYA.N.,
KARANCHERRY HOUSE, MANNAPRA P.O., PALAKKAD, WORKING AS
ASST.PROFESSOR OF PHYSICS, SREE VYASA NSS COLLEGE,
WADAKKANCHERRY.
[ADDITIONAL R5 TO R9 ARE IMPLEADED AS PER ORDER DATED
18.07.2016 IN IA NO.11332/2016.]
BY ADVS.
SRI.BABY ISSAC ILLICKAL
SRI.P.GOPAL
SRI.M.S.RADHAKRISHNAN NAIR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.01.2023, ALONG WITH WP(C).8535/2014, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P.(C). Nos.8535 & 20616 of 2014 :4:
SHAJI P. CHALY, J.
---------------------------------------------------------
W.P.(C). Nos.8535 & 20616 of 2014
---------------------------------------------------------
Dated this the 12th day of January, 2023.
JUDGMENT
The captioned writ petitions are filed basically challenging
paragraphs 3.3, 3.4, 3.5 and 3.6 of Exhibit P3 Government Order
bearing G.O. (Rt.) No.423/2014/H.Edn dated 28.03.2014 on the
ground that the said order is violative of statute 10 of the Kerala
University First Statutes, 1979 ('First Statutes, 1979' for short).
2. The objectionable clause of Exhibit P3 namely 3.3 to 3.6
reads thus:
"3. The one year validity of the Rank List is specifically and only for the
purpose of making appointments to the vacancies advertised,
interviews conducted and for which the Rank List was prepared. Thus,
the Rank List can be used to fill up vacancies, typically arising due to
relinquishment of job, death, dismissal from service of a candidate(s)
who is/are initially appointed to the corresponding vacancies specified
in the advertisement to which that Rank List pertains. (In other words, if
a Rank List has been prepared for (say) 3 vacancies in a department
which was specified in the Advertisement, that Rank List cannot be used
to fill up a fourth or subsequent vacancy that may arise later, even if it is
within the period of one year from the date of publication of the Rank
List.)
4. If vacancies of teaching or non teaching staff of nature referred to in
the above sub-paragraph, arise within the period of one year, the
persons next in the rank list may be appointed according to the order of
their seniority in the rank list after getting a permissive sanction from
the concerned Deputy Director of Collegiate Education. To obtain such
sanction, the Management should submit an application to the
concerned Deputy Director with all supporting documents including
copies of the original Advertisement, the order approving the
Government Nominee, the Rank List, Minutes of the interview held and
appointment order of the persons appointed up to that time from the
rank list and a certificate to the effect that such person/ persons is/are
next in order of eligibility in the rank list and is/are otherwise eligible to
be appointed in the vacancy. The Deputy Director will accord approval
to fill such vacancies from the rank list strictly according to seniority,
confirming that such vacancies have arisen prior to the expiry of the
Rank List after one year from the date of publication, after verification
with supporting documents. The officials concerned in the office of
Deputy Director of Collegiate Education will be responsible for ensuring
that there are no discrepancies or errors in granting these approvals and
shall be responsible for any financial liability resulting from failure to do
so. The appointments of both teaching and non teaching staff made will
have approval only from the date of appointment.
5. It is clarified that appointments in all other vacancies arising due to
creation of new posts, retirement etc., appointments cannot be made
from the existing Rank List. For effecting appointment to such
vacancies, separate advertisement has to be issued, Government
nominee obtained and Rank List prepared after conducting an interview
as per the applicable Statutes. The procedure for appointment, as
stated above must be adhered to.
6. It is further clarified that in the matter of extension of validity of
Rank List being requested by some Managements, Government cannot
permit the extension for the time being since all University statutes
permit the validity of a Rank List for one year only."
3. The case projected by the petitioners is that the State
Government is not vested with any powers to modify the First
Statutes, 1979. The learned counsel relied on statute 10 of First
Statutes, 1979, which deals with method of selection of teaching
staff by educational agencies and clause (1)(a) of statute 10
specifies that the Educational Agency shall have the option to have
all the members of the teaching staff selected purely on the basis of
merit from candidates of all communities or reserve every alternate
vacancy or 50% of the vacancies for being filled up on the basis of
merit from among candidates of any particular Community to be
specified by the Educational Agency. Clause (b) of statute 10 deals
with the manner in which the advertisement is to be published.
4. Clause (4) of the statute 10 specifies that the select list
prepared by the Selection Committee shall not normally contain
more than three times the number of vacancies likely to arise within
one academic year and that in case the Selection Committee
proposes to include more names in the list, it shall record the
reasons for the same. Clause (5) of Statute 10 makes it clear that
a select list prepared by the Selection Committee shall remain in
force only for a period of one year.
