IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1541 of 2009()
1. STATE OF KERALA REPRESENTED BY THE
... Petitioner
2. DIRECTOR OF COLLEGIATE EDUATION,
Vs
1. A.C.BENNNY, GARDNET, ST.PETER'S COLLEGE,
... Respondent
2. ST.PETER'S COLLEGE TRUST, REPRESENTED
3. THE PRINCIPAL,
4. ST.PETER'S COLLEGE REPRESENTED
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.MILLU DANDAPANI
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :05/02/2010
O R D E R
K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.
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W.A.No.1541/2009-E
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Dated this, the 5th day of February, 2010
JUDGMENT
Balakrishnan Nair, J.
The respondents 1 and 2 in the Writ Petition are the
appellants. The 1st respondent herein was the writ petitioner.
2. The brief facts of the case are the following:
The 4th respondent College is having Degree and Post-graduate
courses in Botany. Therefore, maintenance of a garden is
obligatory as per the University Regulations. A post of Gardener
is also sanctioned in such colleges. In the 4th respondent
College, a post of Gardener was sanctioned by order dated
8.10.1986. The person appointed in that post retired from
service on 31.10.2002 and as a result, a vacancy arose in that
post on 1.11.2002. The Management invited applications for
appointment to the said post, by Ext.P2 notification dated
6.3.2005. The selection committee met and by Ext.P3 minutes,
prepared a rank-list, in which the 1st respondent was rank No.1.
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The Secretary of the Trust, which is running the College,
appointed him in that vacancy of Gardener, as per Ext.P4 order
dated 21.11.2005. The 3rd respondent Principal of the College
by Ext.P5 communication dated 12.12.2005 forwarded the
proposal for approval of that appointment to the 2nd appellant
Director of Collegiate Education. But, the Director, by Ext.P6
communication dated 14.7.2006, declined approval for the
same. Challenging Ext.P6 and seeking approval of his
appointment, the 1st respondent filed the Writ Petition.
3. The appellants/respondents resisted the prayers in the
Writ Petition, relying on Ext.P8 order of the Government dated
17.9.2004 and also Ext.P1 staff fixation order dated
28.01.2006, issued by the 2nd appellant in the light of Ext.P8
order. According to them, as per Ext.P1, there were 37
supernumerary hands among the non-teaching staff in the
College, continuing under protection. They were rendered
surplus, as a result of abolition of the Pre-degree course. By
Ext.P8, the Government ordered that until all supernumerary
hands among the non-teaching staff are either accommodated
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in regular vacancies or retired, no fresh appointments shall be
made, even if vacancies arise in a different non-teaching post.
For example, even if there is a vacancy of Gardener and there is
no supernumerary post of Gardener, according to Ext.P8 order,
that vacancy should be filled up by deploying others like Peons
etc., who are surplus. The cumulative effect of Exts.P8 and P1
was that fresh appointment of non-teaching staff could be made
only after all the supernumerary hands are accommodated.
Though the said contention was raised before the learned Single
Judge, the learned Judge allowed the Writ Petition, by quashing
Exts.P6 and P8, though there was no prayer in the Writ Petition
to quash Ext.P8. Feeling aggrieved by the said judgment, this
Writ Appeal is preferred.
4. We heard the learned senior Government Pleader for
the appellants and Sri.Murali Purushothaman, learned counsel
for the 1st respondent, apart from the learned counsel for the
Management of the College.
5. Going by Ext.P8 and also Ext.P1, the College is entitled
to have a post of Gardener. But, the same cannot be filled up,
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in view of the availability of protected hands in different non-
teaching posts, including that of Peons. The stand of the
Management was that the non-teaching staff, who were
declared as supernumerary hands, were not willing to work as
Gardener. But, we think, the said defence cannot be accepted.
It is for the Management to deploy one of the non-teaching staff
to work as Gardener and if he does not obey, the Management
can take coercive steps to ensure that its orders are obeyed.
When there are some persons receiving salary from public
funds, but without any work in the College, there is nothing
wrong with the decision of the Government to utilise their
services in the vacant sanctioned posts. As long as Ext.P8 is
valid and Ext.P1 issued in the light of Ext.P8 remains, we find
nothing wrong with Ext.P6. We also notice that Ext.P1 is
effective from the date of Ext.P8. In the absence of any
challenge against Ext.P8, it should not have been quashed. The
appointment of the 1st respondent has been made only on
21.11.2005, when Ext.P8 order was very much alive and
kicking. Therefore, the 2nd appellant rightly declined approval for
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the same.
6. In the result, the Writ Appeal is allowed. The judgment
of the learned Single Judge is reversed and the Writ Petition is
dismissed. But, it is clarified that the appointment of the 1st
respondent shall be approved as and when all the
supernumerary hands disappear from the scene or are
accommodated against other vacancies, provided the 1st
respondent is otherwise eligible for approval of his appointment.
This judgment will not affect the rights, if any, of the 1st
respondent to claim salary from the Management for the period
he has worked without approval.
K. Balakrishnan Nair,
Judge.
P.N.Ravindran,
Judge.
nm.