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2011 DIGILAW 1208 (KER)

Athira Ashok v. Kannur University

2011-12-22

T.R.RAMACHANDRAN NAIR

body2011
Judgment : 1. All these writ petitions concern a common issue regarding the filling up of the post of Assistants in Kannur University. WP (C) Nos. 21142/2010 & 36023/2010 are filed by persons who are claiming that they are fully qualified for appointment if a fresh notification is issued by the University. In WP (C) Nos. 6068/2011 and 11523/2011, the petitioners are candidates who have been included in the rank list published by the University for appointment to the said post. The whole dispute is whether the University can make appointment, in excess of the number of vacancies specified in the notification. 2. Ext. P1 produced in WP (C) No. 21142/2010 is the copy of the notification issued by the University dated 04/09/2008. Against the post of Assistant, the number of vacancies shown is 45. After conducting a written test as well as interview, a rank list was published on 02/08/2010. Forty -five vacancies have been filled up by making appointments also. The contention taken by the petitioners in WP (C) Nos. 21142/2010 and 36023/2010 mainly is that exceeding the number of vacancies notified, the University is trying to fill up further vacancies, which will deprive the right of the petitioners under Art.14 and Art.16 of the Constitution of India. They contend for the position that since the exact number of vacancies have been specified in the notification, the University cannot go beyond the said limit after exhausting the vacancies notified for making further appointments. It is pointed out that there is no prescription in the notification that the vacancies notified as 45, could be varied at a later point of time, by the University and further appointments can be made in respect of any anticipated / future vacancies exceeding 45, from the same rank list. 3. Apart from the said contention, the petitioner in WP (C) No. 21142/2010 has challenged Exts. P3 and P4 orders by which respondents 2 to 10 have been granted appointments as Assistants by way of category change. Ext. P3 is the order dated 29/04/2004 whereby respondents 2 and 3 who were holding the posts of Senior Grade Typist and Senior Grade Stenographer, were allowed category change to come over to the post of Assistant Grade II, pursuant to a decision taken by the Syndicate. Similar is the order Ext. Ext. P3 is the order dated 29/04/2004 whereby respondents 2 and 3 who were holding the posts of Senior Grade Typist and Senior Grade Stenographer, were allowed category change to come over to the post of Assistant Grade II, pursuant to a decision taken by the Syndicate. Similar is the order Ext. P4, whereby respondents 4 to 10 who were also holding the posts like Senior Grade Typist, Upper Division Typist, Stenographer Grade I and Sweeper, were given category change. The contention raised is that the only method to fill up the vacancy of Assistant is by direct recruitment and therefore as the University Act or Statute do not prescribe any other mode of appointment, those orders cannot be sustained. 4. In WP (C) Nos. 6068/2011 and 11523/2011 as already noticed, the petitioners are candidates included in the rank list published by the University. Their contention is that there are sufficient number of vacancies even now existing in the University and even as on the date of publication of the notification Ext. P1, actually there were 66 vacancies of Assistants and at least to that extent the vacancies could be filled up by the University. Their contention is that going by the decision of the Syndicate produced as Ext. P3 in WP (C) No. 6068/2011, resolving to notify all the existing / anticipatory vacancies of all teaching and non -teaching posts, it can be seen that there were more number of vacancies which were existing than those notified. Ext. P4 therein is a resolution of the Syndicate for instituting 86 numbers of non - teaching posts, sanctioned by the Government as per order dated 26/05/2008. It is therefore contended that the limit provided in the notification as 45, has no basis and the decision of the Syndicate will enable the University to fill up anticipatory vacancies also. 5. In the counter - affidavit filed by the University in WP (C) No. 21142/2010, various facts have been explained. It is averred that for the post of Assistant, nearly 15000 applications were received and the written test was conducted in January, 2010. The short list was published on 03/07/2010. After interview, the rank list was published. As per the total sanctioned strength of Assistants in the University at present there are 177 and 113 regular Assistants who are in the service of the University. The short list was published on 03/07/2010. After interview, the rank list was published. As per the total sanctioned strength of Assistants in the University at present there are 177 and 113 regular Assistants who are in the service of the University. Therefore, 64 regular vacancies and the anticipatory / subsequent vacancies are also to be filled up from the rank list published by the University. Ext. R1(a) is the resolution dated 05/05/2008 resolving to notify all the existing / anticipatory vacancies. Ext. R1(b) is the communication dated 26/05/2008 sanctioning various posts including 45 posts of Assistants. The 45 posts of Assistants are newly sanctioned by the Government which was the number mentioned in the notification. Some more vacancies existed due to promotion to higher posts sanctioned. Thus, 66 vacancies had existed in the University even prior to the notification dated 04/09/2008. Category change was allowed to seven persons on 08/08/2008 and two physically handicapped persons were appointed in tune with the Government's scheme for regularisation of physically challenged employees appointed through Employment Exchange from 15/08/1998 to 15/08/1999. Thus, there were 57 vacancies of Assistants plus other vacancies in the cadre of Assistants which arose due to promotion / retirement, etc. in the category of Assistants. 