IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3250 of 2007(J)
1. D.SANTHOSH, AGED 33 YEARS,
... Petitioner
2. P.K.SHAJI,
3. RATHEESH KUMAR N.,
4. M.P.JAYAPRAKASH,
5. SHIJI S.,
6. CHANDRAPRASAD T.,
7. BAIJU S.,
8. SABU K.R.,
9. UDAYAN D.,
10. MANEESH M.K.C.,
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DIRECTOR OF COLLEGIATE EDUCATION,
3. THE MANAGER,
4. THE PRINCIPAL,
For Petitioner :SRI.S.SHANAVAS KHAN
For Respondent :SRI.N.N.SUGUNAPALAN (SR.)
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :08/10/2009
O R D E R
ANTONY DOMINIC, J.
W.P.(C.)------------------------- 2007
Nos.3250, 27524 & 28363 of
---------------------------------
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
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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
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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
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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
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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
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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
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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
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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