IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 10501 of 2008(A)
1. P.AJITH, PEON, S.N.COLLEGE, CHENGANNUR.
... Petitioner
2. K.MURALEEDHARAN,
3. K.RAJAN,
4. BINO G.NATH,
5. M.RAJIN,
6. K.RAJU, SANITATION WORKER,
7. P.K.PRAKASH, SWEEPER,
8. D.ULLAS, SANITATION WORKER,
Vs
1. SECRETARY TO GOVERNMENT,
... Respondent
2. THE DIRECTOR OF COLLEGIATE
3. THE DEPUTY DIRECTOR OF COLLEGIATE
4. MANAGER, SREE NARAYANA TRUST,
5. THE PRINCIPAL,
For Petitioner :SRI.P.C.SASIDHARAN
For Respondent :SRI.A.N.RAJAN BABU
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :22/10/2009
O R D E R
T.R. RAMACHANDRAN NAIR, J.
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W.P.(C) No.10501 OF 2008
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Dated this the 22nd day of October, 2009.
J U D G M E N T
It is submitted that in the light of the judgment rendered by
this Court in W.P.(C) No.28363 of 2007, a similar direction can
be issued in this case also.
2. The petitioners herein are working as Peons, Sanitation
Workers and Sweeper under the 4th respondent-Management.
The advertisement to fill up the posts was published as per
Exhibit P1 by the Management. The Management prepared the
list of eligible candidates for being appointed, and all the
petitioners except petitioners 5 and 7 were appointed in the
colleges coming under the University of Kerala and the others
were appointed in the colleges coming under the Calicut
University. The petitioners are aggrieved by Exhibit P9 whereby
the Government took the view that the petitioners cannot claim
salary for their appointment during the ban period.
3. In W.P.(C) No.28363 of 2007, this Court considered the
W.P.(C) No.10501/2008 2
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 are extracted below:
“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
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 existW.P.(C) No.10501/2008 3
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 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
W.P.(C) No.10501/2008 4
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 and 12 the following directions were
issued:
“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.
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″.
Since the petitioners are also similarly placed, I am of the
view that a similar direction can be issued in their case also.
Therefore, Exhibit P9 is quashed. The respondents are directed
W.P.(C) No.10501/2008 5
to examine whether the posts against which the appointments
were made were available in terms of the approved staff pattern.
If the finding is that the appointments were made to such posts,
the respondents shall complete formalities and pay salary to the
petitioners for the respective periods (from 06.10.2002 to
27.07.2005). Appropriate orders shall be passed within a period
of three months from the date of receipt of a copy of this
judgment.
This writ petition is disposed of as above.
T.R. RAMACHANDRAN NAIR
JUDGE
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