SANTHOSH BABU Vs. STATE OF KERALA

JUDGEMENT

(1.) THE two petitioners in this writ petition were appointed as Tutors by the Principal of the Medical College,Kottayam on a provisional basis for a period of one year or until the P.S.C.hands become available for appointment,whichever is earlier,as is clear from Exts.P -8 and P -9,dated 18th February 1988 and 21st May 1988 respectively.When they were thus holding the posts of Tutors on a purely provisional basis,applications were invited for the M.D.course for the year 1987 -88.Though certain percentage of seats were reserved for Tutors under the prospectus Ext.P -1.the petitioners did not claim admission to the seats reserved for Tutors but claimed seats on general merit,obviously realising that they are not qualified to claim seats reserved for Tutors.in the select list of candidates,the petitioners 'names were not included.It is in this background that the petitioners approached this court in this writ petition praying for the issue of a writ in the nature of mandamus directing the respondents to admit them in the reserved quota for Tutors for M.D.general medicine,shown as remaining vacant as per Ext.P -2 rank list of Tutors.They have also prayed for quashing clause 3(f)of the prospectus which prescribes that only Tutors in regular service are eligible for selection to postgraduate degree/diploma courses reserved for Tutors,as being illegal and unsustainable in law.They have also prayed for a direction commanding the respondents to regularise their services as Tutors in the Medical College,Kottayam and also for a direction to forebear from terminating their services.After the presentation of the writ petition,the petitioners 'services were terminated by order Ext.P -7 dated 16th September 1988 on the ground that ratification of the provisional appointment of the petitioners has been refused by the higher authorities,and that their appointment is not consistent with the provisions of the Employment Exchange Compulsory Notification of Vacancies Act.Though the petitioners have not amended their writ petition challenging the order of termination Ext.P -7 we see no good reason why we should not examine the case of the petitioners in this behalf,the necessary facts and contentions in that behalf having been pleaded in C.M.P.No.22679/88 filed in this case producing Exts.P -7 and other relevant documents.

(2.) WE shall first examine the case of the petitioners regarding admission to the M.D.course for the year 1987 -88.The prospectus Ext.P -1 expressly stipulates that it is only the Tutors in regular service that are eligible for selection in the 30 per cent of seats reserved for Tutors.The petitioners 'qualifications have to be determined with reference to the last date for receipt of applications as consistently held by this court Admittedly the petitioners are not.Tutors in regular service as their appointment is only provisional in character.The petitioners are therefore ineligible for being considered for admission for the seats reserved for Tutors in regular service.

(3.) ANOTHER prayer of the petitioners is to quash clause 3(f)of the prospectus which prescribes that it is only the Tutors in regular service that are eligible for the 30 per cent seats reserved for Tutors.At the outset it has to be pointed out that the petitioners have precluded themselves by their conduct in putting forward such a claim in this writ petition.The petitioners have on the basis of the prospectus submitted their applications for admission.They were fully aware of the stipulation contained in clause 3(f)of the prospectus.If the petitioners felt aggrieved by the said clause,they could have approached this court for relief immediately.But what the petitioners have done is to present their applications in accordance with Ext.P -1 and to wait until the selection process is complete and then to approach this court contending that clause 3(f)of the prospectus is invalid.Obviously the petitioners were sitting on the fence and were not interested in questioning clause 3(f)if they could get admission in accordance with the terms of Ext.P -1.It is only after they realised that they did not get admission that they have chosen to attack the said clause.The petitioners have thus by their conduct,precluded themselves from challenging clause 3(f)of the prospectus,Ext.P -1.Besides,as the petitioners have not claimed seat reserved for the Tutors,the question of considering as to whether provisionally appointed Tutors also could be considered for the seats reserved for Tutors will not arise.They cannot therefore make a legitimate complaint that there was discrimination against the Tutors appointed on a provisional basis,there being no justification for the same.Besides,it is necessary to point out that what we are concerned in this case is about the question of admission for the academic year 1987 -88.At this length of time it is now too late to consider the claim of the petitioners for admission for that year.