IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 WA.No. 2125 of 2008() --------------------- AGAINST THE JUDGEMENT IN WPC.16367/2008 Dated 07/10/2008 .................... APPELLANT: PETITIONER: ------------------------- OMANA THOMAS, PROFESSIONAL ASST. GRADE-I, DEPARTMENT OF LIBRARY & INFORMATION SCIENCE, CALICUT UNIVERSITY, THENJIPPALAM, CALICUT 673 635. BY ADV. SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE SRI.TONY GEORGE KANNANTHANAM RESPONDENT(S): RESPONDENTS: --------------------------- 1. THE UNIVERSITY OF CALICUT, REPRESENTED BY REGISTRAR, THENJIPPALAM, CALICUT 673 635. 2. THE REGISTRAR, UNIVERSITY OF CALICUT, THENJIPPALAM, CALICUT 673 635. 3. RAJU.K.GEORGE, KANATHKATTIL HOUSE, CHENGAMMANAD P.O., ALUVA, ERNAKULAM DIST. 683 578 SRI.P.C.SASIDHARAN, SC, CALICUT UTY. FOR R1 & R2 SRI.ABRAHAM VAKKANAL, SENIOR ADVOCATE - R3 SRI.PAUL ABRAHAM VAKKANAL THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04/11/2009, ALONG WITH WA NO. 2146 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ W.A.NOS.2125 & 2146/2008 ------------------------------ Dated this, the 4th day of November, 2009 JUDGMENT Balakrishnan Nair, J. W.P.(C) No.16367/2008 filed by the appellant in these appeals and W.P.(C) No.37461/2007 filed by the 3rd respondent in W.A.No.2125/2008 (1st respondent in W.A.No.2146/2008) were disposed of by a common judgment dated 7.10.2008. Feeling aggrieved by the said judgment, these Writ Appeals are filed by the appellant, who was petitioner in W.P.(C) No.16367/2008 and 2nd respondent in W.P.(C) No.37461/2007. W.A.No.2125/2008 arising out of W.P.(C) No.16367/2008 is treated as the main case for the purpose of referring to the parties and exhibits. 2. The brief facts of the case are the following: The 1st respondent University invited applications for appointment to the post of Professional Assistant Grade II on 4.8.2003. After completing the selection process, the rank list W.A.Nos.2125 & 2146/08 - 2 - was published on 6.1.2005. The appellant belongs to Cheramar Christian Community, which is entitled to reservation set apart for Other Christians (OX). She was rank No.279 in the rank list published by the University, whereas the 3rd respondent was rank No.202. By order dated 24.6.2005, she was appointed to the post of Professional Assistant Grade II. She joined service soon thereafter and her probation in that category was declared on 8.7.2006. She was further promoted as Professional Assistant Grade I on 1.6.2007. While so, the 3rd respondent herein filed a petition on 27.4.2007, claiming that he is rank No.202 and he also belongs to Cheramar Christian Community. So, he should have been appointed before appointing the appellant, who is rank No.279. The 3rd respondent found out that in the rank list published, he was shown as a candidate belonging to Roman Catholic Community and therefore, he was treated as an open merit candidate. That is why he was not appointed. Based on the direction of this Court, the University took steps to dispose of the representation filed by the 3rd respondent. The appellant was issued with notice. Her objection W.A.Nos.2125 & 2146/08 - 3 - was received. Thereafter, after hearing both sides, the University passed Ext.P16 order dated 31.5.2008, cancelling the appointment of the appellant and ordering the appointment of the 3rd respondent in her place. Challenging the said order, W.P. (C) No.16367/2008 was filed. In view of Ext.P16, W.P.(C) No.37461/2007 filed by the 3rd respondent herein, praying to cancel the appointment of the appellant and to appoint him in her place has become infructuous. 3. In W.P.(C) No.16367/2008, the University and the 3rd respondent filed separate counter affidavits, resisting the prayers. The learned Single Judge, after hearing both sides, dismissed the writ petition. The learned Single Judge took the view that the University has always the requisite power to correct any mistake committed by it. The community of the 3rd respondent was wrongly shown in the rank list and therefore, he was overlooked in the matter of appointment. If the University took steps to correct it, this Court cannot interfere with the same, it was held by the learned Single Judge. The appellant raised a contention that the 3rd respondent was guilty of delay W.A.Nos.2125 & 2146/08 - 4 - and laches and therefore, he cannot seek to disturb her appointment after such a long period. The said contention was also overruled by the learned Single Judge. As soon as he came to know of the mistake committed by the University, the 3rd respondent filed a petition before the University and thereafter he was vigilantly pursuing the matter. In that view of the matter, the said contention was repelled. Feeling aggrieved by the judgment of the learned Single Judge, these Writ Appeals are filed. 