Bineesh Gopal C.G. vs State of Kerala

A.K. Jayasankaran Nambiar, J.—Since all these writ petitions involve a common issue, they taken up for consideration together and disposed by this common judgment. For the sake of convenience, the reference to facts and the exhibits is from W.P.(C) No. 29072/2011.

In connection with an appointment to the post of sweeper cum cleaner in the 2nd respondent University, Ext. P1 notification dated 30.12.2008 was published, inviting applications from interested candidates. The petitioners in the aforementioned writ petitions had applied and were called for a written test on 14.08.2010. Thereafter, the petitioners were included in a short-list of candidates, who were found eligible to be called for an interview, and interview memos were also sent to the petitioners to appear for the interview, on various dates in November, 2011. In the meanwhile, challenging the conduct of Page 2 the written test by the Selection Committee constituted under the Cochin University of Science and Technology Act, 1986 (hereinafter referred to as ''1986 Act''), W.P.(C). No. 27495/2010 was filed by certain candidates. The said writ petition was dismissed by a judgment dated 22.10.2010 rejecting the contentions of the petitioners therein. In a writ appeal preferred against the said judgment, a Division Bench of this Court, by Ext. P3 judgment dated 04.11.2010, found that there was no substance in the allegations made by the appellants in the writ appeal with regard to the alleged discrepancies that had crept into the conduct of the written test. It was accordingly that the writ appeal also was dismissed by the said judgment. It would appear that thereafter, when the 2nd respondent University was all set to proceed with the interviews that were scheduled, Ext. P6 communication dated 28.10.2011 was received by them from the Principal Secretary to Government, Higher Education Department directing them to stop further proceedings for recruitment of candidates to the post of sweeper cum cleaner. A perusal of Ext. P6 would indicate that the Government, while issuing the direction in Ext. P6, was purportedly acting in accordance with Section 50 of the 1986 Act. Following Ext. P6, the Government also appointed the Director of Collegiate Education as an enquiry officer to conduct the enquiry that was ordered in Ext. P6.

When these writ petitions came up for admission, by an interim order dated 03.11.2011, a learned single judge, after considering the submissions made by counsel for the petitioners, thought it fit to direct the Director of Collegiate Education to complete the inspection and enquiry within 45 days from the date of the order and directed the writ petitions to be posted after one month. By the said order, further proceedings for conducting the interview were stayed, pending completion of the enquiry. The petitioners, therefore, preferred a writ appeal against the interim order of the learned single judge. By a judgment dated 11.11.2011 in W.A. No. 1715/2011, a Division Bench of this Court found that the direction of the learned single judge to go ahead with the enquiry that was contemplated in Ext. P6, was not in order. The Division Bench, therefore, stayed further proceedings in connection with the enquiry and requested the learned single judge to finally dispose the writ petitions at the earliest. It is clear from the judgment of the Division Bench that it was of the opinion that a decision needed to be taken on the preliminary issue as to whether there was any power vested with the Government under Section 50 of the 1986 Act to order an enquiry in a matter involving appointments to the post of sweeper cum cleaner.

I heard learned senior counsel Sri C.P. Sudhakara Prasad appearing on behalf of the petitioner in W.P.(C). No. 29072/2011, learned counsel appearing on behalf of the petitioners in the other writ petitions, Sri. Millu Dandapani, learned standing counsel appearing for the 2nd respondent University and the learned Government Pleader appearing on behalf of the 1st respondent.

On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I note that this is a case where Ext. P6 communication by the Government directs the 2nd respondent University to stay further proceedings in the recruitment process that was initiated in connection with the appointment of candidates to the post of sweeper cum cleaner under the University. The said directions were issued in purported exercise of the power under Section 50 of the 1986 Act. It is also apparent that the Government, while issuing the directions, was acting upon complaints received from various sources regarding the conduct of the selection by the respondent University. It is necessary to note in this connection, that similar allegations regarding the conduct of the selection, and in particular the conduct of the written test, was the subject matter of challenge before this Court in W.P.(C).No. 27495/2010 filed at the instance of certain disgruntled candidates. That writ petition came to be dismissed and an appeal preferred against the said judgment also met with a similar fate. It is against this factual scenario that Ext. P6 communication, of the Government to the 2nd respondent University, must be considered. The Government seeks to rely on Section 50 of the 1986 Act to justify its action in issuing Ext. P6 communication. Section 50 of the 1986 Act reads as follows:

Power of Government to cause inspection of the University

(1) The Government shall have the right to cause an inspection to be made by such person or persons as they may direct of the University, its buildings, laboratories, libraries, museums, workshops and equipments and of any institutions maintained, recognised or approved by, the University and also of the work conducted by the University, and to cause enquiry to be made in respect of any matter connected with the University.

