High Court of KeralaDivision BenchAppeals dismissed; common judgment upheld; peti...

WA No. 1766 of 2022; WA No. 1872 of 2022; WA No. 49 of 2023 (The High Court of Kerala at Ernakulam)

Case / Petition Number:WA 1766/2022; WA 1872/2022; WA 49/2023

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. B. Suresh Kumar
  • Sophy Thomas
Judgment Date
2023-02-09
Court Decision / Holding
Appeals dismissed. The Division Bench upheld the learned Single Judge’s harmonized reading of Statutes 66 and 41(12), holding that the petitioners’ appointments as Laboratory Assistants were in order, with the Government-directed downgrade being a workable arrangement to enable promotion without Attenders Test within the statutory framework. The Court rejected arguments based on strict Attenders Test compliance and declined to disturb the equity-based relief granted in the lower court. The judgment affirms that direct recruitment can be workable under Statute 66, given the impossibility of Attenders Test clearance for direct recruitment in private colleges, and that petitioners may be promoted after one year with back pay and other benefits, subject to a valid Attenders Test process within permissible limits.
Final Disposition
Appeals dismissed; common judgment upheld; petitioners’ appointments as Laboratory Assistants found to be in order under a harmonious statutory interpretation; equity-based relief and promotion path after one year affirmed.

Parties to the Case

Appellants / Petitioners

  • SANTHOSH.T AGED 37, S/O SATHYASHEELAN.K
  • Sandeep.S AGED 27 YEARS, S/O SASISEKHARAN PILLAI
  • SECRETARY, NSS COLLEGES CENTRAL COMMITTEE
  • PRINCIPAL, SRI VYASA NSS COLLEGE, WADAKKANCHERRY
  • SUNILKUMAR.A
  • SHIBU.K.N
  • ASHA NAIR.P.G
  • GIRISH KUMAR.K.K
  • ANUP C
  • SMITHA T THOZHUKKATE
  • DEEPA. P EDAMANA HOUSE
  • SATHEESH KUMAR.K.R
  • SECRETARY NSS COLLEGE CENTRAL COMMITTEE (WPC party)
  • PRINCIPAL SRI VYASA NSS COLLEGE (WPC party)

Respondents

  • Deputy Director of Collegiate Education, Thrissur
  • Director of Collegiate Education, Thiruvananthapuram
  • State of Kerala represented by its Secretary, Higher Education Department, Secretariat, Thiruvananthapuram
  • Secretary NSS Colleges Central Committee, NSS Head Office, Changancherry
  • Principal, Sri Vyasa NSS College, Wadakkancherry
  • Sunilkumar A
  • Shibu K.N
  • Asha Nair P.G
  • Girish Kumar K.K
  • Anup C
  • Smitha T Thozhukkate
  • Deepa P Edamana House
  • Satheesh Kumar K.R
  • NSS College Central Committee
  • The Regional Deputy Director of Collegiate Education, Thrissur
  • The Director of Collegiate Education (NSS)
  • The NSS College Central Committee
  • The Secretary, NSS College Central Committee
  • The Principal Sri Vyasa NSS College

Case Synopsis & Summary

These writ appeals arise from a common Kerala High Court judgment concerning the appointment of Laboratory Assistants at Sree Vyasa NSS College, Wadakkancherry, an aided college under Calicut University and governed by the Direct Payment Scheme. The college followed Statute 66 of the Calicut University First Statutes, 1979, which permits private colleges to fill vacancies either by promotion from the next lower grade or by direct recruitment, with a prescribed selection process. Since qualified staff in the lower grade were unavailable, the college recruited directly; appointments were made between 2013 and 2014. Subsequently, the competent authority declined to approve the appointments, on the ground that Attenders Test clearance under Statute 41(12) had not been obtained. The Government proposed downgrading the posts of Laboratory Assistants to Office Attendants for one year, so petitioners could be promoted to Laboratory Assistants after probation and without Attenders Test, relying on the proviso to Statute 41(12). The petitioners asserted harmonious interpretation of Statutes 66 and 41(12). The learned Single Judge allowed the writ petitions, quashing Ext. P10 and directing payment of benefits while requiring Attenders Test within a permissible window. The Division Bench examined these issues, rejected a literal, impractical reading of the Attenders Test, and held the appointments to be in order, dismissing the appeals. The Court thus upheld a workable interpretation that permits direct recruitment and subsequent promotion, with equity in their favor.

