Mohammed Nias C.P., J.
1. The petitioner is working as a Section Officer at the Central University of Kerala. The petitioner had applied for selection on the basis of the notification dated 26.9.2023 and was given the offer for appointment only on 7.11.2019 after a prolonged legal battle culminating in Ext.P3 judgment dated 7.11.2019. Earlier, the petitioner had filed WP(C)No.20312/2014, which was allowed directing the University to appoint the petitioner to the post of Section Officer in any existing vacancy, treating the said post as part of the notification, and if no vacancies exist, the petitioner was directed to be appointed in the future vacancy as and when it arises without subjecting him to other tests or evaluation.
2. The petitioner, as well as the University, filed appeals against the judgment and by Ext.P3 judgment, the appeals were dismissed. The petitioner had again filed another writ petition, WP(C)No.38750/2017, to implement the earlier directions, and accordingly, this Court, through Ext P3 judgment, directed the petitioner to be appointed in the next vacancy in tune with the directions in the earlier judgment, irrespective of the ratio fixed in the cadre rules. The petitioner submits that the petitioner ought to have been appointed as the 5th candidate based on the selection already done. The judgments of this Court were not implemented for nearly five years, as a result of which the petitioner has lost seniority and service benefits to which he would have been entitled had the respondent University complied with the directions on time. The petitioner had represented before the University, claiming notional seniority. The request of the petitioner was turned down by Ext.P8, and later the Executive Council of the University also affirmed the same. The petitioner challenges the said decision in so far as it approves the decision of the Committee denying notional seniority to the petitioner. He also claimed seniority at par with the candidates who joined as Section Officers from the merit list published in the year 2014.
3. WP(C)No.42223/2022 was filed when the University decided to conduct a departmental test for promotion to the post of Assistant Registrar. The petitioner contended that the appeal he preferred against the rejection of his request for granting notional seniority was pending. Therefore, he challenged the notification publishing the final seniority list and Ext.P11 notifying the date for the departmental test. This Court had permitted the petitioner to appear for the departmental examination taking note of the fact that no final decision was taken in the appeal preferred by the petitioner seeking notional seniority. However, it was ordered that the result of the petitioner shall not be disclosed without orders from this Court and the selection pursuant to Ext.P9 was made subject to the result of the writ petition. Thereafter, by order dated 5.4.2021, this Court directed the result of the examination to be published. The University submits that the petitioner was ranked three in the departmental test, and the person who came first was appointed as Assistant Registrar (officiating). The submission of Sri Ramakumar, learned Senior counsel who appeared for the University, is that there is no challenge to the appointment of the successful candidate by impleading him, and the entire case rests on the claim for notional seniority. The seniority was only one of the factors, apart from the marks in the departmental test. Since the petitioner was ranked only third, he could not have been appointed as Assistant Registrar even if his claim for seniority was upheld. I accept the argument of the learned senior counsel for the University that the selection could not have been impugned without the appointed candidate in the party array with the requisite pleadings to mount a challenge to the selection process.
4. The prayers sought in WP(C)No.42223/2022 for quashing Ext.P11 notification and also for keeping in abeyance all selection processes pursuant to Ext.P9 seniority list cannot be granted for the reasons stated above. However, there is a prayer for declaring the notional seniority of the petitioner at par with the candidates who joined as Section Officers from the merit list published in the year 2014.
5. Coming to the question of notional seniority, the petitioner relies on the judgment of the Supreme Court in Jayachandran C. v. State of Kerala [2020 (2) KHC 478] for the proposition that since the appointment was unduly delayed despite orders of this Court, the petitioner's seniority must be at par with those appointed in the year 2014. The decision of the University not to grant her notional seniority was made without considering any of the contentions raised by the petitioner for claiming notional seniority. It is seen that the only reason given in Ext.P8, in WP(C)No.42223/2022, is that 'the court has not directed to give seniority on a date prior to his joining'. The University has not considered the impact of three judgments in favour of the petitioner and also the fact that after the first judgment, the petitioner had to wait for nearly 5 years to get the offer for appointment. The petitioner's contention that if the judgment had been implemented on time, he would not have lost the seniority is to be considered by the University. The decisions of the Supreme Court, which the petitioner relied on for the proposition that if a candidate is wrongly refused appointment, he/she is entitled to notional seniority from the date he/she should have been appointed, has to be considered.
6. The petitioner had also submitted that he was not claiming salary for the period during which he did not work, but it was on account of the delay that he lost the valuable seniority of more than 5 years. The petitioner had also pointed out that he had been placed even below the persons subsequently promoted to the post of the Section Officer. It is on these grounds that the petitioner claimed notional seniority at par with the candidates who joined as Section Officer from the merit list in question and sought fixation of payment at par with the candidates who joined as Section Officer from the merit list. The Petitioner had also requested the University to declare his probation after one year, which was permissible under DoPT guidelines, the benefits of which were extended to the other candidates who joined as Section Officers from the same merit list. The University ought to have considered these claims and passed a speaking order. Though I am not inclined to grant any relief with respect to the petitioner's claim for promotion as Assistant Registrar based on Ext.P9, his claim for notional seniority on the grounds raised above should be re-considered by the University with notice to him and to other parties who are likely to be affected. The petitioner will be free to submit a fresh representation highlighting his grievances on the question of the grant of notional seniority within two weeks from today, which the University will consider afresh after affording a reasonable opportunity of hearing to the petitioner as well as other affected parties within two months from the date of receipt of the representation. Needless to say that the University will pass a speaking order dealing with the contentions of the petitioner.
The writ petitions are disposed of as above.
