IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 WP(C).No. 31965 of 2009(M) -------------------------- PETITIONER(S): --------------- 1. DINU S.L. WATCHMAN, SREE NARAYANA COLLEGE, SIVAGIRI. 2. V. JAYADAS, PEON, SREE NARAYANA COLLEGE, SIVAGIRI, 3. C. VASANTHA KUMAR, PEON, SREENARAYANA COLLEGE, SIVAGIRI, 4. N. PRAMOD, PEON, SREENARAYANA COLLEGE, SIVAGIRI 5. N. SUNIL,PEON, SREENARAYANA COLLEGE, SIVAGIRI 6. V.S. BINU, SANITATION WORKER, SREENARAYANA COLLEGE, SIVAGIRI 7. S. BABY, THANKON, SWEEPER, SREENARAYANA COLLEGE, SIVAGIRI 8. D.SHEELA, SANITATION WORKER, SREENARAYANA COLLEGE, SIVAGIRI 9. JINU K.S. PEON, SREE NARAYANA COLLEGE, NEDUMKANDAM, IDUKKI. BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, TO GOVT. HIGHER EDUCATION DEPT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION OFFICE OF THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. WP(C).No. 31965 of 2009(M) 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOLLAM. 4. MANAGER, SREE NARAYANA TRUST, OFFICE OF THE SREE NARAYANA TRUST, KOLLAM. 5. THE PRINCIPAL, SREE NARAYANA COLLEGE, SIVAGIRI, VARKALA, KOLLAM. 6. THE PRINCIPAL SREE NARAYANA TRAINING COLLEGE, NEDUMKANDAM, IDUKKI DIST. SENIOR GOVERNMENT PLEADER, SHRI MUHAMOOD T.T SHRI A.N.RAJAN BABU, SC, FOR R4 TO R6 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/11/2009, ALONG WITH WPC NO. 32153 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.31965/2009-M & 32153/2009-L ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 19th day of November, 2009 J U D G M E N T As per Ext.P1 notification dated 26/03/1996, the Manager of the Sree Narayana Trust, Kollam invited applications to the post of Class-IV employees viz. Peon, Watchman, Sweeper, Sanitation Worker in various S.N.Colleges. The petitioners in both the writ petitions are persons who have been appointed pursuant to the selection process thus initiated. 2. The issue relating to the regularisation of the petitioners and similarly situated persons of the Class-IV employees in the S.N Trust Colleges was taken up before the Government by the Management of the College and the Government ultimately passed Ext.P5 order dated 28/07/2005 (Ext.P6 in W.P.(C).No.32153/2009) approving appointment of 137 persons as Last Grade Servants in S.N.Trust Colleges during 1998-99 from the date of that order without retrospective effect as a special case. 3. In these writ petitions, the petitioners seek for a direction commanding the respondents to consider the claim of the petitioners along with petitioners in W.P.(C). No.28363/2007 and connected cases and grant them all service benefits including salary. In W.P.(C). W.P.(C). Nos.31965/2009 & 32153/2009 -:2:- No.28363/2007, as per Ext.P7 Judgment produced in W.P.(C). No.31965/2009, this Court considered the 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) of the said Judgment is extracted below:- “10. 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 W.P.(C). Nos.31965/2009 & 32153/2009 -:3:- 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 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 W.P.(C). Nos.31965/2009 & 32153/2009 -:4:- 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 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) & (12), the following directions were issued:- “11. 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. 12. 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.” W.P.(C). Nos.31965/2009 & 32153/2009 -:5:- 5. The learned counsel for the petitioner submitted that since the petitioners are similarly situated, their case may also be considered. 6. The learned Government Pleader submitted that the petitioners have not approached the Government in the matter. Hence, I am of the view that it is upto the petitioners to invite the attention of the Government by filing separate representations in this regard. 7. Therefore, if the petitioners file appropriate representations seeking for a similar consideration of their grievances as ordered in W.P.(C).No.28363/2007 and connected cases, within three weeks from today, their claim will also be considered along with the claim raised by the petitioners in W.P.(C).No.28363/2007 and connected cases and the petitioners in W.P.(C).No.10501/2006 etc. The writ petitions are disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms