IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 WP(C).No. 10501 of 2008(A) ------------------------------------- PETITIONER(S): ----------------------- 1. P.AJITH, PEON, S.N.COLLEGE, CHENGANNUR. 2. K.MURALEEDHARAN, PEON, S.N.COLLEGE, CHENGANNUR. 3. K.RAJAN, PEON, S.N.COLLEGE, CHENGANNUR. 4. BINO G.NATH, PEON, S.N.COLLEGE, CHENGANNUR. 5. M.RAJIN, PEON, S.N.COLLEGE, CHENGANNUR. 6. K.RAJU, SANITATION WORKER, S.N.COLLEGE, CHENGANNUR. 7. P.K.PRAKASH, SWEEPER, S.N.COLLEGE, CHENGANNUR. 8. D.ULLAS, SANITATION WORKER, S.N.COLLEGE, CHENGANNUR. BY ADV.MR.P.C.SASIDHARAN RESPONDENT(S): ------------------------ 1. SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, OFFICE OF THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. W.P.(C0 NO.10501/2008 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM. 4. MANAGER, SREE NARAYANA TRUST, OFFICE OF THE SREE NARAYANA TRUST, KOLLAM. 5. THE PRINCIPAL, SREE NARAYANA COLLEGE, NEDUVARAMCODU P.O., CHENGANNUR-689 508. R1 TO R3 BY GOVT. PLEADER SMT.M.R.SREELATHA R4 BY ADV.MR.A.N.RAJAN BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.10501/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ADVERTISEMENT PUBLISHED IN THE NEWS PAPER. P2:- COPY OF THE APPOINTMENT ORDER DTD. 28.9.98 ISSUED TO THE IST PETITIONER. P3:- COPY OF THE APPROVAL OF APPOINTMENT ORDER ISSUED TO THE IST PETITIONER. P4:- COPY OF THE G.O.(MS) NO.100/05/H.EDN,. DTD. 28.7.05. P5:- COPY OF THE CERTIFICATE ISSUED BY PRINCIPAL DTD. 23.10.07. P6:- COPY OF THE JUDGMENT IN OP. NO.19680/2003 DTD. 7.11.03. P7:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS DTD. 24.10.07. P8:- COPY OF THE JUDGMENT IN WPC. NO.35737/07. P9:- COPY OF THE ORDER G.O.(RT) NO.316/08/H.EDN,. DTD. 23.2.08. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.10501 OF 2008 --------------------------------------- Dated this the 22nd day of October, 2009. J U D G M E N T It is submitted that in the light of the judgment rendered by this Court in W.P.(C) No.28363 of 2007, a similar direction can be issued in this case also. 2. The petitioners herein are working as Peons, Sanitation Workers and Sweeper under the 4th respondent-Management. The advertisement to fill up the posts was published as per Exhibit P1 by the Management. The Management prepared the list of eligible candidates for being appointed, and all the petitioners except petitioners 5 and 7 were appointed in the colleges coming under the University of Kerala and the others were appointed in the colleges coming under the Calicut University. The petitioners are aggrieved by Exhibit P9 whereby the Government took the view that the petitioners cannot claim salary for their appointment during the ban period. 3. In W.P.(C) No.28363 of 2007, this Court considered the W.P.(C) No.10501/2008 2 question in the light of the directions issued by this Court in O.P.No.21268/2002 and connected cases. The findings contained in paragraph 10 are extracted below: “In the context of the refusal of the Government to approve the appointments made to teaching posts in view of the ban imposed on appointments by virtue of executive orders subsequent to expiry of the statutory ban, O.P. No.21268/2002 and connected cases were filed before this Court. Those original petitions were disposed of by judgment dated 26/03/2002, where dealing with the validity of the ban imposed by executive orders, this Court 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 W.P.(C) No.10501/2008 3 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: 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.” In this case also, since the Managements are entitled to make appointments in terms of the staff pattern W.P.(C) No.10501/2008 4 approved by the respondents, the executive orders banning appointments to such posts can have no force. In my view, reasoning adopted by the learned Judge in the aforesaid judgment is applicable to the facts of this case well”. 4. In paragraphs 11 and 12 the following directions were issued: “If so, it is for the respondents to consider whether the appointments in question were made to posts available in terms of the approved staff pattern, and on such examination, the finding is that the posts were available, the Government cannot avoid its responsibility to pay salary to the appointees. Therefore, these writ petitions are disposed of directing the respondents to examine whether the posts, against which appointments were made, were available in terms of the approved staff pattern. If the finding is that appointments were to such posts, the respondents shall complete formalities and pay salary to the petitioners for the period from October, 2002 to 27/07/2005”. Since the petitioners are also similarly placed, I am of the view that a similar direction can be issued in their case also. Therefore, Exhibit P9 is quashed. The respondents are directed W.P.(C) No.10501/2008 5 to examine whether the posts against which the appointments were made were available in terms of the approved staff pattern. If the finding is that the appointments were made to such posts, the respondents shall complete formalities and pay salary to the petitioners for the respective periods (from 06.10.2002 to 27.07.2005). Appropriate orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp