IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 WP(C).No. 5731 of 2008(G) ------------------------- PETITIONER(S): --------------- P.P. SHIJU, S/O. PADMANABHAN, AGED 34 YEARS, PUTHENPURAYIL HOUSE, PUTHUKAD, THATTAMPADI, NORTH PARAVUR, ERNAKULAM DISTRICT. BY ADV. SRI.BIJIMON C.CHERIAN SRI.ARUL KUMAR.P RESPONDENT(S): --------------- 1. THE DIRECTOR, L.B.S. CENTER FOR SCIENCE AND TECHNOLOGY, EXTRA POLICE ROAD, NANDAVANAM, THIRUVANANTHAPURAM. 2. SMT. MARY REENA K.E., AGED 34 YEARS, D/O. K.EASHY, KOTTARATHIL HOUSE, KARUVELIPPADY P.O FORT KOCHI. ADV. SRI.P.B.SURESH KUMAR SC, LBS CENTRE FOR R1 SRI.N.JAMES KOSHY FOR R.2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.5731/2008 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE JUDGMENT IN WPC.22032/07. P2 COPY OF THE RANK LIST PUBLISHED BY R1. P3 COPY OF THE APPLICATION FILED BY R1 IN CCC.1492/07. P4 COPY OF THE ORDER IN CCC.1492/07. P5 COPY OF THE ORDER ISSUED BY R1. P6 COPY OF THE REQUEST OF TRANSFER. RESPONDENTS' EXHIBITS R1(A) COPY OF THE WPC.22032/07. R1(B) COPY OF THE STATEMENT FILED BY R1. R1(C) COPY OF THE CIRCULAR DT 6-9-07. R1(D) COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DT 19-9-07. // True Copy // P.A. To Judge C.T.RAVIKUMAR, J. ``````````````````````````````````````````````````````` W.P.(C) No. 5731 of 2008 G ``````````````````````````````````````````````````````` Dated this the 19th day of May, 2010 J U D G M E N T The petitioner is presently working as Assistant Professor in the Electronics and Communications Engineering Department of L.B.S. College of Engineering, Kasaragod. The learned counsel for the petitioner submitted that in respect of prayer No.5, the petitioner has already obtained relief and, therefore, confined the arguments only with respect to the rest of the issues. For considering the entitlement of the petitioner to such reliefs, the following facts require narration:- 2. The petitioner pursuant to notification dated 19-01- 2004 applied for appointment to the post of Assistant Professor. However, after issuing such a notification, the 1st respondent did not take steps to complete the selection proceedings initiated as per the said notification. Subsequently, the petitioner approached this Court by filing W.P.(C) No.22032/2007 to redress his grievance with respect to the inaction on the part of the 1st respondent to complete the selection process initiated as per the said notification. The said writ petition was disposed of as per WPC.5731/2008 : 2 : Ext.P1 judgment. As per Ext.P1, specific direction was issued to the 1st respondent to complete the selection process initiated in the year 2004 and a further direction was also issued to notify the remaining vacancies. After Ext.P1 judgment, the Executive Committee of the 1st respondent has taken a decision on 21-08- 2007 to fill up the vacancies in the cadre of Assistant Professor only from internal candidates. Immediately thereafter, the petitioner approached this Court by filing Contempt Case(C) No.1492/2007. Prior to the filing of the said contempt case, in terms of the decision taken on 21-08-2007, the 1st respondent has issued Ext.R1(c) notification. In response to Ext.R1(c) notification, the petitioner has submitted a fresh application. The respondents have completed the selection process initiated as per Ext.R1(c) and from the list prepared pursuant to the same, the petitioner as also the 2nd respondent were given appointment as Assistant Professors. As per Ext.P4 judgment, this Court closed the said contempt case filed by the petitioner recording that the directions issued in Ext.P1 have been complied with. This writ petition has been filed challenging the seniority assigned to the 2nd respondent WPC.5731/2008 : 3 : in Ext.P2 ranked list. In Ext.P2 ranked list, the 2nd respondent was assigned the first rank and the petitioner was assigned the second rank. Essentially, the contention of the petitioner is that since the 2nd respondent was unqualified at the time of 2004 notification, she should not have been placed in the first rank. The petitioner has yet another grievance that the allowance to which the petitioner was entitled on account of discharging the additional duties attached to the post of Head of the Department was denied illegally. 3. Refuting the claims and contentions of the petitioner, the 1st respondent has filed a counter affidavit. According to the learned counsel for the 1st respondent, the petitioner cannot be permitted to attribute illegality in respect of the selection process after participating in the selection process and obtaining appointment pursuant to Ext.R1(c) notification. Referring to the reliefs sought for in this writ petition as also the contentions raised, the learned counsel for the 1st respondent submitted that there is no specific allegation raising illegality against the action on the part of the respondents in clubbing the notification and conducting WPC.5731/2008 : 4 : a common selection. In fact, there is no challenge at all against the appointment of the 2nd respondent on the ground that she was unqualified at the time of 2004 notification and, therefore, ineligible to participate in the selection process. 