(2) The Government shall; before taking any action under sub-section (1) give notice to the University of their intention to cause such inspection or enquiry to be made and the University shall be entitled to be represented thereat.

(3) The Government shall communicate to the Syndicate the result of any inspection or inquiry made under sub-section (1) and may, after ascertaining the opinion of the Syndicate thereon, convey their views to the Vice-Chancellor and to the Syndicate.

(4) The Government may, after considering the views of the Vice-Chancellor and the Syndicate on the result of any inspection or inquiry under sub-section (1), advise the University upon the action to be taken in the matter.

(5) The Syndicate shall report to the Government the action, if any, which is proposed to be taken, or has been taken, upon the result of any inspection or inquiry under sub-section (1).

(6) A report under sub-section (5) shall be submitted with the opinion of the Syndicate thereon and within such time as the Government may direct.

(7) Where the Syndicate does not, within a reasonable time, take any action referred to in sub-section (4) to the satisfaction of the Government, the Government may, after considering any explanation furnished by the Syndicate in the matter, issue such directions as they may think fit, and the Syndicate shall comply with such directions.

A Perusal of Section 50 would indicate that the Government has a right to cause an inspection to be made of the University, its buildings, libraries, laboratories etc and of any institutions maintained, recognised or approved by the University and also of the work conducted by the University and to cause an enquiry to be made in respect of any matter connected with the University. The said provision under the 1986 Act is in the nature of a regulatory provision which confers the Government with certain powers to supervise the administration of the University. It must be remembered in this connection that Section 50 of the 1986 Act, is one among many such provisions under the Act which taken together, envisage a Page 6 scheme of administration of the Cochin University in terms of the Act. Under the Act, there are specific provisions which deal with the powers of the various authorities constituted under the Act and these powers are for the efficient discharge of the duties assigned to them under the Act. When it comes to selection of non-teaching staff through direct recruitment, the provisions of Chapter V of the 1986 Act and, in particular Section 31 thereof, assumes significance. The said Section reads as follows:

Constitution of Selection Committees.-

(1) The Vice-Chancellor shall, in consultation with the Syndicate constitute from time to time, separate selection committees for the purpose of selection of candidates for direct recruitment to the post of-

(i) Professor, Reader

(ii) Lecturers and other posts not being posts of non-teaching staff

(iii) Non-teaching staff

(2) The Selection Committee shall consist of-

(a) in the case of the Selection Committee for selection of Professors and Readers,-

(i) the Vice-Chancellor, Ex-Officio Chairman,

(ii) one member of the Syndicate nominated by the Vice-Chancellor,

(iii) three subjects experts not being in the service of the University chosen by the Syndicate

(iv) the Dean of the faculty concerned;

(b) in case of the Selection Committee for selection of Lectures and other teaching-staff:-

(i) the Vice-Chancellor, Ex-Officio Chairman,

(ii) One member of the Syndicate nominated by the Vice-Chancellor,

(iii) two subject experts not being in the service of the University chosen by the Syndicate,

(iv) the Head of the concerned department or Professor in charge;

(c) in the case of the Selection Committee for selection of non-teaching staff;-

(i) the Vice-Chancellor or Pro-Vice-Chancellor, Ex-Officio Chairman,

(ii) two members of the Syndicate nominated by the Vice-Chancellor, of whom one shall be a person belonging to the Scheduled Castes or Scheduled Tribes.

The Registrar shall be the secretary of the Committee

(3) No person shall be directly recruited to the teaching or non-teaching staff of the University except on the recommendation of the concerned Selection Committee constituted under sub-section (1)

(4) The quorum for a meeting of a Selection Committee shall be three.

(5) The procedure to be followed by each Selection Committee for selection of candidate shall be prescribed by the Statutes.

(6) Where the oral test (interview) is proposed to be conducted by the Selection Committee, the Committee, shall invite the Head of the Department concerned to be present or to appoint a representative to be present and the Head of Department or his representative so present may take part in the deliberations of the Selection Committee but shall not be entitled to award marks: Provided that the Selection Committee shall invite, where they consider it necessary, any person or persons with expert knowledge in particular subjects to be present at the interview to assist the Selection Committee but such person or persons shall not be entitled to award marks.

(7) It shall be the duty of the Heads of Departments or their representatives and persons with expert knowledge who are invited to be present at the interview, to be present at the appointed time and Co-operate with the Selection Committee in the conduct of the selection.

(8) Any person referred to in sub-section (7) being an employee of the Government or a University in the State who violates the provisions of that sub-section or misbehaves or acts in any manner so as to affect the fair conduct of a selection, shall be guilty of misconduct and shall be liable for disciplinary action.

(9) The rank lists prepared by the Selection Committees shall be published in the notice board of the University and also in the Gazette.

(10) A rank list published under sub-section (9) shall remain in force for a period of two years from the date of such publication and all vacancies arising during the period shall be filled up from the list so published.

(11) Communal rotation shall be followed category-wise treating all the departments as one unit.

(12) The Registrar shall maintain a register containing the list of appointments made indicating the vacancies filled up by open competition and by reservation to Scheduled Castes, Scheduled Tribes and other Backward Classes, vacancies remaining to be filled up for want of qualified hands from Scheduled Cases, Scheduled Tribes and Other Backward Classes, and vacancies carried forward for want of qualified hands under reservation quota for being filled up in future vacancies and such other details as may be specified in the Statutes.

(13) Where the Syndicate proposes to make an appointment otherwise than in accordance with the order of merit arranged by the Selection Committee, it shall record its reasons therefor in writing and submit them to the Chancellor who may approve the proposal or return it to the Syndicate for reconsideration.

(14) After reconsideration in pursuance of sub-section (13), if the Syndicate desires to pursue its original proposal, it shall refer the matter again to the Chancellor for his decision and the decision of the Chancellor thereon shall be final.

(15) The Chancellor shall have the power to give directions to the Vice-Chancellor to cancel appointments made not in accordance with the provisions of this Section:

Provided that before giving a direction under this subsection the Chancellor shall give to the person so appointed a reasonable opportunity to show cause why such direction should not be given and shall consider his explanations and objections, if any.

(16) If at any time it is disclosed that a person has secured appointment to any post under the University by making any false statement before the Selection committee or in any application submitted by him or by producing any false documents, his appointment shall, without prejudice to any other action that may be taken against him, be cancelled by the Vice-Chancellor:

Provided that before cancelling an appointment under this subsection, the Vice-Chancellor shall give to the person so appointed, a reasonable opportunity to show cause why the appointment should not be cancelled and shall consider his explanations and objections, if any.

It will be apparent from a reading of Section 31 that there is a detailed procedure envisaged under the Act, to be carried out by a Selection Committee that is constituted in terms thereof, and which procedure involves a monitoring of the selection process, not only by the Selection Committee that carries out the procedure, but also by the Syndicate, the Vice-Chancellor and the Chancellor of the University. These procedural provisions, are supplemented by the provisions of the Cochin University First Statutes, 1981, Chapter III of which deals with the terms and conditions of service of staff of the Cochin University other than university teachers. What is relevant for the purpose of the instant case is that, the detailed procedure that is contemplated in connection with the appointment to posts of non-teaching staff by direct recruitment, does not envisage therein, a role to the Government. When a statute is clear in the allocation of powers to various authorities under the statute, there is no scope for reading in any supervisory power to the Government and the powers of the Government must find place in the express provisions of the statute. When viewed from this angle, I am unable to find a source of power traceable to Section 50 of the 1986 Act that would enable the Government to interfere with the selection process that has been initiated by the statutory authorities under the Act. At any rate, reference has not been made to any other provisions under the Act, other than Section 50, that would enable the Government to take recourse to such course of action as contemplated in Ext. P6.

In that view of the matter, the action of the 1st respondent in issuing Ext. P6 communication to the 2nd respondent University cannot be held valid. Resultantly, I quash Ext. P6 communication as illegal and declare that it shall be open to the 2nd respondent University to proceed with the selection process that was initiated pursuant to Ext. P1 notification for appointment to the post of sweeper cum cleaner in the respondent University. As considerable time has elapsed since the calling of candidates through Ext. P1 notification and scheduling the interview to be held in respect of those found eligible, I think it necessary to direct the 2nd respondent University to take steps for completion of the selection process and make appointments within a period of three months from the date of receipt of a copy of this judgment.