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1996 Supreme(Ker) 52
Judges : K.SREEDHARAN,J.B.KOSHY
Kerala Agricultural University - Appellant
Versus
Gopinathan Unnithan - Respondent
Case No : W.A. 371 of 1992
Decided On : 01/31/1996
Advocates Appeared :
N. Haridas For Appellant T.P. Kelu Nambiar (Sr. advocate) For Respondent
The main legal point established in the judgment is that a candidate included in the select list has no legal right to the post and that the court cannot issue a writ of mandamus directing the authorities to make the appointment.
Headnote:
University Appointment - Agricultural Statistics - Notification dated 9.11.83 - [Art.14, Art.16(1), State of Bihar v. Secretariat Asst. S.E. Union 1986 AIR 1994 SC 736-JT 1993(6) SC 462, State of Kerala v. A. Lakshmikutty & Others., AIR 1987 SC 331, Jano Singh v. Brij Lai and others, AIR 1966 SC 1631, Kerala Public Service Commission v. Dr. Kesavankutty Nair, 1977 KLT 818] - The court discussed the constitutional rights under Art.14 and Art.16(1) of the Constitution of India, emphasizing that appointment of candidates in excess of the notified vacancy is unconstitutional. The judgment also highlighted the principle that a candidate included in the select list has no legal right to the post and that the court cannot issue a writ of mandamus directing the authorities to make the appointment. The court further emphasized that the principle of 'Acts curiae neminem gravabit' does not apply when there is no mistake in granting an order of stay by the court.
Fact of the Case:
The case involved a dispute over the appointment of a candidate to the post of Professor of Agricultural Statistics at an Agricultural University. The candidate, ranked third in the select list, sought appointment against a subsequent vacancy, which was contested by the University.
Finding of the Court:
The court found that the candidate ranked third in the select list was not entitled to be appointed to the subsequent vacancy and that the court cannot issue a writ of mandamus directing the appointment of a candidate included in the select list. The court also held that the principle of 'Acts curiae neminem gravabit' does not apply when there is no mistake in granting an order of stay by the court.
Issues: The issues involved the entitlement of a candidate ranked in the select list to be appointed to subsequent vacancies, the constitutional rights under Art.14 and Art.16(1) of the Constitution of India, and the applicability of the principle of 'Acts curiae neminem gravabit'.
Ratio Decidendi: The court held that appointment of candidates in excess of the notified vacancy is unconstitutional, a candidate included in the select list has no legal right to the post, and the principle of 'Acts curiae neminem gravabit' does not apply when there is no mistake in granting an order of stay by the court.
Final Decision: The Writ Appeals were allowed, and O. P. 9539/88 was dismissed. No order was made as to costs.
Sreedharan, J.
These Writ Appeals arise from the decision in O. P. 9539/88. Appellant in W. A. 373/92 was not a party to the O. P. She has filed the W. A. after obtaining leave of this court.
2. Short facts necessary for the disposal of these Writ Appeals are as follows:-Agricultural University invited applications for selection to the post of Professor of Statistics as per Notification dated 9.11.83. It is the agreed case that the Notification was for filling up one post of professor of Statistics. Petitioner in the O.P. applied for the post among others. A select Committee prepared a rank list of three candidates. That rank list came into force with effect from 14.5.84. Immediately after the preparation of the select list, one more vacancy in the cadre of Professor of Statistics arose. So candidates ranked 1 and 2 in the select list were appointed against the two vacancies. When a subsequent vacancy arose in the cadre of Professor of Statistics, an Associate Professor who was not included in the rank list approached this court by filing O.P. 4386/84. Petitioner in 4386/84 is the appellant in W.A. 373/92. She raised a contention in that O. P. that Notification inviting application to the post of Professor of Statistics was in relation to one post only, and against the vacancies that arose subsequently, persons ranked in the select list should not be appointed. It was further stated by her that inclusion in the select list will not confer on the candidate any right to be appointed in the vacancy which was not notified. This court granted interim stay of appointment of any person against the subsequent vacancy that arose in the cadre of Professor of Statistics. The order of stay passed by this court was extended until further orders and that was in force till the disposal of the O. P. O. P. was disposed of by judgment dated 19.11,87. Thereafter, the, petitioner in O. P. 9539/88 filed representations before, University seeking appointment against the third vacancy of Professor of Statistics. University by Exts. P4 and P6 communications rejected the request made by the petitioner. Hence he approached this court inter alia praying for the issuance of a writ of mandamus directing the University to appoint him as Professor in Agricultural Statistics on the strength of the inclusion of his name in the select list which came into force with effect from 14.5.84.
3. University filed a detailed counter affidavit disputing the claim of the petitioner for appointment contending that the total number of vacancies notified was only one and the petitioner ranked No. 3 in the select list is not entitled to be appointed in the vacancy which arose subsequently. It was also contended that decision in O. P. 4386/84 will not help the petitioner to claim the post of Professor. , -
4. Learned single judge took the view that but for the order of stay issued by this court in O. P. 4386/84 restraining the University from making appointment to the post of Professor of Statistics the petitioner would have been appointed, that the order of stay passed by this court cannot adversely affect the interest of the petitioner and that he is entitled to be appointed on the principle that an act of court should not cause harm to a litigant "Acts curiae neminem gravabit". In this view the learned judge issued a direction to the University to appoint the petitioner to the post to which he was chosen as per the rank list which came into" force on 14.5.84. This direction given by the learned judge is under challenge.
5. Learned single judge in para. 4 of the judgment found fault with the University in not denying the fact that there existed one vacancy for being filled up by the candidate included in Ext. PI select list. In Para. 3 of the counter affidavit filed on behalf of the University, it was specifically stated that Ext. Pi list was published for filling up the notified single vacancy of Professor of Statistics, that petitioner who was ranked No. 3 in the
