IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 WP(C).No. 20469 of 2008(J) -------------------------------------- PETITIONERS: --------------------- 1. K.T.RAJAN, CLERICAL ASSISTANT, GRADE III (SELECTION GRADE), DIRECTORATE OF RESEARCH, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR. 2. T.SASI, CLERICAL ASSISTANT, GRADE III (SELCTION GRADE), KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR. 3. P.SURESH BABU, LABORATORY ASSISTANT, GRADE III (SELECTION GRADE), REGIONAL AGRICULTURE RESEARCH STATION, PATTAMBI. 4. P.CHRISTY JOHN, CLERICAL ASSISTANT, GRADE III (SELECTION GRADE), KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR. 5. M.S.BHAVANA, LABORATORY ASSISTANT, GRADE II, OLERI-CULTURE DEPARTMENT, COLLEGE OF HORTICULTURE, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR. BY ADV. SRI.N.SUGATHAN, SMT.VARSHA BHASKAR, SRI.S.PRASANTH. RESPONDENTS: ----------------------- 1. THE KERALA AGRICULTURAL UNIVERSITY, REPRESENTED BY THE REGISTRAR, VALLANIKKARA, THRISSUR. W.P.(C). NO.20469/2008-J: 2. THE EXECUTIVE COMMITTEE OF KERALA AGRL.UNIVERSITY, REPRESENTED BY THE VICE-CHANCELLOR, VELLANIKKARA, THRISSUR. *ADDL. RESPONDENTS 3 TO 6 IMPLEADED: *3. BINU K. CHANDI, CLERICAL ASSISTANT (SENIOR GRADE), COLLEGE OF VETERINARY OF ANIMAL SCIENCES, MANNUTHY - 680 651. *4. SHIBU THIMOTHY, LABORATORY ASSISTANT (SENIOR GRADE), COLLEGE OF VETERINARY OF ANIMAL SCIENCES, MANNUTHY - 680 651. *5. MANJITH KUMAR.T.R., DRIVER GRADE I, C & B COLLEGE, VELLANIKKARA. *6. U. RAVICHANDRAN, HDV DRIVER GRADE I, COLLEGE OF VETERINARY OF ANIMAL SCIENCES, MANNUTHY - 680 651. *ARE IMPLEADED AS PER ORDER DATED 25/09/2008 IN I.A. NO. 12013/08. ADV. SRI.K.RAMAKUMAR (SR.) FOR ADDL. R3 TO R6, ADV. SRI.T.RAMPRASAD UNNI, ADV. SRI.RENJITH THAMPAN,SC,KERALA AGRL.UTY FOR R1 & R2. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.20469/2008-J: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. GA.B1/262/87 DTD. 25/05/1988 OF THE UNIVERSITY. EXT.P.2: COPY OF THE ORDER NO. GA.B1/6484/96 DT. 25/07/1996 OF THE UNIVERSITY. EXT.P.3: COPY OF THE CIRCULAR NO. GA/B1/22691/98 DT. 25/10/2000 ISSUED BY THE UNIVERSITY. EXT.P.4: COPY OF THE CURRICULAM FOR FARM ASSISTANT (VETERINARY) TRAINING. EXT.P.5: COPY OF THE RELIEVING ORDER DTD. 02/10/2006 ISSUED BY THE UNIVERSITY. EXT.P.6: COPY OF THE CERTIFICATE DTD. 23/04/2007 ISSUED TO P.1. EXT.P.7: COPY OF THE NOTIFICATION DTD. 24/10/2007 ISSUED BY THE UNIVERSITY. EXT.P.8: COPY OF THE MINUTES OF THE ESTABLISHMENT COMMITTEE MEETING HELD ON 03/01/2008. EXT.P.9: COPY OF THE CIRCULAR DTD. 27/02/2008 WITH THE PRESCRIBED FORM ISSUED BY THE UNIVERSITY. EXT.P.10: COPY OF THE NOTE SUBMITTED BY THE REGISTRAR OF THE UNIVERSITY TO THE EXECUTIVE COMMITTEE. EXT.P.11: EXTRACT OF THE MINUTES OF THE EXECUTIVE COMMITTEE MEETING HELD ON 02/06/2008. EXT.P.12: COPY OF THE NOTIFICATION DT. 22/02/2005 ISSUED BY THE UNIVERSITY. EXT.P.13: COPY OF THE CIRCULAR DTD. 27/02/2006 ISSUED BY THE UNIVERSITY. EXT.P.14: COPY OF THE ORDER DTD. 04/08/2007 ISSUED BY THE UNIVERSITY. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. prv. ANTONY DOMINIC, J. =============== W.P.(C) NO. 20469 OF 2008 (T) ==================== Dated this the 15th day of October, 2008 J U D G M E N T The prayer in this writ petition is to quash the decision taken by the Executive Committee of the respondent University in Ext.P11 to conduct a common written test, assigning 30 marks for selection to the post of Farm Assistant (Veterinary) Grade II. 2. Petitioners commenced service under the respondent University as Class 4 employees. Subsequently, they were promoted as Clerical Assistants and Lab Assistants. In so far as this writ petition is concerned, the dispute is regarding the appointment to the post of Farm Assistant (Veterinary) Grade II. 3. It was by SRO No.543/93 that the University framed the statutes prescribing the method of appointment and qualification for various posts under the University. Prior to 1993, as early as in 1988, guidelines evidenced by Ext.P1 were issued by the University and in so far as the Farm Assistants are concerned, Ext.P1 provided for filling up the post by selection from among Class III and IV employees, who have undergone Live Stock Assistants Training Course successfully in the order of seniority and in the manner as indicated therein. It is stated that on WPC 20469/08 (T) :2 : that basis appointments were made in 1996 and that those appointments were regularised by Ext.P2 order. 