IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 WP(C).No. 16407 of 2007(C) ---------------------------------------- PETITIONER(S): ----------------------- A.C.BENNY, GARDENER, ST.PETER'S COLLEGE, KOLENCHERY, RESIDING AT: ERAYAKKATTUKUZHIYIL HOUSE, KARUKAPPILLY P.O., KOLENCHERRY. BY ADV. SRI.MURALI PURUSHOTHAMAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, DIRECTORATE OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. ST.PETER'S COLLEGE TRUST, REPRESENTED BY ITS SECRETARY, KOLENCHERRY, ERNAKULAM DISTRICT. 4. THE PRINCIPAL, ST.PETER'S COLLEGE, KOLENCHERRY, ERNAKULAM DISTRICT. 5. ST.PETER'S COLLEGE, REPRESENTED BY ITS PRINCIPAL, KOLENCHERRY, ERNAKULAM DISTRICT. GOVERNMENT PLEADER SRI.A.J.ARGHESE SRI.MILLU DANDAPANI FOR R.3 TO 5 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. -------------------------- W.P.(C) No.16407 OF 2007 ------------------------------------- Dated this the 20th day of November 2008 J U D G M E N T The prayer is to quash Ext.P6 and to direct the 2nd respondent to approve the appointment of the petitioner to the post of gardener in the 5th respondent College pursuant to Ext.P4 order of appointment and to disburse salary and other benefits. 2. It is stated that a post of gardener was sanctioned in the 5th respondent college on 08/10/1996 and one Shri.P.M.Thomas was appointed to that post. Shri.Thomas retired on 31/10/2002. Subsequently, Ext.P8 order dated 17/09/2004 was issued by the 1st respondent introducing revised staff pattern for the colleges in the State. This order inter alia provided that all posts which become surplus consequent on the revised staff pattern, appended to the order, shall be declared as supernumerary. It is also stated that no fresh recruitment shall be made and that the work WP(C) No.16407/2007 -2- shall be done by the surplus employees holding other posts through suitable work redistribution. 3. Therefore, it is evident from Ext.P8 that when the revised staff pattern is implemented, the excess staff will be treated on supernumerary basis, and that fresh recruitment will not be resorted to and that the work will be done by redistribution among the existing staff. Though Ext.P8 order of revised staff pattern was issued by the Government as early as on 17/09/2004, the revised staff pattern in so far as the 5th respondent college is concerned, was issued only by Ext.P1 dated 28/01/2006. 4. In the meanwhile, pursuant to Ext.P3 proceedings of the staff selection committee, the petitioner was selected to the post of gardener and was appointed by Ext.P4 order dated 21/11/2005. 5. By Ext.P5, approval of his appointment was sought for by the Principal and that was rejected by Ext.P6 order. The reason stated in Ext.P6 is that consequent on Exts.P8 & P1, there were supernumerary employees WP(C) No.16407/2007 -3- available and that the requirement of the post should be met by distributing work among the supernumerary employees. It is seen that by submitting Ext.P7, the Principal has given his explanation to Ext.P6, stating that the other category employees available are of higher cadre and that those employees are not willing to do the work of gardener. He has also stated that since the appointment of the petitioner was prior to Ext.P1, provisions of Ext.P8 Government order are irrelevant in so far the appointment of the petitioner is concerned. It is in these circumstances, the writ petition is filed. 6. The learned Government Pleader contends that even before Ext.P8, consequent on the delinking of Pre- Degree, there was a ban imposed, which remained in force till 04/06/2000. It is stated that once Ext.P8 was issued on 17/09/2004, the terms thereof will apply to all colleges. According to him, since the appointment of the petitioner was made subsequent to Ext.P8, the appointment is not liable to be approved. It is also contended that WP(C) No.16407/2007 -4- supernumerary employees in the category of sweeper, watcher and scavenger were available in the college at the relevant time and that, they, like the gardener, belonging to the category of last grade employees, and therefore, they could have been redeployed to work in the vacancy on account of the retirement of Shri.P.M.Thomas. 7. I have considered the submissions made. True, Ext.P8 notification regarding the revised staff pattern was introduced from 17/09/2004. However, a reading of Ext.P8 shows that on the application of the revised staff pattern, those found surplus are to be declared as supernumerary. It is only such of those supernumeraries, who are liable to be deployed for other work. In so far as this case is concerned, revised staff pattern was issued by Ext.P1 on 28/01/2006. If that be so, employees were rendered surplus and declared supernumeraries only subsequent to 28/01/2006. 8. As already noticed, the petitioner was appointed as gardener by Ext.P4 dated 21/11/2004. Therefore, at the WP(C) No.16407/2007 -5- time when the petitioner was appointed, Ext.P1 was not issued and therefore, the surplus employees mentioned therein, who were declared as supernumeraries, were not available for redistribution of work. If that be so, Ext.P1 and Ext.P8 have no relevance in so far as the appointment of the petitioner is concerned. Therefore, the reason in Ext.P6 that in view of Exts.P1 and P8, the supernumerary employees were available to do the work of gardener by redistribution of work is erroneous and cannot be upheld. 9. For the aforesaid reasons, Exts.P6 & P8 will stand quashed and the 2nd respondent is directed to approve the appointment of the petitioner to the post of gardener and disburse the benefit on that basis. This shall be done as expeditiously as possible, at any rate within six weeks of production of a copy of this judgment. (ANTONY DOMINIC, JUDGE) jg