IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 W.A. No. 1130 of 2009 -------------------------------- AGAINST THE JUDGEMENT IN WPC.13811/2008 Dated 22/09/2008 .................... APPELLANT/NOT PARTY IN THE W.P.(c): ------------------ JINU.A., ALUVILAYIL, ANGADICKAL SOUTH P.O., KODUMON, PATHANAMTHITTA-691 555. BY ADV. SRI.N.SUGATHAN RESPONDENT(S)//PETITIONER AND RESPONDENTS: ----------------------- 1. ANU VARGHESE, W/O.SHAM MATHEW, THADEETHRAYIL HOUSE, KURIANOOR P.O., PATHANAMTHITTA DISTRICT. 2. THE CHANCELLOR, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA P.O., THRISSUR. 3. THE REGISTRAR, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA P.O., THRISSUR. 4. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF COLLEGIATE EDUCATION, HIGH EDUCATION (F) DEPARTMENT, TRIVANDRUM. 5. THE SECRETARY, PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. 6. PRIYA G.NAIR, D/O.GOPINATHA PILLAI, RESIDING AT GOPI SADANAM, PALIYAKKARA, THIRUVALLA, ALAPPUZHA DISTRICT. R1 BY ADV. SRI.R.SANTHOSH BABU R2 & R4 BY GOVT. PLEADER SMT. N. SUDHA DEVI. R3 BY ADV. SRI. K.P. MUJEEB. R6 BY ADV. SRI. M.V. THAMBAN. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.S. GOPINATHAN, JJ. ------------------------------ W.A.No.1130 of 2009 ------------------------------ Dated this, the 27th day of August, 2009 JUDGMENT Balakrishnan Nair, J. The appellant was not a party to the writ petition. He sought leave of this Court and filed this writ appeal. The brief facts of the case are the following: The Kerala Agricultural University issued notification inviting applications for appointment to the post of Assistant Professor, in the discipline of Soil and Water Engineering under the Faculty of Agricultural Engineering, along with other posts. Two vacancies were notified for the said post. The last date for receipt of applications prescribed as per Ext.P1 notification was 15.11.2007. The age limit prescribed was 35 years for general candidates, with usual relaxation for O.B.C. and SC/ST candidates. The age limit was reckoned, as on 1.1.2007. Later, on the last date prescribed for receipt of applications, the University issued Ext.P3 notification, by which the last date for receipt of applications was extended to 7.12.2007. It was also W.A. No.1130 of 2009 - 2 - notified that, the age limit will be 40 years as on 1.1.2007, subject to the assent to the amendment to the Statute, by the Chancellor. It would appear, that the General Council of the University passed the requisite resolution for amending the Statute on 4.10.2007, prescribing the age limit as 40 years instead of 35 years, and it was pending before the Chancellor for approval. Later, the Chancellor gave approval for the amendment on 25.4.2008. The amendment was notified in the Kerala Gazette on 10.6.2008. The University, by Ext.P4 communication dated 17.4.2008, rejected the application of the first respondent/writ petitioner, on the ground that, she was over-aged. The Writ Petition was filed by the first respondent, seeking the following relief: “issue a writ of mandamus or any other appropriate writ, direction, or order commanding the respondents to accept the application form of the petitioner submitted in pursuance to Ext.P1 and P3 Notifications and permit the petitioner to participate in the Interview conducted for the subject post”. W.A. No.1130 of 2009 - 3 - The learned Single Judge, after hearing both sides, allowed the writ petition, directing the University to consider the application of the first respondent/writ petitioner. It was also held that, in view of the approval granted by the Chancellor to the amendment to the Statute before the date of interview, the applicant should be treated as not over-aged. We are told that, by virtue of the interim order, the first respondent participated in the selection process. In view of the final judgment, her participation became regular. In the rank list, the first respondent was assigned Rank No.1 and the appellant herein was assigned Rank No.4. As a result of the said selection and the judgment under appeal, the first respondent was appointed to the post. 2. The learned counsel for the appellant submits that, the amendment, in the absence of any express provision to the contrary, enhancing the age limit, will take effect only with effect from 10.6.2008, the date on which it was published in the gazette or, at best, it can take effect from 25.4.2008, the W.A. No.1130 of 2009 - 4 - date on which the Chancellor gave assent to the amendment. So, the first respondent was unqualified on 1.1.2007, as also on the last date for receipt of applications. So, her selection is liable to be set aside. 3. We heard the learned counsel for the first respondent and also the learned Standing Counsel for the University. They supported the decision of the learned Single Judge. According to the first respondent, the enhancement of age limit should be taken to have effect from the date, the General Council of the University cleared the said amendment on 4.10.2007. The same was obviously before 7.12.2007, the last date for receipt of the applications. 4. Annexure I is the amendment to the Statute concerned in this case. The said amendment does not provide that, it will take effect from any anterior date. So, the amendment can take effect only from the date it is notified in the official gazette, or at best, with effect from 25.4.2008, the date on which the Chancellor gave assent to the amendment. W.A. No.1130 of 2009 - 5 - If that be so, the first respondent was not qualified to apply for the post, as she has crossed 35 years as on 1.1.2007. But, in this case, we notice that, even if the selection of the first respondent is set aside, the appellant will not get appointment, having regard to his position in the rank list. But, the learned counsel for the appellant submitted that, he has challenged the entire selection as vitiated for various reasons in W.P.(C) No.2522 of 2009. If the entire selection is set aside in that writ petition and the matter is remitted for conducting fresh selection, then the first respondent should not be considered for selection as she is a person over-aged. To that extent, he is entitled to get relief, submits the learned counsel for the appellant. Having regard to the facts of the case, if the entire selection is set aside and the University makes a fresh selection to the aforementioned post pursuant to Exts.P1 and P3 notifications, the first respondent shall not be considered for selection, as she is over-aged. We are rendering this decision based on the materials placed before us and based on them we find that the amendment does not have any retrospective effect. W.A. No.1130 of 2009 - 6 - But, if the amendment, in fact, has retrospective effect or subsequently, if the amendment is given retrospective effect, by appropriate legislative action, this judgment will not stand in the way of the University considering the first respondent also for selection. With the above directions, the writ appeal is disposed of. Sd/- K. Balakrishnan Nair, Judge. Sd/- P.S. Gopinathan, Judge. DK. (True copy) P.S. TO JUDGE.