IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 WP(C).No. 8573 of 2010(V) ----------------------- PETITIONER : ----------------- RAJALAKSHMI R., LAKSHMI NIVAS, HOUSE NO.35/1703-B, JANATHA ROAD SOUTH, PALARIVATTOM, KOCHI. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): ------------------------ 1. THE MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, KOTTAYAM, REPRESENTED BY REGISTRAR. 2. THE VICE CHANCELLOR, MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, KOTTAYAM. 3. THE MANAGER, UNION CHRISTIAN COLLEGE, ALUVA. 4. SMT. NINO BABY, (LECTURER APPOINTED), FACULTY OF ECONOMICS, UNION CHRISTIAN COLLEGE, ALUVA. 5. SMT. LIJI LAWRANCE, (LECTURER APPOINTED), FACULTY OF ECONOMICS, UNION CHRISTIAN COLLEGE, ALUVA. R1 & R2 BY ADV. SRI. T.A. SHAJI, SC, M.G. UNIVERSITY R3 BY ADV. SRI. M. PATHROSE MATHAI (SR) R4 BY ADV. SRI. KURIAN GEORGE KANNANTHANAM (SR) R5 BY ADV. SRI. M.R. SASITH PANICKER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2010, THE COURT ON 22/10/2010, DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 8573 of 2010(V) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE NOTIFICATION PUBLISHED IN THE UNIVERSITY NEWS VOL.46/NO. 30 OF JULY 30- AUGUST 03 2008. EXT.P2 : COPY OF THE GO DATED 24/2/2010 SANCTIONING THE 2ND POST IN THE FACULTY OF THE ECONOMICS AT THE 3RD RESPONDENT. EXT.P3 : COPY OF THE LIST OF CANDIDATES SELECTED BY THE SELECTION COMMITTEE. EXT.P4 : COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P5 : COPY OF THE APPOINTMENT ORDER DATED 8-3-2010. EXT.P6 : COPY OF THE APPOINTMENT ORDER DATED 1-2-2010. RESPONDENT'S EXHIBITS: EXT.R3(a) : COPY OF AGREEMENT DATED 14.10.1972 EXECUTED WITH THE GOVERNMENT OF KERALA . EXT.R3(b) : COPY OF NOTIFICATION DATED 31.10.2009 BY THE 3RD RESPONDENT. EXT.R4(a) : COPY OF THE REPLY DATED 31-5-2010 ISSUED BY THE UNION CHRISTIAN COLLEGE. //TRUE COPY// P.S. TO JUDGE Mn T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 8573 of 2010- - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of October, 2010. JUDGMENT In this writ petition the petitioner seeks to quash Exts.P5 and P6 orders appointing respondents 4 and 5 as Lecturers in the Faculty of Economics by the third respondent Manager. The further prayer is to direct the third respondent to effect appointment to the open quota pursuant to the notification and the rank list prepared. 2. The notification for appointment has been produced as Ext.P1, under which applications were invited for the posts of Lecturers in Mathematics, Psychology, History, Economics and Botany in open/community quotas and English and Physics showing the quota as community alone. 3. The petitioner’s case is that the minutes prepared by the Selection Committee as per Ext.P3 shows that she is rank No.1 in the open quota, whereas respondents 4 and 5 are respectively rank Nos.2 and 1 in the community quota. It is therefore pointed out that the petitioner ought to have been appointed in the open quota, as out of two vacancies one had to be filled up from it. The management appointed respondent No.5 initially wpc 8573/2010 2 and thereafter the 4th respondent, by the respective orders. Even though the petitioner requested for appointment by filing a representation, since it failed to evoke any response, this writ petition has been filed. 4. Heard Shri George Poonthottam, learned counsel for the petitioner, learned Senior Counsel Shri M. Pathrose Mathai appearing for the third respondent, learned Senior Counsel Shri Kurian George Kannanthanam appearing for the fourth respondent, Shri T.A. Shaji, learned Standing Counsel for the M.G. University and Shri Sasith Panicker, learned counsel appearing for the 5th respondent. 5. Learned counsel for the petitioner submitted that the minutes of the Selection Committee produced as Ext.P3 will show that the petitioner is rank No.1 in the open quota and the 5th respondent is rank No.1 in the community quota. Therefore, the petitioner ought to have been appointed in the first vacancy. It is pointed out that now the management has appointed two candidates from the community quota and did not appoint the petitioner who is eligible under the open category. It is also pointed out that two vacancies are available in Economics. It should have been filled up by appointing one from the open category and one from the community category in the ratio 1 : 1. The educational agency cannot convert an open vacancy for the community quota or vice-versa, against the provisions of wpc 8573/2010 3 the notification and Clause 12 of Chapter 45 of M.G. University Statutes, 1997. Initially, rank No.5 was appointed as per the sanction issued by the Government and when subsequently sanction was accorded for appointment of another candidate, violating the provisions of the Statutes and the ranking given, the 4th respondent has been appointed. It is pointed out that there cannot be any alteration of the method of appointment after the notification was issued for appointment of open/community candidates. In para 7, the petitioner has alleged favouritism also in the matter. 