6. The stand of the University is also that they are competent to make appointment in any of the available vacancies from the rank list. Regarding the category change granted, it is mentioned that the same is not illegal. Way back in the year 2000-2001, as per Ext. R1(c) category change was allowed to one Shri. Reji O. P. from the post of Typist Senior Grade to Assistant Grade II. Similarly, one Shri. Jagadish and Smt. Anu Zacharia were also permitted category change on 29/04/2004 pursuant to the resolution of the Syndicate dated 24/04/2004. Respondents 4 to 10 were permitted category change to the post of Assistant Grade II in compliance with the Syndicate's decision dated 01/07/2008. All these orders were passed based on the decision of the Syndicate. The category change admissible to Government employees are applicable to the University employees also. There is no illegality in the same. Finally, it is pointed out in para 10 that the validity of the rank list is for a period of one year, which may be extended for a period of three years. 7. The contesting respondents in WP (C) Nos. There is no illegality in the same. Finally, it is pointed out in para 10 that the validity of the rank list is for a period of one year, which may be extended for a period of three years. 7. The contesting respondents in WP (C) Nos. 21142/2010 and 36023/2010 vehemently opposed the contentions of the petitioners and point out that there is no legal bar for the University in filling up the remaining vacancies from the same rank list. The locus standi of the petitioners to file these writ petitions are also under dispute. It is pointed out that the writ petitions are bad for non joinder of necessary parties, as many of the persons who could secure appointment if further vacancies are filled up from the rank list, have not been impleaded. 8. Heard Shri. P. K. Ibrahim, learned counsel for the petitioner in WP (C) No. 21142/2010 and for some of the contesting respondents in WP (C) Nos. 6068/2011 and 11523/2011, Shri. A. G. Basil, learned counsel for the petitioner in WP (C) No. 36023/2010, Shri. V. Philip Mathews, learned counsel for the petitioners in WP (C) No. 6068/2011 and for some of the contesting respondents in WP (C) No. 21142/2010 and Shri. Millu Dandapani, learned counsel for the petitioners in WP (C) No. 11523/2011, Shri. M. Saseendran, learned Standing Counsel for the University, Shri V. E. Abdul Gafoor, some of the contesting respondents in WP (C) No. 21142/2010 and Shri. P. C. Sasidharan, learned counsel appearing for some of the respondents in WP (C) No. 21142/2010. 9. Shri P. K. Ibrahim, learned counsel for the petitioner in WP (C) No. 21142/2011 submitted, by relying upon the various decision of the Apex Court and this Court, that when a notification is issued specifying the number of vacancies, the same cannot be exceeded at all. It is pointed out that on making appointment to 45 vacancies, the rank list will be deemed to have been exhausted and any further vacancy can be filled up only by publishing a fresh notification. It is pointed out that there is no provision enabling the University under the University Act or the First Statutes, to fill up the vacancies arising during the currency of the rank list, from the same list. It is pointed out that the University has not provided any stipulation in Ext. It is pointed out that there is no provision enabling the University under the University Act or the First Statutes, to fill up the vacancies arising during the currency of the rank list, from the same list. It is pointed out that the University has not provided any stipulation in Ext. P1 notification with regard to the filling up of further vacancies beyond those notified. There is no stipulation in the notification that the number notified as 45 is approximate. Therefore, when the notification itself gives due information to the candidates, the rights of persons like the petitioner will be infringed and any attempt by the University to go beyond the notified vacancies, will violate Art.14 and Art.16 of the Constitution. Regarding the category change also, learned counsel submitted that the only method for filling up of the post of Assistant is by direct recruitment. Therefore, an indirect method by allowing category change cannot be resorted to. Shri. Basil, learned counsel appearing for the petitioner in WP (C) No. 36023/2010 supported these arguments by relying upon various decisions of the Apex Court and this Court. 10. The contentions raised by Shri. P. C. Sasidharan, Shri. M. Saseendran, learned Standing Counsel for the University, Shri. Philip Mathews, learned counsel for the petitioners in WP (C) No. 6068/2011 and Shri. Millu Dandapani, learned counsel for the petitioners in WP (C) No. 11523/2011 are that already there is a resolution by the University that existing and anticipatory vacancies could be filled up. Therefore, the same is a policy decision by the University and there is no harm in filling up the vacancies from the same rank list itself. 11. The legal position in regard to these aspects, have been laid down by the Apex Court and this Court in various decisions. Both sides have relied upon the decision of the Apex Court in Prem Singh and Others v. Haryana State Electricity Board and Others, 1996 KHC 1492 : 1996 (4) SCC 319 : JT 1996 (5) SC 219 : 1996 (II) LLJ 786 SC : 1996 (4) SCALE 354 : 1996 Supp (2) SCR 401 and the judgment of this Court in WP (C) No. 17244/2010, regarding certain appointments in the Kerala Agricultural University, was also relied upon by Shri P. C. Sasidharan. 12. The notification herein will show that the number of vacancies against the post of Assistant, is given as 45. 