IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 WP(C).No. 22588 of 2008(L) --------------------------------------- PETITIONER: ------------------- SANU.P.S., PRAGATHI, NEW AISWARYA NAGAR 78. VADAKKEVILA PO., KOLLAM-691010, NOW WORKING AS FINANCE MANAGER, UNION BEVERAGES FACTORY, INDUSTRIAL AREA-2, PB.804, JABAL ALI, DUBAI. BY ADV. MR.GOPAKUMAR R.THALIYAL. RESPONDENTS: ------------------------ 1. MANNANIYA COLLEGE OF ARTS AND SCIENCE, REP. BY ITS MANAGER, PANGODE, THIRUVANANTHAPURAM. 2. THE PRINCIPAL, MANNANIYA COLLEGE OF ARTS AND SCIENCE, PANGODE, DO. 3. UNIVERSITY OF KERALA, REP. BY THE REGISTRAR, UNIVERSITY OFFICE, PALAYAM, THIRUVANANTHAPURM. 4. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 5. STATE OF KERALA, REP. BY PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 & R2 BY ADV. MR.A.MOHAMMED, R3 BY MR.M.RAJAGOPALAN NAIR, SC, KERALA UNIVERSITY, R4 & R5 BY GOVERNMENT PLEADER SMT. SMITHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.22588/2008-L: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE CIRCULAR ISSUED BY THE R.5. DTD. 24/04/1997. EXT.P.2: COPY OF THE ORDER ISSUED BY THE R.5. DTD. 03/07/1997. EXT.P.3: COPY OF THE ORDER ISSUED BY THE R.5. DTD. 06/12/1999. EXT.P.4: COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER DTD. 26/06/2000. EXT.P.5: COPY OF THE LETTER ISSUED BY THE R.2. DTD. 29/08/2000. EXT.P.6: COPY OF THE LETTER ISSUED BY THE REGISTRAR OF THE R.3. DTD.01/01/2001. EXT.P.7: COPY OF THE REPRESENTATION SUBMITTED BY THE R.2. DTD. 26/06/2001. EXT.P.8: COPY OF THE REPLY ISSUED BY THE R.5. DTD. 05/02/2002. EXT.P.9: COPY OF THE ORDER ISSUED BY THE UNIVERSITY OF CALICUT DTD. 09/01/2001. EXT.P.10: COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE COURT IN O.P. NO. 13182/2003 DTD. 23/02/2004. EXT.P.11: COPY OF THE ORDER ISSUED BY THE R.3. DTD. 11/05/2004. EXT.P.12: COPY OF THE ORDER ISSUED BY THE R.5. DTD. 27/07/2004. EXT.P.13: COPY OF THE REPRESENTATION SUBMITTED BY T. RAJESH DTD. 20/09/2004. EXT.P.14: COPY OF THE LETTER SENT BY THE R.5. DTD. 31/12/2004. EXT.P.15: COPY OF THE COUNTER AFFIDAVIT FILED BY THE R.4. IN W.P.(C). NO.17983/2005 DTD. 18/11/2006 ALONG WITH EXHIBITS. EXT.P.16: COPY OF THE REPLY AFFIDAVIT FILED IN W.P.(C).NO.17983/2005 DTD. 03/12/2006 ALONG WITH EXHIBITS. EXT.P.17: COPY OF THE JUDGMENT IN W.P.(C). NO.17983/2005 DTD. 20/03/2007. EXT.P.18: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE R.5. DTD. 11/05/2007. EXT.P.19: COPY OF THE ORDER PASSED BY THE R.5. DTD. 26/10/2007. EXT.P.20: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER FOR EDUCATION, GOVERNMENT OF KERALA DTD. 03/03/2008. EXT.P.21: COPY OF THE COMMUNICATION ISSUED BY THE R.5. DTD. 28/03/2008. W.P.(C). NO.22588/2008-L: EXT.P.22: COPY OF THE COMMUNICATION ISSUED BY THE R.5. DTD. 16/05/2008. EXT.P.23: COPY OF THE PROCEEDINGS OF THE R.2. DTD. 01/11/2003. EXT.P.24: COPY OF THE CERTIFICATE ISSUED BY THE R.2. DTD. 06/06/2007. EXT.P.25: COPY OF THE ATTENDANCE REGISTER FROM JUNE 2000 TO SEPTEMBER 2003. EXT.P.26: COPY OF THE WAGE REGISTER 6/2000 TO 9/2003. RESPONDENTS' EXHIBITS: EXT.R5.A: COPY OF THE JUDGMENT IN W.A. NO. 2529/2005. EXT.R5.B: COPY OF THE GOVT. ORDER G.O.(RT).995/2004/H. EDN. DTD. 27/07/2004. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC,J. --------------------- W.P.(C).No.22588 OF 2008 ------------------------ Dated this the 8th day of September, 2009. JUDGMENT Petitioner was appointed as Lecturer in Commerce under the Ist respondent with effect from 26.6.2000. Immediately thereafter, with effect from 28.6.2000, yet another person, viz Sri. T. Rajesh was appointed in the same college and in the same department. The appointment of both these persons were not approved by the University and that led to the filing of O.P.No.13182/03 before this Court. During the pendency of the Original Petition, on 4.9.2003, petitioner secured employment under the BSNL and was relieved from service and Ext.P23 relieving order substantiates this position. 