6. The stand taken by the third respondent Manager in a nutshell is the following: The third respondent has the absolute right to make appointments to 50% of the posts of teachers of the college, in accordance with the agreement dated 14.10.1972 signed with the Government of Kerala. According to Clause 12 of the Statutes also, 50% are to be reserved for being filled up against the community quota and 50% against open quota. The appointments were being made in terms of the above agreement from 1972 onwards and so far appointments could not be made to 50% of the posts of lecturers in the college from the community of the Educational Agency. The third respondent was not following the system of appointment to alternate vacancies for open candidate and community candidate. Even though the 50% of the vacancies reserved for community wpc 8573/2010 4 candidates could not be filled up, more than 50% of the candidates have been appointed from open quota. In the notification it was shown as open/community quota in order to ensure that in the absence of eligible candidates of the community, candidates from open category were to be appointed. The fifth respondent Smt. Lijy Lawrance got 76 marks, the 4th respondent Smt. Nino Baby has got 67.1 marks and Shri Shibin Philip has got 60.70 marks among the community. The petitioner who is in the list of open candidates, secured 68.25 marks. The number of community candidates among the teaching staff of the college before appointing the 5th respondent, was only 83 out of 172 members and 89 members of teaching staff were of open category and after appointing the 5th respondent the number of teaching staff of the community category were only 84 as against 89 in the open category. After appointing the 4th respondent the community category was 89 and open category was 93. It is contended that the method followed to fill up 50% of the total vacancies reserved for community is in accordance with the rights guaranteed under Articles 30 and 19(1))g) of the Constitution of India. Therefore, the system of earmarking alternate vacancies was not followed as it was only optional. 7. The petitioner has filed a reply affidavit and the third respondent has filed an additional counter affidavit also. Respondents 4 and 5 have wpc 8573/2010 5 also filed separate counter affidavits. 8. To consider the arguments on either side, it is profitable to refer to Clause 12 of Chapter 45 of the Mahatma Gandhi University Statutes, 1997 which is extracted below: “12. Method of selection of teaching staff by Educational Agencies: (1)(a) The Educational Agency shall have the option to have all the members of the teaching staff selected purely on the basis of merit from candidates of all communities or reserve every alternate vacancy or 50% of the vacancies for being filled up on the basis of merit from among candidates of any particular community to be specified by the Educational Agency. (b) The Educational Agency shall specify in the advertisement to be made under Statute 2 as to whether the selection is for an open vacancy or for a vacancy reserved for the members of a particular Community. In the former case, applications shall be invited from among all the qualified persons who are interested in getting the appointment and in the latter, applications shall be invited only from among the qualified members of the Community. © It shall not be open to the Educational Agency to convert an open vacancy for the community and vice-versa after the advertisement of the vacancy; Provided that in case no suitable candidate belonging to the wpc 8573/2010 6 community is available for appointment against the reserved vacancy, it is open to the Educational Agency to postpone the selection and invite fresh applications from the members of the Community only or from members of all communities. Where applications are invited from members of all communities, the Educational Agency shall make the appointment on the basis of merit only and the vacancy reserved for the community shall be treated as lapsed for want of suitable candidates. The fact that such a vacancy has been filled up on the basis of merit shall not by itself entitle the Educational Agency to claim another vacancy in its place to be filled from the members of the Community. (2) The method of selection specified in clause (1) shall apply to all vacancies which arise in all departments of the colleges under the Educational Agency. The Educational Agency shall clearly indicate in its statement before the Selection Committee as to how the vacancies have occurred and whether the vacancies for which interview is to be conducted falls within the merit quota or in the quota reserved for the community. The selection of candidates from the community shall be based on merit. (3) The Selection Committee shall prepare the select list on the basis of merit and appointments shall be made only in the order of merit as indicated in the list. No candidate who has been included in the select list on the basis of merit shall be passed over by a person ranked lower in the same list. Where candidates are bracketed for merit purposes, the selection committee shall wpc 8573/2010 7 specifically mention that fact in the list. (4) The select list prepared by the selection committee shall not normally contain more than three times the number of vacancies likely to arise within one academic year. In case the selection committee proposes to include more names in the list, it shall record the reasons for the same. (5) A select list prepared by the selection committee shall remain in force only for a period of one year.” Therefore, going by sub-clauses 1(a) and (b) of Clause 12, the Educational Agency has the option to appoint candidates purely on merit or to reserve 50% of the vacancies to be filled up on the basis of merit from among the candidates belonging to the particular community. Therefore, 50% has to be left to be filled up from open category and 50% from community quota candidates obviously in the light of the direct payment agreement. Going by sub-clause 1(b) it should be specified in the notification whether the selection is for open vacancy or for reserved vacancy for community. Application will have to be called for from open/community candidates accordingly. 