12. The notification herein will show that the number of vacancies against the post of Assistant, is given as 45. There is no indication in the notification that the same is approximate or subject to any variation. No mention is made with regard to the filling up of any vacancy exceeding 45, from the rank list prepared pursuant to the said notification. There is also no other clause in general terms enabling the University to make appointment, in respect of vacancies which may arise during the currency of the rank list also. The material facts of the case will show that the number 45 tallies with the Government Order Ext. R1(b). Therein, the total number of non -teaching posts sanctioned is 86 and the number of posts for Assistants included therein is 45. The resolution of the Syndicate (Ext. R1(a) is dated 05/05/2008. Therein, it is stated as follows: "Resolved to notify all the existing / anticipatory vacancies of all teaching and nonteaching posts." Significantly, no reference is made to the number and names of posts therein. Therefore, the same is only a general one and it is not confined to the post of Assistant. The Government Order sanctioning certain posts, Ext. R1(b), is subsequent to Ext. R1 (a), which is dated 26/05/2008. The notification is dated 04/09/2008 which is subsequent. No other resolution or policy decision of the Syndicate of the University to increase the number of vacancies beyond 45 is relied on or produced. The notification was not amended, altered or modified by any subsequent notification as regards the number of vacancies in the post of Assistant. Even with regard to the rank list published as per Ext. R1(d) produced in WP (C) No. 21142/2010, regarding the period of validity or regarding the filling up of the vacancies of Assistant beyond 45 during the currency of the rank list, nothing is mentioned. It is mentioned in the counter - affidavit that the period of rank list can be for one year which may be extended to three years. Evidently, the Syndicate has not assessed the number of vacancies at the time when the resolution was taken or at any rate the same is not reflected in the resolution. This is the factual scenario as far as the notification itself is concerned. 13. Evidently, the Syndicate has not assessed the number of vacancies at the time when the resolution was taken or at any rate the same is not reflected in the resolution. This is the factual scenario as far as the notification itself is concerned. 13. Now we will come to the relevant principles which are clear from the various decisions of the Apex Court and this Court. In Prem Singh's case, 1996 (4) SCC 319, 1996 KHC 1492 : JT 1996 (5) SC 219 : 1996 (II) LLJ 786 SC : 1996 (4) SCALE 354 : 1996 Supp (2) SCR 401 after referring to various decisions of the Apex Court the principle was laid down in para 25 thus: "The selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged, the Court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case." What is discernible from the above principle is that if the requisition and advertisement are for a certain number of vacancies, no appointment should be made than the number of posts advertised. Only in exceptional circumstances or in an emergent situation the same can be done and that too by taking a policy decision. Therefore, the question herein is whether there is a policy decision as well as any emergent situation justifying the deviation from the general principle. 14. Only in exceptional circumstances or in an emergent situation the same can be done and that too by taking a policy decision. Therefore, the question herein is whether there is a policy decision as well as any emergent situation justifying the deviation from the general principle. 14. In Ashok Kumar and Others v. Chairman, Banking Service Recruitment Board and Others, 1996 KHC 614 : AIR 1996 SC 976 : 1996 (1) SCC 283 : 1996 SCC (L&S) 298 it was held that the recruitment of the candidates in excess of the notified vacancies, is a denial and deprivation of the constitutional right under Art.14 and Art.16(1) of the Constitution of India. It was further held therein that appointment of the persons kept in the waiting list to the vacancies which have arisen subsequently, is unconstitutional. In paragraph 5, the relevant principles were declared thus: "Art.14 read with Art.16(1) of the Constitution enshrine fundamental right to every citizen to claim consideration for appointment to a post under the State. Therefore, vacant posts arising or expected should be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. The recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Art.14 read with Art.16(1) of the Constitution. The procedure adopted, therefore, in appointing the persons kept in the waiting list by the respective Boards, though the vacancies had arisen subsequently without being notified for recruitment, is unconstitutional." 15. In Surinder Singh and Others v. State of Punjab and Another, 1997 KHC 1111 : AIR 1998 SC 18 : 1997 (8) SCC 488 : 1997 (5) SLR 269 also a similar question arose for consideration. Reference was made to the decision in Prem Singh's case, 1996 (4) SCC 319, 1996 KHC 1492 : JT 1996 (5) SC 219 : 1996 (II) LLJ 786 SC : 1996 (4) SCALE 354 : 1996 Supp (2) SCR 401 and in paragraph 15 the principles stated therein was explained thus: "It is in no uncertain words that this Court has held that it would be improper exercise of power to make appointments over and above those advertised. It is only in rare and exceptional circumstances and in emergent situation that this rule can be deviated from. It is only in rare and exceptional circumstances and in emergent situation that this rule can be deviated from. It should be clearly spelt out as to under what policy such a decision has been taken. Exercise of such power has to be tested on the touchstone of reasonableness. Before any advertisement is issued, it would, therefore, be incumbent upon the authorities to take into account the existing vacancies and anticipated vacancies. It is not as a matter of course that the authority can fill up more posts than advertised." Finally, in para 16, it was held that on the facts of the said case, no exceptional circumstances and emergent situation were existing. Therefore, the principle reiterated therein is also that notified