IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 WP(C).No. 37579 of 2007(W) --------------------------------------- PETITIONER(S): --------------------- 1. M.P. SURENDRAN, S/O.PRABHAKARAN, AGED 46 YEARS, PEON, S.N.COLLEGE, KANNUR. 2. J. SASIDHAR, S/O.JANARDHANAN, AGED 46 YEARS, SANITATION WORKER, S.N.COLLEGE, KANNUR. 3. B.S. PRASAD, S/O.B.G.BALAKRISHNAN, AGED 47 YEARS, PEON, S.N.COLLEGE, KANNUR. 4. M.M. ASOKAN, S/O.RAGHAVAN, AGED 43 YEARS, WATCHMAN, S.N.COLLEGE, KANNUR. 5. V. SANTHOSHKUMAR, S/O.P.VASU, AGED 39 YEARS, PEON, S.N.COLLEGE, KANNUR. 6. G. SANTHOSHKUMAR, S/O.GOPY, AGED 39 YEARS, PEON, S.N.COLLEGE, KANNUR. 7. K.P. DINESHAN, S/O.NARAYANAN, AGED 37 YEARS, PEON, S.N.COLLEGE, KANNUR. 8. K.M. SANTHOSH, S/O.PADMANABHAN, AGED 32 YEARS, PEON, S.N.COLLEGE, KANNUR. BY ADV. MR.GRASHIOUS KURIAKOSE MR.M.K.ANIL KUMAR RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. WP(C).No. 37579 of 2007(W) 2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE MANAGER, SREE NARAYANA COLLEGE, SREE NARAYANA TRUST, P.B.NO.63, KOLLAM-691 001. 4. THE PRINCIPAL, S.N.COLLEGE, KANNUR. R1 & R2 BY GOVERNMENT PLEADER SMT.M.R. SREELATHA. R3 BY ADV. MR.A.N.RAJAN BABU, SC, S.N.TRUST MR.P.GOPALAKRISHNAN (MVA), MR.N.B.RAJU, MR.A.R.EASWAR LAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 37579 of 2007(W APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTIFICATION PUBLISHED IN MALAYALA MANORAMA DATED 02/04/1996. EXT.P2: COPY OF THE CIRCULAR DATED 24/04/1997 ISSUED BY THE 1ST RESPONDENT. EXT.P3: COPY OF THE ORDER DATED 20/07/1998 ISSUED BY THE 1ST RESPONDENT. EXT.P4(a): COPY OF THE APPOINTMENT ORDER DATED 20/11/98 ISSUED TO THE 1ST PETITIONER. EXT.P4(b): COPY OF THE APPOINTMENT ORDER DATED 20/11/98 ISSUED TO THE 2ND PETITIONER. EXT.P4(c): COPY OF THE APPOINTMENT ORDER DATED 11/01/99 ISSUED TO THE 3RD PETITIONER. EXT.P4(d): COPY OF THE APPOINTMENT ORDER DATED 20/11/98 ISSUED TO THE 4TH PETITIONER. EXT.P4(e): COPY OF THE APPOINTMENT ORDER DATED 20/11/98 ISSUED TO THE 5TH PETITIONER. EXT.P4(f): COPY OF THE APPOINTMENT ORDER DATED 20/11/98 ISSUED TO THE 6TH PETITIONER. EXT.P4(g): COPY OF THE APPOINTMENT ORDER DATED 20/11/98 ISSUED TO THE 7TH PETITIONER. EXT.P4(h): COPY OF THE APPOINTMENT ORDER DATED 20/11/98 ISSUED TO THE 8TH PETITIONER. EXT.P5: COPY OF THE ORDER DATED 28/09/2004 ISSUED BY THE 3RD RESPONDENT. EXT.P6: COPY OF THE ORDER DATED 28/06/2007 ISSUED BY THE 2ND RESPONDENT. EXT.P7: COPY OF THE ORDER DATED 28/07/2005 ISSUED BY THE 1ST RESPONDENT. EXT.P8: COPY OF THE COMMUNICATION DATED 05/04/2006 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONERS. EXT.P9: COPY OF THE ORDER DATED 03/02/2003 ISSUED BY THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.37579/2007-W ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 23rd day of October, 2009 J U D G M E N T The petitioners are working as Peons under the third respondent Management, having been appointed pursuant to Ext.P1 notification. In view of the ban orders, petitioners were appointed on contract basis which continued from time to time. The prayer in the writ petition is to quash Ext.P7 by which the Government accorded sanction to approve the appointment of 137 persons as Last Grade Servants in the S.N.Trust College during 1998-99 from the date of that order without retrospective effect as a special case. Further the main prayer in the writ petition is to approve the appointments of the petitioners from the date of their original appointment and release the entire arrears of salary and other allowances to them for the period they have actually worked. 2. Heard the learned counsel for the petitioners and the learned Government Pleader. 3. The learned counsel for the petitioners, relying upon the common judgment in W.P.(C).No.27524/2007 and connected cases prayed that a similar direction may be issued in this case also as the petitioners are W.P.(C). No.37579/2007 -:2:- similarly placed. Therein, a similar issue was considered and in paragraph (10) of the judgment, this Court relied upon the judgment in O.P.No.21268/2002 wherein it was held as follows:- “13. It is trite law that no executive order or circular issued by the Government can override the statutory provisions. As per the provisions of the MG University Act and the Statutes made thereunder, the private college managements are competent to appoint teachers having the prescribed qualifications in the vacancies of teaching posts permissible in accordance with the workload prescribed by the ordinance. The appointments so made are liable to be approved by the University in accordance with law. {See the decision of this Court in Cherian Mathew v.Principal S.B. College, Changanacherry [1998 (2) KLT 144]}. The power of the University in this regard is a power coupled with a duty to act when circumstances warranting exercise of that power are shown to exist and a person interested makes an application for exercising it. After the statutory ban created under Section 5 of Ext.P3 Act is over, there is no ban in the eye of law against making fresh appointments to teaching posts or against approving them. Any executive order or circular issued by the Government banning appointments or their approval are invalid. It is declared so. Therefore, this Original Petition is disposed of with the following directions: W.P.(C). No.37579/2007 -:3:- 14. The University shall fix the strength of teaching staff in the colleges of the petitioners from the academic year 2000-2001 onwards. Of course, this can be done taking into account the revised work load of teachers of 16 periods a week. If the appointments are made by the managements in the posts permissible in accordance with the staff strength so fixed, the approval of appointments of the incumbents shall be considered by the University in accordance with law. If the appointments are in accordance with the provisions of the Statutes and Ordinance, they shall be approved ignoring the orders or Circulars issued by the Government banning appointments and their approval. The University shall complete the exercise within four months from the date of receipt of a copy of this judgment. In the case of the appointments duly approved by the University, the concerned Deputy Director shall release the salary due to the incumbents in accordance with law without any further delay.” and observed that “since the Managements are entitled to make appointments in terms of the staff pattern approved by the respondents, the executive orders banning appointments to such posts can have no force.” Accordingly, it was held that the directions issued in O.P.No.21268/2002 will govern that case also. W.P.(C). No.37579/2007 -:4:- 4. Since the petitioners herein are also similarly appointed, the above directions will apply to them also. 5. In that view of the matter, Exts.P6 and P8 are set aside. There will be a direction to the respondent to consider whether the appointments in question were made to posts available in terms of the approved staff pattern, and on such examination if the finding is that the posts were available, the Government cannot avoid its responsibility to pay salary to the appointees. Therefore, the relevant aspects shall be examined and appropriate orders shall be passed within three months from the date of production of a copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms