IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 WP(C).No. 33514 of 2003(M) -------------------------------- PETITIONER: -------------- JACOB CHANDY, LECTURER, DEPARTMENT OF ECONOMICS, SANATANA DHARMA COLLEGE, ALAPPUZHA, (THOOMPUNKAL, PARK JUNCTION, MAVELIKKARA-690 101). BY MR.BENOY THOMAS, ADVOCATE. RESPONDENTS: ------------------ 1. THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION, TRIVANRUM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, TRIVANDRUM. 3. THE UNIVERSITY OF KERALA, REP. BY ITS REGISTRAR, TRIVANDRUM. 4. SANATANA DHARMA COLLEGE, ALAPPUZHA, SANATANAPURAM, REP. BY ITS MANAGER. 5. THE PRINCIPAL, SANATHAN DHARMA COLLEGE, SANATANAPURAM, ALAPPUZHA. ADDL. 6TH & 7TH RESPONDENTS IMPLEADED: ADDL. R6. KISHORE.H., S/O. R. HARINARAYANA IYER, T.C.37/1260, KALLAMPALLY STREET, FORT, THIRUVANANTHAPURAM - 695 023. WP(C).No. 33514/2003 ...2... ADDL. R7. ANUPAMA.V., RAJI NIVAS, SANTHANAM WARD, ALAPPUZHA. (ADDITIONAL 6TH & 7TH RESPONDENTS IMPLEADED AS PER THE ORDER DT.27/7/04 IN I.A. 9466/04). BY MR.M.RAJAGOPALAN NAIR, SC, KERALA UTY. FOR R3 MR.M.K.CHANDRAMOHAN DAS, SC, KERALA UTY. FOR R3. MR.P.B.SAHASRANAMAN, ADVOCATE, FOR ADDL R6 & R7 MR.K.ANAND (A.201), ADVOCATE, FOR R4. MS.LATHA KRISHNAN, ADVOCATE, FOR R4 MR. A.J. VARGHESE, SR. GOVERNMENT PLEADER FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 33514/2003 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ORDER No.UGC CELL.I(1)/15745/98/COLL.EDN. DTD. 19.7.99 OF R2. EXT. P2 : COPY OF GOVT. ORDER G.G.(MS) 36/2001/H.EDN. DTD. 21.3.01. EXT. P3 : COPY OF G.O.(MS) No.114/2002/H.EDN. DTD. 5.9.02 OF GOVT. EXT. P4 : COPY OF REPORT SENT BY R5 ON 25.9.02. EXT. P5 : COPY OF ORDER No.A3-8417/2001 DTD. 10.9.02 OF DY.DIRECTOR OF COLLEGIATE EDUCATION. EXT. P6 : COPY OF STATEMENT DTD. 23.10.02 OF COLLEGE AUTHORITIES ALONG WITH THE WORKLOAD. EXT. P7 : COPY OF FORMAT SENT BY R4 TO UNIVERSITY GRANTS COMMISSION FOR THE YEAR 2001-2002. EXT. P8 : COPY OF FORMAT SENT BY R4 TO UNIVERSITY GRANTS COMMISSION FOR THE YEAR 2002-2003. EXT. P9 : COPY OF PROFORMA OF WORKLOAD STATEMENT PREPARED BY R5 FOR THE YEAR 2001-02. EXT. P10 : COPY OF PROFORMA OF WORKLOAD STATEMENT PREPARED BY R5 FOR THE YEAR 2002-03. EXT. P11 : COPY OF COMMUNICATION DTD. 21.02.03 SENT BY R5 TO R3. EXT. P12 : COPY OF REPRESENTATION DTD. 27.3.03 MADE BY PETITIONER TO RESPONDENTS. EXT. P13 : COPY OF ORDER OF THIS HON'BLE COURT IN C.M.P.No.20826/2003 IN O.P.No.12126/2003. EXT. P14 : COPY OF COMMUNICATION No.E1/2003 DTD. 4.6.03 OF R5. EXT. P15 : COPY OF CIRCULAR No.15860/B1/2000/H.EDN. DTD. 23.6.00 OF GOVT. WP(C).No. 33514/2003 EXT. P16 : COPY OF ORDER DTD. 24.9.03 PASSED BY R2 IN THE LIGHT OF the ORDER OF THIS HON'BLE COURT. EXT. P17 : COPY OF NOTIFICATION DTD. 5.1.04 PUBLISHED IN INDIAN EXPRESS DTD. 19.1.04. EXT. P17 : COPY OF MINUTES OF THE SELECTION COMMITTEE. EXT. P18 : COPY OF NET CERTIFICATE POSSESSED BY THE PETITIONER. EXT. P18(a) : COPY OF M.A. DEGREE MARKLIST AWARDED TO THE PETITIONER. EXT. P19 : COPY OF CERTIFICATE ISSUED BY THE PRINCIPAL OF THE COLLEGE TO THE PETITIONER SHOWING THAT THE PETITIONER IS RETAINED IN THE COLLEGE ON ACCOUNT OF FIP VACANCY. EXT. P19(a) : COPY OF G.O.