IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 WP(C).No. 17244 of 2010(E) -------------------------------------- PETITIONER: ------------------- YOGESH.T.R,S/O.LATE RAVEENDRAN, AGED 33 YEARS,THIRUVANCHIKULAM HOUSE,VELUPADAM.P.O, ALAKAPPA NAGAR VIA., TRICHUR DISTRICT-680 303. BY ADV. SRI.SHAJI P.CHALY. RESPONDENTS: ------------------------ 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY,AGRICULTURAL DEPARTMENTm SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA AGRICULTURAL UNIVERSITY, REPRESENTED BY ITS REGISTRAR,VELLANIKKARA, THRISSUR. 3. EXECUTIVE COMMITTEE,KERALA AGRICULTURAL UNIVERSITY, REPRESENTED BY ITS CHAIRMAN, VELLANIKKARA,THRISSUR. *ADDITIONAL RESPONDENTS 4 TO 8 IMPLEADED: 4. SHAJU.K. PAUL, KIZHAKKOODAN HOUSE, P.O. KUTTUR, KOTTEKAD, THRISSUR DISTRICT – 680 013. 5. ABDUL RAHIMAN.P.K., POOVALLUR HOUSE, ARAMKALLU, P.O. PATTIKAD, THRISSUR – 680 652. 6. SUNNY.N.I, NEDILAMATHIL HOUSE, CHUVANNAMANNU.P.O., THRISSUR DISTRICT – 680 652. 7. AJITHKUMAR.K.V., KOOTTALA HOUSE, P.O. PULLAZHI, THRISSUR DISTRICT – 680 012. 8. RATHEES.S., URUMBIL HOUSE, MORKADU, KOOVAPPALLY.P.O., IDUKKI DISTRICT. *ADDL. R4 TO R8 ARE IMPLEADED AS PER ORDER DT. 21/07/2010 IN I.A. 9899/10. W.P.(C). NO.17244/2010: **ADDL. RESPONDENTS 9 TO 13 IMPLEADED: 9. RASHY.K.S, 36 YEARS, S/O. K.L. STANLY, KUTTUKARAN HOUSE, P.O. ERAVU – 680 620, THRISSUR. 10. JAYAKUMAR.G., 36 YEARS, ULLOOR THEKKATHIL HOUSE, UPPOODU, P.O., EAST KALLADA – 691 502, KOLLAM. 11. NOUSHAD.H., 33 YEARS, THENGUMTHARAYIL, KAMPALADI, PORUVAZHY.P.O., KOLLAM DISTRICT – 690 520. 12. NANDAKUMAR.K.R., 39 YEARS, KALLADA HOUSE, MOORKANIKKAVA, P.O. KOZHUKULLY – 680 752, THRISSUR DISTRICT. 13. DIVAS.C.D., 30 YEARS, CHERUTHODUKAYIL HOUSE, MYLAMPADY.P.O., MEENANGADI, APPAD, WAYANAD – 673 591. **ADDITIONAL RESPONDENTS 9 TO 13 ARE IMPLEADED AS PER ORDER DATED 10/11/2010 IN I.A. 12755/2010. R1 BY GOVT. PLEADER SMT. M.R. SREELATHA, R2 & R3 BY ADV. SRI.K.P.MUJEEB, SC, ADDL.R4 TO R8 BY ADVS. SRI.N.SUGATHAN, SMT.VARSHA BHASKAR, ADDL.R9 TO R13 BY ADVS. SRI.P.K.SAJEEV, SRI.U.BALAGANGADHARAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/03/2011, THE COURT ON 18/03/2011 DELIVERED THE FOLLOWING: W.P.(C). NO.17244/2010-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTE TO R.3. BEARING ITEM NO.41/07. EXT.P.2: COPY OF THE NOTE TO R.3. BEARING ITEM NO.55/07. EXT.P.3: COPY OF THE MINUTES OF THE 444TH MEETING OF R.3. DTD. 15/10/2007. EXT.P.4: COPY OF THE SHORT LIST (LDV DRIVER) BEARING NO. G.A./K2/20012/2008 (5) DTD. 24/09/2009. EXT.P.5: COPY OF THE ORDER BEARING NO.G.O.(RT).NO.88/10/AD DTD. 18/01/2010. EXT.P.6: COPY OF THE FRESH NOTE TO R.3. BEARING ITEM NO.41/10. EXT.P.7: COPY OF THE MINUTES OF THE 469TH MEETING OF THE R.3. DTD.20/05/10. RESPONDENTS' EXHIBITS: EXT.R1: UNIVERSITY NOTIFICATION NO:GA/K2/3712/2002 DTD. 19/02/2004. EXT.R2: LETTER NO.24534/AF2/07AD DTD. 02/11/2007. EXT.R3: COPY OF THE ORDER NO. GO(RT).NO.88/10/AD DT. 18/01/2010. EXT.R4: COPY OF THE LETTER NO. 29869/AF2/2009. EXT.R4.A: COPY OF THE NOTIFICATION NO:GA/K2/3712/2002 DTD. 19/02/2004 ISSUED BY R.2. EXT.R4.B: COPY OF THE RANK LIST FOR THE POST OF LDV DRIVER. EXT.R4.C: COPY OF THE G.O.(RT) NO.881/10/AD DTD. 18/01/2010. EXT.R4.D: COPY OF THE U.O. NOTE DTD. 02/07/2003 SPECIFYING THE VACANCIES IN VARIOUS NON-TEACHING POSTS. EXT.R4.E: COPY OF THE LETTER NO. GA/K2/78/2006 DTD. 21/11/2006 OF THE UNIVERSITY TO THE R.1. EXT.R4.F: COPY OF THE U.O. NOTE DTD. 26/02/2011 OF THE DEPUTY REGISTRAR (ADMN.) FURNISHING THE DETAILS OF VEHICLES. EXT.R4.G: COPY OF THE LETTER DTD. 14/02/2011 OF THE PUBLIC INFORMATION OFFICER OF THE UNIVERSITY TO SHRI. K.R. NANDAKUMAR. EXT.R5: COPY OF THE DECISION OF THE EXECUTIVE COMMITTEE DTD. 01/10/2003. EXT.R6: COPY OF THE DECISION DTD 23/09/2009. W.P.(C). NO.17244/2010-E: EXT.R7: COPY OF THE UNIVERSITY ISSUED LETTER NO. G.A.B.3/28595/2010 DTD. 26/02/2011. EXT.R9.A: COPY OF THE RANK LIST DTD. 01/06/2010 PUBLISHED BY THE R.2. EXT.R9.B: COPY OF THE RELEVANT NEWS PUBLISHED IN MATHRUBHUMI DAILY DTD. 06/01/2011. EXT.R9.C: COPY OF THE RELEVANT NEWS PUBLISHED IN MALAYALA MANORAMA DAILY DTD. 06/01/2011. EXT.R9.D: COPY OF THE RELEVANT NEWS PUBLISHED IN MANGALAM DAILY DTD. 06/01/2011. EXT.R9.E: COPY OF THE RELEVANT NEWS PUBLISHED IN MADHYAMAM DAILY DTD. 06/01/2011. EXT.R9.F: COPY OF THE RELEVANT NEWS PUBLISHED IN KERALA KAUMUDI DAILY DTD.06/01/2011. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 17244 of 2010-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of March, 2011. JUDGMENT The sole issue raised in this writ petition is whether respondents 2 and 3 have acted arbitrarily in deciding to fill 37 vacancies in the post of Light Vehicle Driver even though in the notification the number of vacancies was shown as 10. The petitioner is not an applicant to the post, but aspires for a fresh selection. 2. The notification was issued by the University on 19.2.2004 inviting application for nine categories of posts. It appears that because of certain directions issued by the Government banning appointments, the further action thereon got delayed. Ext.P1 is the Note submitted to the Executive Committee relating to the filling up of vacant posts in the University. Reference is made to a circular dated 24.6.2006 of the Government in respect of the policy for filling up the existing vacancies. Ext.P2 Note to the Executive Committee is produced by the petitioner to show that as on the date of issuance of the notification, 20 vacancies alone were there. Ext.P3 is the minutes of the Executive Committee dated 15.10.2007 wherein a decision was taken to re-notify the existing vacancies wpc 17244/2010 2 in the remaining six categories. 3. It is the case of the petitioner that thereafter the petitioner came to know that on 7.6.2009 an O.M.R. examination was conducted in contravention of the decision in Ext.P3 and a short list was published which is produced as Ext.P4. Ext.P6 is the Note submitted to the Executive Committee wherein the decision is to fill up 37 posts out of a total number of 73 posts. This was approved as per Ext.P7 in the 469th meeting of the third respondent. It is at that stage this writ petition was filed. This court has granted an interim order also. 4. The University has filed a statement as well as a counter affidavit. Some of the impleaded additional respondents have also filed separate counter affidavits. 5. Heard learned counsel for the petitioner Shri S.P. Chaly, Shri K.P. Mujeeb, learned Standing Counsel for the University, Shri N. Sugathan, Shri P.K. Sajeev and Shri U. Balagangadharan for the contesting additional respondents and Smt. M.R. Sreelatha, learned Govt. Pleader. 6. The sum and substance of the contentions raised by the University, going by the averments in the statement and in the counter affidavit is the following: The University issued a notification on 19.2.2004 inviting applications for filling up of the vacancies in nine categories of posts. The wpc 17244/2010 3 Government issued sanction for filling up vacancies in respect of three categories out of the said nine. This was the reason for keeping the remaining six categories pending. A decision was taken in the 444th meeting of the Executive Committee held on 15.10.2007 to re-notify the remaining six categories. Permission was sought from the Government. The Government granted permission to proceed with the selection process as per the notification dated 19.2.2004 without re-notifying the vacancies, making it clear that it shall not affect the legitimate claim of the candidates applied earlier. Accordingly, the Executive Committee in their meeting dated 2.6.2008 decided to proceed with the recruitment process. As per G.O.(Rt) No.88/10/AD dated 18.1.2010 Government has accorded sanction for filling up the remaining vacancies of six categories of non teaching staff. 7. The dispute raised by the petitioner with regard to the number of vacancies, is answered in the counter affidavit subsequently filed. It is the case of the University that at the time of issuance of the notification the University could not notify all the vacancies then existed because of the ban imposed by the Government on appointment. Therefore, in the notification it was specified as follows: “the number of vacancies subject to variation”. This was with the intention to fill up the vacancies as and when the ban is lifted by the Government and the same criteria was adopted wpc 17244/2010 4 in respect of certain previous appointments also. Ext.R2 is the letter issued by the Government allowing to proceed with the selection process as per the notification dated 19.2.2004. As per Ext.R3, sanction was given by the Government based on the proposal submitted by the University to fill up the vacancies of various posts including that of L.D. Driver, where the total number of vacancies is shown as 73. The Government, as per Ext.R4, further allowed appointments in terms of the provisions of the Statute. 8. Ext.R4(a) is the notification dated 19.2.2004. The case of the fourth respondent is also that in the light of the prescription in the notification and the permission issued by the Government, the University is well within its rights to fill up the anticipated vacancies. The petitioner has filed a reply affidavit to the same. The counter affidavits filed by respondents 9 to 13 also supports the plea of the University. 