IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 O.P.No. 21638 of 2000(A) ----------------------- PETITIONER(S): --------------- D.AJITHKUMAR.K., ASHA BHAVAN, CHOOZHAMPALA, MUKOLAKAL P.O., KUDAPPANAKKUNNU, THIRUVANATHAPURAM-14. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.SANKARANKUTTY NAIR SRI.T.V.AJAYAKUMAR SRI.K.SANDESH RAJA SRI.P.B.KRISHNAN RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION (C) DEPARTMENT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 4. THE MANAGER, COCHIN EDUCATION SOCIETY, COCHIN COLLEGE BUILDINGS, KOCHI – 682 002. BY GOVERNMENT PLEADER MISS.NISHA BOSE FOR R1TO3 SRI.MANU GOVIND FOR R4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/04/2010, THE COURT ON 18/05/2010 DELIVERED THE FOLLOWING: O.P.NO.21638 OF 2000 APPENDIX Ext. P1: dated 15.9.1993. True copy of the order issued by the 4th respondent to the petitioner. Ext.P2: dated 9.6.1995. True copy of the order issued by the 4th respondent to the petitioner. Ext.P3: dated 1.9.1995. True copy of the order issued by the Registrar, Sree Sankaracharya University of Sanskrit, Kalady. Ext.P4: dated 20.9.1995. True copy of the application submitted by the petitioner for the 4th respondent. Ext.P5: dated 25.9.1995. True copy of the Memorandum issued by the 4th respondent to the petitioner. Ext.P6: dated 4.10.1995. True copy of the representation submitted by the petitioner before the 4th respondent. Ext.P7: dated 16.10.1995. True copy of the letter sent by the 4th respondent to the petitioner. Ext.P8: dated 18.10.1995. True copy of the submission made by the petitioner before the respondent. Ext.P9: dated 20.10.1995. True copy of the Memorandum issued by the 4th respondent to the petitioner. Ext.P10: dated 21.3.1997. True copy of the letter sent by the Registrar, Sree Sankaracharya University, Kalady to the petitioner. Ext.P11: dated 17.3.1997. True copy of the order issued by the 1st respondent. G.O.(Rt)No.302/97/M.Edn. Sent along with Ext.P10. Ext.P12: dated 5.9.1997. True copy of the order issued by the Registrar, Sree Sankaracharya University to the petitioner. Ext.P13: dated 11.5.1997. True copy of the letter sent by the petitioner to the 4th respondent. Ext.P14: dated 4.2.1998. True copy of the order No.G.O.MS.10/98/H.Edn. Issued by the 1st respondent. Ext.P15: dated 10.2.1998. True copy of the letter sent by the petitioner to the 4th respondent. Ext.P16: dated 14.2.1998. True copy of the letter sent by the petitioner to the 4th respondent. O.P.No. 21638 of 2000(A) Ext.P17: dated 17.5.1999, True copy of the Order G.O.(Rt)No.516/99/H.Edn. issued by the 1st respondent. Ext.P18: dated 27.5.1999. True copy of the letter sent by the petitioner to the 4th respondent. Ext.P19: dated 15.9.1999. True copy of the letter sent by the petitioner to the 2nd respondent. Ext.P20: dated 5.7.1999. True copy of the representation submitted by the petitioner before the Hon'ble Minister for Education. Ext.P21: dated 10.3.2000. True copy of the order G.O.(Rt) 350/2000/H.Edn. Issued by the 1st respondent. Ext.P22: dated 22.3.2000. True copy of the order passed by the Kerala Lok Ayukta. Ext.P23: dated 9.10.1998. True copy of the judgment of this Hon'ble Court in O.P.No.8350/1997-B. Ext.P24: dated 2.1.2007. True copy of the order issued by the 4th respondent. Respondents' Exhibits: Ext.R4(a): Photostat copy of the letter No.ES/C-3, dated 6.11.1997 issued by the 4th respondent to the 3rd respondent. Ext.R4(b): Photostat copy of the letter No.ES/C-3, dated 12.11.1998 issued by the 4th respondent to the 3rd respondent. Ext.R4(c): Photostat copy of the Ordinance of the Mahatma Gandhi University. Ext.R4(d) True copy of the communication dated 24.02.2000 sent by the Manager to the 3rd respondent. Ext.R4(a) in the addl. counter affidavit dtd. 3.3.2008: True copy of order dated 22.5.2006 passed by the Director of Collegiate Education. // True copy // tks P.N.RAVINDRAN, J. ---------------------------- O.P.No.21638 of 2000 ---------------------------- Dated this the 18th day of May, 2010 JUDGMENT The petitioner, a post graduate degree holder in Hindi. He also possesses a Ph.D.degree in Hindi awarded by the Cochin University of Science and Technology. He was initially appointed as Lecturer in Hindi in Cochin College, an aided college affiliated to the Mahatma Gandhi University, by Ext.P1 order dated 15.9.1993 in a short term leave vacancy during the period from 15.9.1993 to 31.1.1994. Later, he was regularly appointed as Lecturer by Ext.P2 order dated 9.6.1995. While the petitioner was working as Lecturer in Hindi in Cochin College, he was appointed as Lecturer in Hindi in Sree Sankaracharya University of Sanskrit, Kalady by Ext.P3 order dated 1.9.1995. He thereupon submitted Ext.P4 application dated 20.9.1995 requesting the fourth respondent, the Manager of Cochin College, to grant him leave without allowances for a period of two years with effect from 20.9.1995 to enable him to join duty in Sree Sankaracharya University of Sanskrit. After submitting Ext.P4 application, the petitioner joined duty as Lecturer in Hindi in Sree Sankaracharya University of Sanskrit. The fourth respondent O.P.No.21638/2000 2 declined to sanction the leave applied for by the petitioner and issued Ext.P5 memorandum dated 25.9.1995 informing him that his application for leave has been rejected and he should join duty forthwith. He was also cautioned that if he fails to resume duty within three days from the date of receipt of the memorandum, he will be proceeded against for unauthorised absence. 2. On receipt of Ext.P5 memorandum, the petitioner submitted Ext.P6 application dated 4.10.1995 to the fourth respondent, requesting him to grant leave without allowances for a period of two years from the afternoon of 20.9.1995, to take up foreign assignment, in accordance with the provisions of the Kerala Service Rules. In response to the said request, the fourth respondent sent Ext.P7 letter dated 16.10.1995 informing the petitioner that under the provisions of the Kerala Service Rules, he is not entitled to leave without allowances to take up employment elsewhere. He was called upon to rejoin duty as Lecturer in Cochin College within three days from the date of receipt of that letter, failing which he was cautioned that disciplinary proceedings will be initiated against him, for unauthorised absence. The petitioner thereupon sent Ext.P8 letter dated 18.10.1995 to the fourth respondent, requesting him to treat that letter as his letter of resignation from the post of Lecturer in Hindi, with effect from O.P.No.21638/2000 3 20.9.1995, if it is difficult to sanction the leave without allowances applied for. He also requested for payment of salary and other benefits for the service rendered by him in Cochin College. The fourth respondent accepted the resignation tendered by the petitioner and issued Ext.P9 memorandum dated 20.10.1995 informing him that his resignation has been accepted and that he will not have any preferential claim for appointment in the college, in future. He was also informed that salary and other benefits will be claimed from the Government and disbursed to him in due course, as per the rules. 3. While matters stood thus, by judgment delivered on 12.4.1996 in O.P.No.16586 of 1994 and connected cases, a learned single Judge of this Court set aside the selection and appointment of Sanskrit Lecturers in Sree Sankaracharya University of Sanskrit on the ground that the selection committee was not properly constituted. The learned single Judge however permitted them to continue in service for a period of three months. The correctness of the decision of the learned single Judge was canvassed in W.A.No.826 of 1996 and connected cases. By judgment delivered on 18.7.1996 (Sree Sankaracharya University of Sanskrit v. State (1996 (2) KLT 378) the writ appeals were dismissed. Thereupon those Lecturers whose selection and appointment were set aside by O.P.No.21638/2000 4 this Court, were relieved from service with effect from 28.2.1997. Some among them moved the Government seeking repatriation to their parent colleges. The Government considered the said requests and issued Ext.P11 order dated 17.3.1997 whereby those teachers who were working in Government colleges/aided colleges before their appointment in Sree Sankaracharya University of Sanskrit and whose appointments in the Sree Sankaracharya University of Sanskrit were quashed by this Court were permitted to rejoin duty in their parent