IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 WA.No. 106 of 2006() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.33986/2004 Dated 14/11/2005 .................... APPELLANTS/PETITIONERS 1 TO 4 IN THE W.P.(C): ----------- 1. AJITH. M. GOPINATH, S/O. SRI. MAVELIKKARA GOPINATH, RESIDING AT `AJITH BHAVAN', PUNNAMOODU, MAVELIKKARA. 2. THULASIDAS K.C., S/O. SRI. N. CHELLAPPAN RESIDING AT `VANI BHAVAN', FOR MAVELIKKARA P.O., MAVELIKKARA. 3. AJITH K., S/O. SRI. KARUNAKARAN PILLAI K RESIDING AT `ASHA BHAVAN', KOTTUKKAL P.O., ANCHAL, KOLLAM. 4. MEENA PAUL C., W/O. DR.C.K. THOMAS, HOUSE NO.3158-II, SANGEETH, PALAPARAMBIL LANE, PONKUNNAM. BY ADV. SRI.O.V.RADHAKRISHNAN (SR.) SMT.K.RADHAMANI AMMA SRI.ANTONY MUKKATH RESPONDENTS/RESPONDENTS IN THE WP(C): ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF COLLEGIATE EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. CHANCELLOR, UNIVERSITY OF CALICUT, CALICUT. 3. UNIVERSITY OF CALICUT, REPRESENTED BY THE REGISTRAR, CALICUT UNIVERSITY P.O, CALICUT. WA.106/06 4. THULASEEDHARA KURUP, PERUKULATH VEEDU, KAMUKINCHERIL, AVANEESWARAM, KOLLAM. 5. NAJMUL SHAHI, SHAHI MANZIL, PERUMKULAM P.O., ALANCODE, THIRUVANANTHAPURAM. BY ADV. SRI.KRB.KAIMAL (SR.) FOR R4 SRI.S.P.ARAVINDAKSHAN PILLAI FOR R5 SMT.N.SANTHA FOR R5 SRI.K.A.BALAN FOR R5 GOVERNMENT PLEADER SRI.SANDESH FOR R1 SRI.E.S.ASHRAF, SC, CALICUT UNIVERSITY FOR R.3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. ------------------------------- W.A.NO.106 OF 2006 (A) ----------------------------------- Dated this the 30th day of May, 2008 J U D G M E N T KOSHY,J. This writ appeal is filed challenging appointment of 4th and 5th respondents consequent to Ext.P1 notification. Fourth respondent already left the service and we are concerned with the 5th respondent. Fifth respondent was appointed as Lecturer in the Children's Theatre. In Ext.P1 notification, that post was reserved for Muslim community. We are of the opinion that notification itself was not correct because as per the relevant rules in force at the time of notification, if for posts reserved for a particular backward community no candidate is available, by default it can be given to Other Backward Communities. This position continued till 2006. The notification was published in 2003. Since it is stated that this post is available for Muslim candidates, other eligible candidates might not have applied for the posts. Apart from the above, 5th respondent was not qualified to be W.A.106/06 2 appointed to the above post as per qualification in Ext.P1. A Committee was appointed regarding the alleged irregularities in the selection and appointment of teaching staff in the University by resolution passed in the meeting held by the Syndicate of University on 16.1.2007. With regard to the appointment of the 5th respondent, the committee found as follows: “Only one candidate, Smt.Najmul Shahi, attended the interview and she was selected and appointed. She has not qualified the NET examination and she received M.Phil Degree in 2001 only. Therefore, she is not even eligible to be considered for selection and appointment. But the selection committee awarded 35 marks for qualification (she is eligible for only 20 marks), 15 marks for publications and 5 marks for qualification (she is eligible for only 20 marks), 15 marks for publications and 5 marks for experience (in her application she did not claim to have publications and experience to her credit). This selection and appointment was also challenged in WP(C).No.23986/2004, but the Hon'ble High Court did not find any reason to interfere and quash the appointment mainly for the reason that the petitioners do not belonging to Muslim Community etc., and therefore, not aggrieved. However, the selection and appointment are irregular and against norms, as Smt.Najmul Shahi does not possess the essential requiremt, NET. This selection and appointment need be reviewed. It is to be noted that the Vice-Chancellor and the Registrar are capable to twisting facts to justify their misdeeds and W.A.106/06 3 corrupt practices. A typical example is cited here. In the counter statement submitted by the then Vice-Chancellor and the Registrar before the Hon'ble Kerala Lok Ayukta against complaint No.2752 of 2005, it was stated that “The finding of the Enquiry Officer that the appointment of Thulaseedhara Kurup and Najmul Shahi to the post of Lecturer in Drama is irregular since they do not have NET qualification is incorrect. The UGC as per the Notification No.F.No.1-1/2002(PS) Exemp. Dated 14.6.2006 has exempted the requirement of NET for appointment of Lecturers.” It is submitted that even now she has not passed NET. In any event, 5th respondent at the time of her selection had not passed the test and was not academically qualified as per Ext.P1 notification. Exemption notification issued in 2006 is not available at that time and on the last date fixed for filing application as per Ext.P1 or at the time of her appointment she was not qualified. Unqualified persons like petitioner might not have applied for the post as they did not possess the required qualification of NET. Even otherwise she was not academically qualified as per notification. Therefore, we quash the appointment of the 5th respondent. However, the salary paid to her during the period she was in service shall not be recovered. Merely because 5th respondent was not W.A.106/06 4 appointed to that post, appellant will not become eligible for appointment because proper notification is to be published and selection is to be based on the present norms if at present there are vacancies. With the above observations, this appeal is dismissed. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE prp J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 26th May, 2008