vacancies alone could be filled up. 16. The very same principle has been reiterated in certain recent decisions of the Supreme Court. First of the same is Rakhi Ray and Others v. High Court of Delhi and Others, 2010 KHC 4079 : 2010 (2) SCC 637 : 2010 (1) KLT SN 110 : AIR 2010 SC 932 : 2010 (2) SCALE 93. After referring to Prem Singh's case (supra), and Surinder Singh's case (supra), and other decisions on the point, the legal position was analysed thus in paragraphs 14 and 15: "14. In view of above, the law can be summarised to the effect that any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of Art.14 and Art.16(1) of the Constitution of India, thus, a nullity, inexecutable and unenforceable in law. In case the vacancies notified stand filled up, process of selection comes to an end. Waiting list etc. cannot be used as a reservoir, to fill up the vacancy which comes into existence after the issuance of notification / advertisement. The unexhausted select list / waiting list becomes meaningless and cannot be pressed in service any more. 15. In the instant case, as 13 vacancies of the General category had been advertised and filled up, the selection process so far as the General Category candidates is concerned, stood exhausted and the unexhausted select list is meant only to be consigned to record room." Thus, the view taken is that once the notified vacancies stand filled up, the process of selection comes to an end and the unexhausted select list / waiting list cannot be pressed into service any more. 17. 17. In State of Orissa and Another v. Rajkishore Nanda and Others, 2010 KHC 4401 : AIR 2010 SC 2100 : 2010 (6) SCC 777 the very same principle was reiterated in paragraph 10 thus: "Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational", otherwise the exercise would be arbitrary." It was held that the filling up of the vacancies exceeding the number notified, is neither permissible nor desirable and it will amount to an improper exercise of power and only in exceptional cases the rule can be varied. Going by the facts of the case detailed in paragraph 16 therein, the advertisement provided 15 vacancies with a clear stipulation that the number of vacancies may increase. Thereafter, the authority has taken a decision to fill up 33 vacancies and a select list of 66 persons was prepared. It was held that the appointment above the 33 vacancies cannot be supported. Such is not the case herein, as the notification did not indicate that the number of vacancies may increase. 18. In Public Service Commission, Uttaranchal v. Mamta Bisht and Others, 2010 KHC 4399 : AIR 2010 SC 2613 : 2010 (12) SCC 204 : 2010 AIR SCW 3722 : 2010 (6) Scale 121 in paragraph 6 it was held thus, by reiterating the same principle: "It is settled legal proposition that vacancies over and above the number of vacancies advertised cannot be filled up. Once all the vacancies are filled up, the selection process comes to an end. In case a selected candidate after joining resigns or dies, the vacancy, so acquired cannot be filled up from the panel, which stood already exhausted. (Vide - Rakhi Ray and Others v. The High Court of Delhi and Others, AIR 2010 SC 932 : 2010 AIR SCW 1070). However, in the instant case, the advertisement itself made it clear that the vacancies could be increased and decreased and before completion of the selection process a decision had been taken to fill up 42 instead of 35 vacancies and reservation policy had been implemented accordingly." 19. However, in the instant case, the advertisement itself made it clear that the vacancies could be increased and decreased and before completion of the selection process a decision had been taken to fill up 42 instead of 35 vacancies and reservation policy had been implemented accordingly." 19. In the decision of a Division Bench of this Court in Deepthy Vijayakumar v. Joint Registrar, 2008 (4) KHC 44 : 2008 (4) KLT 321 : ILR 2008 (4) Ker. 19 : 2008 (3) KLJ 617 the Bench reiterated the principle that notified vacancies alone can be filled up. In paragraph 7, it was held thus: "Even though decision was taken for selecting two persons and Ext. P2 notification was published as early as on 09/03/1999 and last date of receipt of application was 12/04/1999 no steps were taken to fill up the post. On the basis of the vacancies that arose subsequent to the notification society cannot appoint three more persons without publishing notification or amendments. It is true that Society may be justified in inviting applications subsequently for three more persons. No such notification was made. As per Ext. P2 only two junior clerks can be appointed. Only two vacancies were notified. Subsequent vacancies which arose after the notification were not notified and five persons were appointed. It violated Arts. 14 and 16(1) of the Constitution of India. Vacant posts arising or expected should be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. The recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Art. 14 read with Art.16(1) of the Constitution. The procedure adopted, therefore, in appointing the persons kept in the waiting list by the respective Boards, though the vacancies had arisen subsequently without being notified for recruitment, is unconstitutional." 