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2010 Supreme(Online)(KER) 47459
HIGH COURT OF KERALA
ANTONY DOMINIC, J
S. LEKSHNMY – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/30211/2007
SRI.RAJESH NAIR
Candidates in a valid select list are entitled to consideration for vacancies, regardless of the timing within academic terms unless a statutory prohibition exists.
Headnote:
Appointment - Education - Kerala University First Statutes 1979 - The court found that the select list was valid and the candidate should have been appointed to existing vacancies, directing prompt appointment based on ranking.
Fact of the Case:
The petitioner applied for a Lecturer position at Kerala University and ranked 4th on the select list. Despite vacancies arising before the list's expiration, she was not appointed. The petitioner sought a writ for her appointment.
Finding of the Court:
The court determined that the management acted improperly by not appointing the petitioner from the valid select list when vacancies arose, despite previously appointing other candidates during an academic break.
Issues: Whether the management was obligated to appoint the petitioner to the vacancies that arose during the validity of the select list.
Ratio Decidendi: A candidate included in a valid select list is entitled to be considered for appointment when vacancies arise; the absence of a legal bar necessitates the appointment if there are available positions.
Final Decision: The court directed the management to appoint the petitioner to one of the existing vacancies based on her rank.
J U D G M E N T
The prayer sought in the writ petition is to direct the respondents to appoint the petitioner as Lecturer in Zoology on the basis of her rank in Ext.R4(a) select list.
2. Briefly stated, the facts of the case are that the 4th respondent, an educational agency, issued Ext.P1 vacancy notification inviting applications from qualified candidates for the post of Lecturer in the subjects mentioned therein. In so far as it is relevant, in response to Ext.P1, petitioner submitted an application for the post of Lecturer in Zoology in the Colleges under the Kerala University. By Ext.P2 memo, the petitioner was required to appear for an interview to be held on 16/5/2006. Petitioner appeared for the interview and in Ext.R4(a) select list published by the 4th respondent on 16/5/2006 itself, petitioner's name was included at Sl.No.4 among open merit candidates for the post of Lecturer in Zoology.
3. In terms of Clause 10(5) of the Kerala University, First Statutes 1979, Ext.R4(a) select list had a validity period of one :2 :
year, i.e., till 15/5/2007. On 29/5/2006, Rank Nos.1 and 2 among the open merit candidates and Rank No.1 in the community merit quota were appointed, Rank No.2 from the community merit quota was appointed on 7/6/2006 and Rank No.3 in the open merit quota was appointed on 22/6/2006. Again on 1/7/2006, Rank No.3 from the community merit quota was appointed, but however her appointment was not approved by the University and is a matter of dispute.
4. While the select list was valid, on 31/3/2007, one retirement vacancy of Lecturer, Zoology arose at the M.G College, Thiruvananthapuram and another vacancy arose at the NSS College for Women at Karamana. However, on the ground that the academic year was ending on that day, appointments were not made to the vacancies thus arose w.e.f 01/04/2007. The position continued as such, and meanwhile, the validity of Ext.R4 (a) select list expired on 15/5/2007. Subsequently, Ext.R4(b), general transfer order was issued by the 4th respondent on 30/5/2007 and the aforesaid two retirement vacancies were filled up w.e.f. 5/6/2007.
5. When the petitioner came to know that during the :3 :
currency of the select list, two retirement vacancies arose and that appointments were not made from the select list, she submitted Ext.P5 representation for appointment, and as no response was forthcoming, she sought the details of the vacancies by filing Ext.P6 application by invoking the provisions of the Right to Information Act. Thereupon, the 4th respondent took the stand that the provisions of the Right to Information Act are inapplicable to it and on that basis gave Ext.P7 reply. It was thereupon that this writ petition was filed.
6. The contention raised by the counsel for the petitioner is that the select list was valid till 15/5/2007 and two retirement vacancies arose on 31/3/2007 and that she ought to have been appointed against one of those vacancies. The case of the management is that the vacancies arose w.e.f. 01/04/2007, the day on which the vacation started and the academic year started only w.e.f. 1/6/2007. It is stated that teachers being vacation staff, appointments cannot be made during the vacation and that during the vacation, the select list expired, and therefore, they could not make appointment to the vacancies on the commencement of the academic year. From the additional :4 :
counter affidavit, it is seen that, two vacancies are available even as of now, one at NSS College, Pandalam and the other at NSS College, Kottiyam.
7. Thus, from the submissions made by both sides, the fact that a select list was prepared by the 4th respondent, that the petitioner was the 4th candidate in the open merit list for the post of Lecturer-Zoology, that all the first three candidates have been appointed, that before the expiry of the list, on 31/3/2007, two vacancies arose and that appointments have not been made to those vacancies are not matters of dispute between the parties. The only issue