9. In the statement filed on 24.2.2011 the University has submitted that altogether 4972 applications were received for the post of L.D.V. Driver. There were 4455 applications. In the written test held on 7.6.2009 2171 candidates attended and 544 applicants were short listed for practical test and interview, out of which 503 applicants attended for the same and 156 applicants have passed. A rank list was published on 1.6.2010. 10. In the additional counter affidavit filed by additional respondents wpc 17244/2010 5 4 to 8, various documents have been produced showing the number of vacancies. Thereafter, the University has filed a further statement on 3.3.2011. Ext.R7 contains the details of various vacancies which have arisen by way of retirement, death, change of category and the like reasons. 11. Learned counsel for the petitioner Shri S.P. Chaly relied upon various decisions of the Apex Court and this Court to contend for the position that the University cannot make any appointment exceeding the number of vacancies given in the notification. Learned Standing Counsel for the University and the contesting respondents relied upon a judgment of this Court in W.P.(C) No.14123/2010 and connected cases, concerning the University itself wherein in respect of an identical notification this Court held that in the light of the specific provisions of the notification, there is no bar in filling up the anticipated vacancies. 12. First I will refer to the decisions relied upon by the learned counsel for the petitioner. In Kerala Agricultural University v. Gopinathan Unnithan (1996 (1) KLT 344), the Division Bench considered a case where the notification was for filling up of one post of Professor in Statistics. After the preparation of the select list one more vacancy arose and candidates ranked Nos. 1 and 2 were appointed against two vacancies. When a fresh vacancy again arose, one person who was in wpc 17244/2010 6 the rank list sought for appointment in the third vacancy which was opposed by the University also. This Court held that recruitment of candidates in excess of the notified vacancies is a denial and deprivation of the constitutional rights of other qualified hands. 13. Another decision is of a learned Single Judge in Rajamohan v. State of Kerala and others (ILR 1997 (1) Ker. 199) wherein also the notification was only for one vacancy and it was held that for appointment for subsequent vacancies fresh selection will have to be made. 14. The next decision is that of a learned Single Judge in Dimply v. M.G. University (2007 (2) KLT 519) wherein one vacancy was notified for appointment. It was held that when one vacancy alone was notified, candidates.. in the ranked list cannot be appointed to the vacancy that arose subsequently. The said decision was upheld by a Division Bench in Suresh v. M.G. University (2009 (1) KLT 950). The Division Bench, in para 12 of the judgment, laid down the legal position thus: “If, in relation to a particular selection, it is proposed to have a rank list alive for a particular period and it is proposed to fill up the vacancies that may arise during the currency of the rank list from it, there should be a decision to that effect by the competent body of the University and it should be published along with the notification itself.” wpc 17244/2010 7 It was held, going by the facts of the case, that the notified vacancy alone can be filled up. 15. In Prem Singh and others v. Haryana State Electricity Board and others {(1996) 4 SCC 319}, after considering various aspects, the legal position was laid down in para 25 thus: “The selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged, the court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case.” In the subsequent decision in Surinder Singh and others v. State of Punjab and another [(1997) 8 SCC 488} it was held in para 16 as follows: “It is improper exercise of power to make appointments over and wpc 17244/2010 8 above those advertised. It is only in rare and exceptional circumstances and in emergent situation that this rule can be deviated from. It should be clearly spelt out as to under what policy such a decision has been taken. Exercise of such power has to be tested on the touchstone of reasonableness. Before any advertisement is issued, it would, therefore, be incumbent upon the authorities to take into account the existing vacancies and anticipated vacancies. It is not as a matter of curse that the authority can fill up more posts than advertised.” 