KUNJAMMA v. UNIVERSITY OF COCHIN — 1985 DIGILAW 45 (KER)

Judgment :- 1. The matter is before us on a reference by our learned brother, Bhaskaran Nambiar, J. The question of law for decision is whether S.6(2) of the Cochin University Act (Act 30 of 1971) (the Act), takes within its sweep the provisions of R.17A of the Kerala State and Subordinate Services Rules (the Service Rules). Sub-section (2) of S.6 of the Act reads as follows:- "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 R.14 and the provisions of R.15,16, and 17 of the Kerala State and Subordinate Services Rules as amended from time to time." 2. On a plain reading of the sub-section, it is clear that R.17A of the Service Rules has not been made applicable in making appointments to posts in the service of the University. What then remains to be examined is whether by necessary implication that Rule could be deemed to have been made applicable in making appointments. 3. Certain observations in the judgment dated March 16,1982 in Q. P. No. 6104/81-C of a learned Single judge of this Court (a copy of which is at pages 73 to 86 of the paper book) have been relied on by respondents 1 and 2 (the University and the Vice-Chancellor), as also, respondents 3 and 4 (the party respondents) in support of their contention that by necessary implication it should be deemed that R.17A of the Service Rules also had been made applicable in making the appointments to the posts in the service of the University. In reaching the conclusions, relied on by the respondents, support is seen to have been sought by the learned Single Judge, from "an observation in the judgment of Gopalan Nambiyar, C. J. who spoke for the Division Bench in State of Kerala v. Sivadas (1979 KLT 678). R.17A of the Service Rules reads as follows: "Special recruitment from among the Scheduled Castes and Scheduled Tribes: Notwithstanding anything contained in these rules or in the special rules, the State Government may reserve a specified number of posts in any service, class, category or grade to be filled by direct recruitment exclusively from among the members of Scheduled Castes and Scheduled Tribes. This rule shall be deemed to have come into force with effect from 25-11-1959." The question that was posed before the Division Bench was whether the non-obstante clause in R.17A was made in displacement of R.14, and other Rules. Gopalan Nambiyar C. J. in Para.1 at page 679 of the report observed as follows: "The non-obstante clause in the Rule is quite wide and comprehensive and is sufficient to get rid of any other provision in the Rules including R.14. Two meanings may perhaps be attributed to the non-obstante clause; one that R.17A is in displacement of R.14 and other Rules; and the other that it is supplementary to these. We think that the latter is the more reasonable construction, as meant to advance the object of the Rule and suppress the mischief which it wanted to avoid." 4. The above observation made by the learned Chief Justice is sought to be interpreted by giving a meaning that that rule forms part of R.14 to 17; and that even in the absence of it having been specifically made applicable by sub-section (2) of S.6 of the Act, it should be deemed to have been made applicable. We are at a loss as to how this follows from the observation of the learned Chief Justice or how it could be read and understood to yield such a meaning. To repeat, the plain meaning does not support this approach sought to be made; and, if the observation in the judgment of the learned Chief Justice does not expressly or by necessary implications lay down any such proposition, the conclusions reached on the point in the judgment in O.P.No.6104/81 may not have any legal basis. In Para.3 at page 680, the learned Chief Justice has explained the position of R.17 A vis-a-vis R.14 to 17 very clearly. The observation of the learned Chief Justice reads: "We are afraid we cannot accept the reasoning of the learned Judge. In Para.3 at page 680, the learned Chief Justice has explained the position of R.17 A vis-a-vis R.14 to 17 very clearly. The observation of the learned Chief Justice reads: "We are afraid we cannot accept the reasoning of the learned Judge. As we see the position, the power of making special recruitment under R.17A is separate from, and independent of, the power of reservation conceded under R.14 of the Kerala State and Subordinate Services Rules." The power of making special recruitment under R.17A, as pointed out by the learned Chief Justice being separate from and independent of the power of reservation conceded under R.14 of the Service Rules, it would not be quite correct to give the expression 'supplementary' in Para.1 of the judgment as to mean that R.17A has no separate existence and formed part and parcel of R.14 to 17 of the Service Rules. All that was stressed by the learned Chief Justice was that the intention of the rule-makers in incorporating a separate Rule-R17A was not to displace R.14 to 17, but only to serve as supplementary to them. 5. In adapting the Service Rules for the purpose of making appointments to