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Judgment
P.B.Suresh Kumar, J
This appeal is directed against the judgment dated 06.10.2021 in W.P.(C) No.27199 of 2015. The appellants were respondents 1 to 4 in the writ petition. Parties and documents are referred to in this appeal, as they appear in the writ petition.
The matter relates to the absorption of the petitioners in the regular establishment of the University of Calicut (the University) as Assistants Grade-II.
Pursuant to an invitation made by the University by virtue of a notification issued on 25.03.2000, the petitioners applied for selection for appointment as Assistant Grade-II. They were successful in the written examination conducted by the University in connection with the said selection and their names have been accordingly included in the short list for interview. Later, the petitioners were invited for interview and thereafter, they were included in the ranked lists prepared by the University as directed by this Court in terms of Ext.P3 judgment in W.A.No.1370 of 2007. Later, a select list was drawn from the said ranked lists and candidates included in the select list were appointed provisionally subject to the outcome of W.P.(C) No.15528 of 2007.
All the selected persons did not, however, join duty. Since there were dearth of persons in the category of Assistant Grade-II, the University moved an interlocutory application in W.P.(C) No.15528 of 2007 as I.A.No.12412 of 2007 seeking permission to make appointments on provisional basis from the lists already prepared, and this court, in terms of the order passed on 18.09.2007 in the above interlocutory application, allowed the said prayer of the University. Ext.P4(a) is the order passed by this court in the said interlocutory application. Petitioners are persons appointed on provisional basis in the University on 22.11.2008 in the light of the permission granted to the University as per the said interlocutory order. Exts.P5(a) to P5(h) are the orders of appointment of the petitioners. Ext.P6 is the final judgment in W.P.(C) No.15528 of 2007. Later, Ext.P6 judgment was modified in review. Ext.P7 is the order in the review petition. As per Ext.P7, this court directed the University to prepare and publish a separate ranked list from among the 782 candidates who turned up for interview, and permitted the University to make appointments from the said list to the vacancies that arose upto 07.07.2006.
The petitioners and others who did not fall under that category, but were working in the University on provisional basis pursuant to Ext.P4(a) order, approached the Apex Court challenging Ext.P7 order. Having regard to the fact that they were working in the University for more than three and a half years by then and having regard to the fact that there were vacancies in the University, the Apex Court disposed of the Special Leave Petitions preferred by them granting liberty to file a representation before the University, and directing the University to consider the same sympathetically. Ext.P8 is the order issued by the Apex Court in this regard. Pursuant to Ext.P8 order, the petitioners in the matter before the Apex Court preferred a representation before the University. On the said representation, the Syndicate of the University resolved to absorb the provisional appointees in the regular establishment. Ext.P9 is the minutes of the meeting of the syndicate which took the said decision on 11.02.2011. Ext.P10 is the office order issued by the University absorbing the candidates in the regular establishment pursuant to Ext.P9 decision. The petitioners were not included in Ext.P10 order. Only 72 out of the 82 provisional appointees were absorbed in terms of Exts.P9 decision and P10 order.
The petitioners challenged Exts.P9 decision and P10 order in W.P.(C) No.6971 of 2011 before this court, and the said writ petition was disposed of directing the University to consider the claim of the petitioners also in the light of Ext.P8 order of the Apex Court. Ext.P11 is the judgment rendered by this court in W.P.(C) No.6971 of 2011. Pursuant to Ext.P11 judgment, the Syndicate of the University considered the claim of the petitioners afresh on 21.03.2015 and decided to absorb the petitioners also in the regular establishment in the same way as it was done in the case of the provisional appointees covered by Ext.P10 order. Later, the Vice Chancellor of the University has ordered implementation of the decision of the syndicate dated 21.03.2015. Ext.P13 is the order issued by the University in this regard. Later, Ext.P14 office order has been issued by the concerned Assistant Registrar of the University to give effect to Ext.P13 University order. In Ext.P14 office order, it is stated that the petitioners are permitted to join duty on 18.05.2015.
According to the petitioners, since all other similarly placed provisional appointees have been absorbed in the regular establishment of the University with effect from 18.02.2011, they are also entitled to be absorbed with effect from the said date, and the decision of the University to appoint them from 18.05.2015 is illegal. The writ petition was filed in the above background challenging Exts.P13 and P14 orders to the extent the same deny them the benefit of absorption with effect from 18.02.2011 and for a direction to the University to treat them as Assistants Grade-II appointed with effect from 18.02.2011 for all service benefits.