4. Statute provided for filing up the post of Farm Assistant (Veterinary) Grade II by direct recruitment and also provided pass in SSLC and training in Veterinary Live Stock Assistant Training Course, as the essential qualifications. It is stated that subsequently, the University prepared Ext.P4 Abstract of Curriculum for Training and issued Ext.P3 circular inviting applications for selecting candidates for deputing them for Live Stock Assistant Training Course. It is stated that applications were received in response to Ext.P3 and a Selection Committee was also constituted for that purpose. The Selection Committee shortlisted 92 candidates and from among them, 64 senior most were selected and deputed for training. Petitioners are five among the 64 such employees who were so deputed for training. 5. Subsequently, by Ext.P7, the statute was amended and the method of appointment was amended into (1) by internal selection and (2) by direct recruitment, in the absence of internal candidates. Modification is seen to have been made in the age limit as well. Thereafter, the Establishment Committee of the University by Ext.P8 resolved to expedite appointment as per the existing norms, which obviously means that the WPC 20469/08 (T) :3 : Selection will proceed consistent with the statute as amended by Ext.P7. The University thereafter took steps for filling up 42 vacancies of Farm Assistants (Veterinary) Grade III, by issuing Ext.P9 Circular, inviting applications from among those 64 candidates, who had completed training. The last date for receipt of applications was prescribed as 15/3/2008. 6. According to the petitioners, subsequent to all this, Registrar of the University submitted Ext.P10 note to the Executive Committee, suggesting selection procedure for filling up the post of Farm Assistants. This was considered by the Executive Committee and Ext.P11 is the resolution that was passed. The resolution to the extent that is relevant is extracted below for reference. The Committee decided to post qualified hands to the post of Farm Assistant (Veterinary) by internal selection. The criteria for the selection procedure is accepted with following modifications. Selection will be made by making separate rank lists for each category by awarding marks out of 50 for the following items. 20 marks maximum for service rendered in KAU, ie., 1 mark for each completed year of service. 30 marks for a common written test from the relevant field. While giving appointments the following order is followed: (1) Class III, (2) Class IV, (3) Permanent Labourers, (4) Casual Labourers. WPC 20469/08 (T) :4 : Communal rotation will be observed but in the case of one community is not available it will be given to the next eligible since no open recruitment is done in this case. The petitioners state that this resolution was confirmed by the Executive Committee in the meeting held on 9/6/2008. 7. At that stage the writ petition was filed challenging Ext.P11, mainly to the extent, a common written test is introduced and 30 marks have been assigned. Counsel for the petitioner mainly contends that once the selection process has commenced as is evident from Ext.P9, it was impermissible for the University to have modified the norms for selection. He relied on the judgments of the Apex Court in Union of India and others v. N.Y.Apte and others (1998 (6) SCC 741) and Hemani Malhotra v. High Court of Delhi (2008(7) SCC Page 11). Another contention raised is that in terms of the provisions contained in Sections 12 and 16 of the Kerala Agricultural University Act, the prescription of conditions of service including method of recruitment comes within the exclusive domain of the General Council and therefore, it was beyond the jurisdiction of the Executive Committee to have prescribed the norms as per Ext.P11. 8. Yet another plea raised is that the object of the whole exercise WPC 20469/08 (T) :5 : was to provide opportunity to the employees in the lower grade to advance in their career and therefore a method of selection for filtering the candidates by a written test is plainly arbitrary. Counsel placed reliance on the judgment of the Division Bench of this Court in N.C.Narayanan Nair v. State of Kerala (1988 (1) KLT 894) in support of this contention. 9. It is also contended that the very motive of introducing the written test is to ensure selection of the candidates who are the favourites of the authorities. Counsel refers me to Exts. P12 and P14 whereby the University had made appointment to the post of Assistant Engineer, Agriculture and the averments made in support thereof. 10. Standing counsel for the University on the other hand would submit that the norms laid down in Ext.P11 are perfectly legal and valid. It is contended that though criteria was initially prescribed in Ext.P1 University order, when statute was introduced in 1993 or when the same was amended by Ext.P7 in 2007, apart from specifying the method of appointment, the norms on the basis of which selection should be made was not prescribed. It is stated that in order to streamline the process and to supplement what is absent in the rules, Executive Committee decided to introduce the norms and that the written test was introduced in that process. It is stated that unless such norms were laid down, the University WPC 20469/08 (T) :6 : would have exposed itself to the accusation of recruitment without norms and the idea was to make selection, as transparent as possible and in a fair manner. 