9. Herein, we are confronted with a question whether, after having notified that the vacancies will be filled up from open/community candidates, the appointment can be confined only to the community wpc 8573/2010 8 candidates to fill up both vacancies in Economics. Sub-clause 1© of Chapter 45 of the Statutes is therefore important, according to which the Educational Agency cannot convert an open vacancy for the community and vice-versa after the advertisement. Going by sub-clause (2), the method of selection specified in sub-clause (1) shall apply to all vacancies which arise in all departments of the colleges under the Educational Agency. They should indicate in its statement before the Selection Committee as to how the vacancies have occurred and whether the vacancies for which interview is to be conducted fall within the merit quota or in the quota reserved for the community. 10. If Ext.P3 minutes is considered in the light of sub-clause (2) it can be seen that the Selection Committee was asked to prepare the rank list for open/community quota separately and the list also is prepared in terms of the marks obtained in the respective quotas. Therefore, going by clause 12(1)(c) of the Statutes as contended by the learned counsel for the petitioner, there cannot be any conversion of an open vacancy into a community quota vacancy or vice- versa after the advertisement is made. Evidently, the 5th respondent was appointed in the community quota. Therefore, normally the other vacancy will have to be filled up from open wpc 8573/2010 9 quota and the beneficiary will be the petitioner. 11. Herein, learned Senior Counsel appearing for the fourth respondent who is rank No.2 in the community quota, submitted that the 5th respondent who was having the highest marks was liable to be appointed in the open quota based on merit itself and therefore the 4th respondent who was having second highest marks, will have to be appointed in the community quota. It is therefore submitted that the same will justify the appointments made. 12. To appreciate the arguments, the averments in the counter affidavit filed by the management will have to be considered. The counter affidavit of the third respondent shows that both respondents 4 and 5 were appointed in the community quota itself and the appointment of the 5th respondent was not in the open quota. It is the case of the management that 50% of the vacancies reserved for community quota could not be reached by taking the total number of teaching staff and therefore both vacancies were filled up from the community quota. In para 6 it is clearly mentioned that “this respondent has appointed the two candidates out of the community list to the posts of lecturers in Economics. The said appointments are in the reserved quota of 50% of the posts for candidates of the community of the wpc 8573/2010 10 Educational Agency.” 13. In the counter affidavit filed by the University also, the same stand has been reiterated as evident from para 7 wherein it is averred as follows: “In the present case, the fifth respondent namely, Smt. Liji Lawrence was appointed, as per the minutes of the Statutory Selection Committee, in the community quota as the 83rd candidate from the community quota and the fourth respondent, namely, Smt. Nino Baby was appointed as the 84th candidate.” Ext.P3 minutes show separate lists under open and community quotas and respondents 4 and 5 are included in community quota itself. For all these reasons, there cannot be any doubt that respondents 4 and 5 were appointed in the community quota alone and the fifth respondent was not appointed as an open category candidate, as contended by the learned Senior Counsel appearing for the fourth respondent. 14. The next question is whether as contended by Shri Pathrose Mathai, learned Senior Counsel appearing for the management, the management is entitled to fill up the two vacancies by community quota candidates alone. Going by the relevant clauses contained in Clause 12 of the Statutes, there cannot be any conversion after the vacancies are notified, from open category to community category or vice-versa. Learned Senior wpc 8573/2010 11 Counsel for the management submitted that in the light of the direct payment agreement and in exercise of the right of minority communities under Article 30 of the Constitution, 50% of the vacancies can be filled up from among community quota candidates and as the 50% has not reached taking the total number of posts filled up, there is nothing wrong in the management filling up both the posts from community category. Reliance is placed on the decision of the Apex Court in Sindhi Education Society and another v. Chief Secretary, Government of NCT of Delhi and others {(2010) 8 SCC 49. 15. Herein, some of the averments in the counter affidavit of the management with regard to the filling up of vacancies are relevant. Even though the management, in para 6 of the counter affidavit averred that the vacancies in the Economics Department were reserved as community quota vacancies, that is belied by the notification itself and the minutes of the Selection Committee, produced as Ext.P3. If the vacancies were reserved for community alone, the Selection Committee would not have prepared separate rank lists for open/community candidates. Further, in the light of the specific terms of the notification Ext.P1, that in subjects like Mathematics, Psychology, History, Economics, Botany, applications are invited in open/community, the said contention cannot be accepted. It is wpc 8573/2010 12 evident that for English and Physics applications are invited from community candidates alone. That also is important. Even though it is mentioned in the counter affidavit in para 6 that in the absence of eligible candidates in the community, candidates from open category were to be appointed and hence it was shown in the advertisement as open/community, then also the method provided under the proviso to sub-clause (1)(c) alone is the one to be followed by the Educational Agency. Sub-clause (1)(c) is an express bar for the Educational Agency to convert an open vacancy for the community quota and vice-versa. Going by the proviso if candidates are not available from