20. A later Division Bench in Dr. R. Suresh v. Mahatma Gandhi University and Others, 2009 (1) KLT 950 : 2009 (2) KHC 58 : ILR 2009 (1) Ker. 857 : 2009 (2) KLJ 76 considered the very same question under the Mahatma Gandhi University First Statutes, 1997. A later Division Bench in Dr. R. Suresh v. Mahatma Gandhi University and Others, 2009 (1) KLT 950 : 2009 (2) KHC 58 : ILR 2009 (1) Ker. 857 : 2009 (2) KLJ 76 considered the very same question under the Mahatma Gandhi University First Statutes, 1997. After referring to the various decisions of the Apex Court including Prem Singh's case, 1996 (4) SCC 319, 1996 KHC 1492 : JT 1996 (5) SC 219 : 1996 (II) LLJ 786 SC : 1996 (4) SCALE 354 : 1996 Supp (2) SCR 401 it was held that the additional vacancy cannot be filled up from the same list, as the notified vacancies were only two. It was held thus in paragraph 15: "Going by the various decisions of the Apex Court mentioned, we have no doubt in our mind that the University should have filled up only the two vacancies notified by it. If an additional vacancy was available, the only course open to the 1st respondent University, was to notify the same and fill up the same, after making the selection in accordance with law. So we find no merit in the appeal and it is accordingly dismissed." In paragraph 16, the argument that one of the vacancies was available even at the time of initial notification, was considered and it was held that that will not make any difference and that the same should have been notified. In paragraph 12, the Division Bench was of the view that if the rules specify a life for the rank list and also permit appointments from that list to vacancies reported till the expiry of the list, then alone more vacancies than the notified number, could be filled up. The crucial finding is as follows: ' "It is more or less fairly settled that if the rules governing selection provide a life for the rank list and also permit appointments from that list to vacancies reported till the expiry of the list, there is nothing wrong with filling up more vacancies than the notified vacancies." Their Lordships also held the view therein that if there is any proposal to fill up more vacancies, that decision should also be taken by the competent body and should be published along with the notification. The said aspect was explained in paragraph 12. 21. The said aspect was explained in paragraph 12. 21. It is vehemently argued by Shri M. Saseendran, Shri. P. C. Sasidharan and Shri. Philip Mathews that the decision of the Apex Court in Prem Singh's case, 1996 (4) SCC 319, 1996 KHC 1492 : JT 1996 (5) SC 219 : 1996 (II) LLJ 786 SC : 1996 (4) SCALE 354 : 1996 Supp (2) SCR 401 will clearly apply to the facts of this case also, as it was held therein that in exceptional circumstances or in emergent situation more appointments could be made. Shri. M. Saseendran relied upon another decision of the Apex Court in State of J & K and Others v. Sanjeev Kumar and Others, 2005 KHC 839 : 2005 (4) SCC 148 : 2005 SCC (L&S) 447 : 2005 (3) SLR 281 : 2005 (29) AIC 933 (SC) : 2005 (3) LLN 91 : 2005 (105) FLR 62 in which, after quoting paragraphs 25 and 26 of Prem Singh's case (supra), it was held thus in paragraph 8: "As is clearly spelt from the quoted portion, the Government can by a policy decision appoint people from the waiting list. It has been laid down that on the facts of Prem Singh case 1996 (4) SCC 319 while issuing advertisement the Government could have taken into account likely vacancies. The principle in Prem Singh case was followed in Virender S. Hooda v. State of Haryana, 1999 (3) SCC 696." 22. In fact, as explained by the Division Bench in Dr. R. Suresh's case, 2009 (2) KHC 58, 2009 (1) KLT 950 : ILR 2009 (1) Ker. 857 : 2009 (2) KLJ 76 and as laid down in Prem Singh's case, 1996 (4) SCC 319, 1996 KHC 1492 : JT 1996 (5) SC 219 : 1996 (II) LLJ 786 SC : 1996 (4) SCALE 354 : 1996 Supp (2) SCR 401 there should be a policy decision in the matter by the Syndicate, the authority herein. Except the notification, nothing has been published by the University seeking to make any appointment beyond the number 45. The resolution of the Syndicate which was prior to the notification, as already noticed, does not refer to any number including the number to be notified or any number to be appointed exceeding that. Except the notification, nothing has been published by the University seeking to make any appointment beyond the number 45. The resolution of the Syndicate which was prior to the notification, as already noticed, does not refer to any number including the number to be notified or any number to be appointed exceeding that. During the course of the selection process or thereafter along with the publication of the rank list or even thereafter, no other decision, policy or otherwise of the Syndicate has come to stay. The reliance placed on the decision of the Syndicate, Ext. R1(a) produced in WP (C) No. 21142/2010 will not help the University to make any appointment beyond the vacancies notified as 45. Even though Shri. Philip Mathews submitted that the number 45 taken is arbitrarily adopted by the Registrar of the University, the University has not taken such a stand in the counter - affidavit and obviously they cannot take such a stand also as the number 45 tallies with the number of new posts of Assistants sanctioned. Evidently, in Ext. R1(a) which was taken before the Government sanctioned various posts, the Syndicate could have specified the number of existing vacancies, if any, and the vacancies arose due to promotion or otherwise, to add those vacancies also along with the expected sanction of posts. No such assessment was made. Therefore, the resolution is vague as regards the number of vacancies. Apart from that, the Syndicate of the University never contradicted the total number of vacancies contained in the notification, by any subsequent decision also. There is no erratum or subsequent notification which has sought to clarify the position further or to modify the number 45 to any other higher number. In that view of the matter, it can be seen that going by the principles stated in Prem Singh's case (supra) also, there should have been a policy decision which is quite absent here. Therefore, there cannot be any filling up of vacancies exceeding 45. The notification has a specific purpose that it is being published to bring to the notice of the intending candidates, the number of vacancies. In Dr. R. Suresh's case 2009 (2) KHC 58, 2009 (1) KLT 950 : ILR 2009 (1) Ker. Therefore, there cannot be any filling up of vacancies exceeding 45. The notification has a specific purpose that it is being published to bring to the notice of the intending candidates, the number of vacancies. In Dr. R. Suresh's case 2009 (2) KHC 58, 2009 (1) KLT 950 : ILR 2009 (1) Ker. 857 : 2009 (2) KLJ 76 in para 12, the Division Bench has clearly laid down that if a policy decision is taken by the University to add any further vacancies than those notified, such a decision should also be published along with the notification. Herein also, there is no statutory provision either under the University Act, Statute or Ordinance, providing that vacancies arising during the life period of the rank list, could be filled up from the same list. Therefore, the situation herein is identical to those contained in Dr. R. Suresh's case (supra). 