5. Therefore, the learned counsel for the petitioners
contended that a perusal of the afore discussed provisions of the
statute makes it clear that any orders passed by the State
Government contrary to the specific provisions of the statute cannot
be sustained under law. Interim orders were passed in the writ
petitions and consequent to which the petitioner in W.P.(C) No.
8535 of 2014 namely Nair Service Society, has made appointments
of teaching staff and the same were subsequently approved by the
Government. However, the approval was made subject to the
result of the said writ petition.
6. Anyhow, during the pendency of the writ petitions, the State
Government has withdrawn Exhibit P3 order as per Exhibits P5 and
P6 orders bearing Nos. G.O. (Rt.) No. 1366/2014/H. Edn. and G.O.
(Rt.) No. 1396/2014/H. Edn. respectively dated 26.06.2014 and
27.06.2014. They read thus:
GOVERNMENT OF KERALA
Abstract
Higher Education Department - Private Aided Colleges - Validity of rank lists
for the selection of teaching and non-teaching staff in aided colleges and
mode of recruitment from rank list clarification issued-Cancelled -Orders
issued.
------------------------------------------------------------------------------------------------------------------
HIGHER EDUCATION (D) DEPARTMENT
G.O.(Rt) No. 1366/2014/H.Edn Dated, Thiuvananthapuram, 26.06.2014.
-------------------------------------------------------------------------------------------------------------------
Read: G.O. (Rt.) 423/14/H.Edn. Dated 28.2.2014
ORDER
As per the G.O. read above Government have issued clarification regarding
the validity oft rank list for the selection of teaching and non -teaching staff
in aided colleges and mode of recruitment from rank list.
The Government Order read above stands cancelled.
(By order of the Govemor)
S. AJIKUMARAN,
Special Secretary to Govt.
GOVERNMENT OF KERALA
Abstract
Higher Education Department - Private Aided Colleges - Validity of rank
list for the selection of teaching and non-teaching staff in aided colleges
and mode of recruitment from rank list clarification issued - cancelled -
Modified orders issued.
---------------------------------------------------------------------------------------------
HIGHER EDUCATION (D) DEPARTMENT
G.O (Rt) No. 1396/2014/H.Edn Dated, Thiruvananthapuram, 27-06-2014
-----------------------------------------------------------------------------------------------
Read:-1. G.O (Rt) No. 423/2014/H.Edn Dated 28-2-2014
2. G.O (Rt) No.1366/2014/H.Edn Dated 26-06-2014
ORDER
As per the Government Order read as first paper above Government have
issued clarification regarding the validity of rank list for the selection of
teaching and non-teaching staff in aided colleges and mode of recruitment
from rank list. Later, as per the Government Order read as second paper
above, the Government Order was cancelled.
Government also order that selections can be made from the existing list
for arising future vacancies also.
The Government Order read as second paper above stands modified to
the above extent.
(By order of the Governor)
S.AJIKUMARAN
Special Secretary
7. Therefore, it can be seen that Exhibit P3 order was
withdrawn by the State Government. However, an apprehension
was expressed by the learned counsel for the petitioner in W.P.(C)
No. 8535 of 2014 that though in Exhibit P5 order, the validity of the
rank list for the selection of the teaching and non-teaching staff in
aided colleges and the mode of recruitment from the rank list are
specifically mentioned, there is no clarity to the said order.
8. I am of the view that from Exhibits P5 and P6, it is clear
that Exhibit P3 order was cancelled by the Government. It is also
made clear that selection can be made from the existing list for the
arising future vacancies also. Therefore, there is no doubt that the
stipulations contained in Exhibit P3 Government Order contrary to
the University First Statute discussed above, has been cancelled
completely and therefore, there can be no adverse consequence in
the matter of appointment made by the educational agency in terms
of the First Statutes, 1979, which was later approved by the
Government.
9. The learned counsel for the additional third respondent in
W.P.(C) No. 20616 of 2014 namely the Secretary, Corporate
Management of MOC Colleges, Devalokam, Kottayam, contended
that there should be a clarity with respect to the non-teaching staff
also.
10. In my considered view, when the entire order itself is
cancelled by the State Government, it cannot be said that Exhibit P3
order is remaining in force.
11. I have heard the learned counsel for the petitioners Sri.
P. Gopal and Sri. K.T. Shyam Kumar, learned Senior Government
Pleader Sri. Joby Joseph for the State officials and Sri. Baby Isaac
Illikkal for the additional third respondent in W.P.(C) No. 20616 of
2014.
12. In view of the facts and legal circumstances deliberated
above, I hereby hold that Exhibit P3 Government Order bearing No.
