IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 WP(C).No. 25054 of 2010(F) -------------------------- PETITIONER(S): --------------- DR.K.P.JAYA, AGED 48, W/O.DR.K.R.GOPIDAS, TC:64/426(7), SNEHAPURI ROAD, KARUMOM P.O, TRIVANDRUM-695 002 BY ADV. SRI.P.K.IBRAHIM SMT.K.P.AMBIKA SMT.A.M.FASEENA RESPONDENT(S): --------------- 1. UNIERSITY OF KERALA, KARYAVATTOM, THIRUVANANTHAPURAM, REP: BY ITS REGISTRAR 2.THE STATE OF KERALA, REP: BY THE SCRETARY, DEPARTMENT OF EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM 3.DR.C.S.SUCHIT, LECTURER, DEPARTMENT OF HINDI, UNIVERSITY OF KERALA, KARYAVATTOM, TRIVANDRUM. ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. FOR R1 SRI.DEVAN RAMACHANDRAN FOR R1 SRI.K.M.ANEESH FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------ W.P.(C).No.25054 OF 2010 ------------------------------ Dated this the 7th day of September, 2010 JUDGMENT The Standing Counsel takes notice for the first respondent. The learned Government Pleader takes notice for the second respondent. In the manner which I propose to dispose of the Writ Petition, it is not necessary to issue notice to the third respondent as he would not be effected by the relief that is now sought for by the petitioner in this Writ Petition. 2. University of Kerala issued notification dated 3.2.2003 inviting applications from qualified candidates for various teaching posts including the post of Lecturer in the Department of Hindi. The post was reserved for Ezhava community. The petitioner and the third respondent were among the candidates who applied for the post. The selection committee recommended the petitioner for appointment. She was appointed as Lecturer in the W.P.(C).No.25054 OF 2010 2 Department of Hindi and she joined service on 12.5.2005. Before joining the service of the University, the petitioner was working as selection grade Lecturer in S.N.College, Kollam and she was the Head of the Department concerned. The petitioner was relieved from S.N.College, Kollam, with a specific condition that she would not make any claim in future in the service of the college under the Sree Narayana Trust. 3. The petitioner completed her period of probation on 13.5.2006 and the same was declared by the University by the proceedings dated 5.7.2006. Thereafter, she was promoted as Reader in the Department of Hindi with effect from 1.10.2006. While she was working as a Reader in the Department of Hindi, W.P.(C) No.15330/2005 was filed by the third respondent challenging the selection and appointment of the petitioner. The challenge was on the ground that on three counts, the selection committee took into account W.P.(C).No.25054 OF 2010 3 qualifications acquired by the petitioner after the last date fixed for submitting application and only on that basis, the petitioner secured first rank in the selection. It was contended that if the marks awarded to the petitioner on those three counts were deducted, the third respondent would secure first rank. The contention put forward by the third respondent was accepted by this court in W.P. (C) No.15330 of 2005, as per Ext.P4 judgment. 4. After Ext.P4 judgment, the marks were reassigned and it was found that the third respondent secured the first rank while one Omana secured the second rank and the petitioner secured the third rank. According to the petitioner, if after implementation of Ext.P4 judgment and re allocation of marks accordingly, the petitioner would have secured the second rank. It was pointed out that three marks originally granted to the petitioner on the count of consistent academic excellence, which was not the subject matter of W.P.(C).No.25054 OF 2010 4 W.P(C)No.15330 of 2005, was subsequently deleted from the marks awarded to the petitioner and it was illegal. Had the three marks awarded on the aforesaid count were retained, the petitioner would have secured second rank, submits the counsel. It is also submitted by the learned counsel for the petitioner that the petitioner would be challenging the awarding of marks and placing petitioner in the third position, in appropriate proceedings and the said question need not be considered in this Writ Petition. 5. The petitioner submitted Ext.P8 representation dated 11.5.2010 to the Vice Chancellor of the University to reinstate her in service creating a supernumerary post in the Department of Hindi or to post her in any of the existing vacancies in the Department of Hindi. The petitioner pointed out that the University took the stand before the High Court that they had selected the most suitable candidate, and for that W.P.