16. In Rakhi ray and others v. High Court of Delhi and others {(2010) 2 SCC 637}, the legal position was reiterated stating that filling up of vacancies over and above the notified vacancies amounts to filling up of future vacancies and is thus impermissible in law. That was a case where the notified vacancies were 20. 17. In Mukul Saikia and others v. State of Assam and others {(2009) 1 SCC 386} the notified vacancies were 27. After filling up the 27 posts the State did not operate further the select list. The persons ranked below in the select list sought for appointment in the vacancies which arose after 27 vacancies had been filled up. Therein, after considering various aspects, it was held as follows: “The select list got exhausted when all the 27 posts were filled. Thereafter, the candidates below the 27 appointed candidates have wpc 17244/2010 9 no right to claim appointment to any vacancy in regard to which selection was not held. The fact that names of the appellants appeared in the select list below the persons who were appointed on merit against 27 vacancies, and as such they could not have been appointed in excess of the number of posts advertised as the currency of select list had expired as soon as the number of posts advertised are filled up, therefore, appointments beyond the number of posts advertised would amount to filling up of future vacancies meant for direct recruitment candidates in violation of quota rules.” 18. In State of J & K and others v. Sanjeev Kumar and others {(2005) 4 SCC 148}, after referring to Prem Singh's case {(1996) 4 SCC 319}, it was held that the Government can, by a policy decision, appoint people from the waiting list. 19. Learned counsel for the petitioner therefore submitted that the proposal to fill up 37 vacancies cannot be justified. It is pointed out that even at the time of issuance of the notification, 20 vacancies alone were there. 20. It is explained by the learned Standing Counsel for the University and learned counsel appearing for the contesting respondents that the notification herein is not similar to the one that was considered by the Apex Court in the various decisions and this Court in the decisions relied upon by wpc 17244/2010 10 the learned counsel for the petitioner. It is pointed out that in the notification it has been clearly mentioned that “the vacancies mentioned above are subject to alteration.” It is therefore pointed out that it reflects a conscious decision at the time of issuance of the notification and the anticipated vacancies due to retirement, resignation, etc. can be filled up. It is further pointed out that the Government has also permitted the same. 21. It is the case of the respondents that the issue is covered by the judgment of this Court in W.P.(C) No.14123/2010 and connected cases. The facts of the said case show that the notification was issued for appointment of Asst. Professors, on 9.10.2007. The challenge was made on the ground that the proposal is to make appointment in excess of the number of vacancies notified. The contention raised was that such a procedure cannot be countenanced. Therein, in the notification it was specified that the vacancies mentioned above are purely provisional and subject to variation. It was held by this Court, after analysing the contentions, as follows: “In the context of the contentions against the appointment in excess of the notified vacancies in Ext.P1, it is to be noted that in Ext.p1 itself it was specifically mentioned as hereunder: “The vacancies mentioned above are purely provisional and subject to variation.” wpc 17244/2010 11 In the counter affidavit filed by the respondent - University the circumstance under which such a condition was put in Ext.P1 was explained....................................... As already noticed hereinbefore, in Ext.P1 itself it is stated that the number of vacancies mentioned are purely provisional and subject to variation and therefore, the petitioner cannot have any grievance with respect to the filling up of vacancies in excess of the notified number..........” It was also held by this Court that the writ petition was filed without impleading the parties in a representative capacity and on that ground also it is not maintainable. 