the posts in the service of the University, to the extent it was found necessary or expedient, it was open to the legislature to include or not to include a particular rule. It would be too presumptuous on our part to take a view that the legislature omitted to mention R.17A of the Service Rules while enumerating the rule in sub-section (2) of S.6 of the Act in relation to the service of the University accidentally. The legislature, having taken care to mention even the particular clauses in R.14 that would apply in making appointment to the posts in the service of the University, would not have omitted an important rule like R.17A which, as we have already noticed, has an independent and separate status unconsciously or without there being any purpose behind it. When clause (d) of R.14 has been omitted to be mentioned in sub-section (2) of S.6 of the Act, the meaning definitely is that that clause would have no application in making appointments to posts in the service of the University. When clause (d) of R.14 has been omitted to be mentioned in sub-section (2) of S.6 of the Act, the meaning definitely is that that clause would have no application in making appointments to posts in the service of the University. The same logic and the same reasoning should apply when legislature has omitted to include R.17A of the Service Rules among the Rules adapted in relation to the making of the appointments to posts in the service of the University. There is absolutely no justification to read into the Section something which the legislature has consciously and deliberately left out; and to deem that having been incorporated in the Section to suit the convenience, would run counter to all accepted principles of interpretation, particularly in view of the fact that for a harmonious construction of the provisions contained in the Rules specifically adapted by the legislature such strained interpretation is not at all necessary. We, therefore, conclude that it has not been the intention of the legislature to lay down that in making appointments to posts in the service of the University R.17A of the Service Rules would apply. It is equally clear that nothing prevents the University from prescribing methods and qualification for making appointments to the posts in the service of the University, not covered by the service rules adapted by the legislature or University. 6. Now the facts of the case. The petitioner Smt. N.S. Kunjoonjamma a graduate in Arts and Law, belonging to the Scheduled Caste, is a Section Officer in the 1st Respondent-University of Cochin since 29-9-1976. By virtue of her qualifications, age and experience she is entitled to be appointed either a Deputy Registrar or an Assistant Registrar in the University of Cochin. The Syndicate of the University of Cochin on a review of the position till the end of 1980, having found that the representation of Scheduled Castes and Scheduled Tribes in the service of the University was negligibly small, at its meeting held on 3-12-1980, by Ext. P1 resolution, decided as follows: "i. G. O. MS. 286/80/GAD dated July 17,1980 as in Appendix I be adopted in the University. ii. P1 resolution, decided as follows: "i. G. O. MS. 286/80/GAD dated July 17,1980 as in Appendix I be adopted in the University. ii. The mechanics of implementation of the G. O. be carefully worked out and a detailed note submitted to the syndicate at its next meeting for consideration." (Vide item No. 145.03 on the agenda of the syndicate mentioned at the bottom of page 15 and the resolution passed mentioned at page 16 of the paper book. 7. The question of implementation of G.O.MS. 286/80 GAD dated July 17,1980 (which forms the earlier part of the copy of the document marked Ext. P1) was elaborately considered by the Syndicate at its various meetings, and finally it was decided to go in for special recruitment in respect of 13 posts including the one post each of the Deputy Registrar and the Assistant Registrar. By Ext. P2 order Al. 054/82 dated 18th May, 1982, the University pursuant to the resolution of the Syndicate, decided to apply R.14 to 17 of the Service Rules mutatis mutandis in making appointments to the posts of the non-teaching staff in the service of the University. The four categories of non-teaching staff to whom the Service Rules are made applicable have been mentioned thereunder, and R.4 (at the bottom of page 19 of the paper book) reads as follows: "All non-teaching posts in the University be treated as direct recruitment posts. i. Provided, however, that in the case of posts listed in column No. II of Appendix I advertisement may be dispensed with, if duly qualified candidates are available in the University service, and appointments made consistent with the prevalent practice." From Appendix I annexed to Ext. P2, it could be noted that Deputy Registrar and Assistant Registrar are included in the non-teaching staff of the University and to them the proviso to direction 4 referred to above would apply. Ext. P3 is the copy of the advertisement inviting applications from qualified candidates belonging to Scheduled