4. The learned counsel for the appellant submitted that after the lapse of 30 months from the date of her appointment, the 3rd respondent has chosen to file the first representation in April, 2007. So, he is guilty of delay and laches. The rank list was published in the University as early as on 6.1.2005. The mistakes pointed out by the persons included therein were corrected also. The 3rd respondent should have been vigilant and he should have found out the mistake in the entry regarding his community in the rank list. Since he has failed to do so, he is guilty of delay and laches and therefore, not entitled to get W.A.Nos.2125 & 2146/08 - 5 - any relief from this Court. Further, the appellant is entitled to sit back. As a result of the appointment under the University, she did not attend some interviews for other posts, which were held subsequently and she, thereby, suffered irreparable injury. The learned counsel for the appellant also relied on the decision of this Court in Pavithran v. State of Kerala [2009(4) KLT 20 (FB)], in support of his submission regarding sit back. 5. We heard the learned standing counsel for the University, who submitted that the University has power to correct the mistakes noticed by it. Owing to the fault of its clerical staff, there was some mistake in the rank list published by the University and as soon as it was pointed out, the mistake was corrected after following the due procedure, including a hearing of the persons affected. It is further submitted that the rank list was not published in the gazette, but only in the notice board of the University. The lists so published will soon be torn W.A.Nos.2125 & 2146/08 - 6 - away by interested persons and it will not be available for perusal by candidates after a couple of days. 6. The learned counsel for the 3rd respondent submitted that in the rank list published in the “Thozhil Veedhi” (a private publication), the caste of the candidates was not shown. There was no reason for him to suspect that there will be a mistake in the entry regarding his caste. But, when he found that though the turn of the Cheramar Christian Community arose and he was not appointed, he made enquiries with the University and came to know of the facts. Immediately, he submitted Ext.P12 representation (in W.P.(C) No.37461/2007), seeking correction of the mistake. So, there is no delay or laches from his part, it is pointed out. 7. We agree with the learned Single Judge that the University should be conceded power to correct the mistakes committed by it, when the same is brought to its notice. But, the point to be considered is whether the University should have declined relief for the reason that there was delay and laches from the part of the 3rd respondent. In this case, we notice that W.A.Nos.2125 & 2146/08 - 7 - the University itself came forward and corrected the mistake committed by it. The principles of delay and laches etc., are matters governing the exercise of discretionary jurisdiction by this Court. In this case, the 3rd respondent has not approached this Court, seeking any relief. He is only defending the relief already granted by the University to him in Ext.P16 order. Further, we find no reason for the 3rd respondent to suspect that there will be some mistake in the rank list regarding his caste. Therefore, the contention of the appellant that immediately after the publication of the rank list the 3rd respondent should have gone to the University, verified the rank list, found out whether there was any mistake and sought for rectification of the mistake on finding one, cannot be accepted. Normally, a candidate can believe that the University will do everything properly. There was no reason to suspect that it will commit any mistake. As soon as he came to know that he has not been appointed even after the turn of the Cheramar Christian Community arose, the 3rd respondent made enquiries and thereafter on coming to notice the mistake, filed Ext.P12 W.A.Nos.2125 & 2146/08 - 8 - representation (in W.P.(C) No.37461/2007) and pursued it. So, we are not inclined to accept the contention of the appellant that the 3rd respondent is guilty of delay and laches. We went through the decision of the Full Bench in “Pavithran”. But, going through the facts of that case, we notice that the principles stated therein have no application to the facts of this case. 8. If, as a result of actions of the University, the appellant has suffered any legal injury, she may move against the University for redressing the said grievance. On the ground that she has suffered some injury, justice meted out to the 3rd respondent by the learned Single Judge cannot be interfered with. In the result, W.A.No.2125/2008 fails and it is dismissed. 9. In view of the dismissal of W.A.No.2125/2008, W.A.Nos.2125 & 2146/08 - 9 - W.A.No.2146/2008 is also dismissed. K. Balakrishnan Nair, Judge. P. Bhavadasan, Judge. nm.