(MS) 145/2000/EDN. DTD. 5.10.00. EXT. P19(b) : COPY OF PROCEEDINGS OF UGC DTD. 31.1.02 ADDRESSED TO DIRECTOR COLLEGE DEVELOPMENT COUNCIL. EXT. P20 : COPY OF CIRCULAR ISSUED BY R1 DTD. 24.4.97. EXT. P21 : COPY OF CIRCULAR DTD. 15.6.99 ISSUED BY PRINCIPAL SECRETARY TO R1. EXT. P22 : COPY OF LETTER DTD. 28.9.02 OF PRINCIPAL ISSUED TO PETITIONER RETAINING HIM ON THE STRENGTH OF EXT. P3 G.O. EXT. P23 : COPY OF WORKLOAD STATEMENT DTD. 23.10.02 ISSUED BY PRINCIPAL. EXT. P24 : COPY OF APPROVAL ORDER DTD.3.8.07 APPROVING REGULAR APPROINTMENT ORDER OF PETITIONER APPOINTING HIM W.E.F. 20.2.06. EXT. P25 : COPY OF LIST OF TEACHERS WORKING IN THE DEPT. OF ECONOMICS DURING 2001-02 ISSUED BY PRINCIPAL. EXT. P26 : COPY OF LIST OF STAFF MEMBERS ISSUED BY PRINCIPAL IN 1996. EXT. P27 : COPY OF JUDGMENT IN W.A.No.33 OF 2001. WP(C).No. 33514/2003 EXT. P28 : COPY OF REPRESENTATION GIVEN BY PETITIONER DTD. 18.7.02 SEEKING APPOINTMENT AS REGULAR LECTURER ON THE STRENGTH OF HIS CLAIM IN THE LEAVE VACANCY FROM 9.8.96 TO 20.2.00. EXT. P29 : COPY OF PRE-DEGREE ABOLOTION ACT 1997. EXT. P30 : COPY OF INTERIM ORDER IN CMP nO.57691/2002 IN O.P.34128/2001. EXT. P30(a) : COPY OF PROCEEDINGS OF UTY. OF KERALA DTD. 30.7.03 IN RESPECT OF RAJALAKSHMI. EXT.P30(b) : COPY OF APPOINTMENT ORDER ISSUED TO ONE MINI ALICE BY U.C. COLLEGE MANAGER. EXT. P31 : COPY OF PROCEEDINGS DTD. 23.7.09 OF DHSE. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.33514 OF 2003 --------------------------------------- Dated this the 7th day of June, 2010. J U D G M E N T The petitioner herein is a Lecturer in the Department of Economics, in the 4th respondent College. The issue raised in this writ petition is one regarding regularisation of the petitioner in service in the light of various Government Orders. 2. The petitioner was originally appointed on 09.08.1996 as Junior Lecturer. He continued in that vacancy upto 20.02.2000. According to him, he is qualified for appointment as Lecturer under the UGC scheme since he got UGC NET in the year 1998. In the light of various Government Orders produced in the writ petition, the petitioner was being continued. 3. By Exhibit P5 order, the appointment of the petitioner as Junior Lecturer was approved upto 20.02.2000. The petitioner had got a case that he was continuing based on Exhibit P22 letter produced along with the reply affidavit. He was not being paid salary also. W.P.(C) No.33514/2003 2 4. This writ petition is filed challenging Exhibit P15 circular issued by the Government and Exhibit P16 order passed by the 2nd respondent rejecting the petitioner's claim for regular appointment. The same is preceded by Exhibit P14 letter forwarded by the 4th respondent to the Director of Collegiate Education for sanctioning the regular post for appointment and for regularising the service of the petitioner. Exhibit P15 is the circular issued by the Government banning creation of pots and filling up of vacancies in Colleges/Universities in view of the delinking of Pre-degree courses. Exhibit P16 is the order passed by the Director of Collegiate Education relying upon the said circular by taking the view that in the light of the ban order, no appointment could be made in the regular post of Lecturer in the existing vacancy. 