IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 OP.No. 34964 of 2002(K) ---------------------------------- PETITIONER: ------------------- DR.P.P.BALAKRISHNAN, (CADRE PROFESSOR) SPECIAL OFFICER, COLLEGE OF VETERINARY AND ANIMAL SCIENCE, POOKOTE & DEAN IN CHARGE FACULTY OF VETERINARY AND ANIMAL SCIENCE (FULL ADDITIONAL CHARGE), MANNUTHY, TRISSUR. BY ADV. DR.K.P.KYLASANATHA PILLAY, SMT.SREEDEVI KYLASANATH, SRI.ARUN.B.VARGHESE. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP. BY THE SECRETARY, FARM DEPARTMENT AND AGRICULTURAL PRODUCTION COMMISSIONER, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA AGRICULTURAL UNIVERSITY REP. BY THE REGISTRAR, VELLANIKKARA, TRISSUR. 3. CHANCELLOR, KERALA AGRICULTURAL UNIVERSITY, KERALA RAJ BHAVAN, THIRUVANANTHAPURAM. 4. VICE CHANCELLOR, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR. 5. CONVENOR, EXECUTIVE COMMITTEE, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, TRISSUR. O.P. NO. 34964/2002: 6. DR.E.NANU, PROFESSOR, DEPARTMENT OF VETERINARY PUBLIC HEALTH, COLLEGE OF VETERINARY AND ANIMAL SCIENCES, KERALA AGRICULTURAL UNIVERSITY, MANNUTHY, TRISSUR. BY SRI RANJITH THAMPAN, SC, KERALA AGRL. UNTY., THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/02/2008, ALONG WITH W.P.(C).NO. 23964/2003,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 34964/2002: ORDER ON C.M.P. NO. 59164/2002 IN O.P. NO. 34964/2002-K DISMISSED 07/02/2008. SD/- A.K.BASHEER, JUDGE. APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE PROCEEDINGS NO. GA/C1/35169/98 DTD. 09/10/2000. EXT.P.2: COPY OF THE REPORT OF THE TRANSFER OF CHARGE DTD. 10/10/2000. EXT.P.3: COPY OF THE SENIORITY LIST OF THE ACADEMIC STAFF AS ON 01/04/2000. EXT.P.4: COPY OF THE PROCEEDINGS NO. GA/CA1/37600/2001 DTD. 15/11/2001. EXT.P.5: COPY OF THE REPORT OF TRANSFER OF CHARGE DTD. 15/11/2001. EXT.P.6: COPY OF THE ORDER IN C.M.P. NO. 52336/2001 IN O.P. 32118/2001 DTD. 29/10/2001. EXT.P.7: COPY OF THE PROCEEDINGS NO. GA/C1/23516/83 DTD. 16/11/1983. EXT.P.8: COPY OF THE PROCEEDINGS NO. GA/C1/15098/96 DTD. 08/08/1996. EXT.P.9: COPY OF THE REPORT OF TRANSFER OF CHARGE DTD. 08/08/1996. EXT.P.10: COPY OF THE PROCEEDINGS NO. GA/C1/1333/99 DTD. 13/04/1999. EXT.P.11: COPY OF THE REPORT OF TRANSFER OF CHARGES DTD. 13/04/1999. EXT.P.12: COPY OF THE PROCEEDINGS NO. GA/C1/42557/97 DTD. 29/10/2001. EXT.P.13: COPY OF THE PROCEEDINGS NO. GA/C1/34263-2000 DTD. 29/10/2002. EXT.P.14: COPY OF THE REPORT OF TRANSFER OF CHARGE DTD. 29/10/2002. EXT.P.15: COPY OF THE CERTIFICATES SHOWING QUALIFICATION, DATE OF BIRTH AND COMMUNITY STATUS OF THE PETITIONER. EXT.P.16: COPY OF THE NOTIFICATION NO. GA/K3/31926/89 DTD. 13-11-1989. EXT.P.17: COPY OF THE LETTER NO. E2/582/90/L. DIS DTD. 19/01/1990. EXT.P.18: COPY OF THE LETTER NO. GA/K3/31926/89 DTD. 28/08/1990 CALLING THE PETITIONER FOR INTERVIEW. EXT.P.19: COPY OF THE COMMUNICATION NO. GA/K3/31926/89 DTD. 31/08/1990. O.P. NO. 34964/2002: EXT.P.20. SERIES: COPIES OF THE REPRESENTATIONS SUBMITTED BY THE PETITIONER TO THE AUTHORITIES OF THE AGRICULTURAL UNIVERSITY. EXT.P.21: COPY OF THE CALL LETTER NO. GA/K3/31926/89 DTD. 10/10/2001. EXT.P.22: COPY OF THE REPRESENTATION DTD. 10/10/2002 SUBMITTED BY THE PETITIONER. EXT.P.23: COPY OF THE REPRESENTATION DTD. 16/11/2002 SUBMITTED BY THE PETITIONER. EXT.P.24: COPY OF THE G.O. (P)90/81/TF & P.D. DTD. 03/10/1981. EXT.P.25: COPY OF THE PROCEEDINGS NO. GA/D2/36184/88 DTD. 23/01/1989. EXT.P.26: COPY OF THE G.O.