Provisions of Law Cited

Statute 66 of the Calicut University First Statutes, 1979 (Conditions of Service of Teachers and Non-Teaching Staff)Statute 41(12) of the Calicut University First Statutes, 1979 (Qualification for appointment; Attenders Test)Proviso to Statute 41(12) (promotion without Attenders Test for last grade staff)Attenders Test (as mandated under Statute 41(12))

Legal Doctrines & Maxims

  • The law does not compel an impossible act.
  • A person cannot approbate and reprobate.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that Statute 66 allows direct recruitment when qualified personnel in the next lower grade are unavailable, and that harmony with Statute 41(12) and its proviso permits downgrading arrangements so petitioners can be promoted without requiring Attenders Test, thereby safeguarding their appointment and pay. They submitted that since Attenders Test clearance is practically impossible for direct recruitment in private colleges, the via media adopted by the Government is workable and justifiable, and equity requires recognizing their appointments with appropriate benefits.

Contentions of Respondents

The State contended that Attenders Test clearance is mandatory for direct recruitment to Laboratory Assistant, and the Government’s arrangement to downgrade posts to Office Attendants was an illegal workaround to avoid Attenders Test. They relied on statutory provisions and cited several Apex Court decisions to argue that an in-service employee cannot bypass mandatory testing and that approbation and reprobation principles may bar relief. They urged strict compliance with Statutes 41(12) and 66, and that the petitioners cannot claim direct entitlement to Laboratory Assistant status without Attenders Test.

Cited Precedents (4)