5. The substantive vacancy arose due to the retirement of Sri.K.P.Viswanatha Iyer on 31.05.2001. Pending the writ petition the petitioner has been appointed on regular basis in that vacancy with effect from 20.02.2006 as per Exhibit P24 order of the University dated 03.08.2007. W.P.(C) No.33514/2003 3 6. Learned counsel for the petitioner relied upon the judgment of this Court in O.P.No.21268/2002 to contend that the circular Exhibit P15 is no longer in existence as this Court has quashed the same. It is, therefore, submitted that the petitioner is entitled for regularisation from 31.05.2001 and for notional fixation. It is also submitted that upto 20.02.2006, no salary was paid even though he was continuing as Guest Lecturer. 7. The legality of Exhibit P15 has been considered by this Court in the judgment in O.P.No.21268/2002. It was mentioned in paragraph 5 of the said judgment that the Act (Pre Degree Course Abolition Act, 1997) came into force with effect from 03.06.1997 and therefore, the ban created under Section 5 ended on 02.06.2000. A contention was raised in the said writ petition that there was no statutory ban after the said period is over and the circular dated 23.06.2000 cannot be supported. With regard to this aspect, it was held thus in paragraph 13: “..........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 W.P.(C) No.33514/2003 4 banning appointments or their approval are invalid......”. Appropriate directions have been issued in the writ petition with regard to the fixation of strength of teaching staff by the University and to make appointments in such vacancies etc. 8. The circular considered by this Court in O.P.No.21268/2002 has been produced as Exhibit P15 in this writ petition. In the light of the view taken by this Court in the above judgment, it can be safely held that the circular cannot act against the statutes. Therefore, as held by this Court in the above judgment, there is no ban in the eye of law against making fresh appointments to teaching posts or against approving them. 9. In the light of the above, Exhibit P16 cannot be sustained and the same is quashed. Learned Government Pleader pointed out that the appointment is made only in 2006 and therefore, the petitioner cannot have any claim for retrospective benefits etc. The appointment was delayed only because of the view taken by the Director of Collegiate Education in Exhibit P16. The petitioner has been appointed in the regular vacancy which arose on 31.05.2001 which is evident from W.P.(C) No.33514/2003 5 Exhibit P24 order of approval granted by the University. 10. In that view of the matter, whether the petitioner is entitled for any other benefits including retrospective appointment, it is a matter which the petitioner can raise before the 4th respondent and the University. If the petitioner files an appropriate representation in the matter within a period of one month from today, the same will be considered and appropriate orders will be passed by the appropriate authority within a further period of three months. Learned counsel for the petitioner submitted that Exhibit P27 judgment as well as Exhibit P3 Government Order may also be considered while disposing of the representation. It is upto the petitioner to produce copies of Exhibits P3 and P27 if he is relying upon them before the appropriate authority. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp