IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 OP.No. 5749 of 2003(H) -------------------------------- PETITIONER: ----------------- V.G.RAJESH, LECTURER IN MECHANICAL ENGINEERING, COLLEGE OF ENGINEERING, CHENGANNUR, ALLEPPEY DISTRICT. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, HIGHER EDUCATION, MINISTRY OF EDUCATION, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. DIRECTOR, INSTITUTE OF HUMAN RESOURCES DEVELOPMENT PRAJOE TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-14. 3. EXECUTIVE COMMITTEE, INSTITUTE OF HUMAN RESOURCES DEVELOPMENT TRIVANDRUM REPRESENTED BY ITS CHAIRMAN (SECRETARY TO GOVT. OF KERALA, HIGHER EDUCATION DEPARTMENT). 4. THE GOVERNING BODY, INSTITUTE OF HUMAN RESOURCES DEVELOPMENT, TRIVANDRUM, REPRESENTED BY ITS CHAIRMAN, (MINISTER FOR EDUCATION, GOVT. OF KERALA), THIRUVANANTHAPURAM). * ADDL. R5 IS IMPLEADED ADDL. R5: DR.MINI.M.G., ASSISTANT PROFESSOR, DEPARTMENT OF ELECTRONICS ENGINEERING, MODEL ENGINEERING COLLEGE, THRIKKAKARA. * ADDL. R5 IS IMPLEADED AS PER ORDER DATED 05/11/2007 IN I.A.12474/2007. GOVERNMENT PLEADER SMT.T.B.REMANI FOR R1 ADV. SRI.N.N.SUGUNAPALAN, SC, IHRDE FOR R2-R4 ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) FOR R5 ADV. SRI.GEORGE VARGHESE KIZHAKKAMBALAM FOR R5 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 13/10/2008, ALONG WITH WPC NO. 13860 OF 2008 AND WPC NO. 14050 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO.5749/2003-H ORDER ON CMP NO.10149/2003, I.A.NOS.8624/2006 AND 3196/2007 IN O.P. NO.5749/2003 DISMISSED 13/10/2008. SD/- ANTONY DOMINIC, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTIFICATION NO.E/3081/95/HRD ISSUED BY THE INSTITUTE OF HUMAN RESOURCES DEVELOPMENT FOR ELECTRONICS DATED 28/07/1995. EXT.P2: COPY OF THE RELEVANT PAGES OF THE SPECIAL RULES. EXT.P3: COPY OF THE PROCEEDINGS DATED 13/10/1997 ISSUED BY THE 2ND RESPONDENT. EXT.P4: COPY OF THE ORDER NO.E1/8854/97/HRD, DATED 18/10/1997 ISSUED BY THE 2ND RESPONDENT. EXT.P5: COPY OF THE GOVERNMENT ORDER VIDE G.O.(MS)12/87/H.EDN. DATED 14/01/1987. EXT.P6: COPY OF THE REPRESENTATION DATED 29/06/2000 ISSUED BY THE PETITIONER. EXT.P7: COPY OF THE CIRCULAR ISSUED BY THE DIRECTOR DATED 11/07/2005. EXT.P8: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 26/07/2005. EXT.P9: COPY OF THE CIRCULAR DATED 19/12/2005 ISSUED BY THE DIRECTOR. EXT.P10: COPY OF THE EXPERIENCE CERTIFICATE DATED 25/10/2003. EXT.P11: COPY OF THE ORDER DATED 06/10/2000 OF THE 2ND RESPONDENT EXT.P12: COPY OF THE CIRCULAR DATED 06/01/2007 OF THE DIRECTOR, INSTITUTE OF HUMAN RESOURCES DEVELOPMENT. RESPONDENT'S EXHIBITS: EXTR1(a): COPY OF THE NOTIFICATION ISSUED BY THE IHRD DATED 19/12/1992. EXT.R1(b): COPY OF THE PROCEEDINGS NO.E1/8854/97HRD DATED 26/09/1997 ISSUED FROM THE IHRD. EXT.R1(c): COPY OF THE EXTRACT OF THE PROVISIONS (SELECTION GRADE). EXT.R1(d): COPY OF THE PROCEEDINGS NO.E2/513/2000/HRD DATED 23/02/2001 ISSUED FROM THE IHRD. //TRUE COPY// Rs/ P.S. TO JUDGE ANTONY DOMINIC, J. = = = = = = = = = = = = = = = O.P. No. 5749 OF 2003 & W.P.(C) Nos.13860 & 14050 of 2008 = = = = = = = = = = = = = = = = Dated this the 13th day of October 2008 J U D G M E N T O.P. No. 5749/03 and W.P.(C) Nos. 13860/08 are filed by one Shri. V.G. Rajesh. W.P.(C) No. 14050/08 is by Shri. Vinu Thomas and two others. 2. In O.P. No. 5749/03, the prayer sought is for declaration that the petitioner is eligible for appointment as Assistant Professor in the Mechanical Engineering Department of the Engineering College under the 2nd respondent with effect from 30.10.1999. Briefly stated the facts are thus: According to the petitioner he commenced service as a Lecturer in the Mechanical Engineering Department from 29.10.1994, after acquiring a post graduate degree in Mechanical Engineering. It is stated that his service, which was initially on contract basis, was regularised with effect from 1.1.1997. Ext. P2 is the Recruitment Rules for the post of Assistant Professor. In terms of the Recruitment Rules, Lecturer with 5 years experience is eligible to apply for this post which is to OP No. 5749/03 & WPC No.13860 of 2008 and WPC 14050 OF 2008 - 2 - be filled up by direct recruitment. Petitioner submits that he having completed 5 years service prescribed in the rules, by the end of October, 1999, should have been posted as an Assistant Professor. According to him, though direct recruitment is the method prescribed, relaxing the rules one Jyothi John was granted such posting and this has been admitted by the respondents in Ext. P11 produced along with W.P.(C) No. 13860/08. It is stated that despite this he was not given posting as Assistant Professor. 