IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 WP(C).No. 6589 of 2008(H) ------------------------------------ PETITIONER(S): ---------------------- SARITHA.V.K., AGED 29, D/O.V.S.KAMALA, KAMALOLBHAVA, VENGALATH HOUSE, KANDIYAMSAL, KUNNAMKULAM P.O., TRICHUR NOW RESIDING AT THARAYIL HOUSE, THARAYIL JUNCTION, MOOTHAKUNNAM P.O., ERNAKULAM DISTRICT. BY ADV. SRI.JOHNSON MANAYANI RESPONDENT(S): ------------------------ 1. S.N.M.TRAINING COLLEGE, MOOTHAKUNNAM, ERNAKULAM DISTRICT, KERALA-683 516, REP. BY ITS MANAGER. 2. MANAGER, S.N.M.TRAINING COLLEGE, MOOTHAKUNNAM, ERNAKULAM DISTRICT. 3. THE VICE CHANCELLOR, M.G.UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA POST, KOTTAYAM. 4. M.G.UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA P.O., KOTTAYAM, REP. BY ITS REGISTRAR. * ADDL. R5 IS IMPLEADED ADDL. R5: THE DIRECTOR, COLLEGIATE EDUCATION, VIKAS BHAVAN, TRIVANDRUM. * ADDL. 5TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 09/06/08 IN I.A.5681/2008. ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY FOR R3 & R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 6589/2008-H APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RANK CERTIFICATE. EXT.P2: COPY OF THE RANK CERTIFICATE OF THE PETITIONER. EXT.P3: COPY OF THE CERTIFICATE OF NATIONAL ELIGIBILITY TEST FOR LECTURESHIP. EXT.P4: COPY OF THE CERTIFICATE FOR HAVING PASSED THE STATE ELIGIBILITY TEST (SET) CONDUCTED BY THE DIRECTORATE OF HIGHER SECONDARY EDUCATION. EXT.P5: COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT. EXT.P6: COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE RESPONDENTS 3 AND 4 DATED 18/02/2008. EXT.P7: COPY OF THE PAPER NOTIFICATION WITH REGARD TO THE SELECTION ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R1(a); COPY OF THE GOVERNMENT ORDER BEARING NO.G.O.(MS) NO.164/2005/H.EDN. DATED 02/11/2005. EXT.R1(b): COPY OF THE GOVERNMENT ORDER BEARING NO.G.O.(MS) NO.1366/2007/H.EDN. DATED 18/07/2007. EXT.R1(c); COPY OF THE APPOINTMENT OF SMT.SREEJA DATED 21/08/2007. EXT.R1(d): COPY OF THE RESOLUTION DATED 17/02/2008 PASSED IN GENERAL BODY MEETING //TRUE COPY// P.S. TO JUDGE Rs/ ANTONY DOMINIC, J. = = = = = = = = = = = = = = = W.P.(C) No. 6589 OF 2008 H = = = = = = = = = = = = = = = Dated this the 30th day of October 2008 J U D G M E N T The prayer in this writ petition is to direct respondents 4 and 5 to issue appropriate orders directing respondents 1 and 2 to appoint the petitioner, to the post of Lecturer in Physical Science Education, in the leave vacancy that is now existing in the College of respondents 1 and 2. 2. Facts of the case are that, one P.S. Susmitha, a Lecturer in Physical Science Education availed of long leave and the vacancy so existed was notified by Ext. P7, an advertisement issued by the Management. Petitioner was one of the applicants to the post and an interview was also held on 18.1.2008. Ultimately, Ext. P5 select list was published, in which the petitioner was rank No. 1. 3. Despite her ranking, she was not offered appointment and therefore she made complaints to the authorities of the University. Ext. P6 is the complaint so made to the Vice Chancellor. Even the complaint did not yield any result and in the circumstances this writ W.P.(C) No. 6589 OF 2008 -2- petition was filed. 4. A counter affidavit has been filed by respondents 1 and 2. In paragraph 5 of the counter affidavit dated 8.6.2008, it is stated as follows: “It is, however, unfortunate this respondent has received some information that Smt. P.S. Susmitha, Lecturer in Physical Science Education is likely to come back before the expiry of the sanction period of leave it is therefore felt fair, reasonable and equitable to suspend the selection proceedings in respect of lecturer in Physical Science Education.” They are also saying that a resolution has been passed by the parent body of the college not to fill up the vacancy. The aforesaid statement is reiterated by stating that since the permanent incumbent is likely to rejoin duty at any time cancelling the unavailed portion of the leave it is only fair, reasonable and equitable to refrain from filling up the vacancy. 5. Thus, the stand of the respondents is that there is a likelihood of Smt. P.S. Susmitha who had availed of leave coming back and it was therefore that they decided not to fill up the vacancy. W.P.(C) No. 6589 OF 2008 -3- 6. Petitioner has filed a reply affidavit dated 22.6.2008, stating that no steps have been taken by the appointee, viz. P.S. Susmitha to cancel the sanctioned leave and therefore the reasons stated in the counter affidavit is only to deprive her the appointment in the leave vacancy. 7. When the matter was taken up for hearing today, learned counsel for the petitioner submits, without being contradicted, that even as on date, Smt. P.S. Susmitha has not cancelled the unavailed portion of the leave and that the vacancy still exists. He reiterated that the intention of respondents 1 and 2 is only to deny the petitioner the benefit of Ext. P5 ranked list and to avoid appointing her in the vacancy that is now existing. 8. The averments in the counter affidavit would show that according to the Management, the only reason to justify their refusal to appoint the petitioner is the possibility of the appointee, who has availed of long leave, coming back and resuming duties. Since, even as on date, the appointee has not sought cancellation of the leave or permission to resume duty, the statement made to justify the stand of respondents 1 and 2, lacks bonafides. The mere W.P.(C) No. 6589 OF 2008 -4- uncertain likelihood of a person returning from leave is no reason to deprive the petitioner, the benefit of Ext. P5. Even if the person who availed of leave comes back, the consequence at best may be the petitioner may have to vacate the post for accommodating the regular appointee. But then that is no reason to refuse appointment altogether. For these reasons, I am satisfied that the writ petition deserves to be allowed and therefore respondents 4 and 5 are directed to ensure that respondents 1 and 2 appoint the petitioner forthwith, to the post of Lecturer (Physical Science Education) which was notified by Ext. P7 and in respect of which Ext. P5 ranked list was prepared and published. Writ petition is allowed as above. ANTONY DOMINIC JUDGE jan/-