the community for the reserved vacancy, the selection to that vacancy can be postponed and fresh application will have to be invited. Therefore, the said contention also will not be available to the third respondent. It is evident from the averments in the reply affidavit filed by the petitioner that with regard to the other departments wherein open/community candidates were sought to be appointed, the vacancy was distributed under 1 : 1 ratio basis. In para 4 of the reply affidavit it has been stated that there were two vacancies available in Mathematics, Psychology and Economics. With respect to the vacancies in Mathematics, it is averred in para 5 that the two vacancies were filled up in the ratio 1 : 1, giving appointments to candidates both from the open and from the wpc 8573/2010 13 community quota. The same method was followed with respect to Psychology, were the vacancies were filled up in the ratio 1 : 1. With respect to the faculty History, there were three vacancies and the same were filled up in the ratio 1 : 1 : 1 in tune with the Statutes. 16. There is no dispute that 50% of vacancies can be filled up by community candidates in tune with the Agreement Ext.R3(a). That is recognised by the Statutes also. Herein, the question is only whether after notifying the vacancies as open/community, the appointments exclusively from community candidates is justified. 17. Even though the contention raised by the management now is that the 50% has not been achieved, evidently the said contention is advanced in the light of the total posts filled up in various faculties. But when the management has chosen to fill up the vacancies in Mathematics, Psychology, History, etc. from open and community candidates in the ratio 1 : 1 in tune with the notification, the contention now adopted that the two vacancies in Economics were filled up in exercise of the right under 50% quota, so as to achieve 50% of the total staff strength, cannot be supported. After having advertised the vacancies as open and community, there cannot be any conversion in the light of Clause 12(1)(c) of the Statutes. 18. Apart from that, no decision of the management to reserve two wpc 8573/2010 14 vacancies in Economics has been produced. Further, the minutes of the Selection Committee will also show that the rank list had to be prepared between open and community candidates. Therefore, the subsequent decision taken by the management at the time of appointment to fill up both the vacancies from community quota cannot be supported. The Apex Court in Sindhi Education Society's case {(2010) 8 SCC 49}, of course reiterates the legal position with regard to the minority rights under Article 30 of the Constitution. The principles wherein grant in aid is extended in respect of minority institutions, were also considered therein. Herein, as far as the minority rights are concerned, there is no total restriction on the right of administration. The reservation between open and community candidates as 50 : 50 evidently is made under the direct payment system as agreed to by the Management. Therefore, as it is an agreement executed by the management with regard to the filling up of posts and as evident from the counter affidavit itself, the management has no quarrel with the agreement also, it cannot be said that the insistence to appoint candidates from open category in tune with the notification, will violate the rights of minority under Article 30 of the Constitution of India. In tune with Clause 12(1)(a), the Educational Agency has the right to reserve every alternate vacancy or 50% of the vacancies for being filled up by community candidates. When wpc 8573/2010 15 two vacancies were available and the notification also provided to fill up the vacancies between open/community candidates, that obliges the management to fill up the vacancies accordingly. 19. Therefore, the decision in Sindhi Education Society's case (supra) will not help the management to contend for the position that there can be a conversion of the vacancies exclusively for community candidates after the notification was issued. 20. The stand of the University in its counter affidavit that the petitioner deserves only the third post, is not correct in the light of the fact that respondents 4 and 5 were appointed in the community quota alone. 21. A copy of the agreement has been produced as Ext.R3(a) along with the additional counter affidavit. It is averred in para 2 of the additional counter affidavit that ever since the execution of the said agreement the selection of teachers were made as provided in the said agreement. Therefore, evidently there is no deprivation of the right of minority under Articles 30 or 19(1)(g) of the Constitution of India, since the agreement itself was being followed by the third respondent also. 22. Going by the rank list published and the marks of the candidates, the fifth respondent is having the highest marks and was shown in the community quota and the petitioner stood just below the 5th respondent and wpc 8573/2010 16 first among the open quota candidates. In that view of the matter, the petitioner and the 5th respondent ought to have been appointed. The 5th respondent has been accommodated, evidently from the community quota as found already. Therefore, the petitioner who is an open category candidate ought to have been given appointment. 23. Hence, the writ petition is allowed. It is declared that the petitioner is entitled to be appointed in one of the notified vacancies in Economics faculty. The fourth respondent who is only rank No.2 in the community quota, was not entitled to be appointed and therefore Ext.P5 is quashed. There will be a direction to the third respondent to appoint the petitioner as Lecturer in Economics within a period of three weeks from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/