While Filling Up Temporary Posts, A Right Of First Refusal Should Be Extended To Candidates Empanelled In PSC List: Kerala High Court

The Court's observations came in the context of appointments made to the post of temporary assistants by Cochin University of Science and Technology (CUSAT).

A Division Bench of Justice AK Jayasankaran Nambiar and Gopinath P observed that to ranked candidates when recruiting to temporary posts would be in tune with the principle of fairness.

It was remarked,

"Inasmuch as the University is an entity that answers to the description of 'State' within the meaning of that term under Article 12 of the Constitution of India, it would be incumbent upon them to adhere to the principle of fairness in action which forms an integral aspect of the Rule of Law. The University cannot be seen as excluding a consideration of candidates found meritorious for filling up regular posts, while filling posts that are temporary in nature."

The Court emphasized that the notifications issued by the university calling for applicants to such temporary posts were to clearly indicate that due preference will be given to candidates empanelled in the current rank list. However, while applying to such advertised temporary posts, the applicants would have no claim whatsoever to any regularisation or permanent absorption solely based on such engagement, the Court made clear.

The judgment came in response to a petition filed by C V Biju, whose name had appeared in a rank list prepared by the State PSC. In court, he averred that despite the existence of a valid rank list, CUSAT had created 42 contractual 'temporary' posts for university assistants.

His earlier petition had been dismissed by a Single Judge Bench, which had upheld the validity of the temporary appointments. It was held that the rank list in which the petitioner included had already expired.

The Division Bench, however, noted that some of the temporary posts of university assistants were created when the rank list was valid.

The university vehemently contended that the regular mode of appointment, that is through the PSC's ranked lists was applicable only when recruiting to regular sanctioned posts.

It was submitted that temporary posts were ordinarily filled through contract appointments.

Allowing Biju's appeal on considerations of equity, the court ordered CUSAT to accommodate the petitioner in the vacancy that would arise on April 21, 2021, or thereafter, in the temporary post of university assistant, either on a daily wage basis or on a contract basis.

"although the appellant cannot claim any right for appointment to any substantive post of University Assistants, based on his position in an expired rank list, it would nevertheless be inequitable to deny him an appointment to a vacancy that exists in a temporary post, that was created during the time when the rank list in which he was ranked, was valid.."

The Court also remarked that the existence of a right of appointment in a candidate is not a necessary prerequisite for the discharge, by the University, of obligations that are required of an ideal employer.

Clarifying that the benefit did not extend to other persons whose names were included in the ranked list, the Court said,

"We are extending this benefit only on the finding that certain temporary appointments were made at a time when the rank list was in force and since the appellant has been before this Court litigating his claims."

His appointment would not entitle him to claim any right based on the selection process conducted by the PSC or his ranking in the expired list, the Court stated.

Counsel for petitioner: Advocate Kaleeswaram Raj and Associates.

Counsel for Respondents: CUSAT Standing Counsel SP Aravindakshan Pillay, PSC Standing Counsel PC Sasidharan

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