IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 27218 of 2006(M)
1. TITUS K.MATHEW, SR.LECTURER,
... Petitioner
Vs
1. COCHIN UNIVERSITY OF SCIENCE AND
... Respondent
For Petitioner :SRI.K.P.DANDAPANI
For Respondent :SRI.A.A.ABUL HASSAN,SC,COCHIN UNIVERSIT
The Hon'ble MR. Justice A.K.BASHEER
Dated :08/06/2007
O R D E R
A.K BASHEER, J.
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W.P. (C ) NO.27218 of 2006
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Dated this the 8th day of June, 2007
J U D G M E N T
Petitioner, who is working as a Senior Lecturer in the
Department of Physics in a Government College had applied for
the post of Reader in Theoretical Physics in response to Ext.P6
notification issued by the Cochin University of Science and
Technology (‘CUSAT’ for short). It appears that only the
petitioner and two others had applied for the above post. The
appointing authority found that only the petitioner had got the
requisite qualifications and therefore he was invited for
interview on 18.09.2006. He was duly selected by the Selection
Committee. Later, the Syndicate approved the selection and
resolved to appoint him. According to the petitioner, the
decision of the Syndicate was reported in Malayala Manorama
Daily dated 24.09.2006. A copy of the said paper report is on
record as Ext.P9. This writ petition was preferred by the
petitioner in October, 2006 complaining that the University
(CUSAT) is dragging its feet in the matter of his appointment
without any justifiable reasons. The prayer is to issue a writ of
Mandamus or such other appropriate writ, order or direction to
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the University to appoint him to the post in question.
2. While admitting that petitioner was selected for the
post, it is contended by the University that he had not been
appointed so far in view of certain amendments brought in by
the Government to Rules 14 and 15 of Kerala State &
Subordinate Service Rules (for short ” the Rules”). It is the case
of the University that the above post of Reader was earmarked
for “other backward community” as indicated in Ext.P6
notification itself. The said post by rotation should go to turn
90 earmarked for OBC. According to the University, petitioner
“belongs to the category of Scheduled Caste converted to
Christianity” and therefore he would not be entitled to get the
benefit of turn 90 reserved for an OBC candidate. The
amendment to Rules 14 and 15 further mandated that a vacancy
which is earmarked for a particular community or caste should
be given to that caste or community alone. If no candidate
belonging to the said caste or community is available, the said
vacancy should be renotified.
3. The above contention raised by the University is
countered by the petitioner contending that Ext.P6 notification
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itself contained a clause, which stipulated that candidates
belonging to other communities as well as others under the
open competition category could also apply. For the sake of
convenience, the said clause in Ext.P6 notification is extracted
hereunder:
“Open competition candidates and
reserved community candidates may
also apply for the posts reserved for a
particular community except those
reserved for SC/ST; but they will be
considered for appointment only in
the absence of candidates belonging
to the particular community for
which a post is reserved.”
4. The petitioner contends that even assuming that he
does not belong to other backward community, he cannot be
denied appointment in view of the above clause in the
notification. It is also contended that the amendments brought
in by the Government to Rules 14 and 15 of the Rules, though
retrospective, from February, 2006 will have no relevance or
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4
application as far as Ext.P6 notification and the selection
pursuant thereto are concerned. It is pointed out by the learned
counsel that Ext.P6 notification dated 05.10.2005 was published
on 10.10.2005. The last date for receipt of application was
21.11.2005. Interview was held on 18.10.2006. Petitioner alone
was found to be qualified for the post and he was selected by the
Committee constituted for this purpose. The Syndicate
considered the matter in its meeting held on 23.9.2006 and it
was resolved that the petitioner was entitled to be appointed. It
is thus contended by the petitioner that the stand now taken by
the University cannot be accepted since the University was all
along aware that the amendments to the Rules had come into
force with effect from February, 2006. But nevertheless the
University had proceeded with the selection process. A
committee was constituted for this purpose, which had selected
the petitioner. Still later, the Syndicate held deliberations over
the issue and a conscious decision was taken to appoint the
petitioner. It is therefore puerile on the part of the University
now to turn round and contend that the petitioner cannot be
appointed in view of the amendment brought in by the
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5
Government to Rules 14 and 15 of the Rules.
5. In this context, petitioner also points out further that
the University in its counter affidavit had explicitly admitted
that the application submitted by the petitioner alone was
accepted as he possessed sufficient qualifications and
experience. There is considerable force in the above contention
raised by the petitioner. In the above facts and circumstances of
the case, I do not find any justification on the part of the
University in refusing to appoint the petitioner as Reader if he
is otherwise eligible. It may be true that Rules 14 and 15 were
amended by the Government with retrospective effect from
February, 2006. But the notification clearly indicated that in
the absence of a candidate belonging to the particular
community to which the post was reserved, other eligible
candidates from other categories would also be considered.
More importantly the University had proceeded with the
selection process. In fact the Syndicate had decided to appoint
the petitioner notwithstanding the amendment. It cannot be said
that the University was not aware of the amendments brought in
by the Government after the publication of the notification. In
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that view of the matter, the contention raised by the petitioner is
liable to be accepted.
6. Therefore, the writ petition is allowed. The University
shall issue order of appointment to the petitioner as Reader in
Theoretical Physics, if he is otherwise eligible and if there is no
other legal impediment. This shall be done within two weeks
from the date of receipt of a copy of this judgment.
(A.K. BASHEER, JUDGE)
ma
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K.THANKAPPAN,J
CRL.A. NO.92 OF 1999
ORDER
25th May, 2007