A counter affidavit was filed in the writ petition by the University stating that the petitioners were not absorbed along with the 72 persons who were absorbed earlier since they were not included in the ranked lists published pursuant to Ext.P7 order. According to the University, the petitioners are, therefore, not entitled to be treated like those who were included in the said ranked lists.
The learned Single Judge took the view that there is no reason whatsoever for not treating the petitioners like the 72 provisional appointees who were absorbed in terms of Ext.P10 order with effect from 18.02.2011 and consequently disposed of the writ petition modifying Exts.P13 and P14 orders and directing the University to appoint the petitioners with effect from this date as has been done in the case of the 72 provisional appointees mentioned herein above. There is also a direction to the University to release to the petitioners the consequent monetary benefits. The University is aggrieved by the said decision of the learned Single Judge and hence this appeal.
Heard the learned Standing Counsel for the University as also the learned Senior Counsel for the petitioners.
The learned Standing Counsel for the University contended that those 72 provisional appointees who were appointed in terms of Ext.P10 order, and the petitioners are not similarly placed and therefore, they are not entitled to be treated equally. It was specifically argued by the learned Standing Counsel that the 72 provisional appointees covered by Ext.P10 order are persons among the 913 candidates included in the main and supplementary lists published pursuant to Ext.P7 order and the petitioners are persons who were not included in those lists. It was also argued by the learned Standing Counsel that the petitioners have therefore no right to claim absorption with effect from 18.02.2011.
Per contra, the learned Senior Counsel for the petitioners asserted that the 72 provisional appointees covered by Ext.P10 order and the petitioners are similarly placed inasmuch as they have been appointed provisionally pursuant to Ext.P4(a) order passed by this court in W.P.(C) No.15528 of 2007. It was pointed out that they were not appointed regularly in terms of the final order passed in the said writ petition since there was a restriction in the final order that appointments shall be made from the list prepared pursuant to the said judgment only to the vacancies arose upto 07.07.2006. It was also pointed out by the learned Senior Counsel that Ext.P7 order in the review petition was challenged before the Apex Court by the petitioners as also the 72 provisional appointees covered by Ext.P10 order and it is in that matter that Ext.P8 order has been issued by the Apex Court. Placing reliance on the decision of the Syndicate of the University dated 21.03.2015 as referred to in Ext.P13 order, the learned Senior Counsel has also pointed out that the said decision of the Syndicate was that the petitioners are to be absorbed in the regular establishment in the University in the same way as it was done in the case of provisional appointees covered by Ext.P10 order. According to the learned Senior Counsel, in the circumstances, the University cannot be heard to contend that the appointees covered by Ext.P10 order and the petitioners are not similarly placed. It was also argued by the learned Senior Counsel that the decision of the Syndicate dated 21.03.2015 as extracted in Ext.P13 order of the University was in fact to treat the petitioners like the 72 provisional appointees covered by Ext.P10 order and therefore, the University was not justified in appointing the petitioners with effect from a later date.
We have examined the arguments advanced by the learned counsel for the parties on either side.
The short question is as to whether the University is obliged under law to absorb the petitioners in its regular establishment with effect from 18.02.2011.
As noted, the stand of the University is that the 72 provisional appointees covered by Ext.P10 order and the petitioners are not similarly placed. According to the University, the 72 provisional appointees are among the 913 candidates included in the main and supplementary lists published pursuant to Ext.P7 order of this court and the petitioners are persons not included in those lists. Ext.P5 series memos issued to the petitioners at the time of their provisional appointment would show that they have been appointed pursuant to the interim order passed by this court in I.A.No.12412 of 2007 in W.P.(C) No.15528 of 2007. Ext.P4(a) is the said interim order. In terms of Ext.P4(a), this court permitted appointment on provisional basis only from the list of candidates prepared as per the judgment in W.A.No.1370 of 2007. The said interim order reads thus:
“The University may make provisional appointment from the second list of candidates prepared as per the judgment of this court in Writ Appeal No.1370/2007 dated 12.06.2007. The appointments shall be provisional and appointees will be liable to termination on making regular appointment.”
Ext.P3 is the judgment in W.A.No.1370 of 2007. The operative portion of Ext.P3 judgment reads thus:
“We are of the view these questions can be gone into by the learned Single Judge elaborately when the writ petition is finally heard. Since on the strength of the earlier interim order passed by the learned Single Judge intimations were already sent to 1909 candidates it may not be proper to hold the interview of those candidates as well. All the same we are inclined to give a direction to the University to maintain two lists for the purpose of conducting interview and separate ranks list be prepared in respect of candidates who have been included in the second list and others. Finalisation of list be made only after obtaining the final orders from this court. Writ appeal is disposed of as above.”