4. The learned counsel appearing for the 2nd respondent also endorsed the contentions raised on behalf of the 1st respondent. 5. True that as per Ext.P1, this Court directed the 1st respondent to complete the recruitment process initiated as per notification dated 19-01-2004. As noticed hereinbefore, after Ext.P1 judgment, the Executive Committee of the 1st respondent took a decision to fill up the vacancies of Assistant Professors only from the internal candidates. It was pursuant to that decision that Ext.R1(c) notification was issued. The petitioner did not choose to challenge Ext.R1(c) notification, at the same time, he responded to the same and applied and taken part in the selection process initiated as per Ext.R1(c). More than that, based on the said selection process, he got appointment. Ext.P4 would reveal that it was after taking part in the selection process and obtaining the WPC.5731/2008 : 5 : order of appointment, the petitioner did not actually pursue with the contempt case and in the said circumstances, taking note of the contention that the directions had been complied with, the said contempt case was closed. If the petitioner had any grievance with respect to the non-compliance with the specific directions in Ext.P1, the petitioner should have pursued the said contempt case. It is a fact that the said contempt case was closed taking note of the fact that the petitioner was given appointment as Assistant Professor and he had joined duty on 31-10-2007. True that the petitioner has raised a grievance with respect to the seniority. Though he had raised such a contention in the contempt of court case, this Court rightly declined to go into the said question and left it to be urged in appropriate proceedings. It is in the said circumstances that this writ petition has been filed by the petitioner. 6. Now, the question is whether the petitioner can challenge the rank assigned to the 2nd respondent in a list drawn pursuant to Ext.R1(c) notification. Ext.R1(c) would reveal that it did not envisage different selection proceedings in respect of WPC.5731/2008 : 6 : vacancies prior to 2004 and subsequent to 2004. Therefore, essentially it was a common selection in respect of all vacancies available as on that date. It is with full knowledge about the same that the petitioner took part in the selection process. Had it been the contention of the petitioner that he is entitled to be considered based on his application made in response of the notification dated 19-01-2004 he should not have submitted application pursuant to Ext.R1(c). That apart, the petitioner did not have a case that the second respondent was given any benefit by giving retrospectivity to her appointment from a date on which she was unqualified. Indisputably, the petitioner was also given appointment as Assistant Professor pursuant to the selection process initiated as per Ext.R1(c) along with the second respondent. No illegality can be attributed in the action on the part of the 1st respondent in assigning ranks to the candidates who participated in the said selection process based on their performance in the said selection process. The petitioner did not have a case that based on such assessment of performances, the 2nd respondent should not have been assigned first rank whereas WPC.5731/2008 : 7 : his contention is that since the 2nd respondent was unqualified at the time of issuance of the notification dated 19-01-2004 and, therefore, she should not have been assigned the first rank. I am afraid that the said contention cannot be countenanced. The conduct of the petitioner in participating in the selection process initiated as per Ext.R1(c) without any demur and accepting the order of appointment pursuant to the said selection process would definitely estop him from raising such contentions as now raised against the said selection process. I am fortified in my view by a decision of this Court in P.N.Sambasivan and others Vs. State Bank of Travancore and others [1987 KLJ 48] and the order of Apex court in the decision reported in K.A.Nagamani Vs. Indian Airlines [2009 (5) SCC 515]. “ 54. The Corporation did not violate the right to equality guaranteed under Articles 14 and 16 of the Constitution. The appellant having participated in the selection process along with the contesting respondents without any demur or protest cannot be allowed to turn round and question the very same process having failed to qualify for the promotion. “ WPC.5731/2008 : 8 : 7. In this case, it is to be noted that the petitioner is now turning around and challenging the proceedings after obtaining the fruit of the selection process and, therefore, any challenge to the said selection process based on the above mentioned grounds, if accepted, would definitely cut the root of his very appointment itself because he too obtained appointment pursuant to the said selection process. The upshot of the discussion is that by virtue of the conduct of the petitioner, the petitioner cannot successfully challenge the selection process initiated as per Ext.R1(c) by the 1st respondent which ultimately resulted in appointment of the petitioner as also the 2nd respondent. There is no merit in the writ petition and accordingly it is dismissed. Sd/- (C.T.RAVIKUMAR, JUDGE) aks