IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 WP(C).No. 3250 of 2007(J) ------------------------------------ PETITIONER(S): ------------------------- 1. D.SANTHOSH, AGED 33 YEARS, S/O. DIVAKARAN M.P., SWEEPER, M.P.M.M. S.N. TRUST COLLEGE, SHORANUR, MOOPAMPARAMBIL HOUSE, S.L.PURAM P.O., ALAPPUZHA. 2. P.K.SHAJI, WATCHMAN, M.P.M.M. S.N.TRUST COLLEGE, SHORANUR, POTTALATHU HOUSE, KANICHUKULANGARA P.O., CHERTHALA, ALAPPUZHA DISTRICT. 3. RATHEESH KUMAR N., SWEEPER, M.P.M.M. S.N.TRUST COLLEGE, SHORANUR, MOOLEKKATTIL HOUSE, KATTIL MARKET P.O., HARIPPAD, ALAPPUZHA. 4. M.P.JAYAPRAKASH, PEON, M.P.M.M. S.N.TRUST COLLEGE, SHORANUR, MOOLAYIL HOUSE, KANJIRAMATTOM P.O., KOTTAYAM DISTRICT. 5. SHIJI S., PEON, M.P.M.M. S.N.TRUST COLLEGE, SHORANUR, RAMA VILASOM, VILABHAGOM P.O., NEDUNGANDA, VARKALA, THIRUVANANTHAPURAM. 6. CHANDRAPRASAD T., WATCHMAN, M.P.M.M. S.N.TRUST COLLEGE, SHORANUR, PUTHUPURACKAL, MUNDAKKAL EAST, KOLLAM. 7. BAIJU S., SANITATION WORKER, M.P.M.M. S.N.TRUST COLLEGE, SHORANUR, VENKOM VELIYIL, KAYIPPURAM, MUHAMMA P.O., ALAPPUZHA. W.P.(C) NO.3250/2007 8. SABU K.R., PEON, M.P.M.M. S.N.TRUST COLLEGE, SHORANUR, KACHERICHIRA, KALAVANKODAM P.O., CHERTHALA, ALAPPUZHA. 9. UDAYAN D., PEON, M.P.M.M. S.N.TRUST COLLEGE, SHORANUR, VELLACHIZHIKOM, MAYYANADU P.O., KOLLAM. 10. MANEESH M.K.C., MUTHUVATHU KAVIL HOUSE, CHELENNOOR P.O., KOZHIKODE, PEON, M.P.M.M. S.N.TRUST COLLEGE, SHORANUR. BY ADV. MR.S.SHANAVAS KHAN RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE MANAGER, SREE NARAYANA COLLEGE, S.N.TRUST, P.B.NO.63, KOLLAM. 4. THE PRINCIPAL, M.P.M.M. S.N.TRUST COLLEGE, SHORANUR. R1 & R2 BY GOVT. PLEADER MR.SANILKUMAR R3 & R4 BY MR.A.N.RAJAN BABU, SC, S.N.TRUST R4 BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE R4 BY ADV. MR.MR.S.SUJIN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/10/2009, ALONG WITH WPC NO. 27524 OF 2007 WPC NO. 28363 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.3250/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER ISSUED BY THE 3RD RESPONDENT FOR THE 2001-02 TO IST PETITIONER. P1(a):- COPY OF THE DO. DO. 2ND PETITIONER. P1(b):- COPY OF THE DO. DO. TO 3RD PETITIONER P1(c):- COPY OF THE DO. DO. TO 4TH PETITIONER. P1(d):- COPY OF THE DO. DO. TO 5TH PETITIONER. P1(e):- COPY OF THE DO. DO. TO 6TH PETITIONER. P1(f):- COPY OF THE DO. DO. TO 7TH PETITIONER. P1(g):- COPY OF THE DO. DO. TO 8TH PETITIONER. P1(h):- COPY OF THE DO. DO. 9TH PETITIONER. P2:- COPY OF THE ORDER NO.30718/D3/02 HED DTD. 14.11.02 OF THE IST RESPONDENT. P3:- COPY OF THE ORDER DTD. 20.1.03 IN CMP. 63616/02. P4:- COPY OF THE OP. 4396/03. P5:- COPY OF THE JUDGMENT DTD. 25.8.0 IN OP.4396/03. P6:- COPY OF THE G.O.(MS) NO.100/05/H.EDN. DTD. 28.7.05. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC, J. ------------------------- W.P.(C.) Nos.3250, 27524 & 28363 of 2007 --------------------------------- Dated, this the 8th day of October, 2009 J U D G M E N T The issues raised in these writ petitions are common, and therefore, these cases are heard together and disposed of by this judgment. 2. For convenience, I shall refer to the facts pleaded in WP (C) No. 27524/2007. 3. Ext.P1 is the notification dated 26/03/1996 issued by the 3rd respondent, inviting applications for appointments to the vacant posts in Class IV category in their Colleges. The petitioners responded to Ext.P1 and were called for a written test and interview. Ext.P2 is the call letter issued to the 8th petitioner. The petitioners were selected, and by Exts.P3 to P14 orders issued during 1998 they were appointed. The appointments were made on temporary basis and with a condition that they will be absorbed in permanent posts, as and when sanction is obtained from the Government. 4. The petitioners state that subsequently in 2003, the WP(C) Nos.3250, 27524 & 28363 of 2007 -2- conditions of their appointment were modified and they were treated as contract employees. Ext.P16 is the order issued in this behalf to the 12th petitioner. They continued in service and their period of appointment was also extended from time to time. However, they were paid salary only till October, 2002. Subsequently, by Ext.P19 order issued on 28/07/2005, the Government accorded sanction to approve the appointments of 137 persons appointed by the 3rd respondent during 1998-99, as per the list appended thereto, as Last Grade Servants under the 3rd respondent, from the date of the order and without retrospective effect as a special case. It was ordered that they will be fixed at the entry level in the relevant scale of pay, and that their past services will not count for purposes of increment, pension, higher grade, accumulation of leave, declaration of probation etc. 5. As already noticed above, on the basis of the initial appointment, its approval and the periodical extensions granted, the petitioners were paid salary for the period only up to October, 2002, and were not paid salary till the date of Ext.P19, viz., 27/07/2005. Subsequently, the petitioners claimed salary for the aforesaid period. The calim was considered and was rejected by WP(C) Nos.3250, 27524 & 28363 of 2007 -3- Ext.P20 order dated 09/05/2007, on the ground that the approval of appointment was granted only from the date of Ext.P19 i.e.28/07/2005. It is in these circumstances, this writ petition is filed praying that the respondents be directed to pay salary for the period from October, 2002 till 27/07/2005. 