colleges, if there are vacancies, as a special case. Shortly thereafter, the Registrar, Sree Sankaracharya University of Sanskrit sent Ext.P10 letter dated 21.3.1997 to the petitioner, informing him that in view of the decision of this Court, his service is liable to be terminated. The Registrar also informed the petitioner that if he wishes to avail the benefit of Ext.P11 Government order, he may submit an application for repatriation, for onward transmission to the parent college. The petitioner thereupon sent a letter dated 17.4.1997 to the fourth respondent enquiring about the vacancy position in the Department of Hindi in order to enable him to submit an application claiming the benefit of Ext.P11 Government order dated 17.3.1997. It appears, there was no response in the matter. While matters stood thus, by Ext.P12 order dated 5.9.1997, the Sree Sankaracharya University of Sanskrit terminated the petitioner's O.P.No.21638/2000 5 service and he was relieved with effect from the afternoon of 8.9.1997. Shortly thereafter, the petitioner sent Ext.P13 letter dated 11.9.1997 to the fourth respondent referring to his earlier letter dated 17.4.1997 and Ext.P11 Government order dated 17.3.1997 and requested the fourth respondent to do the needful, to enable him to rejoin duty in the parent college, at the earliest. The fourth respondent did not reply to that request of the petitioner. 4. Though pursuant to Ext.P11 Government order many teachers were reappointed in their parent colleges, many were not thus re-appointed. A few such teachers thereupon submitted a representation dated 19.8.1997 to the Government, setting out their grievances. The Government called for the remarks of the Director of Collegiate Education. The Director of Collegiate Education reported to the Government that many teachers are yet to be absorbed in their parent institutions for want of vacancies and that they can be absorbed in their parent institutions, if supernumerary posts are created. The Government considered the opinion of the Director of Collegiate Education and issued Ext.P14 order dated 4.2.1998, according sanction for the creation of supernumerary posts to absorb the teachers named in the said Government order. The name of the petitioner was included in the list appended to the aforesaid Government order. After Ext.P14 Government order was O.P.No.21638/2000 6 issued, the petitioner submitted Ext.P15 representation dated 10.2.1998 and Ext.P16 representation dated 24.2.1998 to the fourth respondent, requesting for permission to join duty as Lecturer in Cochin College. Reference was also made to Ext.P14 Government order dated 4.2.1998. It appears, there was no response from the fourth respondent to the said requests also. 5. While matters stood thus, the Government issued Ext.P17 order dated 17.5.1999, according sanction for treating the period of service rendered by teachers of Government/aided colleges in the Sree Sankaracharya University of Sanskrit, as deputation. The petitioner thereupon submitted Ext.P18 representation dated 27.5.1999 referring to Exts.P14 and P17 Government orders and requested the fourth respondent to permit him to join duty as Lecturer in Hindi. When there was no response to the said representation also, the petitioner submitted Ext.P19 representation dated 15.9.1999 to the Director of Collegiate Education, requesting him to issue necessary directions to the management of Cochin College to permit him to rejoin the institution. It appears, there was no response to the said requests made by him. No action was taken by the fourth respondent on Ext.P18 or by the Director of Collegiate Education on Ext.P19 representation. O.P.No.21638/2000 7 6. The Government thereafter issued Ext.P21 order dated 10.3.2000 according sanction for treating the period between the date of relief of teachers like the petitioner from Sree Sankaracharya University of Sanskrit and the date on which they rejoined their parent institutions, as duty for all purposes, except for pay and allowances. Since there was no reply to the various requests made by the petitioner, from the management of Cochin College or from the Director of Collegiate Education, he filed Complaint No.152 of 1999 before the Kerala Lok Ayukta. By Ext.P22 order passed on 22.3.2000, the Kerala Lok Ayukta held that the complaint is not maintainable. It was accordingly rejected without prejudice to the right of the petitioner to seek other remedies. This writ petition was thereupon filed on 31.7.2000, seeking a direction to the fourth respondent to issue appropriate orders permitting the petitioner to rejoin duty as Lecturer in Hindi in Cochin College in implementation of Exts.P11 and P14 Government orders. He also prayed for a direction to the respondents to grant him all service benefits with reference to Exts.P11 and P14 Government orders. 