Castes/Scheduled Tribes Communities for appointment to the posts mentioned therein which included one post each of the Deputy Registrar and the Assistant Registrar. Ext. P4 is the copy of the representation dated 16-6-82 sent by the petitioner to the Registrar of the 1st respondent-University with reference to Ext. Ext. P4 is the copy of the representation dated 16-6-82 sent by the petitioner to the Registrar of the 1st respondent-University with reference to Ext. P3 advertisement, pointing out, inter alia, that the advertisement inviting applications for appointment to the posts of Deputy Registrar and Assistant Registrar was uncalled for and was opposed to the spirit of the proviso (i) to direction No. 4 in Ext. P2 which provided: "in the case of posts listed in column No. II of Appendix I advertisement maybe dispensed with, if duly qualified candidates are available in the University Service, and appointments made consistent with the prevalent practice", and claiming that in terms of Ext. P2 resolution of the Syndicate, the petitioner who was fully qualified for being appointed to the post of Deputy Registrar or Assistant Registrar, ought to have been appointed to the post. Towards the end of the representation, she pointed out that apart from the fact that she had 14 years of service in the University, she was also possessed of nine other items of test qualifications mentioned therein, giving the details, besides the minimum qualification prescribed for the post. The representation ended with a request that the advertisement be shelved so far as it related to the Deputy Registrar's post and she might be appointed to the said post consistent with the practice that was prevalent. In her representation dated 23-4-1981 to the Registrar of the 1st respondent University (pages 87 to 91 of the paper book) again the petitioner reiterated her request for being appointed to the post of Deputy Registrar. At the beginning of Ext. P4 representation the petitioner has made it clear that though in response to Ext. P3 advertisement she too had applied for the post of Deputy Registrar, as she did not want to be a defaulter, by doing so, her claim for being appointed to the post on the basis of her qualifications in terms of the proviso to direction 4 contained in Ext. P2 without advertisement, should not be considered as barred. 8. The University does not appear to have either considered Ext. P4 representation and the representation dated 23-4-1981 or to have given a reply to them to the petitioner. Without heeding to the protests and requests, of the petitioner, based on .the relevant provisions found in Ext. P2, the University chose to make selection pursuant to Ext. 8. The University does not appear to have either considered Ext. P4 representation and the representation dated 23-4-1981 or to have given a reply to them to the petitioner. Without heeding to the protests and requests, of the petitioner, based on .the relevant provisions found in Ext. P2, the University chose to make selection pursuant to Ext. P3 advertisement; and having known that respondents 3 and 4 were selected for appointment the writ petition was filed by the petitioner for the issue of a writ of certiorari for quashing the proceedings relating to the selection of respondents 3 and 4 for being appointed to the post of Deputy Registrar and Assistant Registrar respectively, and for other allied reliefs, 9. In the counter affidavit filed by the University, the main stand taken is that the appointment was to be made in terms of R.17A of the Service Rules, that could have been made only by direct recruitment; and in that view the petitioner could not have been appointed otherwise than by following the procedure envisaged by R.17A of the Service Rules. It was also stated that the petitioner who was appointed by direct recruitment when there were other eligible hands for promotion to that post among the Scheduled. Caste employees in the University, could not, 'in the present case say, that appointment to the posts of Deputy Registrar and Assistant Registrar, should not be made by direct recruitment after inviting applications from outsiders. 10. We have already found that R.17A in terms does not apply in making appointments to the posts in the service of the 1st respondent-University. The only other point to be considered is whether the 1st respondent University was at liberty to make the appointments in question by making a selection from among candidates (who were not in the service of the University) who responded to Ext. P3 notification, without giving effect to the direction of the Syndicate found in Ext. P2. We have absolutely no doubt the University has no such powers or discretion. P3 notification, without giving effect to the direction of the Syndicate found in Ext. P2. We have absolutely no doubt the University has no such powers or discretion. At this distance of time, it is not necessary for us to examine whether about 14 years ago the petitioner was appointed following the correct method prescribed in that behalf; assuming that there was any irregularity or procedural