IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 18TH FEBRUARY 2011 / 29TH MAGHA 1932 WP(C).No. 24813 of 2010(B) -------------------------- PETITIONERS: --------------------- 1. THE MANAGER, M.A.M.O. COLLEGE, MUKKOM, KOZHIKODE. 2. BASHEER THATTANCHERY, L.D.TYPIST, M.A.M.O. COLLEGE, MUKKOM, KOZHIKODE. BY ADVS. SRI.BABU VARGHESE, SENIOR ADVOCATE SRI.JOHNSON T. JOHN RESPONDENTS: -------------------- 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 2. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, PMG JUNCTION, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER, SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24813 of 2010(B) ------------------------------------- APPENDIX ---------------- PETITIONER'S EXHIBITS -------------------------------------- EXT.P1. COPY OF THE MINUTES OF THE COMMITTEE FOR THE SELECTION OF LD. TYPIST HELD ON 19.9.1998. EXT.P2. COPY OF THE ORDER OF APPROVAL GRANTED BY THE 2ND RESPONDENT DATED 16.6.1999. EXT.P2(A). COPY OF THE ORDER OF APPROVAL GRANTED BY THE 2ND RESPONDENT DATED 1.3.2000. EXT.P2(B). COPY OF THE ORDER OF APROVAL GRANTED BY THE 2ND RESPONDENT DATED 1.11.2002. EXT.P2(C). COPY OF THE ORDER OF APPROVAL GRANTED BY THE 2ND RESPONDENT DATED 7.9.2004. EXT.P2(D). COPIES OF THE ORDER OF APPROVAL GRANTED BY THE 2ND RESPONDENT DATED 6.10.2005. EXT.P3. COPY OF THE APPOINTMENT ORDER DATED 22.9.2000 ISSUED BY THE MANAGER. EXT.P3(A). COPY OF THE REJECTION ORDER DATED 13.9.2001 OF THE 2ND RESPODNENT. EXT.P4. COPY OF THE G.O. (MS) NO.119/04/H.EDN. DATED 17.9.2004. EXT.P5. COPY OF THE STAFF FIXATION ORDER DATED 18.2.2006. EXT.P6. COPY OF THE APPOINTMENT ORDER DATED 2.11.2005. EXT.P7. COPY OF THE PROPOSAL DATED 30.11.2005 SUBMITTED BY THE PRINCIPAL OF THE COLLEGE TO THE 2ND RESPONDENT. EXT.P7(A). COPY OF THE REJECTION ORDER DATED 23.02.2007 ISSUED BY THE 2ND RESPONDENT. EXT.P7(B). COPY OF THE LETTER DATED 13.11.2007 SENT BY THE 2D RESPONDENT TO THE PRINCIPAL. WP(C).No. 24813 of 2010(B) ------------------------------------ EXT.P8. COPY OF THE REPRESENTATIN DATED 25.2.2008. EXT.P8(A). COPY OF THE REPLY DATED 31.3.2010 GIVEN BY THE 1ST RESPONDENT. EXT.P9. COPY OF THE G.O.DATED 9.5.2008. EXT.P9(A). COPY OF THE G.O. (MS) NO.46/2010/H.EDN. DATED 6.3.2010. EXT.P10. COPY OF THE LETTER DATED 7.8.2008 SENT BY THE 2ND RESPONDNT TO THE PRINCIPAL OF THE COLLEGE. EXT.P10(A). COPY OF THE SENIORITY LIST OF THE NON TEACHIG STAFF AS ON 2.11.2005 FURNISHED BY THE PRINCIPAL. EXT.P11. COPY OF THE G.O. (MS) NO.100/2005/H.EDN. DATED 28.7.2005. EXT.P12. COPY of the LETTER DATED 24.10.2008 SENT BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. EXT.P12(A). COPY OF THE ORDER OF APPROVAL DATED 19.11.2008 GRANTED BY THE 2ND RESPONDENT. EXT.P13. COPY of the G.O. DATED 20.71998. EXT.P13(A). COPY OF THE G.O. DATED 26.11.1998. EXT.P14. COPY OF THE CERTIFICATE DATED 17.5.2010 ISSUED BY THE MUKKOM MUSLIM ORPHANAGE COMMITTE. RESPONDENT'S EXHIBITS : NIL -------------------------------------- / TRUE COPY / P.A. TO JUDGE VK T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 24813 of 2010-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of February, 2011. JUDGMENT The Manager of a college as well as a Lower Division Typist appointed in the college are aggrieved by the denial of approval of appointment of the second petitioner as Lower Division Typist. 2. The second petitioner was appointed after a due process of selection by the selection committee constituted for the said purpose and Ext.P1 is the copy of the minutes of the selection committee. In the light of the ban on appointments at the relevant period he was being appointed on contract basis. The appointments from 22.9.1998 to 21.9.1999 and 22.9.1999 to 21.9.2000 were approved by the Government. But, appointment for the period from 22.9.2000 to 21.9.2001 was not approved and accordingly salary was also not paid. He was reappointed on 24.9.2001 and continued upto 23.9.2002. He was further engaged for the period from 27.9.2002 to 26.9.2003, from 1.11.2003 to 31.10.2004 and from 3.11.2004 to 2.11.2005 and all these appointments were approved and salary was paid. Copies of the order of approvals granted by the second respondent are produced as Exts.P2 to P2(d). Exts.P3 and P3(a) are the wpc 24813/2010 2 copies of appointment order dated 22.9.2000 and the order rejecting approval by the second respondent. Ext.P4 is the revised staff pattern of non teaching staff in private Arts and Science colleges wherein one post of L.D. Typist is permissible. The same is effective from 17.9.2004. He was appointed with effect from 2.11.2005 on a regular basis as evident from Ext.P6 and Ext.P7 is the proposal submitted by the Principal for approval of the said appointment. It was rejected on the ground that no fresh appointment can be made until the total existing non teaching staff in the college including supernumeraries are permanently reduced to the revised staff strength in the college. Even though representations were made, the attempt did not succeed. 3. Ext.P9 is the order categorizing various non teaching posts in different groups and as far as L.D. Typists are concerned, they are included in Group 5 as per Ext.P9(a). It is seen from Ext.P10 and P10(a) that the second respondent has called for the category wise seniority list of the non teaching staff of the college as on 2.11.2005 and the Principal has forwarded the same to the second respondent. 4. It is the case of the petitioners that the post of L.D. Typist is an available sanctioned post in the college and no supernumerary staff is available in the college to be absorbed in the said post. In this context, wpc 24813/2010 3 learned counsel for the petitioners placed reliance on a judgment of this Court in W.P.(C) No.10583/2007 which was upheld in W.A. No.1348/2008. 5. Heard Shri Babu Varghese, learned Senior Counsel for the petitioners and the learned Govt. Pleader Shri T.T. Muhamood for the respondents. 6. It is submitted that the post of L.D. Typist is available under the staff pattern and there is no person in the supernumerary cadre who is qualified to be appointed as Typist. Therefore, it is pointed out that in such circumstances the appointment of the petitioner has to be approved. 7. In the counter affidavit filed by the first respondent, it is stated that there are supernumerary hands in certain categories of posts and therefore the second petitioner's appointment could not be approved. 8. On a perusal of Exts.P9 , it can be seen that L.D. Clerk, U.D. Clerk, Head Accountant, Superintendent, Senior Superintendent and Administrative Assistant are included in Group 5. By Ext.P9(a) letter dated 6.3.2010, apart from the above categories, the post of L.D. Typist is also included in Group 5. 9. In W.P.(C) No.10583/2007 the issue raised was regarding approval of appointment to the post of Mechanic. A similar contention was wpc 24813/2010 4 taken therein also. This Court considered the question whether in the absence of qualified person to be accommodated in the said post, the approval can be rejected in respect of a fresh hand. It is pointed out that if no non teaching staff in the college are remaining as supernumerary and are qualified for carrying out the functions of a Mechanic, then fresh appointment can be made. In para 3 of the judgment, this Court considered various aspects and the findings are extracted below: “ I have considered the rival contentions in detail. It is true that as per the Government orders relied on by the respondents, in view of Ext.P8 staff fixation order no new appointments could have been made. Only after the existing persons holding supernumerary posts have been absorbed in regular service fresh appointments can be resorted to. But Ext.P11 order does not take into account a situation where among the supernumerary staff available there are no qualified persons to be accommodated in a particular post, especially when that posts require technical expertise. Going by Ext.P8 staff pattern there cannot be no doubt that there is one post of mechanic. Ext.P12 proves that there is no person among the existing non teaching staff who is qualified for carrying out the functions of a mechanic. Therefore, Ext.P11 Government Order cannot be put into practice in the case of a post of mechanic in the college of the 1st petitioner. Ext.P11 does not envisage such a situation. A college is meant for teaching students and any college where there are chemistry and physics departments, the laboratories wpc 24813/2010 5 have to be function. The laboratories cannot function efficiently without a mechanic. There is no person qualified for being accommodated in the post of mechanic in the college among the existing supernumerary staff. Therefore, if the standards of education has to be suitably maintained, Ext.P11 order cannot be put into practice at least in the post of mechanic in the 1st petitioner’s college. Therefore, I am of the opinion that without going into the validity of Ext.P11, the same should be read down to mean that in respect of posts for accommodation in which there are no qualified hands among the supernumerary posts, fresh appointments can be made. Viewed in that manner in the absence of any person qualified to hold that post in the 1st petitioner’s college, the 2nd petitioner’s appointment is liable to be approved.” 10. There is no dispute that the petitioner possesses the qualifications to hold the post of L.D. Typist. Going by the counter affidavit, five persons are available in the supernumerary cadre. But, none of them is in the category of L.D. Typist. In the revised staff pattern, in ‘E’ Grade colleges, one post of Junior Superintendent/Head Accountant, two posts of Clerks, one post of Typist, two posts of Peon and one post of Librarian are included. It is mentioned in para 3 of the counter affidavit, that as per Government letter dated 31.3.2010 it is clearly pointed out that five employees are working in M.A.M.O. College, Mukkom as supernumerary in various posts in Group 5. Therefore, the contention is wpc 24813/2010 6 that other categories of posts are occupied by supernumerary hands and therefore the vacancy will have to be adjusted. Herein, as evident from the judgment in W.P.(C) No.10583/2007 it has to be found out whether any of the supernumerary hands are available and qualified to be accommodated as L.D. Typist. There is no plea to deny the averment of the petitioners that there are no qualified hands available to work as L.D. Typist. Therefore, it is a case where none of the persons working in the college can be given a posting as L.D. Typist. 11. Therefore, there cannot be any objection for the approval of appointment of the petitioner. In this context, the letters Exts.P12 and P12 (a) pressed into service by the learned counsel for the petitioners are relevant. Ext.P12 is a letter addressed by the Principal Secretary to the Government to the Director of Collegiate Education in respect of approval of appointment in another college. Therein, it is stated that since, in the category of Mechanic and Typist, there are no persons in the supernumerary cadre, the appointment of the two persons mentioned therein could be approved as Mechanic and Typist. Herein also, the situation is identical. There is no case for the respondents that anybody in the supernumerary categories is available for appointment as L.D. Typist. wpc 24813/2010 7 ` 12. Therefore, I respectfully agree with the view taken in the judgment in W.P.(C) No.10583/2007 and the said reasoning could be applied to the facts of this case also. Therefore, the writ petition is allowed. The impugned orders are quashed. There will be a direction to the respondents to approve the appointment of the second petitioner with effect from 2.11.2005, as sought for and appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment. Orders will be passed with regard to the approval for the period from 22.9.2000 to 21.9.2001 also, along with it. The arrears of salary and other benefits will be disbursed accordingly. No costs. (T.R. Ramachandran Nair, Judge.) kav/