IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 WA.No. 1794 of 2011 --------------------- AGAINST THE JUDGEMENT IN WPC.3891/2011 Dated 05/08/2011 .................... APPELLANTS: -------------- 1. DR. M. MANOHARAN S/O. A. NARAYANAN PROFESSOR, DEPARTMENT OF STATISTICS UNIVERSITY OF CALICUT, MALAPPURAM DISTRICT. 2. DR. K.P. MANOJ, ASSISTANT DIRECTOR(SLECTION GRADE) DEPARTMENT OF PHYSICAL EDUCATION UNIVERSITY OF CALICUT, MALAPPURAM. BY ADV. SMT.V.P.SEEMANDINI, SENIOR ADVOCATE SRI.M.R.ANISON SMT.K.P.GEETHA MANI SMT.P.A.RINUSA SMT.ANNIE JACOB RESPONDENTS: --------------- 1. DR. P.P. MOHAMMED, B1 QUARTERS, UNIERSITY OF CALICUT CALICUT UNIVESITY P.O. MALAPPURM DISTRICT. 2. THE VICE CHANCELLOR, UNIVERSITY OF CALICUT CALICUT UNIERSITY P.O. MALAPPURAM DISTRICT. PIN 673635. 3. CALICUT UNIVERSITY, REPRSENTED BY THE REGISTRAR CALICUT UNIVERSITY P.O. MALAPPURAM DISTRICT PIN 673635. BY STANDING COUNSEL FOR UNIVERSITY SRI SANTHOSH MATHEW THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N. RAMACHANDRAN NAIR & K. VINOD CHANDRAN,JJ ============================== W.A. NO. 1794 OF 2011 ============================ Dated this the 23rd November 2011 JUDGMENT Ramachandran Nair, J. The writ appeal is filed by two candidates who have applied for Registrar's post against the notification issued by the third respondent-University. Applications were invited on 7/10/2010 prescribing qualification and the age limit as on 1/1/2010. However, it so happened that the vacancy was one arising on account of the removal of the first respondent in 2007. Pending the selection process, the first respondent challenged his removal before the Chancellor and ultimately based on orders issued by the Chancellor under directions of this Court, the appeal filed was allowed. The first respondent was reinstated on 23/6/2011. First respondent challenged the selection process for appointment of Registrar which post was occupied by him and his removal from which was challenged in appeal before the Chancellor. While the W.P.(C)was pending, WA 1794/2011 2 1st respondent was reinstated and the Writ Petition(C) was allowed by the learned Single Judge holding that once first respondent is reinstated, the vacancy does not exist and so much so the entire selection process lapses. The Standing Counsel for the University submitted that the University thereafter issued Annexure-2 cancelling the notification. 2. The appellants were candidates who have applied for the post of Registrar pursuant to the notification issued by the University on 7/10/2010 and they were interviewed on 9/12/2010 which was based on interim orders issued by this Court. However, by virtue of the impugned judgment of the learned Single Judge in which the appellants were not parties and the subsequent order issued by the University, the appellants will not be considered for selection and consequently this writ appeal is filed against the same . 3. We have heard the Senior Counsel Smt. V.P.Seemanthini appearing for the appellants, Standing Counsel for the University and the Counsel appearing for the first respondent. After hearing both sides and after going through the impugned judgment, we do not find any ground to interfere because the fundamental basis for proceeding with the selection to the post WA 1794/2011 3 of Registrar of the University , which is a single post previously occupied by the first respondent, and now continued to be occupied by him on account of his reinstatement under orders of the Chancellor is no more available. The net result is that the selection was subject to the litigation and the challenge made by the first respondent against his removal. Since he is reinstated before completion of the selection process, the entire selection process has to be declared invalid and that is exactly what the University did vide Annexure-2. Senior Counsel appearing for the appellants contended that the vacancy existed as on the date of application as there was no valid appeal or interim orders issued by any court or appellate authority at the time of notification and so much so the selection proceedings initiated is not vitiated. She has raised a further contention that the first respondent is retiring in the normal course on 3/12/2011 and so much so the selection process can be continued to fill up the vacancy immediately arising on retirement of the first respondent. Standing Counsel for the University as well as the first respondent's counsel stated that for filling up a regular vacancy on account of the retirement of the first respondent, selection process has to be necessarily initiated giving WA 1794/2011 4 opportunity to all eligible candidates and appellants, if continue to be eligible, are also free to apply and participate in the selection process. The contention raised by both the appellants that the whole selection process is valid as the vacancy existed at the time of making application is no longer relevant by virtue of the re-induction of the first respondent. 4. We are of the view that the appellants claim that they are eligible to be considered for appointment along with the other candidates already applied for filling up the vacancy of Registrar arising on account of normal retirement of the first respondent on 3/12/2011 cannot be accepted. This is because the notification issued by the University on 7/10/2010 inviting applications for appointment of the Registrar is not for filling up the vacancy arising on account of the retirement of the first respondent on 3/12/2011. On the other hand vacancy was proposed to be filled up to the post left vacant on account of the termination of the first respondent which decision of the university was cancelled by the Chancellor. In the first place when application is invited for filling up a post, those eligible as on the cut off date fixed in the notification inviting application should be eligible to apply for the post. Secondly when WA 1794/2011 5 litigations initiated by the first respondent are pending, challenging his removal and challenging any selection for filling up the vacancy left by him, necessarily, selecting will depend on the result of the appeal. Contest against removal has turned out successful in favour of the first respondent. So much so, if the appointment is pursued based on original notification issued on 7/10/2010, those who qualify for selection after that date but in the course of the current year, that is until the cut off date fixed under notification issued for filling up the retirement vacancy will not be able to participate in the selection. This will lead to denial of opportunity to eligible candidates for participating in the selection process for no fault of theirs but on account of an advance selection made by the University which was intended to fill up the post much before retirement of the first respondent . Assuming that the selection is already complete, we do not think that the list can be retained till the first respondent retires and then to fill up the vacancy with the selected candidates for the simple reason that such selection is not for filling up the retirement vacancy of the first respondent which has to be done at a time close to the time of retirement so that all eligible candidates are allowed to WA 1794/2011 6 participate in the selection process . 5. In view of our findings above, we are unable to uphold the appellants' claim for being considered for selection to the post which will be vacated by the first respondent on his retirement on 3/12/2011. Strangely the University has not started any selection process for filling up the retirement vacancy of the third respondent. It is for the University to take immediate steps for selection by inviting applications and the appellants and all other eligible candidates can apply for the post. The writ appeal is dismissed with the above observations. Sd/- C.N. RAMACHANDRAN NAIR, JUDGE Sd/- K. VINODCHANDRAN, JUDGE ks. TRUE COPY P.S. TO JUDGE