Case NameCitationTreatmentExplanation
R.N. Gosain v. Yashpal Dhir(1992) 4 SCC 683Mentioned OnlyCited by Government to support propositions; the court did not adopt its holdings as controlling over harmonized Statutory interpretation.
Punjab & Sind Bank v. S. Ranveer Singh Bawa(2004) 4 SCC 484Mentioned OnlyReferenced in argument by Government; not adopted as binding authority in the given interpretation.
Joint Action Committee of Air Line Pilots' Assn. of India v. DG of Civil Aviation(2011) 5 SCC 435Mentioned OnlyCited in support of the Government’s position; the decision was not treated as controlling precedent in this context.
Sanjay Ramdas Patil v. Sanjay(2021) 10 SCC 306PositiveCited to emphasize that the law does not compel an impossible act, supporting the Court’s interpretation that Attenders Test clearance for direct recruitment cannot be forced where practically impossible.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **THURSDAY, THE 9[TH] DAY OF FEBRUARY 2023 / 20TH MAGHA, 1944** **WA NO. 1766 OF 2022** **AGAINST THE JUDGMENT IN WP(C) 8767/2017 OF HIGH COURT OF** ## **KERALA** ## **APPELLANTS/RESPONDENTS 3 TO 5 IN WPC:** - **1 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, THRISSUR, PIN - 680003** - **2 DIRECTOR OF COLLEGIATE EDUCATION OFFICE OF THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM - 695001** - **3 STATE OF KERALA** **REPRESENTED BY ITS SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001** ## **BY SR.GOVERNMENT PLEADER SRI.A.J.VARGHESE** ## **RESPONDENTS/PETITIONERS AND RESPONDENTS 1,2,6,7,8 & 9 IN** ## **WPC :** - **1 SANTHOSH.T AGED 37, S/O SATHYASHEELAN.K, RESIDING AT KADAVATH HOUSE, PARUTHIPRA P.O, SHORNUR, PALAKKAD – 679121.** **2 SANDEEP.S AGED 27 YEARS, S/O SASISEKHARAN PILLAI, RSIDING AT ARAKKAPARAMBIL HOUSE, THOTTUVATHALA, NEDUMUDY P.O, ALAPPUZHA – 688508.** - **3 SECRETARY, NSS COLLEGES CENTRAL COMMITTEE, NSS HEAD OFFICE, CHANGANASSERY, KOTTAYUAM – 686102.** W.A.No.1766 of 2022 & con. Cases -: 2 :- - **4 THE PRINCIPAL, SRI VYASA NSS COLLEGE, WADAKKANCHERY, THRISSUR – 680623.** - **5 SUNILKUMAR.A,** **S/O A.D.ANANDA PANICKER, AGED 38 YEARS, OFFICE ASSISTANT, SRI VYASA NSS COLLEGE, WADAKKANCHERY, THRISSUR – 680585.** - **6 SHIBU. K.N** **S/O NARAYANAKURUP, AGED 41 YEARS, OFFICE ASSISTANT, SRI VYASA N.S.S COLLEGE, WADAKKANCHERY, THRISSUR – 680585.** - **7 ASHA NAIR.P.G** **W/O ANILKUMAR, AGED 40 YEARS, OFFICE ASSISTANT, SRI.VYASA N.S.S COLLEGE, WADAKKANCHERY, THRISSUR – 680585.** - **8 GIRISH KUMAR.K.K** **S/O KRISHNANKUTTY PILLAI, AGED 35 YEARS, OFFICE ASSISTANT, SRI.VYASA N.S.S COLLEGE, WADAKKANCHERY, THRISSUR – 680585.** **BY ADVS.** **SRI.S.MUHAMMED HANEEFF (B/O) FOR R1 & R2 K.T.SHYAMKUMAR FOR R5 TO R7 SRI.P.GOPAL FOR R3 & R4** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.02.2023, ALONG WITH WA.49/2023, 1872/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.1766 of 2022 & con. Cases -: 3 :- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **THURSDAY, THE 9[TH] DAY OF FEBRUARY 2023 / 20TH MAGHA, 1944** **WA NO. 1872 OF 2022** **AGAINST THE JUDGMENT IN WP(C) 8766/2017 OF HIGH COURT OF** ## **KERALA** ## **APPELLANTS/RESPONDENTS 3 TO 5 IN WPC:** - **1 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, THRISSUR – 680125.** - **2 DIRECTOR OF COLLEGIATE EDUCATION OFFICE OF THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM – 695001.** **3 STATE OF KERALA REPRESENTED BY ITS SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM – 695001.** ## **BY SR. GOVERNMENT PLEADER SRI.A.J.VARGHES** ## **RESPONDENTS/PETITIONERS AND RESPONDENTS 1,2,6,7,8 & 9 IN** ## **WPC :** - **1 ANUP C, ARUN NIVAS, CHERIYIL, CHERUVALOOR P.O., THRISSUR – 680308.** - **2 SMITHA T THOZHUKKATE HOUSE, THEKKUMKARA P.O., WADAKKANCHERY VIA THRISSUR – 680589.** - **3 DEEPA. P EDAMANA HOUSE, CHITIANDA P.O., WADAKKANCHERY, THRISSUR – 680585.** W.A.No.1766 of 2022 & con. Cases -: 4 :- - **4 THE SECRETARY** **NSS COLLEGE'S CENTRAL COMMITTEE, NSS HEAD OFFICE, CHANGANASSERY, KOTTAYAM – 686102.** - **5 THE PRINCIPAL SRI. VYASA NSS COLLEGE, WADAKKANCHERRY, THRISSUR – 680623.** - **6 SUNILKUMAR. A, S/O.A.D ANANDA PANICKER, AGED 38 YEARS, OFFICE ASSISTANT, SRI.VYASA NSS COLLEGE, WADAKKANCHERY, THRISSUR PIN – 680585.** - **7 SHIBU K.N, S/O.NARAYANAKURUP, AGED 41 YEARS, OFFICE ASSISTANT, SRI.VYASA N.S.S COLLEGE, WADAKKANCHERY, THRISSUR., PIN - 680585** - **8 ASHA NAIR P.G W/O. ANILKUMAR, AGED 40 YEARS, OFFICE ASSISTANT, SRI.VYASA N.S.S COLLEGE, WADAKKANCHERY, THRISSUR., PIN - 680585** - **9 GIRISH KUMAR. K.K,** - **S/O. KRISHNANKUTTY PILLAI, AGED 35 YEARS, OFFICE ASSISTANT, SRI.VYASA N.S.S COLLEGE, WADAKKANCHERY, THRISSUR., PIN - 680585** **BY ADVS.