defect in making her initial appointment, she is not estopped from seeking the benefit legitimately due to her by virtue of the provisions contained in the resolution passed by the Syndicate which is binding on the University in the matter of making appointments to the posts of unteaching staff in the service of the University. In that view, the action of the 1st respondent University in making Ext. P3 advertisement (notification) inviting applications for appointment to the posts concerned without examining the claim of the petitioner, inspite of it having been brought'to its notice, and selecting and appointing respondents 3 and 4 to the posts of Deputy Registrar and Assistant Registrar respectively, is grossly in violation of the rules governing the appointments. The petitioner is therefore entitled to succeed. 11. The counsel for the 3rd respondent while fully adopting' the stand taken by the University with respect to the applicability of R.17A, made a further submission that Ext.P3 advertisement (notification) was issued on 22-4-82 whereas the resolution of the Syndicate which finds a place in Ext. P2 was only on 18-5-52, and the resolution having no retrospective effect, Ext.P3 notification was not in any way hit by the resolution of the Syndicate of the University. This argument has no substance at all. On a perusal of the extracts of the resolutions of the Syndicate read as items 1 to 5 in Ext. P2 (pages 52 to 63 of the paper book), we are fully satisfied that the resolution regarding direction 4, inclusive of the proviso thereto, was taken by the Syndicate much before the date of Ext. P3 notification. We have therefore no hesitation in rejecting this contention. 12. P2 (pages 52 to 63 of the paper book), we are fully satisfied that the resolution regarding direction 4, inclusive of the proviso thereto, was taken by the Syndicate much before the date of Ext. P3 notification. We have therefore no hesitation in rejecting this contention. 12. On behalf of the 4th respondent, a contention was raised that in the absence of the University making any rules governing the service conditions of the personnel in the service of the University by virtue of the provisions contained in S.62 of the Kerala University Act, the provisions of the statutes and ordinances issued under that Act should have prevailed. This contention is purely untenable; and is not supported even by the University. In Para.9 of the counter affidavit filed by the University, at page 31 of the paper book, it has been stated as follows: "She further relied on the Kerala University Ordinance on the subject. It is submitted that the provisions of the Kerala University Ordinances are not applicable to the appointment of teachers and other employees of the University. This has been so held by this Hon'ble Court in O.P.Nos.4175 and 4163 of 1972. In the judgment it has been pointed out that the provisions contained in Chapter LVIII in respect of the appointment of non-teaching staff are not available in the light of S.21 of the Cochin University Act." Clause (8) of S.21 of the Act is as follows: "21. Powers of the Syndicate:-Subject to the provisions of this Act and the Statutes, the executive powers of the University including the general superintendence and control over the institutions of the University shall be vested in the syndicate and subject likewise the syndicate shall have the following powers, namely: (8) to appoint teachers and other employees of the University of and above the rank of an Assistant Registrar and prescribe their duties; This contention has also, therefore, no legs to stand. 13. We are told that during the pendency of the writ petition, respondents 3 and 4 have been appointed to the respective posts when the stay in the matter was vacated at. the instance of the respondents. 14. In the light of the foregoing discussion, we quash the selection and appointment in respect of respondents 3 and 4 made in proceedings pursuant to Ext. P3 notification (advertisement). the instance of the respondents. 14. In the light of the foregoing discussion, we quash the selection and appointment in respect of respondents 3 and 4 made in proceedings pursuant to Ext. P3 notification (advertisement). We direct respondents 1 and 2 to consider the claim of the petitioner for her being appointed to the post of Deputy Registrar in terms of the proviso to direction 4 of the relevant resolution of the Syndicate contained in Ext. P2 as expeditiously as possible and pass appropriate orders, in any event, within three months from the date of receipt of a copy of this judgment. If there are additional vacancies of the post of Deputy Registrar and Assistant Registrar to accommodate respondents 3 and 4, there would be no objection to their being allowed to continue in their respective posts without, however affecting the claim and seniority of the petitioner to the concerned post The writ petition is allowed in the above terms. There would be no order as to costs. Issue carbon copy of this judgment to the counsel for the respective parties if applied for in that behalf, on usual terms.