2. Subsequently, by Ext.P10 judgment rendered on 23.2.2004, O.P.No.13182/03 was disposed of, directing the University to consider the question of approval of WP(c).No.22588/08 2 appointment of the petitioners therein, namely the petitioner and Sri. Rajesh and the University was ordered to pass orders thereon. Accordingly, by Ext.P11 order issued by the University on 11.5.2004, both the appointments were approved. Thereafter, the Government issued Ext.P12 order dated 27.7.2004, creating two posts against which the petitioner and Sri. Rajesh were appointed. However, on 31.12.2004, Government issued Ext.P14 order clarifying that creation of posts by Ext.P12 was effective only from the date of the said order. 3. Ext.P14 limiting the effect of Ext.P12 only from the date of the order was challenged before this court in WP(c). No.17983/05 filed by the petitioner and Sri. Rajesh. That writ petition was disposed of by Ext.P17 judgment rendered on 20.3.2007. In the said judgment, overruling the objection raised by the respondents that, the sanction for the course against which the petitioner and Sri. Rajesh were appointed were without any additional financial liability on the WP(c).No.22588/08 3 Government, this court held that Sri. Rajesh is entitled to the monetary benefits for the service rendered from the date of his initial appointment. However, in so far as the petitioner is concerned, taking into account the fact that the petitioner was relieved from service, such a positive direction was declined and it was clarified that, it will be open to the petitioner to work out his remedies with adequate materials to substantiate his claim of having worked in the college from 26.6.2000. 4. Accordingly, the petitioner represented to the Government by filing Ext.P19 claiming wages for the period from 26.6.2000 till 4.9.2003. It is stated that along with the said representation, petitioner had produced materials to substantiate his claim of having worked during the said period. His claim was considered and Ext.P21 order was issued, stating that in the case of Sri. Rajesh, the benefits were released only in implementation of Ext.P17 judgment of this court and that in so far as the petitioner is concerned, such court direction did not exist and therefore he was not eligible WP(c).No.22588/08 4 for monetary benefits. Petitioner filed further representations which were also rejected as per Ext.P22. It was thereupon that this writ petition was filed challenging Exts.P21 and P22 and also for a direction to the respondents to release the monetary benefits that are due for the service that he rendered during the aforesaid period. 5. Petitioner has also produced Exts.P24, P25 and P26 certificate issued by the Principal of the first respondent college certifying that he had actually worked for the period from 26.6.2000 to 4.9.2003, the attendance register evidencing his presence in the college and also the wage register which shows that though he had worked he was not paid wages for that period. On this basis counsel contends that, the petitioner is entitled to be paid wages at par with Sri. Rajesh, whose monetary benefits have been released by the Government pursuant to Ext.P17 judgment by issuing Ext.P19 order. WP(c).No.22588/08 5 6. The respondents on the other hand disputes the claim of the petitioner mainly relying on the judgment in W.A.No.2529/05 and connected cases . It is stated that in that case, a Division Bench of this court relying on the condition imposed by the Government and the University that courses were sanctioned without any additional financial liability and thus absolving the Government of financial liability, held that the Government is not liable to pay wages for the Lecturers appointed by the managements. It is also contended that in pursuance to Ext.P17 judgment though the petitioner filed Ext.P18, the petitioner did not make available any record to substantiate his contention that he had actually worked in the college as claimed by him. It is on this basis, the respondents are seeking to justify Exts.P21 and P22 orders rejecting the claim of the petitioner. 