23. One of the contentions raised by the learned Standing Counsel for the University and learned counsel appearing for the other contesting respondents is that even as on the date of notification, 56 vacancies were existing and therefore they could be termed as anticipatory vacancies covered under Ext. R1(a) resolution. I cannot agree. The said argument will also fall to the ground, in the light of paragraph 16 of the judgment in Dr. R. Suresh's case (supra) that such vacancies also should have been notified. 24. Going by the decisions of the Apex Court discussed above, the right that is infringed, if any attempt is made to fill up the vacancies exceeding the number notified, is one under Art.14 and Art.16 of the Constitution of India. Therefore, by no stretch of imagination it can be held that an appointing authority can act and make appointment exceeding the number of vacancies notified, without having any backing by the notification or any statutory provision. The Apex Court has clearly taken the view that such an attempt will be impermissible in law. 25. Shri. Philip Mathews argued that the candidates included in the notification, has got a right to be considered for selection and appointment and their right cannot be curtailed by any arbitrary decision to fix the number of vacancies as 45. The Apex Court has clearly taken the view that such an attempt will be impermissible in law. 25. Shri. Philip Mathews argued that the candidates included in the notification, has got a right to be considered for selection and appointment and their right cannot be curtailed by any arbitrary decision to fix the number of vacancies as 45. He relied upon the decision of the Apex Court in Shankarsan Dash v. Union of India, 1991 KHC 956 : 1991 (3) SCC 47 : 1991 SCC (L&S) 800 : 1991 (17) ATC 95 : AIR 1991 SC 1612 : 1991 (2) SLR 779 : 1991 (62) FLR 981 : 1991 (2) LLN 65 in that context. The decision of the Apex Court therein lays down the principle that "ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post." It was explained that "if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted." Plainly, the said principle will not help the case of the petitioners to seek appointment in vacancies which are not notified. Evidently, the principle stated by the Apex Court in the various decisions referred to above, will show that once the vacancies notified have been filled up, the rank list does not survive in a situation like this, wherein there is no other statutory provision to support the argument that the University can make appointment beyond the notified vacancies. Even though a candidate has got a right to be considered for selection, in a situation like this, that right can only be for consideration against a post coming within the number 45 and not in respect of any number beyond that. It cannot be said that the notification attempted here, to fix the number as 45, is arbitrary. That was with reference to the Government Order sanctioning 45 posts. The number is not fixed up from air or without any supporting material. It is not as if the Registrar has acted arbitrarily in the matter by issuing the notification, as argued by the learned counsel for the petitioners in WP (C) No. 6068/2011, especially since the resolution of the Syndicate did not specify any number at all. The number is not fixed up from air or without any supporting material. It is not as if the Registrar has acted arbitrarily in the matter by issuing the notification, as argued by the learned counsel for the petitioners in WP (C) No. 6068/2011, especially since the resolution of the Syndicate did not specify any number at all. The inaction of the Syndicate even after the notification was published fixing the number as 45 and the absence of issuance of an erratum notification to alter the number or to notify any more number before the last date of receipt of applications, is also very important to assess the situation herein. The Syndicate which was well aware about the factual position, did not raise their little finger in the matter and hence the attempt of Shri. Philip Mathews to differentiate between the action of the Syndicate and that of the Registrar, cannot have any credence at all. Such a contention cannot be accepted, especially since the University in their counter -affidavit has no case that the Registrar has acted against the decision of the Syndicate also. 26. The locus standi of the petitioners in WP (C) Nos. 21142/2010 and 36023/2010 is also challenged by the contesting respondents. Shri. P. C. Sasidharan vehemently submitted that the petitioners have no locus standi in the matter. It is also pointed out that the necessary parties have not been impleaded. In that context, the decision of the Apex Court in Siraj v. High Court of Kerala, 2006 KHC 595 : 2006 (2) KLT 923 : ILR 2006 (2) Ker. 561 : 2006 (2) KLJ 344 : 2006 (6) SCC 395 : AIR 2006 SC 2339 was relied upon. He further relied upon a recent decision of the Apex Court in Seshadri v. Mangati Gopal Reddy, 2011 KHC 4296 : 2011 (2) KLT SN 31 : 2011 (5) SCC 484 : AIR 2011 SC 1883 taking the view that "the Court does not approve of an approach that would encourage petitions filed for achieving oblique motives on the basis of wild and reckless allegations made by individuals, i.e. busybodies, having little or no interest in the proceedings." The number of candidates included in the rank list are more than 600. Shri. P. K. Ibrahim, learned counsel for the petitioner in