(MS) 350/96/AD DTD. 15/11/1996. EXT.P.27: COPY OF THE WRITTEN SUBMISSION SUBMITTED BY THE PETITIONER ON 31/05/97. EXT.P.28: COPY OF THE COMMUNICATION 26877/AF2/99/AD DTD. 18/10/1999. EXT.P.29: COPY OF THE RELEVANT PART OF THE COMMISSION REPORT. EXT.P.30: COPY OF THE REQUEST DTD. 26/04/2001. EXT.P.31: COPY OF THE PROCEEDINGS GA/A3/43164/00 DTD. 19/02/2001 ISSUED BY THE UNIVERSITY. EXT.P.32: COPY OF THE CALL LETTER NO. GA (K-1)/7358/99 DTD. 05/06/1999 ISSUED BY THE UNIVERSITY TO THE PETITIONER. EXT.P.33: COPY OF THE NOTIFICATION GA/K1/16410/99 DTD. 04/08/1999. EXT.P.34: COPY OF THE REPRESENTATION DTD. 06/08/1999 SUBMITTED BY THE PETITIONER. EXT.P.35: COPY OF THE COMMUNICATION NO. GA/G2/33922/2002 DTD. 18/11/2002 AND AGENDA FOR THE MEETING OF THE EXECUTIVE COMMITTEE SCHEDULED TO BE HELD ON 25/11/2002. EXT.P.36: COPY OF THE COMMON JUDGMENT IN O.P. NO. 32118/2001 AND OTHER CONNECTED MATTERS IN O.P. NO. 32118/2001 PASSED BY THIS HONOURABLE COURT. EXT.P.37: COPY OF THE ORDER NO. GA/C1/37600/01 DTD. 26/11/2002 ISSUED BY THE R.4. EXT.P.38: COPY OF THE FORWARDING NO. CISE/48/89/L.DIS. LETTER SUBMITTED BY THE PETITIONER. EXT.P.39: COPY OF THE FORMAT OF APPLICATION SUBMITTED BY THE PETITIONER FOR THE POST OF PROFESSOR, DTD. 28/02/1989. O.P. NO. 34964/2002: EXT.P.40: COPY OF THE CALL LETTER NO. GA/K3/23864/87 DTD. 23/11/1989 ISSUED TO THE PETITIONER INVITING TO APPEAR FOR AN INTERVIEW. EXT.P.41: COPY OF THE ORDER NO. GA/C1/19669/93/D-DIS DTD. 16/11/1993 ISSUED BY THE UNIVERSITY. EXT.P.42: COPY OF THE JUDGMENT DTD. 29/03/1996 IN O.P. NO. 5744/1996. EXT.P.43: COPY OF THE JUDGMENT DTD. 29/09/2000 IN O.P. NO. 6679/97. EXT.P.44: COPY OF THE ORDER NO. GA/C2/6711/2001 DTD. 27/02/2001 ISSUED BY THE RESPONDENTS. EXT.P.45: COPY OF THE ORDER NO. GA/C2/8089/2001 DTD. 03/04/2001 PASSED IN THE CASE OF DR. ALEXANDER BY THE EXECUTIVE COMMITTEE. EXT.P.46: COPY OF THE ORDER NO. GA/C2/7934/200/DTD. 15/03/01 RELAXING QUALIFICATIONS FOR NORMS PROMOTION IN RESPECT OF DR. V.K. MALLIKA. EXT.P.47: COPY OF THE ORDER NO. GA/C2/23346/99 DTD. 29/05/2000 RELAXING THE QUALIFICATIONS FOR NORMS PROMOTION IN THE CASE OF DR. GEORGEMATHEN. EXT.P.48: COPY OF THE ORDER NO. GA/C1/42557/97 DTD. 03/05/2001 BEARING NO. GA/C1/42557/97 ISSUED BY THE R.1. REVERTING THE PETITIONER. EXT.P.49: COPY OF THE APPEAL PETITION DTD. 27/11/2002 SUBMITTED BY THE PETITIONER ALONG WITH THREE OTHERS. EXT.P.50: COPY OF THE REVISED SLIP NO. ES-A1-1344/22-I/02 DTD. 07/12/2002 ISSUED BY THE UNIVERSITY. EXT.P.51: COPY OF THE ORDER DTD. 17/12/2003 IN C.M.P. NO. 63986/2002 IN O.P. NO.37885/2002. EXT.P.52: COPY OF THE ORDER NO. GA/J1/31615/96 DTD. 27/10/1998 ISSUED BY THE R.1. EXT.P.53: COPY OF THE PAY SLIP BEARING NO. ES (1)/1344/105-I/98-99 DTD. 30/10/2000 ISSUED BY THE ASSISTANT COMPTROLLER OF THE UNIVERSITY. EXT.P.54: COPY OF THE PAY SLIP ISSUED IN RESPECT OF THE PETITIONER'S PAY AND ALLOWANCES DTD. 07/09/1996, DTD. 22/05/2000 AND DTD. 18/01/2001. EXT.P.55: COPY OF THE REPRESENTATION DTD. 31/05/1997 SUBMITTED BY THE PETITIONER BEFORE BHASKARAN NAMBIAR COMMISSION. EXT.P.55.A: COPY OF THE EXPLANATORY NOTE TO G.O. (P). NO. 90/81/TP AND PD DTD. 03/10/1981. EXT.P.56: COPY OF THE PARAGRAPH.13, NO.P3-16/02 DTD. 02/01/2003 OF THE KERALA AGRICULTURAL UNIVERSITY AUDIT REPORT ON THE ACCOUNTS OF FOR THE YEAR 2000-2001. EXT.P.57: COPY OF THE RELEVANT EXTRACT OF THE STATUTES IS IN CLAUSE II (1) (D), II (2) (D). NO. CA E3/34198/90 (II) DT. 21/03/1995. O.P. NO. 34964/2002: EXT.P.58: COPY OF THE ORDER IN C.M.P. NO. 21720/95 IN O.P. NO. 12140/95 DTD. 20/11/1995. EXT.P.59: COPY OF THE EXTRACT OF THE RELEVANT PORTION OF STATUTE NO. 4064/P4/72/AD DTD. 03/06/72 INCORPORATING THE AMENDMENT OF QUALIFICATION DTD. 16/12/81. EXT.P.60: COPY OF THE DECISION OF THE EXECUTIVE COMMITTEE AS ITEM 85/2001 HELD ON 27/08/2001. RESPONDENT'S EXHIBITS: EXT.R6.A: COPY OF THE ORDER NO. GA/C1/15098/96 DTD. 08/08/1996 OF THE UNIVERSITY. EXT.R6.B: COPY OF THE JUDGMENT DT. 29/09/2000 IN O.P. NO. 13346/96. EXT.R6.C: COPY OF THE JUDGMENT DT. 27/09/2002 IN WRIT APPEAL NOS. 2562/2000 AND 2636/2000. EXT.R6.D: COPY OF THE ORDER DTD. 15/11/2002 IN S.L.P. ©. NOS. 20794, 20795 OF 2002. EXT.R6.E: COPY OF THE LETTER DTD. 14/02/1997 FROM THE GOVERNMENT TO THE UNIVERSITY WITH THE COMMISSION REPORT. EXT.R6.F: COPY OF THE MINUTES OF 362ND EXECUTIVE COMMITTEE RELATING TO SPECIAL RECRUITMENT DTD. 13/11/01. EXT.R6.G: COPY OF THE NOTIFICATION NO. GA/KI/30054/2000 DTD. 19/08/2000 OF THE UNIVERSITY. EXT.R6.H: COPY OF THE ORDER NO. GA/C2/2647/90 (IV) DTD. 22/01/1990 OF THE UNIVERSITY. //TRUE COPY// prv. A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - O.P.No.34964 of 2002 & W.P (c) No. 23964 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of February, 2008. Judgment These two writ petitions are being disposed of by this common judgment since the principal issue involved in them is one and the same. Over the last 5 to 6 years, during the pendency of these two petitions, pleadings have multiplied and a large number of documents have been produced by the rival contestants. But since the issue falls in a narrow compass, it is not necessary to refer to all pleadings and documents. 2. Dr.P.P.Balakrishnan and Dr.E.Nanu, the petitioners in these two cases are now working as Associate Dean and Dean-in-Charge respectively in the Faculty of Veterinary and Animal Sciences in the Kerala Agricultural University. They shall hereinafter be referred to in the judgment as the petitioner and respondent No.6 respectively. Similarly the documents produced by the parties in O.P.No.34964/02 shall also be referred to in the judgment, if not otherwise indicated. 3. The primary grievance of the petitioner is that he has been given appointment as Professor in the Faculty of Veterinary and Animal Sciences only with effect from October 29, 2002, though Ext.P16 Notification was issued on November 13, 1989, by which the selection process was set in motion. 4. It is not in dispute that the selection and appointment of the petitioner was pursuant to the notification mentioned above. It is OP34964/02, WP.23964/03. 2 contended by the petitioner that the selection process was got delayed not because of any fault of the petitioner. According to him, Justice Bhaskaran Nambiar Commission had in fact made certain observations indicating that a candidate like the petitioner who belongs to Scheduled Caste community ought not to have been denied the benefits guaranteed under the Constitution to such communities because of the delay or laches on the part of the appointing authority. It is further contended by the petitioner that the University was not justified in ignoring the right of the petitioner to be appointed as Professor from the date of notification itself, since the petitioner was fully qualified to hold the post as on that date. 5. In this context learned counsel invites my attention to Ext.P59 notification by which the Government had prescribed the qualifications for the post of Professor, which are extracted hereunder: “Professor: a) Bachelor's degree from the concerned faculty. Provided that this shall not be insisted in the case of person having the required period of experience in teaching/research in the concerned faculty of the Kerala Agricultural University. Provided also that the said qualification shall not be insisted for teaching posts in Agricultural Statistics, Bio-Chemistry, Soil Physics, Agricultural Meteorology, Ag.Engg., OP34964/02, WP.23964/03. 3 Economics, Mathematics and the like subjects. b) Doctorate in the relevant subject from a recognised University. Provided that this qualification shall not be necessary in the case of a candidate possessing M.Sc degree or equivalent post graduate qualification in the subject and having an exceptionally distinguished record of productive research; c) at least 10 years' experience of teaching and/or research and an outstanding record of productive research as evidenced by published work (relaxable in the case of outstanding candidates). Desirable a) ability to plan, organise and guide advanced research; b) experience of research administration; c) knowledge of a modern foreign language other than English.” OP34964/02, WP.23964/03. 4 It is the case of the petitioner that he was a Post Graduate in the subject concerned and he had also got the requisite years of teaching experience as well. 6. Per contra, it is contended by learned counsel for respondent No.6 that petitioner admittedly did not have Doctorate to his credit in the year 1989. Though he was a Post Graduate he did not possess an exceptionally distinguished record of productive research; nor did he have the benefit of any research work or an outstanding record of productive research to be evidenced by published work. It is further pointed out by the learned counsel that the Executive Committee at its meeting held on November 30, 2001 had recorded its decision in Ext.R6(f) minutes that petitioner and the other candidates were not qualified to hold the post of Professor on the date of notification. But the Committee took the view that the petitioner and the other candidates in other disciplines were entitled to get promotion without retrospective effect. It was thereafter that the University had issued Ext.P13 order on October 29, 2002, in which reference was made to the decision of the Executive Committee as revealed from Ext.R3(f). 7. Smt. Sreedevi Kylasanath, learned counsel for the petitioner further contends that the University had given a differential treatment to respondent No.6 who also belongs to a Scheduled Caste community, inasmuch as he was appointed as Professor in the year 1990 though he did not have Doctorate to his credit on the last date for submission of the application specified in the notification issued in this regard. OP34964/02, WP.23964/03. 5 8. But Sri.N. Sugathan, learned counsel for respondent No.6 points out that respondent No.6 had submitted his thesis way back in the year 1988 and he was awarded Doctorate shortly after the submission of his application. It is further pointed out by him that it is too late for the petitioner in the day to raise such a contention, because he had not questioned the appointment of respondent No.6 to the post of Professor on 22/1/1990, at any point of time. 9. As far as the contention raised by the petitioner that he is entitled to get retrospective appointment as Professor from the date of notification is concerned, I have no hesitation to hold that the above contention is wholly untenable. It may be true that petitioner was not at all responsible for the delay in completing the process of selection and appointment by the University. But still the fact remains that the University had issued Ext.P13 order of appointment on October 29, 2002. An appointee cannot, by any stretch of imagination, seek retrospective benefit of appointment on the basis of the date on which a notification was issued inviting applications from eligible candidates. The said position has been settled by a Division Bench of this Court in P.J. Grace v. State of Kerala & anr. (1976 KLT 227). I am also not persuaded to accept the contention of respondent No.6 that petitioner was not qualified to be appointed as Professor even at that point of time, since the question has no relevance as far as this case is concerned. 10. It is brought to my notice that the University had issued a direction to recover the arrears of salary and other benefits drawn by OP34964/02, WP.23964/03. 6 the petitioner while he had been holding the post of Professor with retrospective effect from 1986. It is not in dispute that the said retrospective promotion given to the petitioner was set aside by the judgments of this Court in Ext.R6(b) and R6(c) and also of the Apex Court in Ext.R6(d). Anyhow the said issue is also settled for the time being since it is brought to my notice that this Court in W.P.No. 39468/2002 had quashed the order issued by the University seeking to recover the salary paid to the petitioner during the period when he had held the post of Professor. 11. The other question that has to be decided is the one relating to selection and appointment to the post of Dean in the Faculty of Veterinary and Animal Sciences. The University had issued a notification in this regard on August 19, 2000, a copy of which is on record as Ext.R6(g). Respondent No.6 was one of the applicants, apart from the petitioner and Dr.J.Abraham (respondent No.6 in W.P.No.23964/03) for the single post available. It is not in dispute that the Selection Committee which was constituted for the purpose, had finalised the process in its proceedings held on November 9, 2001. The Selection Committee had interviewed the 3 applicants and it was thereafter that the selection process was completed. The Committee had forwarded the list prepared on the basis of the ranking given to the 3 candidates to the Vice Chancellor. It appears that the Executive Committee at its meeting held on November 25, 2002 had taken up the above select list for consideration. It is seen from Ext.P16 which is a true extract of the minutes of the said meeting , that one of OP34964/02, WP.23964/03. 7 the members of the Executive Committee viz. Sri.P.P.George, MLA had raised an objection that the selection process was completed without issuing a proper notification with wide publicity. Sri.George also contended that the field of choice was very narrow and only 3 candidates had responded to the notification. In the course of the discussion it was noticed by the Committee that the above Member had not raised any objection with regard to the above aspect at any point of time earlier. It was noticed by the Committee that the select list which was kept in a sealed cover, could not be opened so far in view of the interim order issued by this Court in WA.No.2562/2002 and connected cases. It was also noticed that since the above writ appeal and connected cases had already been disposed of by judgment dated September 27, 2002, there was no impediment in opening the sealed cover. 12. However the sealed cover was ultimately produced by the University before this Court in WA.708/2003 which was preferred by respondent No.6. A copy of the select list is available on record as Ext.P15 in W.P.No.23964/2003. In the said select list Dr.J.Abraham, respondent No.6 in W.P.No.23964/03 was placed at rank No.1 and respondent No.6 was at rank No.2 Petitioner had got only the third rank. The grievance of respondent No.6 who has preferred W.P.No.23964/03 is that the University had unnecessarily dragged its feet in appointing him as the Dean, especially after the retirement of Dr.J.Abraham on May 31, 2003. 13. It is contended by Sri.P.V.Mohanan, learned counsel OP34964/02, WP.23964/03. 8 appearing for respondent No.6 (petitioner in W.P.23964/2003) that there was no justification on the part of the University in refusing to make appointment particularly since there was no legal impediment at all. The selection was made by a duly constituted committee after complying with all statutory formalities. Indisputably, petitioner has got all the requisite qualifications. But the Executive Committee, at its meeting held on June 27, 2003, took a strange decision to remit the select list to the Vice Chancellor with a request to obtain a fresh list of three names. The committee took the view that there was no wide publicity as required and that only three applicants had responded to the notification. Moreover, the candidate placed at rank No.1 (Prof.J.Abraham) had retired in May 2003. A copy of the minutes of the Executive Committee is on record as Ext.P12. 14. Learned Standing Counsel for the University, while supporting the decision of the Committee, submits that by efflux of time, the selection list had become ‘infructuous’. The list which was prepared way back in the year 2001 contained only three names, of which one has already retired from service. The zone of choice will be wider, if a fresh selection process is initiated. 15. The above contention raised by the learned Standing Counsel is vociferously supported by the petitioner though not for any valid or plausible reason. The contention of the petitioner is that both himself and respondent No.6 can apply again along with other aspirants, if any, if a fresh selection is held. It is also vaguely contended by the petitioner that the subject expert who was included in the selection OP34964/02, WP.23964/03. 9 committee was not fully qualified, which view was supported by the executive committee also. But in my view, the above contention cannot be countenanced or sustained at this distance of time. 16. Admittedly, petitioner had participated in the selection process. He was placed at rank No.3. He had not raised any objection with regard to the selection process at any point of time. He has now joined as Associate Dean in the Faculty of Veterinary and Animal Sciences. It is also on record that respondent No.6 was appointed as Dean in charge with effect from November 26, 2002 (as directed by this court in W.P.(C)23964/03). He is even now holding the post of Dean in charge. Though it is contended by learned counsel for respondent No.6 that the inclusion of Sri.Abraham and the petitioner in the select list was bad, since they were not qualified at the time of issuance of the notification as held by the Division Bench in Ext.R6(c), I do not deem it necessary to deal with the above contention for the reason that going by the rank position as on today petitioner does not stand a chance to overtake respondent No.6 and seek appointment. As mentioned earlier, Sri.Abraham (rank No.1) had already retired from service. 17. Having regard to the totality of facts and circumstances, I am satisfied that respondent No.6 (petitioner in W.P.(C)No.23964/03) is entitled to be appointed as Dean in the Faculty of Veterinary and Animal Sciences in the Kerala Agricultural University on the basis of his selection and inclusion in Ext.P15 select list. It is fairly conceded by learned counsel for respondent No.6 that the University may not be OP34964/02, WP.23964/03. 10 liable to pay salary and allowances attached to the post of Dean to respondent No.6 during the period when he had been holding only the charge of Dean. Respondent No.6 does not press for such a claim, it is submitted. The above submission is recorded. 18. University shall issue orders appointing respondent No.6 (petitioner in W.P.23964/03) as Dean in the faculty of Veterinary and Animal Sciences forthwith. Writ Petition No.34964/02 is dismissed. Writ Petition No.23964/03 is allowed. A.K. Basheer Judge. an.