G.O.(Rt.) No. 423/2014/H.Edn. dated 28.02.2014 is no more
existing, in the matter of appointments of the teaching and non-
teaching staffs, validity of the rank list and the other circumstances
pointed out in the said Government Order and therefore, the work
of the teaching and non-teaching staff of educational agencies, the
validity of the rank list and their consequences etc. are guided by
the provisions of the First Statutes, 1979.
Accordingly, the writ petitions are disposed of, recording the
above aspects.
sd/- SHAJI P. CHALY, JUDGE.
Rv
APPENDIX OF WP(C) 8535/2014
PETITIONER'S EXHIBITS:
P1 EXHIBIT P1: TRUE COPY OF THE LETTER OF
GOVERNMENT NO.17379/D2/13/EDN DATED
11.6.2013.
P1(a) EXHIBIT P1(A): TRUE COPY OF THE MINUTES OF THE
SELECT LIST PREPARED BY THE SELECTION
COMMITTEE DATED 30.11.2013 FOR SELECTION TO
THE POST OF ASSISTANT PROFESSOR IN PHYSICS IN
THE COLLEGES WITHIN KERALA UNIVERSITY AREA.
P2 EXHIBIT P2: TRUE COPY OF THE LETTER OF THE
GOVERNMENT NO.170/D2/2012/11/EDN DATED
18.1.2012.
P2(a) EXHIBIT P2(A): TRUE COPY OF THE ORDER OF THE
GOVERNMENT GO(MS)NO.190/2013/H.EDN DATED
15.5.2013.
P2(b) EXHIBIT P2(B): TRUE COPY OF THE LETTER OF THE
GOVERNMENT NO.28878/D2/13/HEDN. DATED
12.9.2013.
P3 EXHIBIT P3: TRUE COPY OF THE ORDER OF THE
GOVERNMENT DATED 28.02.2014.
P4 EXHIBIT P4: TRUE COPY OF THE CHART SHOWING
THE SELECT LIST FOR APPOINTMENT TO THE POST OF
ASSISTANT PROFESSOR IN VARIOUS FACULTIES IN
THE COLLEGES UNDER THE MANAGEMENT.
P4(a) TRUE COPY OF THE LETTER OF THE REGISTRAR OF
CALICUT UNIVERSITY
NO.17655/GA-II-F-SO/2015/ADMN DATED
12.03.2015.
P5 TRUE COPY OF THE LETTER OF THE REGISTRAR OF
CALICUT UNIVERSITY
NO.17655/GA-II-F-SO/2015/ADMN DATED
25.03.2015.
P6 TRUE COPY OF THE LETTER OF THE REGISTRAR OF
CALICUT UNIVERSITY
NO.17655/GA-II-F-SO/2015/ADMN DATED
20.04.2015.
RESPONDENTS' EXHIBITS: NIL
True Copy
PS To Judge.
rv
APPENDIX OF WP(C) 20616/2014
PETITIONERS' EXHIBITS:
P1 P1:-TRUE COPY OF THE POSTGRADUATE DEGREE
CERTIFICATE AND THE STATEMENT OF MARKS
OBTAINED BY THE PETITIONER
P2 P2:-TRUE COPY OF THE NATIONAL ELIGIBILITY TEST
CERTIFICATE ISSUED BY THE UGC
P3 P3:-TRUE COPY OF THE GO(RT) NO 423/2014/H.EDN
DTD 28/2/2014
P4 P4:-TRUE COPY OF GO(MS)NO 99/2013/H.EDN DTD
11/4/2013
P5 P5:-TRUE COPY OF THE GO(RT)NO 1366/2014/H.EDN
DTD 26/6/2014
P6 P6:-TRUE COPY OF THE GO(RT)NO 1396/2014/H.EDN
DTD 27/6/2014
Annexure A TRUE COPY OF THE APPOINTMENT ORDER DATED
30.05.2015.
Annexure B TRUE COPY OF THE APPOINTMENT ORDER DATED
18.05.2015.
Annexure C TRUE COPY OF THE APPOINTMENT ORDER DATED
25.05.2015.
Annexure D TRUE COPY OF THE APPOINTMENT ORDER DATED
20.05.2015.
Annexure E TRUE COPY OF THE APPOINTMENT ORDER DATED
22.05.2015.
Annexure F TRUE COPY OF THE ORDER EXTENDING THE TERM OF
RANK LISTS DATED 12.03.2015.
Annexure G TRUE COPY OF THE ORDER EXTENDING THE TERM OF
RANK LISTS DATED 25.03.2015.
RESPONDENTS' EXHIBITS:
Exhibit R6 (a) TRUE COPY OF THE REPLY DATED 12.07.2016 GIVEN
TO THE 2ND RESPONDENT.
True Copy
PS To Judge.
rv
