Vinodan
T. & Ors Vs. University of Calicut & Ors [2002] Insc 223 (26 April 2002)
S. Rajendra
Babu & Ruma Pal
With C.A. NOS. 4904/ 2000, 4905/2000, 4906/2000
RUMA
PAL, J
The appellants in the several appeals, seek to assail the cancellation
of a rank list prepared for the post of Assistant Grade-II by the University of Calicut, the respondent No.1 before us. The appellants had been
selected pursuant to a notification issued on 1st November 1991 inviting applications for preparation of a panel for
appointment as Assistants Grade-II in the University. The selection was made
after a written test and interviews and a rank list was prepared on 25th October 1995. The appellants' claim is that the
rank list should have been operative for a period of three years and that the
respondents were bound to appoint them to vacancies which had arisen within
that period.
The
appellants in CA 4906/2000 challenged the action of the University in
curtailing the period of the validity of the rank list to two years before the
High Court of Kerala by filing a writ petition. The learned Single Judge
disposed of the writ petition on 7th January, 1998 by noting the submission of the University that:
"as
and when necessity arises for employing more persons, the University is
prepared to make appointments from Ext.P1 rank list. But it is made clear that
such appointees will not have any claim either for future appointment or for
regular appointment. It is purely a stop-gap arrangement pending regular
recruitment to the post".
These
appellants challenged the order of the Single Judge by filing an appeal before
the Division Bench of the High Court. The other appellants before us filed
Original Petitions also assailing the action of the University.
The
University filed an application in the pending proceedings for permission to
engage 40 to 50 assistants on a provisional basis for three months to meet the
exigencies of work arising in connection with the annual examination. By an
order dated 18th March,
1999 the Division
Bench granted the University:
"permission
to engage purely on daily wages basis 40 to 50 Assistants on work need basis.
Petitioners in OP 8743/98 and 22212/97 and the appellants in WA 520/98 will be
sent notices and if they respond to the said notice they may also be considered
for appointment among the 50 persons on daily wages basis".
Pursuant
to this order, the appellants were served notices by the University and were
appointed on daily wage basis.
The
Division Bench disposed of the appeal and the Original Petitions by a common
judgment on 6th April,
2000. The Division
Bench was of the view that the issue had become academic but at the same time
directed that:
"when
the next process of selection starts, it would be appropriate if they (the
appellants) are given some credit for the services rendered by them and also
making relaxation so far as their ages are concerned in case they have become
over aged in the meantime. It goes without saying that they have the right to
appear at the requisite test and interview so that the question of giving
credit for the services rendered by them and relaxation of age can be
considered by the University".
Not
being satisfied, the appellants impugned the decision of the High Court before
this Court by way of separate special leave petitions.
Leave
was granted by this Court on 4th September, 2000 and the status quo was directed to continue until further orders.
In
support of their case, the appellants have relied on a resolution said to have
been taken on 10th May,
1986 by the Syndicate
fixing the validity of rank lists for all future selections at three years.
Therefore,
according to the appellants, all vacancies in the post of Assistant Grade II
till 1998 should have been filled up by the respondents. The appellants' claim
that had the rank list continued for a period of three years at least 209
vacancies could have been filled by appointment of those whose names were in
the 1995 Rank list. They have relied upon a letter dated 18th November, 1997 written by the Controller of
Examinations to the Registrar of the University intimating that there were 33
vacancies of Assistants and 4 vacancies of Clerical Assistants in Pareeksha Bhavan
which were required to be filled up without any further delay. The appellants'
grievance is that instead of filling up these vacancies a decision was taken by
the Syndicate on 26th November, 1997 limiting the validity of the rank list
prepared in 1995 to two years and cancelling the list altogether for no
rational reason. In the alternative it is urged that the appellants had been
serving continuously for the last several years and therefore should be regularised
in service.
The
respondents on the other hand have contended that there was no stipulation
either in the rank list or in any University statutes stipulating that a rank
list would be valid for three years. It was further stated that the University
follows the procedure of the Kerala Public Services Commission and other
Universities. According to Rule 13 of the Kerala Public Service Commission
Rules of Procedure, the validity of a rank list was for a minimum period of one
year and maximum period of three years. It is submitted that the Syndicate was
fully empowered to fix the period of the rank list at 2 years. It is stated
that the decision to cancel the rank list was taken in view of the prevailing
circumstances which included:
a) carving
out of the major part of the territorial jurisdiction of Calicut University to form a new University by the name of Kannur University on 9th
November, 1995, so
that a large number of colleges which had been affiliated to Calicut University were transferred to the jurisdiction of Kannur University;
b) the
abolition of the Pre-Degree Courses by the Government of Kerala and the
consequent depletion of posts.
c) a
ban on the appointment of non-teaching staff in the University by the
Pre-Degree Course (Abolition) Ordinance which was succeeded by the Pre-Degree
Course (Abolition) Act 1997 for a period of three years from the commencement
of the Act.
The
Act came into force with effect from 3rd June, 1997. It is submitted that in any event
the appellants had no right to insist on regular appointment merely because
they formed part of the rank list. The respondents also submitted that in any
event the appellants could not claim regularisation because they had worked
temporarily as daily wagers. According to the respondents what was preserved by
the order of status quo directed by this Court on 4th September 2000 was the situation prevailing under the orders of the High
Court viz. provisional need based appointment as a purely stop- gap arrangement
pending regular recruitment to the posts. Although the University had retained
the appellants who were serving on 4th September, 2000 as daily wagers with "short
breaks", the University did not need to engage assistants on daily wages
any more. It is stated that two rank lists were prepared in 1995. The main list
contained the names of 378 candidates. There was also a Supplementary List
containing the names of 394 candidates from various communities. Sixty five
candidates have been appointed from the main list and eight from the
supplementary list. The last candidate appointed was ranked at Serial No. 66 in
the main list. There were many candidates above the appellants who were more
meritorious and that regular appointments could only be made after applying the
rules of communal reservation.
We may
start with a consideration of the basis of the appellants case viz. the
validity of the rank list for three years i.e. from October 1995 to October 1998.
The learned Single Judge found that there was nothing on record to show that
the rank list was valid for three years a finding which was not upset on
appeal. The appellants now seek to rely on the minutes of the proceeding of the
Syndicate of the University on 10th May, 1986
in which a resolution was taken to the following effect:
"*85.220
: Considered the question of enhancing the maximum period of validity of the
ranked list of selected candidates for appointment, up to three years.
Resolved
that the new rules fixing the validity of ranked list for three years, be
approved for implementation for all future selections. The Validity of existing
lists will be two years only".
According
to the respondents this resolution related to the Supplementary List for
communal reservation and not to the general list. This has not been effectively
traversed by the appellants. But assuming that the Syndicate had the power to
resolve in 1986 that the general rank list would be valid for three years, they
must equally be conceded the power to amend that decision. Admittedly they did
so by the resolution passed on 26th November, 1997 by which they cancelled the rank list for the reasons stated.
The
principle that persons merely selected for a post do not thereby acquire a right
to be appointed to such post is well established by judicial precedent. Even if
vacancies exist, it is open to the concerned authority to decide how many
appointments should be made. However the selected candidates have a right to
compel such authority
(i) not
to make appointments by travelling outside the list and
(ii) to
make the selection for appointment strictly in the order the candidates have
been placed in the list. This Court has placed two further restrictions on the
exercise of power by the appointing authority, namely that the appointments to
the vacancies must be made in accordance with the Rules, if any, relating to
reservations and also that the appointing authority cannot scrap the panel of
selected candidates during the period of its validity, except for well founded
reasons .
It is
not the appellants case that the University has made any appointments to the
post of Assistants outside the Rank List or not strictly in order of merit. Let
us then look at the justifiability of the reasons given by the respondents for cancelling
the 1995 rank list.
On 24th April 1997, the State Government affirmed a
policy decision taken in December 1996 to de-link pre-degree courses from
colleges in the State in a phased manner. The respondents have produced a
circular of the same date which contains the decision and notes that the
process would involve identification of pre-degree batches in the college for
de-linking, issue of executive orders, orders stopping admission for the
batches proposed to be discontinued and suitable deployment of the staff both
teaching and non-teaching which may be rendered surplus. For protecting the
service interests of the existing teaching and non-teaching staff, it was also
decided that further appointments of teaching staff and non-teaching staff in
the colleges and university should be stopped immediately. The circular also
states that though the decision in this regard was taken in December, 1996
"it is reported that the private colleges and universities have been resorting
to recruitment of teaching and non-teaching staff which may become a great
financial burden for Government in future".
Following
this Circular, the Pre-Degree Course (Abolition) Ordinance, 1997 was issued in
exercise of powers under Article 213 of the Constitution of India. The
Ordinance (Ordinance No. 10 of 1997) provided for a phased abolition of the
pre-degree course. For this purpose an Empowered Committee was set up
consisting of
a) the
Principal Secretary to Government, Higher Education Department Chairman
b) the
Vice-Chancellor of one of the Universities in the State nominated by the
Government Member;
c) the
Secretary to Government, General Education Department Member d) the Director of
Collegiate Education Member Secretary;
e) the
Director of Public Instruction Member; and
f) the
Director of Higher Secondary Education- Member The Empowered Committee was to
specify from time to time the colleges which were to do away with the
pre-degree course. Any college so specified and which did not comply with the
directive to abolish the pre-degree course under Section 3 of the Ordinance was
debarred from affiliation. Section 6 of the Ordinance further provided for an
absolute ban on appointment of staff etc. in the following words:
"
Notwithstanding anything contained in the University laws or in any agreement
on contract, no appointment of non- teaching staff in any college shall be made
for a period of three years from the date of commencement of this Ordinance:
Provided
that, in the exigencies of service, such appointment may be made, with the
previous approval of the Committee." The Ordinance was replaced by the
Pre-Degree Course (Abolition) Act, 1997 (Act 3 of 1998). The Act substantially
reproduces the language of the Ordinance which it replaced.
The Empowered
Committee set up under the Ordinance completed its task of phased specification
of colleges during the academic year 1997-98. On 3rd July, 1997, the Empowered
Committee issued an order which it inter alia provided for relaxation on the
ban of appointments of non-teaching staff to a limited extent, by allowing only
provisional appointment through the Employment Exchange in the Universities
"in already sanctioned vacancies".
In our
opinion, this blanket ban on regular appointments statutorily imposed for three
years was by itself sufficient ground for the University to cancel the rank
list.
In
addition to this circumstance was the creation of Kannur University by which
several colleges which earlier fell within the jurisdiction of Calicut
University came under the aegis of Kannur University. This took place after the
publication of the 1995 Rank List, and cannot be said to be an irrelevant
reason for cancelling the 1995 Rank List. According to the respondents, the
formation of Kannur University had rendered about 130 Assistants as excess
staff in Calicut University. It is true that the Calicut University made
internal adjustments pursuant to the creation of Kannur University by which
certain Assistants were required to discharge the function of Section Officers
but this would not take the case of the appellants much further. Matters were
clearly in a state of flux. What the position would be once the transfer of the
Colleges and personnel took place could not be determined.
The
third reason given by the respondents for canceliing the 1995 rank list were
allegations of corruption in the preparation of this list. It appears that
there were Press reports which questioned the fairness with which the 1995 rank
list had been prepared. Although this figured in the decision of the Syndicate
to cancel the rank list, it does not appear to have been the prime motive to do
so. There was a statutory ban, with a limited relaxation allowing provisional
appointment on the one hand and the administrative and financial consequences
of the creation of Kannur University on the other. The appellants have not also been able to
establish that there were any permanent vacancies which existed during that
period which could have been filled by the University in accordance with law. In
the light of all these circumstances, the reason for cancellation of the Rank
List given by the respondents cannot be termed to be arbitrary or unjust.
The
ban on regular appointments under the Act came to an end in 2000. The
respondents have also stated that the de-linking of the pre-degree courses was
completed by the academic year 2000-2001 with the publication of the pre-degree
results in June 2001. The period of validity of the 1995 Rank List, even
according to the appellants, had long since expired. The University issued a
fresh notification on 25th
March, 2000 to prepare
a panel of qualified assistants in anticipation of the lifting of the ban for
vacancies that existed and those that would arise on retirement of existing
employees. Some candidates in the 1995 Rank List sought to thwart this and
approached the High Court. On 9th March, 2001
the High Court said:
"Since
the test is scheduled on 10.3.2001 I do not find any ground to stay the test.
But I make it clear that the declaration of the result and further proceedings
will be only subject to the result of the Original Petition".
The
test was duly held. The results have been published in April 2001. The
appellants seek to hold up the appointment of the successful candidates by
claiming regularisation on the ground that they had been serving the University
albeit on a daily wage basis pursuant to orders of Court. In support of this
prayer the appellants have relied on the decision of this Court in State of Haryana
v. Piara Singh (1992) 4 SCC 118 . The reliance is misplaced. In that case the
Government itself had appointed ad hoc/temporary employees who had continued
for years together under orders passed by the Government from time to time. The
situation was brought about because there was no Subordinate Service Selection
Board (SSB) in existence in the State during this period. After the SSB was set
up the Government was faced with a large number of ad hoc employees already
appointed by it and serving continuously for a period of ten years or more. To
meet the situation, the Government formulated a scheme for regularisation of
such employees subject to certain conditions. The High Court set aside the
conditions and directed unconditional whole scale regularisation of ad hoc
employees who had put in at least one year service. This Court set aside the
direction of the High Court and said:
"Such
directions have also the effect of disregarding and violating the rule relating
to reservation in favour of backward class of citizens made under Article
16(4). What cannot be done directly cannot be allowed to be done in such
indirect manner".
This
Court upheld the scheme for regularisation formulated by the Government itself.
The
facts of this case are totally at variance with those in Piara Singh. In this
case there was a complete statutory ban on appointments by the University from
1997 till 2000. The appellants were appointed provisionally only pursuant to
orders of Court purely by way of interim relief because of the then existing
need of the University. There is no scheme for regularisation formulated by the
University. Besides regularisation in the appointment of the appellants would
mean appointment contrary to the order of merit in the Rank List. There is also
nothing to show that such regularisation would be in keeping with the
reservation rules. The appellants cannot stand in the way of the candidates who
successfully competed in the 2001 selections for the post of Assistants. The
alternative prayer of the appellants is, therefore, unsustainable.
For
all these reasons the appeals are dismissed and the interim order vacated
without any order as to costs.
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