WP (C) No. 21142/2010 submitted that he is not challenging the validity of any of the appointments made to the 45 number of vacancies and therefore it is not a case where he is attacking the merits of the selection of any of the candidates. Hence, it is submitted that all the candidates who participated in the selection process, need not be arrayed as parties herein. In fact, in Siraj's case 2006 (2) KLT 923, 2006 KHC 595 : 2006 (2) KLT 923 : ILR 2006 (2) Ker. 561 : 2006 (2) KLJ 344 : 2006 (6) SCC 395 : AIR 2006 SC 2339 the select list was challenged and the Apex Court in paragraph 62, was of the view that "acceptance of the contention of the of the petitioner will result in a total re -arrangement of the select list. The candidates will be displaced from their present ranks, besides some of them may also be out of the select list of 70. Accordingly it was held that it was therefore imperative that all the candidates in the select list should have been impleaded as parties to the writ petitions as otherwise they will be affected without being heard. Publication in the newspaper does not cure the defect." The situation herein is not identical. Herein, the petitioner in WP (C) No. 21142/2010 is only attacking the attempt to make any appointment beyond the 45 vacancies notified in the advertisement. As I have already held, there cannot be any filling up of vacancies beyond 45, in the light of the various facts discussed already. Therefore, it can be seen that apart from the candidates already appointed to the 45 vacancies, the remaining candidates have no right to get appointment also and the defect pointed out by Shri P. C. Sasidharan that all the 600 candidates should have been made parties, cannot survive here. Apart from that, WP (C) Nos. 6068/2011 and 11523/2011 are filed by certain candidates included in the rank list, seeking for a direction to appoint more candidates than the notified vacancies. Therefore, the legal question that arises for consideration in all these cases is whether there could be any appointment beyond the number 45. In that view of the matter also, the objection cannot survive. 27. 6068/2011 and 11523/2011 are filed by certain candidates included in the rank list, seeking for a direction to appoint more candidates than the notified vacancies. Therefore, the legal question that arises for consideration in all these cases is whether there could be any appointment beyond the number 45. In that view of the matter also, the objection cannot survive. 27. Learned counsel appearing for the party respondents relied upon a decision rendered by me in WP (C) No. 17244/2010, with regard to the selection and appointment made in the post of Light Motor Driver in Agricultural University. Therein also, the question was whether any appointment beyond the notified vacancies could be made. In the notification therein, it was specified that "the number of vacancies subject to variation." It is in that context this Court held that the notification itself has indicated that the number fixed is provisional which could be subject to alteration. Therein, reliance was placed on Benny and Others v. Registrar of Co -operative Societies, 1998 KHC 158 : 1998 (1) KLJ 602 : 1998 (1) KLT 858 : 1998 (5) SCC 269 : 1998 SCC (L&S) 1338 : AIR 1998 SC 2012 : 1998 (3) LLN 10. The situation herein is not similar or identical. Herein, there is no stipulation that the number notified is subject to any variation. Therefore, the principle stated therein cannot have any application here. It is also stated that the operation of the judgment in WP (C) No. 17244/2010 is stayed in WA No. 505/2011. 28. Attack is made on the locus standi of the petitioners in WP (C) Nos. 21142/2010 and 36023/2010, as noted above, that they were waiting in the wings and that the petitioner in WP (C) No. 21142/2010 could have applied for the post also. All these objections cannot survive in the light of the fact that as regards the infringement of Constitutional right under Art.14 and Art.16(1), any intending candidate can seek for appropriate remedies under Art.226 of the Constitution of India. Herein, the question whether any appointment can be made beyond the number 45, is the one emerging in WP (C) Nos. 6068/2011 and 11523/2011 and therefore also the argument cannot be accepted. Herein, the question whether any appointment can be made beyond the number 45, is the one emerging in WP (C) Nos. 6068/2011 and 11523/2011 and therefore also the argument cannot be accepted. Heavy reliance was placed by the learned Standing Counsel for the University and learned counsel appearing for the contesting respondents of a decision of another Division Bench of this Court in Kodakara Farmers Service Cooperative Bank Ltd. v. Neena K. K. and Others, 2010 (1) KHC 540, 2010 (1) KLT 541. It is submitted that the Division Bench has taken the view that there can be an appointment beyond the notified vacancies. 29. A reading of the judgment shows that therein the various decisions of the Apex Court taking the view that there cannot be any appointment beyond the number notified, have been discussed. The facts of the case show that there was a decision by the Joint Registrar to appoint the first respondent. After considering various aspects the Division Bench, in para 4 of the judgment referred to R.182(4)(vii) and R.182(4)(viii) of the relevant rules and was of the view that the rules permit such an appointment. This is clear from the following findings: "After hearing both sides and after going through the relevant rules, we are of the view that the action of the appellant in not filling up the vacancies that arose during the validity of the list prepared pursuant to examination conducted by the Examination Board is not justified and Joint Registrar has rightly directed the appellant to appoint the first respondent, who was next in the list of selected candidates prepared by the appellant pursuant to examination conducted by the Board." After discussing R.182(4)(vii) and R.182(4)(viii), it was further held as follows: "We find that sub-clause (viii) of R.82(4) requires the Society to fill up notified vacancies within one month from the date of publication of the list of candidates prepared by it from out of the list received from the Examination Board. It is pertinent to note that under sub-clause (vii) of R.182(4), the validity of the list is retained for a period of two years from the date of publication of the same prepared by the society. It is pertinent to note that under sub-clause (vii) of R.182(4), the validity of the list is retained for a period of two years from the date of publication of the same prepared by the society. In our view, the very purpose of keeping the select list valid for two years prepared by the society based on examination conducted by the Examination Board is to enable the society to fill up the vacancies arising during the currency of the validity of the list from out of such list." Therefore, the said decision turned on the peculiar facts of the case as well as on an interpretation of the rules therein. As I have already noticed, there are no statutory provisions in the Act, the First Statutes or Ordinances enabling the University to fill up all the vacancies arising during the currency of the rank list or its life period. The situation herein is akin to those discussed in Dr. R. Suresh's case, 2009 (2) KHC 58, 2009 (1) KLT 950 : ILR 2009 (1) Ker. 857 : 2009 (2) KLJ 76 which 1 have already discussed. 30. One of the issues raised in WP (C) No. 21142/2010 is the challenge against Exts. P3 and P4 whereby category change was allowed by the University. The vehement stand taken by the learned counsel for the petitioner is that by such a category change the right of persons like the petitioner who is expecting a selection process to fill up various vacancies, will be defeated. It is pointed out that direct recruitment is the only method for filling up the vacancy and there is no enabling provision under the Statute to allow such a category change. 31. Going by the facts of the case, it can be seen that Ext. P3 is dated 29/04/2004 and Ext. P4 is dated 08/08/2008. Both these orders are passed earlier than the notification Ext. P1 dated 04/09/2008. The facts detailed in the counter -affidavit of the University show that category change was allowed by the University based on the resolutions of the Syndicate. The first decision is by the University Order dated 19/01/2001 issued on the basis of the decision of the Syndicate as item No. 2000:337 dated 14/12/2000. A copy of the order dated 19/01/2001 has been produced as Ext. R1(c). Clearly, the University has followed the same method in issuing Exts. P3 and P4. The first decision is by the University Order dated 19/01/2001 issued on the basis of the decision of the Syndicate as item No. 2000:337 dated 14/12/2000. A copy of the order dated 19/01/2001 has been produced as Ext. R1(c). Clearly, the University has followed the same method in issuing Exts. P3 and P4. What is projected by the University as a reason is that the Government allows category change to various employees. No provision of the Act, Statute or Ordinances have been relied upon enabling the Syndicate to fill up the created posts by such a category change. The orders Ext. R1(c) and Exts. P3 and P4 explain the circumstances under which category change has been allowed. The persons concerned possess the qualification for the post of Assistant Grade II. They have completed a particular number of years of service in the University, viz. 3 years, etc. Only in such cases category change has been allowed. But evidently, category change allowed as per Ext. P4 has resulted in the reduction of post for the direct recruitment category. Two appointments have been made by granting benefit to physically handicapped persons based on the relevant Government Order. 32. The orders Exts. P3 and P4 were issued long before the publication of the rank list. The beneficiaries are the employees of the University itself. Evidently, when direct recruitment alone is the method, normally the said method alone can be resorted to for filling up of the vacancies. But herein, the Syndicate, as early as in 2001, had allowed the category change and the said practice was adopted this time also. Therefore, the situation can be remedied without disturbing the beneficiaries of those orders by allowing direct recruitment in the post vacated by them subsequently either due to promotion / retirement or for other reasons, so that the method of appointment by direct recruitment is not disturbed in future. The same will serve substantial justice also. Since the beneficiaries are continuing for a long time, it may not be proper for this Court to disturb their tenure. If the appointments are set aside, they may have to go back to the parent post. In the present post held by them they have acquired status and emoluments have also been received by them. Therefore, any interference with the same will result in other severe consequences also. 33. If the appointments are set aside, they may have to go back to the parent post. In the present post held by them they have acquired status and emoluments have also been received by them. Therefore, any interference with the same will result in other severe consequences also. 33. Therefore, in respect of the posts filled up by way of category change, the University will have to adopt the method of direct recruitment in the vacancies arising due to promotion of the occupants of those posts under Exts. P3, P4 and Ext. R1(c), or others similarly placed in future selection, so that the vacancies due to be filled up by direct recruitment are satisfied in future selections. 34. Therefore, WP (C) Nos. 21142/2010 and 36023/2010 are allowed and it is declared that the first respondent University cannot make any appointment beyond the number notified in the notification as 45, to the post of Assistant, by utilising the rank list published pursuant to Ext. P1 notification. Consequently, WP (C) Nos. 6068/2011 and 11523/2011 are dismissed. No costs.