3. Long after that, circular dated 11.7.2005 was issued inviting applications for the post of Assistant Professor which inter alia required a Ph.D. degree with first class in Bachelors and Masters level. However, the notification provided that candidates applying for the post are exempted from possessing Ph.D., but have to acquire the same within 7 years of their appointment as Assistant Professor. Petitioner submits that in response to the said notification he submitted Ext. P8 application dated 26.7.2005. While the respondents kept further proceedings following the notification and the applications they have received in response thereto in cold storage, they issued Ext. P9 notification dated 19.12.2005 inviting OP No. 5749/03 & WPC No.13860 of 2008 and WPC 14050 OF 2008 - 3 - application for the post of Joint Director. The notification provided that the post will be filled up by selection from categories of Professors and Assistant Professors satisfying the qualifications prescribed therein. Petitioner submits that as on the date of Ext. P9, since he was not made an Assistant Professor pursuant to Ext.P7, he could not respond to Ext. P9. 4. Subsequent to the filing of O.P. No. 5749/03, by Ext. P7 produced in W.P.(C) No. 13860/08, petitioner was posted as Assistant Professor. Thus, though in O.P. No. 5749/03, he claimed to be appointed as Assistant Professor with effect from 30.10.1999, the department has appointed the petitioner as Assistant Professor by order dated 19.7.2007. According to the petitioner, by delaying his posting as Assistant Professor, he was deprived of the chance of becoming a Joint Director, in respect of which applications were invited by notification dated 19.12.2005. He filed W.P.(C) No. 13860/08 at a stage when, by Ext. P8 dated 25.4.2008 produced therein, the applicants who responded to the notification dated 19.12.2005 were called for an interview. His grievance is that the belated further action for filling up the post of Joint Director should OP No. 5749/03 & WPC No.13860 of 2008 and WPC 14050 OF 2008 - 4 - be stopped and that fresh applications should be invited by the authorities so that he and other persons who had become eligible in the meanwhile can apply for the same. This very grievance is highlighted by the petitioners in W.P.(C) No. 14050/08 also. 5. Thus the surviving grievance of the petitioner in O.P. No. 5749/03 who has also filed W.P.(C) No. 13860/08 are two fold. One is that he ought to have been appointed as Assistant Professor on completion of 5 years from 29.10.1994. The second is that the authorities should not continue further proceedings for filling up the vacancies of Joint Director notified by the notification dated 19.12.2005. The second is the grievance highlighted by the petitioners in W.P.(C) No. 14050/08 also. 6. A counter affidavit has been filed by the respondents justifying their stand. According to the respondents, the petitioner was appointed on 29.10.1994 only on a contract basis and his regular appointment commenced only from 1.1.1997. It is stated that the posts of Assistant Professor and the Joint Director have to be filled up in terms of the rules that has been laid down. It is stated that Ext. P7 in O.P. No. 5749/03 is the notification issued for OP No. 5749/03 & WPC No.13860 of 2008 and WPC 14050 OF 2008 - 5 - filling up the post of Assistant Professor. As per this notification the method of appointment is by open selection through Staff Selection Committee constituted by the Executive Committee of the IHRD from among the Lecturers who have applied for the post. It is stated that this being the rule the petitioner's claim for appointment as Assistant Professor has to be in compliance of the same. Therefore, they deny the claim for promotion with effect from 1999. In so far as Jyothi John is concerned, explanation has been offered. According to them, the Executive Committee passed a special resolution considering the case of Jyothi John as a special one, particularly having regard to the prior experience that he had at the time when he entered service. It is also stated that he was the senior most in the discipline concerned. According to the respondents, the petitioner's case is not similar to that of Jyothi John and that the petitioner is also not the senior most in the Department of Mechanical Engineering. 7. In so far as the appointment to the post of Joint Director is concerned, the respondents would submit that the post will have to be filled up only in terms of Ext. P9 in O.P. No. 5749/03. It is OP No. 5749/03 & WPC No.13860 of 2008 and WPC 14050 OF 2008 - 6 - stated that at the time when Ext. P9 was issued the petitioner was not in the feeder category of Assistant Professor and that therefore at any rate, petitioner can have no claim against the vacancies which arose prior to his becoming eligible for the post in question. 