Since the provisional appointees covered by Ext.P10 order and the petitioners are persons appointed pursuant to Ext.P4(a) order, it has to be presumed that they are persons included in the lists prepared pursuant to Ext.P3 judgment. Even assuming that petitioners are not persons included in the main and supplementary lists pursuant to Ext.P7 order, can they be treated differently from persons included in the main and supplementary lists published pursuant to Ext.P7 is the moot point.
The fact that the 72 provisional appointees covered by Ext.P10 order and the petitioners are persons who have cleared the written test and attended the interview conducted by the University pursuant to the notification issued for selection dated 25.03.2000 and the fact that they were appointed provisionally pursuant to Ext.P4(a) order passed by this court in W.P.(C) No.15528 of 2007 are not disputed. Similarly, the fact that all of them were not appointed regularly in the University on account of the restriction in the judgment in W.P.(C) No.15528 of 2007 that appointments shall be made pursuant to the said selection only to the vacancies that arose up to 07.07.2006, is also not disputed. The specific case of the petitioners is that Ext.P8 order was one passed by the Apex Court in the matter instituted by them along with the 72 provisional appointees covered by Ext.P10 order is not seen denied by the University in the counter affidavit filed in the matter. As noted, it is pursuant to the direction contained in Ext.P8 order, the University has absorbed 72 persons among them initially as per Ext.P9 decision of the Syndicate. Later, in terms of Ext.P11 judgment, the Syndicate of the University considered the case of the petitioners also and resolved to absorb them as well in the regular establishment in the same way as it was done in the case of the 72 provisional appointees covered by Ext.P10 order and the said decision of the syndicate has been given effect to as per Ext.P13 University order and Ext.P14 office order. The decision of the Syndicate dated 21.03.2015 is not part of the records. The said decision as extracted in Ext.P14 order does not indicate as to whether the Syndicate had considered the question as to the entitlement of the petitioners for regular absorption with effect from the date on which the provisional appointees covered by Ext.P10 order have been absorbed into the regular establishment. Instead, what is discernible from Ext.P14 order is only that the Syndicate has decided to absorb the petitioners also in the regular establishment of the University in the same way and manner in which candidates were absorbed in the regular establishment of the University. The fact that the said decision has been given effect to by the University is not in dispute. As noted, the grievance of the petitioners is only that insofar as similarly placed persons have been absorbed in the regular establishment of the University with effect from 18.02.2011, they should have also been treated in the like manner and absorbed in the regular establishment with effect from 18.02.2011.
The University does not dispute the entitlement of the petitioners for regular absorption. Ext.P7 order is one rendered long after the appointment of the petitioners on provisional basis. It is as per the said order, this court directed the University to prepare and publish a fresh ranked list from among the 782 candidates who turned up for the interview and directed that appointments shall be made from the said list only against vacancies arisen upto 07.07.2006. As noted, it is on the ground that the petitioners are not candidates included in the said list that they were not treated like those similarly placed provisional appointees covered by Ext.P10 order. Ext.P8 order of the Apex Court would indicate that it is having regard to the fact that the petitioners and others are persons who have cleared the written examination and interview conducted pursuant to the notification; that they were working provisionally in the University and that there were vacancies in the University, the Apex Court directed the University to consider their claim for absorption sympathetically. It is beyond dispute that it is in the light of the direction of the Apex Court contained in Ext.P8 order that the provisional appointees covered by Ext.P10 order as also the petitioners were absorbed into the regular establishment by the University. In the said context, according to us, the non-inclusion of the petitioners in the main or supplementary lists published pursuant to Ext.P7 order cannot be the basis at all, much less any intelligible basis to treat the provisional appointees covered by Ext.P10 order and the petitioners differently, for Ext.P7 order only deals with the question as to the persons who are entitled to regular appointment in the subject selection process. It is all the more so since the petitioners are persons included in the ranked lists prepared by the University pursuant Ext.P3 judgment. Needless to say, the provisional appointees covered by Ext.P10 order and the petitioners are entitled to be treated alike.
There is also no merit in the argument advanced by the learned Standing Counsel for the University that the petitioners do not have a right to claim absorption with effect from 18.02.2011. The question is not whether the petitioners are entitled to be absorbed in the regular establishment of the University with effect from 18.02.2011. The question is whether they are entitled to be treated like those who are absorbed in the regular establishment with effect from 18.02.2011.
In the light of the discussion aforesaid, there is no merit in the writ appeal and the same is, accordingly, dismissed.