7. In so far as the judgment in W.A. No.2529/05 is concerned, although it is true that, in that judgment a Division Bench of this court held that in cases where posts have been WP(c).No.22588/08 6 sanctioned subject to conditions as in this case, Government is not liable for payment of salary to the Lecturers appointed, from the facts of this case it can be seen that the respondents cannot rely on that judgment. This is for the reason that unlike the cases dealt with by the Division Bench, in this case the University approved the appointment of the petitioner and Sri. T. Rajesh by Ext.P11 order, posts were created by the Government as per Ext.P12 and monetary benefits have also been already released to one of the persons viz. Sri.T. Rajesh, who was appointed on 28.6.2000 and is similarly situated like the petitioner. If that be so, the factual position in this case is totally different from what was considered by the Division Bench. Therefore I am not persuaded to rely on the Division Bench judgment and decline relief to the petitioner. 8. Even apart from this, in Ext.P17 judgment, though claim was upheld in principle, positive direction for payment of wages was declined by this court, only for the reason that the petitioner had resigned from service and his claim for WP(c).No.22588/08 7 monetary benefits was left open to be pursued before appropriate authorities. This judgment has become final and binding on the parties. It was in pursuance to the liberty thus given, that the petitioner submitted Ext.P18 representation. However, Ext.P18 representation does not show that the petitioner had in fact produced any documents to substantiate his claim, such as Ext.P23 relieving order, Ext.P24 certificate, Ext.P25 attendance register or Ext.P26 wage register, which are now relied on to substantiate the case that he did work in the college for the period from 26.6.2000 to 4.9.2003 as claimed by him. I such a situation, I cannot find fault with the respondent in passing Exts.P21 or P22. 9. On the other hand, if the petitioner could establish that in fact he had worked for the period from 26.6.2000 to 4.9.2003, there is no reason to decline the monetary benefits due to him. But, however, this being a factual issue, it is for the petitioner to establish this factual aspect before Government. Therefore, I feel that, in the facts of the case it is WP(c).No.22588/08 8 for the petitioner to produce necessary documents before the Government and it is for the Government to reconsider the claim of the petitioner in the light of the materials so produced. 10. In view of the above, I quash Exts.P21 and P22 and direct that it will be open to the petitioner to make a fresh representation to the 5th respondent, claiming the monetary benefits from 26.6.2000 to 4.9.2003, producing the materials referred to above or any other additional materials to prove that he had actually worked during the said period. It is directed that, if such a representation is filed within 4 weeks from today, the same shall be considered by the 5th respondent with notice to the petitioner and final orders shall be passed as expeditiously as possible and at any rate within 2 months thereafter. It is clarified that, in case the petitioner succeeds in establishing that he did actually work for the aforesaid period, monetary benefits arising therefrom shall be disbursed to the petitioner as in the case of Sri. T. Rajesh WP(c).No.22588/08 9 mentioned above. Writ petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/