8. The first question to be considered is whether there is any substance in the petitioner's claim for appointment as Assistant Professor with effect from 30.10.1994 when he completed 5 years service. True, as per Ext.P7 in OP No.5749/2003, a Lecturer having Ph.D. with 3 years experience is eligible to be considered for the post of Assistant Professor. The prescribed experience was of 5 years, as per Ext.P2. Though the petitioner did not have a Doctorate, in view of the note in Ext.P7, he was eligible for exemption from the same. However, the fact remains that the post is to be filled up by appointment by open selection through Staff Selection Committee constituted by the Executive Committee of the IHRD. There is no rule or executive instruction produced before me enabling a candidate to claim appointment as Assistant Professor on completion of 3 years or 5 years as claimed by the petitioner. On the other hand, the rule governing appointment to that post is Ext. OP No. 5749/03 & WPC No.13860 of 2008 and WPC 14050 OF 2008 - 7 - P7 which provides for an open selection through the Staff Selection Committee. This process can be only in response to a notification issued by the respondents and that notification is Ext. P7. Further, there is no law that the appointing authority is obliged to fill up posts in the higher cadre, as and when those in the feeder category satisfy the eligibility criterion. Therefore, there is no material supporting the claim of the petitioner for appointment as Assistant Professor on completion of the prescribed period of experience in the service and his claim is only to be rejected. 9. The whole argument that he ought to have got posting in 1999, is based on the relaxation that has been given to Mr. Jyothis John. True, the rule does not provide for any relaxation from the procedure laid down therein, but however, it is a fact that Mr. Jyothi John has been given relaxation and the respondents have offered their explanation also. There is no challenge to the exemption that has been given or the promotion that has been granted on that basis to Mr. Jyothi John. In my view, so long as that is not provided for in the rules, a candidate like the petitioner cannot set up a claim on the basis of the relaxation so given. Appointment can be made OP No. 5749/03 & WPC No.13860 of 2008 and WPC 14050 OF 2008 - 8 - only in terms of the method laid down in the rule and any departure therefrom cannot be taken as a precedent. It is the settled law that Article 14 is a positive concept and a departure made or an error committed by an authority cannot be a precedent. If the rule prescribes something to be done in a particular manner, it should be done only in that manner and in no other manner. These principles have been laid down by the Apex Court in a number of decisions. Therefore, I see no substance in the claim of the petitioner for appointment as Assistant Professor, on completion of 5 years at the end of October, 1999. 10. Now what remains is the challenge against the filling up of the post of Joint Director. Admittedly, at the time when the notification was issued on 19.12.2005, petitioner was not in the feeder category post of Assistant Professor and the petitioner came to that category only by order dated 19.7.2007. If that be so, petitioner can have no claim for the vacancies which arose prior to the date on which he came to the feeder category post and his claim, if at all, has to be confined to the vacancies which arose only after he came into that category. Petitioner submits that there has OP No. 5749/03 & WPC No.13860 of 2008 and WPC 14050 OF 2008 - 9 - been delay in taking further proceedings pursuant to the notification dated 19.12.2005. It is true that the candidates were called for the interview only by notification dated 24.12.2008. Since the petitioner came to the feeder category only on his posting as Assistant Professor and as his claim has to be confined to the vacancies which arose only after he became an Assistant Professor, I see no justification for the challenge raised. In my view, even if it is accepted that there was delay, that has not caused any prejudice to him, for the reason that he came to the feeder category only in 2007. Even otherwise, his grievance will be satisfied once his claim to be considered for the post of Joint Director against vacancies which arose after 19.7.2007, is accepted. If that be so, the respondents should be at liberty to continue the selection process confining the selection to the posts that were available prior to the petitioner and the petitioners in W.P.(C) No. 14050/08 becoming eligible for the post of Joint Director. Accordingly, there will be a direction that the respondents shall confine the selection to the post of Joint Director pursuant to the notification dated 19.12.2005 and the call letter dated 24.12.2008, confining themselves to the posts OP No. 5749/03 & WPC No.13860 of 2008 and WPC 14050 OF 2008 - 10 - which were available prior to the petitioners becoming eligible for the post of Joint Director. They shall also take steps for filling up subsequent vacancies in accordance with law. Writ petitions will stand disposed of with the aforesaid directions. ANTONY DOMINIC JUDGE jan/-