11. I have considered the submissions made by both sides. 12. True in Ext.P1 University order, norms were prescribed. But, however, in 1993, when statute was framed by SRO 543/93, it only prescribed qualifications and also the method of appointment, viz., direct recruitment. This was modified by Ext.P7 in 2007 and internal selection was made the first method, and in the absence of internal candidates, direct recruitment was also prescribed. A reading of the statute as modified by Ext.P7 shows that no norms were prescribed in either of the two, for the guidance of the University or the Selection Committee. It is in this background, one has to examine Exts. P10 and P11. 13. Ext.P10 shows that it was in view of the absence of guidelines regulating the selection procedure that the Registrar made suggestions for adopting the norms. This was adopted by the Executive committee and it was on that basis, that the Executive Committee took Ext.P11 decision introducing a common written test and assigned 30 marks. In my view when the rules are absent or silent, it is always open to the authorities to issue even executive orders in order to fill up such gaps. On the other WPC 20469/08 (T) :7 : hand if I accept the argument of the counsel for the petitioner that if at all any norms ought to have been introduced, the same should have been done before issuing Ext.P9, and direct to finalise the selection ignoring Exts.P10 and P11, the selection would be open to challenge, on the ground that the same was completed without any norms whatsoever. Therefore all that the University has done by Exts. P10 and P11 was that they were supplementing what was absent in the statute and in my view, it is permissible for the University to do so. 14. In so far as the judgments relied on by the learned counsel for the petitioner reported in Union of India and others v. N.Y.Apte and others (1998 (6) SCC 741) and Hemani Malhotra v. High Court of Delhi (2008 (7) SCC Page 11) are concerned, it is the settled law that once the selection process has commenced, it is impermissible for the authorities to alter the rules. In this context, I should bear in mind that the University has not altered any existing rules, but has only introduced the norms. If that be so, in my view these judgments do not lend support to the position canvassed by the counsel for the petitioners. 15. As noticed, competence of General Council of the University was the second submission made by the learned counsel for the petitioner. As fairly conceded by the counsel himself, I do not find that this point has WPC 20469/08 (T) :8 : been raised in the pleadings. If that be so, this Court will not be justified in taking cognizance of a contention which does not find a place in the pleadings. 16. In so far as the arbitrariness of the rule canvassed by the learned counsel for the petitioner is concerned, if a rule or regulation is found to be arbitrary, this court is well within its power in invalidating the same. But then, here I do not find anything arbitrary or unreasonable in the University's decision assigning marks for a written test or even introducing a written test as part of the selection process. If that be so, this contention is only to be rejected and any further deliberation on the impact of the judgment of the Division Bench reported in N.C.Narayanan Nair v. State of Kerala (1988 (1) KLT 894) is unnecessary. 17. The last submission was with reference to the appointment to the post of Assistant Engineer made by the University by Exts. P12 and P14. The submission was that the object of introducing the written test was to bring in favoured candidates. I am not in a position to accept the contention of the learned counsel as in my view, it is premature. It is the settled law that possibility of misuse or abuse of a rule will not render rule invalid. Conferment of power and the manner of its exercise are two different matters and validity of a rule or statute is not to be determined WPC 20469/08 (T) :9 : by its application to particular cases. In this case, there is nothing to indicate who are the selected candidates and appointment is yet to be made. In the event the petitioner finds that candidates appointed are by misusing or violating the rules, such appointments can always be challenged at that stage. But, however that will not justify a plea for invalidating the rule itself. 18. For all these reasons, I am not satisfied that the petitioners have made out a case for interference by this Court. Writ petition fails and is dismissed. ANTONY DOMINIC, JUDGE Rp