** - **S.MUHAMMED HANEEFF FOR R1 TO R3** - **P.GOPAL FOR R4 AND R5** - **B.MURALEEDHARAN** - **K.T.SHYAMKUMAR FOR R6 TO R9** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.02.2023, ALONG WITH WA.1766/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.1766 of 2022 & con. Cases -: 5 :- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 9[TH] DAY OF FEBRUARY 2023 / 20TH MAGHA, 1944 WA NO. 49 OF 2023** **AGAINST THE JUDGMENT IN WP(C) 1459/2021 OF HIGH COURT OF** ## **KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 3 IN WPC:** - **1 STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **2 THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM - 695033** - **3 THE REGIONAL DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, THRISSUR.** **BY SR. GOVERNMENT PLEADER SRI.A.J.VARGHESE** ## **RESPONDENTS/RESPONDENTS/PETITIONER AND RESPONDENTS 4 & 5** ## **AND ADDL.RESPONDENTS 6 TO 9 IN WPC:** - **1 SATHEESH KUMAR.K.R., AGED 36 YEARS, S/O RAMACHANDRAN, LAB ASSISTANT, SRI. VYASA NSS COLLEGE, VYASAGIRI.P.O., VADAKKANCHERYY - 680623.** - **2 THE SECRETARY, NSS COLLEGE CENTRAL COMMITTEE, PERUNNA, CHANGANACHERRY – 682101.** - **3 THE PRINCIPAL SRI. VYASA NSS COLLEGE, VYASAGIRI.P.O., VADAKKANCHERR – 680623.** W.A.No.1766 of 2022 & con. Cases -: 6 :- - **4 SUNILKUMAR A, AGED 40 YEARS, S/O A D ANANDA PANICKER, OFFICE ASSISTANT, SRI. VYSA N S S COLLEGE, WADAKKANCHERRY, THRISSUR – 680623.** - **5 SHIBU K N, AGED 43 YEARS, S/O NARAYANAKURUP, OFFICE ASSISTANT, SRI VYASA N S S COLLEGE, WADAKKANCHERRY, THRISSUR.** - **6 ASHA NAIR P G, AGED 42 YEARS, W/O ANILKUMAR, OFFICE ASSISTANT, SRI. VYASA N S S COLLEGE, WADAKKANCHERRY, THRISSUR.** - **7 GIRISH KUMAR K K, AGED 37 YEARS, S/O KRISHNANKUTTY PILLAI, OFFICE ASSISTANT, SRI. VYSA N S S COLLEGE, WADAKKANCHERRY, THRISSUR.** **BY ADVS. T.P.DEYANANTHAN FOR R1 P.GOPAL FOR R2 AND R3** **K.T.SHYAMKUMAR FOR R4 TO R7** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.02.2023, ALONG WITH WA.1766/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.1766 of 2022 & con. Cases -: 7 :- ## **P.B.SURESH KUMAR & SOPHY THOMAS, JJ. -----------------------------------------------** ## **Writ Appeal Nos.1766 & 1872 of 2022** ## **& 49 of 2023** ## **-----------------------------------------------** ## **Dated this the 9[th] day of February, 2023** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** These appeals are instituted challenging the common judgment in three writ petitions namely, W.P.(C) Nos.1459 of 2021, 8766 of 2017 and 8767 of 2017. The matter relates to the approval of the appointment of the petitioners in the writ petitions as Laboratory Assistants in the service of Sree Vyasa NSS College, Vadakkancherry, an aided college affiliated to the Calicut University and covered by the Direct Payment Scheme of the State Government. As the writ petitions were disposed of by a common judgment, the appeals are also disposed of by this common judgment. Parties and documents are referred to in this judgment, unless otherwise mentioned, as they appear in W.P.(C) No.1459 of 2021. 2. As per the staff pattern fixed by the Directorate of Collegiate Education for the College, there are 11 posts of Laboratory Assistants. In terms of Statute 66 of the Calicut W.A.No.1766 of 2022 & con. Cases -: 8 :- University (Conditions of Service of the Teachers and Members of Non-Teaching Staff) First Statutes, 1979 (the Statutes), vacancies in the higher grades in private colleges are to be filled up by promotion from the next lower categories, if qualified persons are available and if not, by direct recruitment, by inviting applications and conducting a selection as prescribed in the Statutes. As qualified hands were not available in the service of the College in the categories next lower to the grade of Laboratory Assistant, the College resorted to the process of direct recruitment for filling up the vacancies in the post of Laboratory Assistant. Ext.P5 is the notification issued by the College in this regard. Thereupon, a Selection Committee was constituted. Based on the recommendations of the Selection Committee, a selection was conducted and the management appointed the petitioners in the writ petitions as Laboratory Assistants in the College between 09.09.2013 and 07.07.2014. 3. The appointments of the petitioners were however not approved by the competent authority on the ground that candidates seeking appointment to the post of Laboratory Assistant shall have to clear Attenders Test conducted by the Kerala Public Service Commission in terms of Statute 41(12) of the Statutes. The Attenders Test being one conducted by the Kerala Public Service Commission only for in-service Office Attendants of private colleges, W.A.No.1766 of 2022 & con. Cases -: 9 :- the petitioners took up the matter with the Government for appropriate orders to absolve them from clearing the Attenders Test. On the said representation of the petitioners, the Government directed the Director of Collegiate Education to ascertain whether the Management has any objection in downgrading the posts of Laboratory Assistants in which the petitioners were appointed to Office Attendants for a period of one year so as to accommodate them in the said post until they complete their period of probation and then promote them to the post of Laboratory Assistant. The Management agreed to the said course and consequently, after receiving a proposal from the Management for the said purpose, the Government permitted to accommodate the petitioners in the College as Office Attendants for a period of one year and then as Laboratory Assistants. Ext.P10 is the communication sent by the Government in this regard to the Director of Collegiate Education. Consequent upon the said arrangement, the appointment of the petitioners were approved initially for a period of one year as Office Attendants and then as Laboratory Assistants. Even though the petitioners were appointed during 2013 and 2014, the process aforesaid was completed only in the month of February and March, 2016 and they have been receiving salary for the period from their respective dates of appointments only from February and March, 2016. W.A.No.1766 of 2022 & con. Cases -: 10 :- 4. As per the existing rules, Laboratory Assistants need not have to work during vacations as opposed to Office Attendants. It appears that a doubt arose later as to whether the petitioners who have not worked during vacations are entitled to salary for vacation periods during the first year of their service as they were appointed during the said period only as Office Attendants. Ext.P6 in W.P.(C) No.8766 of 2017 is the clarification sought in this regard by the concerned Deputy Director of Collegiate Education from the Director of Collegiate Education. Ext.P7 in the said writ petition is the reply to Ext.P6 notice. In terms of Ext.P7 communication, it was directed that since the petitioners have not worked during vacation, they are to be treated as non-vacation staff, indicating that they are not entitled to vacation salary for the said period. W.P.(C) Nos.8766 of 2017 and 8767 of 2017 were instituted challenging the said decision of the Director of Collegiate Education. The petitioners therein have also sought in the said writ petitions a declaration that inasmuch as they are appointed as Laboratory Assistants, they are entitled to all service benefits attached to the said post. W.P.(C) No.1459 of 2021 was one instituted almost three years after the institution of W.P.(C) Nos.8766 of 2017 and 8767 of 2017 challenging Ext.P10 decision of the Government and for a direction to the respondents to approve the appointment of the petitioner therein as Laboratory Assistant with effect from the date of his original appointment and to W.A.No.1766 of 2022 & con. Cases -: 11 :- regularise his pay and allowances accordingly. 5. The stand taken by the State and the official respondents in the counter affidavits filed in W.P.(C) Nos.8766 of 2017 and 8767 of 2017 is that inasmuch as the petitioners have been appointed in the first one year as Office Attendants and they have not worked during vacations, they are not entitled to vacation salary during the period in which their appointments were approved only as Office Attendants. The stand taken by State and the official respondents in the counter affidavit filed in W.P.(C) No.1459 of 2021 is that inasmuch as the petitioner therein was not qualified to be considered for appointment as Laboratory Assistant, he is not entitled to get his appointment approved as Laboratory Assistant with effect from the date of his initial appointment. 6. The learned Single Judge took the view that insofar as Statute 66 enables appointment by direct recruitment to the post of Laboratory Assistant, the requirement in Statute 41(12) dealing with the qualification prescribed for appointment to the said post ought to have been harmoniously read along with Statute 66 and a method found so as to allow the directly recruited Laboratory Assistants to obtain the qualifications in due course. Consequently, the learned Single Judge allowed the writ petitions, quashed Exts.P10 communication of the State Government and directed that the petitioners shall be disbursed all consequential monetary W.A.No.1766 of 2022 & con. Cases -: 12 :- benefits as if they were never downgraded, subject, however, to the condition that they will clear the Attenders Test within the chance permissible in terms of Statute 41(12). The State and its officials and the Director of Collegiate Education are aggrieved by the said decision of the learned Single Judge and hence, these appeals. 