IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 WA.No. 1552 of 2009 ------------------------------------- AGAINST THE JUDGEMENT IN WPC.25304/2007 Dated 05/03/2009 .................... APPELLANT/PETITIONER ------------------------------------ ALWIN JOSEPH TONY, AGED 36 YEARS, S/O.P.J.ANTONY, PULLATTU HOUSE, PALA P.O., KOTTAYAM DISTRICT. BY ADV. SRI.JOSE THOMAS (PALA) RESPONDENTS/RESPONDENTS ---------------------------------------------- 1. COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, HAVING ITS OFFICE AT UNIVERSITY BUILDING, KOCHI-22, REPRESENTED BY ITS REGISTRAR. 2. THE VICE-CHANCELLOR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, UNIVERSITY BUILDINGS, KOCHI-22. BY STANDING COUNSEL SRI.S.P.ARAVINDAKSHAN PILLAI THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W. A. No. 1552 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of July, 2009 JUDGMENT BALAKRISHNAN NAIR, J The writ petitioner was a candidate included in the rank list published by Cochin University of Science and Technology for appointment to the post of Assistant Grade II. The rank list was published by the University in the notice board on 26.05.05 and in the Gazette on 06.09.05. Two persons included in the rank list earlier approached this Court seeking a direction to the University to appoint them in the 60 vacancies of Assistant Grade II available in the University. The said writ petition was dismissed by the learned Single Judge holding that it is for the University to decide whether vacancies are to be filled up or not. The matter was taken up in appeal. At the appellate stage the University filed a counter affidavit stating that the vacancies pointed out by the appellants therein were only temporary vacancies and they cannot be filled up on a permanent basis. The Division Bench held that it is for the University to decide whether vacancies are to be filled up or not and therefore dismissed the writ appeal. WA No. 1552/09 -:2:- 2. The present writ appeal was filed seeking a direction to the University to consider the appellant for appointment on the ground that there are available vacancies. There is some dispute whether the appellant has approached this Court during the currency of the rank list or not. We think that it is not necessary to decide that question in this case. We respectfully agree with the decision of the Division Bench in WA No.1979 of 2007. 3. But the learned counsel for the appellant submitted that subsequently University has taken a decision to fill up the vacancies by issuing a notification. The point is whether the decision that no more vacancies are available to be filled up from the rank list when it was in force is correct or not. Its correctness cannot be decided based on the decision taken by the University subsequently to fill up some vacancies. As rightly held by the Division Bench it is primarily for the University to decide whether to fill up the vacancies available or not. A person included in the rank list has no legal right to seek a mandamus to University to appoint him. This position is settled by the decision of the Apex Court in State of Kerala v. A. WA No. 1552/09 -:3:- Lakshmikutty [AIR 1987 SC 331]. In the said decision A.P.Sen J, speaking for the Bench stated as follows: “We must refer to the case of Mani Subrat Jain v. State of Haryana (AIR 1977 SC 276) (supra) which was relied upon by learned counsel for the State Government. It is well settled that a writ of mandamus is not a writ of course or a writ of right, but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. Applying the principles stated in Halsbury's Laws of England, 4th edn., vol.1, para 122, this Court observed that a person whose name had been recommended for appointment as a District Judge by the High Court under Art.233(1) had no legal right to the post, nor was the Governor bound to act on the advice of the High Court and therefore he could not ask for a mandamus. It was observed: “It is elementary though it is to be restated that no one can ask for a mandamus without a legal right.” xx xx xx xx WA No. 1552/09 -:4:- The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of mandamus. ” In view of the above legal position the writ petition was liable to be dismissed. Accordingly the writ appeal fails and it is dismissed. K. BALAKRISHNAN NAIR, JUDGE C.T. RAVIKUMAR, JUDGE ttb