IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 WA.No. 1541 of 2009 --------------------- AGAINST THE JUDGEMENT IN WPC.16407/2007 Dated 20/11/2008 .................... APPELLANT(S)/RESPONDENTS 1 & 2 IN WPC. -------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETRIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF COLLEGIATE EDUATION, DIRECTORATE OF COLLEGIATE EDUCATION, VIKAS BHAVAN,THIRUVANANTHAPURAM. BY SENIOR GOVERNMENT PLEADER SRI.BENNY GERVASIS RESPONDENT(S): PETITIONER AND RESPONDENTS 3 TO 5 IN WPC. -------------------------------------------------------- 1. A.C.BENNNY, GARDNER, ST.PETER'S COLLEGE, KOLENCHERRY, RESIDING AT ERAYAKKATTUKUZHIYIL HOUSE KARUKAPPILLY P.O., KOLENCHERRY. 2. ST.PETER'S COLLEGE TRUST, REPRESENTED BY ITS SECRETARY, KOLENCHERRY, ERNAKULAM. 3. THE PRINCIPAL, ST.PETER'S COLLEGE,KOLENCHERRY, ERNAKULAM. 4. ST.PETER'S COLLEGE, REPRESENTED BY ITS PRINCIPAL,KOLENCHERRY, ERNAKULAM. ADV. SRI. K.P.DANDAPANI, SENIOR ADVOCATE FOR R2 TO R4 SRI.MILLU DANDAPANI FOR R2 TO R4 SRI.MURALI PURUSHOTHAMAN FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ------------------------------ W.A.No.1541/2009-E ------------------------------ Dated this, the 5th day of February, 2010 JUDGMENT Balakrishnan Nair, J. The respondents 1 and 2 in the Writ Petition are the appellants. The 1st respondent herein was the writ petitioner. 2. The brief facts of the case are the following: The 4th respondent College is having Degree and Post-graduate courses in Botany. Therefore, maintenance of a garden is obligatory as per the University Regulations. A post of Gardener is also sanctioned in such colleges. In the 4th respondent College, a post of Gardener was sanctioned by order dated 8.10.1986. The person appointed in that post retired from service on 31.10.2002 and as a result, a vacancy arose in that post on 1.11.2002. The Management invited applications for appointment to the said post, by Ext.P2 notification dated 6.3.2005. The selection committee met and by Ext.P3 minutes, prepared a rank-list, in which the 1st respondent was rank No.1. WA No.1541/2009 - 2 - The Secretary of the Trust, which is running the College, appointed him in that vacancy of Gardener, as per Ext.P4 order dated 21.11.2005. The 3rd respondent Principal of the College by Ext.P5 communication dated 12.12.2005 forwarded the proposal for approval of that appointment to the 2nd appellant Director of Collegiate Education. But, the Director, by Ext.P6 communication dated 14.7.2006, declined approval for the same. Challenging Ext.P6 and seeking approval of his appointment, the 1st respondent filed the Writ Petition. 3. The appellants/respondents resisted the prayers in the Writ Petition, relying on Ext.P8 order of the Government dated 17.9.2004 and also Ext.P1 staff fixation order dated 28.01.2006, issued by the 2nd appellant in the light of Ext.P8 order. According to them, as per Ext.P1, there were 37 supernumerary hands among the non-teaching staff in the College, continuing under protection. They were rendered surplus, as a result of abolition of the Pre-degree course. By Ext.P8, the Government ordered that until all supernumerary hands among the non-teaching staff are either accommodated WA No.1541/2009 - 3 - in regular vacancies or retired, no fresh appointments shall be made, even if vacancies arise in a different non-teaching post. For example, even if there is a vacancy of Gardener and there is no supernumerary post of Gardener, according to Ext.P8 order, that vacancy should be filled up by deploying others like Peons etc., who are surplus. The cumulative effect of Exts.P8 and P1 was that fresh appointment of non-teaching staff could be made only after all the supernumerary hands are accommodated. Though the said contention was raised before the learned Single Judge, the learned Judge allowed the Writ Petition, by quashing Exts.P6 and P8, though there was no prayer in the Writ Petition to quash Ext.P8. Feeling aggrieved by the said judgment, this Writ Appeal is preferred. 4. We heard the learned senior Government Pleader for the appellants and Sri.Murali Purushothaman, learned counsel for the 1st respondent, apart from the learned counsel for the Management of the College. 5. Going by Ext.P8 and also Ext.P1, the College is entitled to have a post of Gardener. But, the same cannot be filled up, WA No.1541/2009 - 4 - in view of the availability of protected hands in different non- teaching posts, including that of Peons. The stand of the Management was that the non-teaching staff, who were declared as supernumerary hands, were not willing to work as Gardener. But, we think, the said defence cannot be accepted. It is for the Management to deploy one of the non-teaching staff to work as Gardener and if he does not obey, the Management can take coercive steps to ensure that its orders are obeyed. When there are some persons receiving salary from public funds, but without any work in the College, there is nothing wrong with the decision of the Government to utilise their services in the vacant sanctioned posts. As long as Ext.P8 is valid and Ext.P1 issued in the light of Ext.P8 remains, we find nothing wrong with Ext.P6. We also notice that Ext.P1 is effective from the date of Ext.P8. In the absence of any challenge against Ext.P8, it should not have been quashed. The appointment of the 1st respondent has been made only on 21.11.2005, when Ext.P8 order was very much alive and kicking. Therefore, the 2nd appellant rightly declined approval for WA No.1541/2009 - 5 - the same. 6. In the result, the Writ Appeal is allowed. The judgment of the learned Single Judge is reversed and the Writ Petition is dismissed. But, it is clarified that the appointment of the 1st respondent shall be approved as and when all the supernumerary hands disappear from the scene or are accommodated against other vacancies, provided the 1st respondent is otherwise eligible for approval of his appointment. This judgment will not affect the rights, if any, of the 1st respondent to claim salary from the Management for the period he has worked without approval. K. Balakrishnan Nair, Judge. P.N.Ravindran, Judge. nm.