7. Heard the learned Government Pleader, the learned counsel for the Management as also the learned counsel for the petitioners in the writ petitions. 8. The learned Government Pleader persuasively argued that inasmuch as the petitioners have not cleared the Attenders Test, they were not qualified to be considered for appointment to the post of Laboratory Assistant in terms of Statute 41(12) and the course adopted by the Government for approving their appointments cannot, therefore, be treated as illegal in any manner. According to the learned Government Pleader, the learned Single Judge, in the circumstances, ought not have directed the State to treat the appointments of the petitioners as valid and disburse them salary and other emoluments accordingly. Alternatively, it was also argued by the learned Government Pleader that at any rate, inasmuch as the petitioners have accepted their appointment as Office Attendants and received pay and emoluments accordingly for a period of one year, they cannot be heard to contend anymore that downgrading of the posts in which they were appointed for a period W.A.No.1766 of 2022 & con. Cases -: 13 :- of one year is bad in law, as the law does not permit a person to both approbate and reprobate. The learned Government Pleader relied on the judgments of the Apex court in **R.N.Gosain v. Yashpal Dhir** , (1992) 4 SCC 683, **Punjab & Sind Bank v. S. Ranveer Singh Bawa** , (2004) 4 SCC 484 and **Joint Action Committee of Air Line Pilots' Assn. of India v. DG of Civil Aviation** , (2011) 5 SCC 435, in support of the said propositions. 9. Per contra, the learned counsel for the Management of the College and the learned counsel for the petitioners supported the decision of the learned Single Judge contending that the requirement to have the Attenders Test cleared in terms of Statute 41(12) for direct recruitment to the post of Laboratory Assistant is a requirement which is impossible of compliance inasmuch as the Public Service Commission is not conducting the said test for candidates aspiring appointment to the post of Laboratory Assistant by direct recruitment. According to them, it is on account of the said reason that the learned Single Judge has interpreted the statutory provision aforesaid in the manner indicated in the impugned judgment and the same cannot be said to be illegal in any manner. They have also brought to the notice of this Court the proviso to Statute 41(12) which permits the last grade staff in regular permanent service of private colleges to be appointed by promotion without clearing the Attenders Test subject to the condition that W.A.No.1766 of 2022 & con. Cases -: 14 :- they should clear Attenders Test in one of the five consecutive Attenders Test conducted by the Kerala Public Service Commission for the last grade staff of private colleges, to contend that if appointment by promotion is permissible without clearing Attenders Test, there is no reason why the appointment by direct recruitment cannot be permitted without clearing Attenders Test, especially when it is impossible for a candidate aspiring appointment by direct recruitment to clear the Attenders Test. It was pointed out by the learned counsel for the petitioners that in light of the interpretation given to the provision by the learned Single Judge, the petitioners are entitled to the reliefs granted to them in the writ petitions and there is no reason for this court to interfere in the said decision of the learned Single Judge. 10. We have examined the arguments advanced the learned counsel for the parties on either side. 11. There is no dispute to the fact that in terms of Statute 66, appointment to the post of Laboratory Assistant in private colleges by direct recruitment is permissible if qualified hands are not available for promotion in the next lower categories. The fact that the petitioners do possess all the qualifications required to be considered for appointment to the post of Laboratory Assistant by direct recruitment except the clearance of Attenders Test is not in dispute. The fact that it is impossible for a candidate W.A.No.1766 of 2022 & con. Cases -: 15 :- aspiring appointment to the post of Laboratory Assistant in private colleges by direct recruitment to clear Attenders Test is also not in dispute. Similarly, there is also no dispute to the fact that the proviso to Statute 41(12) permits the last grade staff in regular permanent service of private colleges to be appointed by promotion without clearing the Attenders Test subject to the condition that they should clear the test in one of the five consecutive Attenders Tests conducted by the Kerala Public Service Commission for the last grade staff of private colleges. It is in the said circumstances, the Government has evolved a via media to downgrade the post of Laboratory Assistants in which the petitioners were appointed as Office Attendants for a period of one year so that the petitioners could be promoted after one year to the post of Laboratory Assistants without clearing Attenders Test by extending to them the benefit of the proviso to Statute 41(12). It is seen that it is having regard to the fact that it is impossible for a candidate aspiring appointment to the post of Laboratory Assistant in private colleges by direct recruitment to clear Attenders Test and the fact that the proviso to Statute 41(12) permits the last grade staff in regular permanent service of private colleges to be appointed by promotion without clearing the Attenders Test, subject to the condition that they should clear the test in one of the five consecutive Attenders Tests conducted by the Kerala Public Service Commission, the W.A.No.1766 of 2022 & con. Cases -: 16 :- learned Single Judge took the view that Statute 41(12) requires to be interpreted harmoniously with Statute 66 and the only conclusion that could be arrived at by giving such an interpretation is to hold that the appointment can be made without insisting clearance of Attenders Test and the appointees need to clear the Attenders Test only as permitted in the proviso to Statute 41(12). It is fundamental that the law does not compel an impossible act. Inasmuch as the requirement in Statute 41(12) to clear Attenders Test for appointment to the post of Laboratory Assistants by direct recruitment is an impossible one, we are unable to find fault with the learned Single Judge for having interpreted the provision in the manner indicated in the judgment, or otherwise, the statute will not be workable [See **Sanjay Ramdas Patil v. Sanjay** , (2021) 10 SCC 306]. In other words, we are inclined to agree with the view taken by the learned Single Judge that the appointment of the petitioners as Laboratory Assistants are in order. The argument advanced by the learned Government Pleader that the petitioners were not qualified to be considered for appointment as Laboratory Assistants, in the circumstances, is liable to be rejected. 12. The materials on record would indicate that in furtherance to a communication sent by the Government on 21.10.2014 (Annexure A4 in the appeals), the Management of the College submitted a proposal (Annexure A5 in the appeals) for W.A.No.1766 of 2022 & con. Cases -: 17 :- downgrading the posts of Laboratory Assistants in which the petitioners were appointed, for a period of one year and it is by accepting the said proposal that the Government issued Ext.P10 order. The materials also indicate that pursuant to Ext.P10 order, the petitioners have been appointed as Office Attendants by the Management on 23.06.2015 with effect from their respective dates of original appointments and they were promoted later as Laboratory Assistants after a period of one year, after declaring their probation in the post of Office Attendants. No doubt, it is a case where the petitioners have accepted the course adopted by the Management and the Directorate of Collegiate Education and received pay and emoluments accordingly. It is thereafter that they have approached this court for a declaration that their original appointments were in order, and for consequential benefits. The question is whether in a situation of this nature, the petitioners can be said to be approbating and reprobating. 13. It is well settled that the law does not permit a person to approbate and reprobate. In other words, a person who maintained the stand that a transaction is valid for obtaining a benefit, cannot maintain the stand that the transaction is void, for obtaining another benefit. This rule is one evolved and applied to do equity. As far as the case on hand is concerned, in light of the interpretation given by the learned Single Judge to Statute 41(12) as W.A.No.1766 of 2022 & con. Cases -: 18 :- accepted by this Court, the petitioners were entitled to get their appointments approved with effect from their initial dates of appointments. As it is inequitable to deny the petitioners the benefits which they are legitimately entitled to, merely for the reason that they have received the pay and emoluments based on the decision of the Government, the aim of equity being not to frustrate legitimate rights, according to us, the principle aforesaid cannot be applied to the facts of this case. The argument advanced by the learned Government Pleader in this regard is also therefore, liable to be rejected and we do so. In the circumstances, the appeals are devoid of merits and are accordingly, dismissed. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **SOPHY THOMAS, JUDGE.** ds 03.02.2023 W.A.No.1766 of 2022 & con. Cases -: 19 :- ## **APPENDIX OF WA 49/2023** ## **PETITIONER ANNEXURES** |**Annexure A1**|**ANNEXURE A1 : TRUE COPY OF PHOTOCOPY**| |---|---| ||**OF THE MERCY PETITION SUBMITTED BY THE**| ||**PETITIONERS ON 21.07.2017.**| |**Annexure A2**|**TRUE COPY OF THE FORWARDING LETTER**| ||**MADE BY THE HONOURABLE MINISTER FOR**| ||**FOREST, ENVIRONMENT, TRANSPORTATION,**| ||**SPORTS AND CINEMA TO THE HONOURABLE**| ||**MINISTER FOR EDUCATION**| |**Annexure A3**|**TRUE COPY OF THE LETTER FROM THE**| ||**DIRECTOR OF COLLEGIATE EDUCATION TO**| ||**THE ADDITIONAL CHIEF SECRETARY (HIGHER**| ||**EDUCATION (D) DEPARTMENT) LETTER NO.**| ||**E4/37107/2014/COLL.EDN DATED**| ||**20.09.2014**| |**Annexure A4**|**TRUE COPY OF THE LETTER FROM**| ||**ADDITIONAL CHIEF SECRETARY TO THE**| ||**DIRECTOR OF COLLEGIATE EDUCATION**| ||**LETTER NO.32065/D3/14/HR.EDN DATED**| ||**21.10.2014**| |**Annexure A5**|**TRUE COPY OF THE PROCEEDINGS**| ||**NO.H.806/2014 DATED 14.02.2015.**| |**Annexure A6**|**TRUE COPY OF THE LETTER FROM**| ||**GOVERNMENT TO THE DIRECTOR OF**| ||**COLLEGIATE EDUCATION LETTER**| ||**NO.32065/D3/14/H.EDN DATED 31.05.2015**| |**Annexure A7**|**TRUE COPY OF THE ORDER NO.H/3822/2014**| ||**DATED 23.06.2015**| W.A.No.1766 of 2022 & con. Cases -: 20 :- ## **APPENDIX OF WA 1872/2022** |**PETITIONER ANNEXURES**|**PETITIONER ANNEXURES**| |---|---| |**Annexure A1**|**TRUE COPY OF PHOTOCOPY OF THE MERCY**| ||**PETITION SUBMITTED BY THE PETITIONERS**| ||**ON 21.07.2014.**| |**Annexure A2**|**TRUE COPY OF THE FORWARDING LETTER**| ||**MADE BY THE HONOURABLE MINISTER FOR**| ||**FOREST, ENVIRONMENT, TRANSPORTATION,**| ||**SPORTS AND CINEMA TO THE HONOURABLE**| ||**MINISTER FOR EDUCATION**| |**Annexure A3**|**TRUE COPY OF THE LETTER FROM THE**| ||**DIRECTOR OF COLLEGIATE EDUCATION TO**| ||**THE ADDITIONAL CHIEF SECRETARY (HIGHER**| ||**EDUCATION (D) DEPARTMENT) LETTER NO.**| ||**E4/37107/2014/COLL.EDN DATED**| ||**20.09.2014**| |**Annexure A4**|**TRUE COPY OF THE LETTER FROM**| ||**ADDITIONAL CHIEF SECRETARY TO THE**| ||**DIRECTOR OF COLLEGIATE EDUCATION**| ||**LETTER NO.32065/D3/14/HR.EDN DATED**| ||**21.10.2014 ADDRESSED**| |**Annexure A5**|**TRUE COPY OF THEPROCEEDINGS**| ||**NO.H.806/2014 DATED 14.02.2015.**| |**Annexure A6**|**TRUE COPY OF THE LETTER FROM**| ||**GOVERNMENT TO THE DIRECTOR OF**| ||**COLLEGIATE EDUCATION LETTER**| ||**NO.32065/D3/14/H.EDN DATED 31.05.2015**| |**Annexure A7**|**TRUE COPY OF THE ORDER NO.H/3822/2014**| ||**DATED 23.06.2015**| W.A.No.1766 of 2022 & con. Cases -: 21 :- ## **APPENDIX OF WA 1766/2022** |**PETITIONER ANNEXURES**|**PETITIONER ANNEXURES**| |---|---| |**Annexure A1**|**TRUE COPY OF PHOTOCOPY OF THE MERCY**| ||**PETITION SUBMITTED BY THE PETITIONERS**| ||**ON 21.07.2017**| |**Annexure A2**|**TRUE COPY OF THE FORWARDING LETTER**| ||**MADE BY THE HONOURABLE MINISTER FOR**| ||**FOREST, ENVIRONMENT, TRANSPORTATION,**| ||**SPORTS, AND CINEMA TO THE HONOURABLE**| ||**MINISTER FOR EDUCATION**| |**Annexure A3**|**TRUE COPY OF THE LETTER FROM THE**| ||**ADDITIONAL CHEIF SECRETARY (HIGHER**| ||**EDUCATION (D) DEPARTMENT) TO THE**| ||**DIRECTOR OF COLLEGIATE EDUCATION**| ||**LETTER NO.E4/37107/2014/COLL.EDN DATED**| ||**20.09.2014**| |**Annexure A4**|**TRUE COPY OF THE LETTER FROM**| ||**ADDITIONAL CHIEF SECRETARY TO THE**| ||**DIRECTOR OF COLLEGIATE EDUCATION**| ||**LETTER NO.32065/D3/14/HR.EDN DATED**| ||**21.10.2014**| |**Annexure A5**|**TRUE COPY OF THE PROCEEDINGS**| ||**NO.H.806/2014 DATED 14.02.2015 WITH**| ||**TYPED COPY**| |**Annexure A6**|**TRUE COPY OF THE LETTER FROM**| ||**GOVERNMENT TO THE DIRECTOR OF**| ||**COLLEGIATE EDUCATION LETTER**| ||**NO.32065/D3/14/H.EDN DATED 31.05.2015**| |**Annexure A7**|**TRUE COPY OF THE ORDER NO.H/3822/2014**| ||**DATED 23.06.2015**|