(C).No.25054 OF 2010 5 purpose, took into account subsequent events and subsequent acquisition of qualifications after the last date fixed for submitting the application. It is also pointed out that before the High Court, there was no case for the third respondent herein that the decision of the University was tainted by malafides. It is also pointed out that the practice followed by the University hitherto was followed in the case of the petitioner and the petitioner was not at all guilty for her being placed in the first position in the selection. The petitioner lost her job in S.N.College, Kollam and she resigned only to join the service of the University. Now, by the reallocation of marks, she lost her job and it caused great prejudice and misery to the petitioner. 6. The University sent a reply to Ext.P8 representation by Ext.P9 letter which reads as follows: W.P.(C).No.25054 OF 2010 6 “I write to inform you that the Vice- Chancellor considered your representation cited and has directed to advise you to take up the matter pertaining to the creation of supernumerary post in the Department of Hindi, with the Government.” 7. Thereafter the petitioner submitted Ext.P10 representation dated 16.6.2010 to the Hon'ble Minister for Education praying for giving instructions to the University to take necessary action to reinstate the petitioner and also to create a supernumerary post in the Department of Hindi. On realizing that the representation should have been submitted to the Secretary concerned and not to the Hon'ble Minister, the petitioner submitted Ext.P11 representation dated 19.8.2010 to the Government. 8. The reliefs prayed for in the Writ Petition are the following: “i) Call for the records leading to Ext.P7 and quash the same in so far as relates to the termination of the service of the Petitioner W.P.(C).No.25054 OF 2010 7 without considering to absorb her in service to any of the existing vacancies in the department of Hindi or creating a supernumerary post: ii) Issue a writ of mandamus commanding the respondents one and two to P8 and P10 representations and pass orders to absorb her in the service of the University to any of the existing vacancies or by creating a supernumerary post expeditiously at any rate within such time that this Hon'ble Court may deem fit and proper in the facts and circumstance of the case. Iii) pass such other orders that this Hon'ble Court may deems fit and proper in the facts and circumstances of the case; and iv) to award cost pf the Writ Petition.” 9. The learned counsel for the petitioner submitted that for the time being, the petitioner confines the reliefs to disposal of Ext.P11 representation by the Government. It is also submitted that if the Government are pleased to create a supernumerary post, then only the question of University taking further action would arise and therefore to that extent, the prayer for considering Ext.P8 representation may be reserved. W.P.(C).No.25054 OF 2010 8 The request made by the petitioner is just and reasonable. 10. Taking into account the submissions made by the learned counsel for the petitioner, Standing Counsel for the University and the learned Government Pleader, the Writ Petition is disposed of as follows: a) The Government shall consider Ext.P11 representation dated 19.8.2010 submitted by the petitioner after affording an opportunity of being heard to the petitioner and to the University. b) If the decision of the Government happens to be in favour of the petitioner and if the Government decides to create a supernumerary post, the University shall dispose of W.P.(C).No.25054 OF 2010 9 Ext.P8 representation submitted by the petitioner. c) It is made clear that disposal of this Writ Petition would not cause any prejudice to the selection and appointment of the third respondent. d) The Government shall dispose of Ext.P11 representation within a period of three months from the date of receipt of a copy of this judgment. e) The petitioner shall produce a copy of the Writ Petition, copy of I.A.12202 of 2010 and certified copy of the judgment before the Government. f) The right of the petitioner to challenge assignment of rank No.3 to her and her contention that she should W.P.(C).No.25054 OF 2010 10 have been placed in rank No.2 is left open to be considered in appropriate proceedings. g) The petitioner shall send a copy of the Writ Petition and copy of the judgment to the third respondent by registered post and she shall produce proof of the same before the Government. K.T.SANKARAN, JUDGE. cms