22. The decisions relied upon by the learned counsel for the petitioner of course lays down the principle that vacancies cannot be filled up in excess of those notified. But one thing to be noticed is that in all those cases the notification prescribes the specified number of vacancies and without any other condition like the one herein. In Prem Singh's case {(1996) 4 SCC 319}, it was held that “the State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf.” 23. The Apex Court had occasion to consider a notification of a similar nature in Benny & others v. Registrar of Co-operative Societies wpc 17244/2010 12 (1998 (1) KLJ 602). Therein, in the notification the number of vacancies were shown, but with a rider that the same are probable. While considering the question whether there had been an excess appointment, the Apex Court in para 20 held thus: “Merely because in the advertisement issued by the Bank probable number of vacancies had been indicated to be lesser than the number of persons finally appointed, one cannot jump to the conclusion that there has been an excess appointment beyond the staff strength approved by the Registrar. It is well known that during the time when an advertisement is issued and by the time when process of selection starts and ultimately appointment orders are issued on account of several factors the number of posts may be increased, the factors being retirement of persons on attaining superannuation, death of several employees, promotion of the employees to higher posts and for variety other grounds. In such contingencies, when appointments are made depending upon the vacancies available and in excess of the vacancies advertised it cannot be said that the appointment has been made in excess of the vacancies advertised it cannot be said that the appointment has been made in excess of the strength of the cadre approved.” 24. Therefore the question whether the University is barred from filling up vacancies more than 10, has to be considered in terms of the specifications of the notification and other attendant circumstances. It can be seen that in the notification dated 19.2.2004 it was indicated that it will wpc 17244/2010 13 be subject to alteration. Therefore, it evidences a conscious policy decision even at the time of issuance of the notification. The document produced by the petitioner also, viz. Ext.P5 shows that the Government accorded sanction for filling up of the remaining vacancies of non teaching staff as directed therein. The University, going by the averments in the statement and the counter affidavit, has stated that the Government has given permission to go ahead with the selection process as per letter dated 2.11.2007. The same has been produced as Ext.R2 along with the counter affidavit filed by the University. It is pointed out that initially the University could not notify all the vacancies then existed because of the ban imposed by the Government on appointment and that is why it is shown that the number of vacancies will be subject to variation. It is explained that the same criteria was adopted by the University in respect of previous appointments also. In fact, the University had taken a decision on 15.7.2010 to re-notify the remaining six categories. But in the light of the permission issued by the Government as per Ext.R2, they proceeded with the selection process. Evidently, the decision to re-notify the vacancies was not accepted by the Government. For filling up the remaining vacancies also the Government has issued sanction as per Ext.R3. By Ext.R4 the Government granted permission to make appointments in terms of the wpc 17244/2010 14 provisions of the Statute. Thus, it is not a case where the University has hastily taken a decision to fill up the remaining vacancies. It is explained by the University in the additional counter affidavit that so many vacancies have arisen due to retirement, as evident from the details provided in Ext.R7. The validity of the ranked list is fixed as three years as per Ext.R6 also. In the additional counter affidavit filed by respondents 4 to 8 it is explained in para 3 that as on 1.6.2003, 20 vacancies were available in the category of L.D. Driver and Ext.R4(d) U.O. Note is relied upon by them. As on 1.10.2006 the number of posts in the category of L.D. Driver is 91 and 57 vacancies were there . This averment is supported by Ext.R4(e). 25. The question is whether the University's action if at all is bad in law. The decision of the Apex Court in Benny's case (1998 (1) KLJ 602) and that of a learned Single Judge in W.P.(C) No.14123/2010 will show that when the notification itself prescribes that the number of vacancies could be provisional and subject to alteration, the anticipated vacancies can also be filled up and there is no embargo, unlike in other cases wherein it is a fixed number of vacancies that is notified. The present notification therefore gives power to the University to fill up the anticipated vacancies. As of now 37 vacancies alone are sought to be filled up thus. No posts have been newly created. wpc 17244/2010 15 26. Therefore, the petitioner’s contention that the University cannot go beyond 20 vacancies at the most cannot be