7. The fourth respondent has filed a counter affidavit contending inter alia that the petitioner had served as Lecturer in Hindi in Cochin College only from 15.6.1995 to 20.9.1995, that even before completing the period of probation he absented from O.P.No.21638/2000 8 duty from the afternoon of 20.9.1995 after submitting Ext.P4 application for leave without allowances and that as the leave applied for was not admissible under the rules it was refused and he was intimated about the same by Ext.P5 memorandum dated 25.9.1995. It is also contended that though the petitioner was given an opportunity to rejoin duty, he did not rejoin duty but submitted Ext.P8 letter of resignation, that it was accepted by Ext.P9 memorandum subject to the condition that he will not have any preferential claim for appointment in future, that the vacancy that arose on the resignation of the petitioner was filled up by appointing Smt.K.S.Srividya from 1.1.1996 and the said appointment was approved by the Mahatma Gandhi University by order dated 2.7.1997. The fourth respondent has also contended that this fact was communicated to the Director of Collegiate Education by Ext.R4 (a) letter dated 6.11.1997 and that in reply to the letter dated 8.10.1999 sent by the Director of Collegiate Education, the management had sent Ext.R4(b) letter dated 12.11.1998 informing the Director of Collegiate Education that as the petitioner resigned from service and left the college and the resultant vacancy has already been filed up, the management is unable to provide employment to the petitioner. As regards Ext.P14 Government order by which the Government permitted creation of supernumerary O.P.No.21638/2000 9 posts, the fourth respondent has contended that there is no provision in the Mahatma Gandhi University Act or in the Statutes and/or Ordinances empowering the Government to create supernumerary posts, that the Government have no jurisdiction to create supernumerary posts, that Exts.P11, P14, P17 and P21 Government orders are not binding on the management, that the request made by the petitioner in Ext.P13 representation was rejected by the management and that the management is not bound to implement the Government orders relied on by the petitioner as they are ab initio void and have no efficacy. 8. The petitioner has filed a reply affidavit dated 14.12.2005 pointing out that he had applied for appointment as Lecturer in Hindi in Sree Sankaracharya University of Sanskrit prior to his regular appointment by Ext.P2 order dated 9.6.1995, that at that point of time he was not working in Cochin College and therefore it was not necessary for him to obtain the permission of the management to apply for appointment in Sree Sankaracharya University of Sanskrit. He has also contended that the fourth respondent is bound to implement every order passed by the Government and that in the absence of a challenge by the management to the Government orders by instituting appropriate proceedings, the management is bound to implement them and to O.P.No.21638/2000 10 permit him to join duty as Lecturer in Hindi in the college. 9. When the original petition came up for hearing on 13.12.2006, this Court after hearing the learned counsel on both sides passed the following interim order: “Heard learned counsel for the parties. In the nature of the contentions raised by the parties and in view of the materials on record, I am satisfied that an interim direction has to be issued to respondent No.4 to consider and pass orders on Exts.P15, P16 and P18 representations submitted by the petitioner. Ordered accordingly. Respondent No.4 shall take a decision in the matter keeping in view Ext.P23 judgment rendered by a Division Bench of this Court. This shall be done as expeditiously as possible, at any rate on or before January 2, 2007. Respondent No.4 shall ensure that petitioner is afforded sufficient opportunity to be heard before any orders are passed.” As directed by this Court, the fourth respondent considered the request made by the petitioner in Exts.P15, P16 and P18 representations and passed Ext.P24 order dated 2.1.2007 rejecting the petitioner's request for reinstatement in service. The petitioner thereupon filed I.A.No.1506 of 2008 to amend the original petition by incorporating a challenge to Ext.P24 and seeking consequential reliefs. By order passed on 15.2.2008 the said application was allowed. The petitioner has in the original petition as amended prayed for the following further reliefs: O.P.No.21638/2000 11 “(v) to issue a writ of certiorari or other appropriate writ direction or order calling for the records leading to Ext.P24 and to quash the same. (vi) issue necessary direction or clarification so as to allay the apprehension of the 4th respondent that the possibility of filling up the vacancies in English Department would be reduced in case the Management is creating supernumerary post in Hindi as stated in Ext.P24 for the purpose of allowing the petitioner to rejoin the Cochin College.” 10. After the original petition was amended, the fourth respondent filed an additional counter affidavit dated 28.2.2008 contending that there is no direction in Ext.P11 or Ext.P14 to appoint the petitioner as Lecturer in the college and that the Government have only granted permissive sanction to the college leaving it open to the fourth respondent to decide whether the petitioner should be re-inducted. As regards Exts.P11, P14, P17 and P21 Government orders, it is contended that they only confer a privilege on the management of the college without creating any corresponding duty in them and that the direction issued by the Government to reappoint teachers who were thrown out from Sree Sankaracharya University of Sanskrit in their parent colleges runs counter to the provisions in the Mahatma Gandhi University Act, the Statutes and the Ordinances which govern the selection and appointment of teachers in private aided colleges. It is also contended that consequent on the de- O.P.No.21638/2000 12 linking of the Pre-degree course there is surplus teaching staff in Cochin College, that the request for filling up vacant posts in English Department was turned down by the Director of Collegiate Education by Ext.R4(e) order dated 22.5.2006 for the reason that excess hands are working in other departments, that though Ext.P24 order was passed on 2.1.2007, the petitioner took steps to challenge the said order only on 28.1.2008 when I.A.No.1506 of 2008 was filed for amending the original petition and that the challenge to Ext.P24 is belated. It is further contended that Ext.P24 is an appealable order, that an appeal lies to the Mahatma Gandhi University Appellate Tribunal under Section 59(9) of the Mahatma Gandhi University Act and as the petitioner has an effective alternative remedy which has not been exhausted, the belated challenge to Ext.P24 should not be entertained. 11. A counter affidavit dated 28.11.2008 has been filed on behalf of the State of Kerala by the Under Secretary to Government, Higher Education Department. Therein it is contended that Exts.P11, P14, P17 and P21 Government orders were issued in the wake of the decision of this Court setting aside the appointments made in Sree Sankaracharya University of Sanskrit, to protect and safeguard the interests of those teachers who were rendered jobless. It is also contended that the management is bound to abide by the O.P.No.21638/2000 13 Government orders issued from time to time and that acceptance of Government control in the appointment of staff is a pre-condition for payment of salary and allowances to the teaching and non-teaching staff appointed in private aided colleges. The first respondent has also contended that the management has a social obligation to take back the petitioner who was a regular teacher of the college, as he was rendered jobless when the selection and appointment of Sanskrit Lecturers in Sree Sankaracharya University of Sanskrit was invalidated by this Court. 12. I heard Sri. T.V.Ajayakumar, learned counsel appearing for the petitioner, Miss.Nisha Bose, learned Government Pleader appearing for respondents 1 to 3 and Sri.Manu Govind, learned counsel appearing for the fourth respondent. Relying on the decisions of the Apex Court and this Court in Patel Narshi Thakershi & others v.Shri.Pradyumansinghji Arjunsinghji (1971) 3 SCC 844), State of Punjab v. Gurdev Singh (AIR 1991 S.C. 2219), State of Kerala v. M.K.Kunhikannan (AIR 1996 SC 906), M.Meenakshi & others v. Metadin Agarwal (dead) by LRs & others (2006) 7 SCC 470), Pune Municipal Corporation v. State of Maharashtra & others (2007) 5 SCC 211), Indo-Marine Agencies v. Sales Tax Officer, O.P.No.21638/2000 14 Bombay (1979 KLT 845), State of Kerala v. Official Liquidator (1987 (1) KLT 801), Gopalakrishnan Nair v State of Kerala (ILR 1992 (3) Ker. 739), State of Kerala v. Krishna Kumar.T.G. (2009 (3) KHC 137 (DB) and Pavithran v. State of Kerala (2009 (4) KLT 20 (FB), which I shall refer to in detail later, the learned counsel appearing for the petitioner contended that as the management has not chosen to challenge the Government orders evidenced by Exts.P11, P14, P17 and P21 and are bound by the directions therein, they cannot collaterally attack the said Government orders in this original petition or ignore them on the plea that the said orders are void and are not binding on them. The learned counsel for the petitioner also contended that the management is bound to implement the Government orders issued from time to time, that under the provisions of the Mahatma Gandhi University Act, appointments can be made only to the posts sanctioned by the Government, that an order although void in law will remain effective and operative until it is challenged and its invalidity is declared by a competent court and that it is a well settled principle of administrative law that there are no void orders in the absolute sense. The learned counsel further contended that unless the person aggrieved by the order takes appropriate remedy at the O.P.No.21638/2000 15 appropriate time, even an illegal order has to be treated as valid and binding. The learned counsel for the petitioner contended that as the management has not chosen to directly challenge any of the Government orders and the validity of Exts.P11, P14, P17 and P21 orders has already been upheld by a learned single Judge of this Court in Narayanan v. Manager, S.D.College (2001 (3) KLT 592), the management is bound to give effect to the same by appointing the petitioner as Lecturer in Hindi in Cochin College. 13. Per contra, the learned counsel appearing for the fourth respondent contended that Exts.P11, P14, P17 and P21 orders accord only permissive sanction, giving liberty to the management to re-appoint persons like the petitioner without creating a corresponding duty in the management. The learned counsel also contended that there is no right duty correlation between the petitioner and the management in the matter of re-appointment, as the petitioner had resigned from service following his appointment as Lecturer in Hindi in Sree Sankaracharya University of Sanskrit. Relying on Section 59(1A) of the Mahatma Gandhi University Act the learned counsel for the fourth respondent contended that appointment of Lecturers is to be made by direct recruitment by the educational agency and as the statute prescribes a method of appointment and the agency competent to effect the appointment, O.P.No.21638/2000 16 the Government cannot make the appointment. It was contended that when the law mandates a particular thing to be done in a particular manner, it should be done in that manner or not at all. The learned counsel for the fourth respondent also contended that the validity of the Government orders relied on by the petitioner can be subjected to collateral challenge in this proceedings. Reliance was placed on the decisions of the Apex Court in Nawabkhan Abbaskhan v. State of Gujarat (AIR 1974 SC 1471) and Bharathidasan University v. All India Council for Technical Education ((2001) 8 SCC 676) and of