6. In so far as petitioners in WP(C) Nos.3250 & 28363 of 2007 are concerned, they are also similar appointees, who were denied salary for same reason and are claiming salary for the same period. 7. The 2nd respondent has filed a counter affidavit. In the counter affidavit filed, it is stated that after the issuance of Ext.P1 notification, regular appointments of teaching and non-teaching staff in Private (aided) Colleges was banned by the Government for a period of three years from 03/06/1997 as per the provisions of the Pre-Degree Course (Abolition) Act, 1997. It is in spite of it, that the Management offered appointments to the petitioners. The respondents have stated that during the period of ban, considering the difficulties faced by the Colleges, the Government by its order dated 20/07/1998 permitted the Colleges to appoint non-teaching staff on contract basis for a period of one year. It is stated that the WP(C) Nos.3250, 27524 & 28363 of 2007 -4- Government later issued certain restrictions on all appointments under the Government Departments from 16/01/2002, and that there was also an existing ban on appointments in Collegiate Education Department. It is stated that the Government thereafter issued order dated 14/11/2002 instructing the 2nd respondent that even contract appointments need not be approved till the revision of staff pattern of non-teaching staff of Private (aided) Colleges. It is stated that staff pattern was approved only on 17/09/2004, and that no regular appointment was possible until then. 8. Thus, in a sense, what the Government would contend is that even after the expiry of the ban imposed as per Section 5 of the Pre Degree Course (Abolition) Act, in view of the ban on appointments imposed by the Government by virtue of the executive orders mentioned above, the Management could not have made appointments, and therefore, the Government does not have the liability to approve such appointments or pay salary as claimed by the petitioners. 9. Even going by Ext.P19, the impugned order, the fact that the petitioners were appointed to existing vacancies does not seem to be a matter of dispute. However, the only justification that is WP(C) Nos.3250, 27524 & 28363 of 2007 -5- offered is the existence of the ban on appointments imposed by the Government on the basis of the executive orders referred to above. The question that arises for consideration while determining the eligibility of the petitioners' claim for salary during the period from October, 2002 to 27/07/2005 is the validity of the ban thus imposed by the Government by virtue of the executive orders. While examining this question, this Court should take note of the fact that by virtue of the provisions of the Pre-Degree Course (Abolition) Act, 1997 the statutory ban was imposed on appointments for a period of three years and the said ban expired on 02/06/2000. Thereafter, there was no statutory ban preventing the managements from making appointments for the period subsequent thereto. Now what remains to be examined is the effect of the ban imposed by executive orders, preventing the Managements from appointing to posts available as per the approved staff pattern. 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 WP(C) Nos.3250, 27524 & 28363 of 2007 -6- 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 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 WP(C) Nos.3250, 27524 & 28363 of 2007 -7- 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 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. 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 WP(C) Nos.3250, 27524 & 28363 of 2007 -8- 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. In view of the above directions, Ext.P20 in WP(C) No.27524/2007, Exts.P4 & P7 in WP(C) No.28363/2007, and Ext.P6 in WP(C) 3250/2007 declining salary to the respective petitioners will stand quashed. It is directed that the 1st respondent shall reconsider as directed above. This shall be done as expeditiously as possible, within three months of production of a copy of this judgment. These writ petitions are disposed of as above. (ANTONY DOMINIC, JUDGE) jg