Raman Nair v. University Of Cochin — 1973 DIGILAW 315 (KER)

JUDGMENT V.P. Gopalan Nambiyar, J. 1. The petitioner is a Lecturer in Hindi, appointed on 3rd March, 1969 to the University Centre, Cochin, governed then, by the Kerala University Act. With the passing of the Cochin University Act, 1971 (Act 30 of 1971) referred to as the Act the University Centre, Cochin, stood transferred to the Cochin University under section 24 (3) of the said Act. Section 62 of the Act saves all Statutes, Ordinances, Rules and Regulations in force on the date of commencement of this Act in the Kerala University, except in so far as they are inconsistent with the Cochin Act, and till they are replaced by appropriate subordinate legislation under the Cochin Act. Such legislation has not so far been enacted. By Ext. P-1 notification, dated 30th of August, 1972, the Registrar of the Cochin University invited applications, inter alia, for the post of a Reader in Hindi. Section 29 of the Act provides that there shall be a Board of Appointments for the purpose of making selections for appointment of Professors, Readers and Lecturers in the University Service. The composition and the personnel of the Board is also indicated by that section. The Board is to consider the applications and submit to the Syndicate its recommendations as to the selections referred to it. If the Syndicate considers that the recommendations of the Board are not acceptable, it shall record its reasons and order a fresh selection. 2. In accordance with Ext. P-1 notification, the petitioner and the third respondent were among the applicants interviewed by the Board. The petitioner has alleged that he was assigned rank No. 1, and the third respondent, rank No. 2. It is unnecessary to notice the ranks of the remaining persons interviewed by the Selection Committee or to detail the respective qualifications and merits of the petitioner and the third respondent. 3. The petitioner has alleged that he was assigned rank No. 1, and the third respondent, rank No. 2. It is unnecessary to notice the ranks of the remaining persons interviewed by the Selection Committee or to detail the respective qualifications and merits of the petitioner and the third respondent. 3. Section 6 (2) of the Act reads: "6 (2) In making appointments to posts in any service, class or category under the University, the University shall mutatis mutandis observe the provisions of clauses (a), (b) and (c) of rule 14 and the provisions of rules 15, 16 and 17 of the Kerala State and Subordinate Service Rules as amended from time to time." It is enough to note that sub-clauses (a) to (c) of rule 14, and rules 15 to 17 of the Kerala State and Subordinate Service Rules, incorporated in the above section, provide for, what is commonly referred to, as the rule of 'communal rotations and reservations' in the matter of making appointments to the services. The petitioner's grievance is that instead of plainly and simply following the statutory mandate enjoined by section 6 (2) of the Act which itself, according to the petitioner, was bad enough for him the Syndicate by Ext. P-2 put a gloss on the above statutory provision which further strait-jacketed the petitioner's chance for selection. The petitioner was excluded and the third respondent selected as seen from Ext. P-3. A resolution of the Syndicate, as the latter belonged to the category of "Other Backward Classes", whose turn the vacancy was adjudged to be, on the basis of Ext. P-2; whereas, if the mandate in section 6 (2) had been followed, the petitioner would have had the appointment on the basis of merit. 4. The facts regarding the interview and selection, stated by the petitioner and noticed earlier are not disputed in the counter affidavit of the University, But it was contended that under section 6 (2) of the Act, the University was empowered to apply the concerned rules "mutatis mutandis". This, according to the University, empowered it to make necessary changes so as to meet the particular needs of the University. It was said that having considered how best to implement the provisions of section 6 (2) of the Act, the Syndicate of the University took a decision evidenced by Ext. P-2 Minutes, dated 17th July 1972. The relevant portion of Ext. It was said that having considered how best to implement the provisions of section 6 (2) of the Act, the Syndicate of the University took a decision evidenced by Ext. P-2 Minutes, dated 17th July 1972. The relevant portion of Ext. P-2 reads as follows: "Preliminary minutes of the meeting of the Syndicate held on 17th July, 1972 at 10-30 A. M. * * * * * Resolved that: (i) The rules mentioned under section 6 (2) of Cochin University Act, 1971 be implemented in the case of teaching staff as a class except in the case of the post of Professor which shall be filled up exclusively in consideration of merit; but the reservation quota against this category should be provided additionally in the category of Readers, Lecturers, Teaching Assistants, etc. taken collectively." Ext. P-2 is traced to the Syndicate's powers under section 21 (8) of the Act, to appoint teachers and other employees of the University of a particular rank and prescribe their duties. But that very section itself is "subject to the provisions of the Act" and, therefore, of section 6 (2). As for the power of changing and altering Rules 14 (a) to (c) and 15 to 17 of the State and Subordinate Service Rules, enjoined to be followed by section 6 (2), we are inclined to think that the power to apply them 'mutatis mutandis', would not include a power to make substantial changes or amendments to the rules themselves. Formal and inconsequential changes for dovetailing the rules into the frame-work of the Act, alone seem to be contemplated. Whatever that be, the provisions of section 6 (2) themselves, cannot certainly be changed by the Syndicate. 5. The question then is: is Ext. P-2 resolution of the Syndicate warranted by section 6(2) of the Act? We should think not. The section ordains compliance with clauses (a), (b) and (c) of rule 14, and of rules 15 to 17 of the State and Subordinate Service Rules in making appointments to posts in any service, class or category under the University. These rules let in the principle of communal reservation, rotation and sub-rotation, sanctioned by clauses (a) to (c) of rule 14, and by rules 15 to 17. These rules let in the principle of communal reservation, rotation and sub-rotation, sanctioned by clauses (a) to (c) of rule 14, and by rules 15 to 17. The applicability of these principles is conditioned under the rules themselves, by two requirements insisted on in the opening part of rule 14, viz., (1) that the special rules should have prescribed the principle of reservation of appointments to any service; or (2) the Government by notification should have directed that the said principle would apply to the appointments. This part of rule 14, however, which precedes clauses (a) to (c) is not incorporated in section 6 (2) of the Act. The result is that the rules of communal reservation and rotation must operate on "appointments to posts in any service, class or category under the University." The service, as we see it, is the University service, class may be such, for instance, as teaching and non-teaching staff, and the categories, may be for instance, Readers, Lecturers and Teaching Assistants (among the teaching staff), and from the Registrar down to the lower minions, (among the non-teaching staff). The injunction in section 6 (2) is absolute that in making appointments to "posts" we think this should mean all posts rules 14 (a) to (c) and 15 to 17 must have full play. The provision cannot either be softened or intensified by a resolution of the Syndicate of the type of Ext. P-2. The remedy perhaps lies in incorporating the opening paragraph of rule 14 of the General Rules also, mutatis mutandis, into section 6 (2). So long as this has not been done, Ext. P-2 is of no avail, and a selection based on it, cannot be upheld. And the petitioner has a legitimate grievance against Ext. P-2 principle of selection. For, if section 6 (2) were to operate on its own terms, selection to the post of Reader, for the first time made by the University, should, in the first turn, go to the candidate adjudged best on open competition, and only on the next turn or turns to candidates on the principle of communal rotation. But, if the principle of reservations and rotations were to be applied to the totality of the posts Ext. But, if the principle of reservations and rotations were to be applied to the totality of the posts Ext. P-2 would exclude Professors from the rule of reservations, and make up for the lost benefit to the deprived communities by a proportionate weightage in the other categories different results follow. 6. Ext. P-3-A is a copy of the Minutes of the Meeting of the Syndicate held on 6th January, 1973. The relevant portion reads: "The Syndicate considered the appointments to the various posts for which the selection committees have given their recommendation. Resolved that in the light of the recommendation of the Standing Committee on staff regarding the implementation of the reservation principle the following postings be made. These recommendations were accepted for the future (Appendix). 1. Reader in Hindi It was noted to be a reservation appointment of O.B.C. It was resolved that Sri Ramachandra Dev, O.B.C, may be appointed to this post." In so far as this was based on the principle adopted in Ext. P-2, which is in contravention of section 6 (2) of the Act, Ext. P-3-A cannot be sustained. 7. The petitioner's counsel had a wider argument, that by virtue of the Full Bench decision of this court in Hariharan Pillai v. State of Kerala, 1967 K.L.T. 266 F.B., the principle of communal reservations and rotations sanctioned by rule 14, clauses (a) to (c) and 15 to 17 of the Kerala State and Subordinate Service Rules, cannot be applied at all after 31st March 1968, without re-examination and a fresh assessment which has not been finalised so far , and for that reason again, the appointment of the 3rd respondent, applying these rules, was invalid. As rightly pointed out by Counsel for the University, even assuming the effect of the Full Bench decision to be, as stated, the effect of legislative incorporation of the rules into the Act is that, irrespective of whether the rules survive or not, the statute which incorporated them will, on its own, give effect to the incorporated provision (vide Ram Sarup and others v. Munshi and others, A.I.R. 1963 S.C. 553. The validity of section 6 (2) itself has not been attacked before us. We must therefore reject the wider argument of counsel for the petitioner. 8. It was again contended by counsel for the petitioner, that even the principle embodied in Ext. The validity of section 6 (2) itself has not been attacked before us. We must therefore reject the wider argument of counsel for the petitioner. 8. It was again contended by counsel for the petitioner, that even the principle embodied in Ext. P-2 resolution has been implemented by the University in a haphazard fashion by picking and choosing certain vacancies and applying the principle of communal rotation and reservation to them as the University pleased. This was sought to be made good from particulars of appointments so far made by the University as seen from Ext. P-3, a copy of the Minutes of the Standing Committee on Staff of the Syndicate of the University. From the particulars furnished, it was sought to be made out that on 10th July 1971, four vacancies had occurred, namely (1) Lecturer, S.M.S. (2) Professor, S.M.S. (3) Reader in Hindi and (4) Research Assistant in Law; that appointments to the first was made on 17th July 1972 by open competition; to the second on 6th November 1972 applying the principle of reservation; to the 3rd and the 4th on 6th January 1973, applying the principle of reservation to the 3rd, and of open competition to the 4th. Attention was called to the remarks seen in Ext. P-3 against the post of 'Reader in Hindi' that: "This vacancy has occurred earlier." The picture disclosed by Ext. P-3 has caused us some concern as to the way in which the University proceeded to apply the principle formulated by it in Ext. P-2. The matter requires a careful and detailed analysis; and on the facts and materials placed before us without fuller details and explanation, we do not think we would be justified in making a final pronouncement. In the view that we take, that there has been a contravention of section 6 (2) of the Act, that seems to be unnecessary. In the result, we allow this O.P. by quashing Ext. P-2 resolution of the Syndicate, as contrary to the provisions of section 6 (2), in so far as it directs as to how the section is to be implemented in case of teaching staff (we have quoted the relevant portion earlier in this judgment). We quash also the consequential direction of the Syndicate contained in Ext. P-2 resolution of the Syndicate, as contrary to the provisions of section 6 (2), in so far as it directs as to how the section is to be implemented in case of teaching staff (we have quoted the relevant portion earlier in this judgment). We quash also the consequential direction of the Syndicate contained in Ext. P-3A in so far as it relates to Reader in Hindi (portion already quoted) and direct that the result of the selection made by the Selection Committee for the post of Reader be announced without reference to Ext. P-2 and P-3A and in strict accordance with section 6 (2) of the Act as expounded in this judgment. The O.P. is allowed as above. No costs.