RAJESH KOMATH Vs. UNIVERSITY OF CALICUT

JUDGEMENT

(1.) These appeals are filed by third parties after seeking leave of this Court challenging judgment dated 3/2/2016 in WP(C) No. 18797/2015 and connected cases. The Calicut University Act, 1975 (hereinafter referred as the Act) and the Calicut University First Statutes, 1977 (hereinafter referred as the First Statutes) provided for reservation in appointments department-wise and separate roster was being maintained for the same. However, in 2014, by an amendment to Section 6(2) of the University Act, clauses (a), (b) and (c) of Rule 14, Rules 15, 16, 17 and 17A of the Kerala State and Subordinate Service Rules, 1958 as amended from time to time was made applicable treating all departments as one unit. Consequent amendment was made in Statute 3 of Chapter 3 of the First Statutes, 1977, as well. The implication of the amendment was that the department-wise communal rotation has been taken away and communal rotation has to be followed by treating all the departments as one unit. When notification was published by the University calling for applications by specifying the posts as available to each reservation category in different departments following communal rotation, this came to be challenged before this Court in the above writ petitions. Learned Single Judge having taken note of the amendment to the Act and having found that there is no conflict with the First Statutes observed that appointments have to be made prospectively following the roster as prescribed in the KS & SSR and treating all departments as one unit. It was observed that earmarking of reservation to a particular post would run contrary to the spirit and principle of reservation, since it would exclude eligible candidates entitled to reservation, but has the qualification for another post. It would also exclude open category candidates for applying to a particular post. In the light of the aforesaid finding, the learned Single Judge while allowing the writ petitions, set aside the notifications and directed the University to issue fresh notification to make appointments in accordance with what has been declared in the judgment.

(2.) While impugning the aforesaid judgment, two specific contentions are urged by the learned counsel for the appellant. One is that the University has not prepared a roster so far. When applications are invited for different posts, unless the candidates are in a position to take note of the fact whether a particular post is reserved or unreserved, it will render unnecessary hardship for a candidate. Further, even applying the roster, there are substantial backlog vacancies in each category and therefore if selection is not made taking into account the backlog vacancies specifying the reserved categories, those vacancies remains unfilled. It is submitted that the direction now issued by the learned Single Judge virtually causes substantial hardship to the candidates while applying for a particular post and also would amount to serious confusion. Further, the University has not finalised the roster points even now which they ought to have done even before the notification. Counsel also placed reliance on the Constitution Bench judgment of the Apex Court in R.K.Sabharwal and Others v. State of Punjab [(1995) 2 SCC 745]. This judgment is cited to explain the expression "posts" and "vacancies" often used in the executive instructions providing for reservation. Apex Court held that the concept of vacancy has no relevance in operating the percentage of reservation. It is held that the percentage of reservation has to be worked out in relation to the number of posts which form the cadre strength.

(3.) Further reference is made to the judgment in Suresh Chandra Verma (Dr) v. Chancellor, Nagpur University [(1990) 4 SCC 55]. This is a case in which one of the questions considered by the Apex Court was whether the employment notice ought to indicate reservations post wise. That was a case in which University issued employment notice inviting applications for a total of 77 posts which included 13 posts of Professors, 29 posts of Readers and 35 posts of Lecturers in different subjects ranging from Economics, Politics and Sociology to Physics, Pharmacy and Geology. It was held at paragraphs 10 and 11 as under:-