W.P.(C) No.16126/2004 (T)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** # **MONDAY, THE 12TH DAY OF MARCH 2012/22ND PHALGUNA 1933** ## **WP(C).No. 16126 of 2004 (T)** ## **--------------------------------------** ## **PETITIONER(S):** **-----------------------** **1. DR.AJI PANICKER, LECTURER, DEPARTMENT OF ZOOLOGY, M.A.COLLEGE, KOTHAMANGALAM (AGED 36 YEARS W/O. V.S. VENUGOPAL, SREENILAYAM IV/289, BROADWAY, PERUMBAVOOR P.O.)** **2. DR. SIVAKUMAR C, LECTURER, DEPARTMENT OF PHYSICS, M.A.COLLEGE, KOTHAMANGALAM AGED 31 YEARS, S/O. THAYYAKALATHU, THEKKE VEEDU THRIKKAKARA, KOCHI.)** ## **BY ADVS.SRI.K.S.MADHUSOODANAN SRI.T.N.SURESH** ## **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA TP BE REPRESENTED BY PRINCIPAL SECRETARY (FINANCE), FINANCE DEPARTMENT THIRUVANANTHAPURAM.** **2. DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM.** **3. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM.** **4. PRINCIPAL, MAR ATHANASIUS COLLEGE, KOTHYAMANGALAM.** **R1 TO R3 BY GOVT. PLEADER SRI.SUNIL CYRIAC R4 BY ADV. SRI.SAJI VARGHESE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) NO.16126/2004** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **P1:- COPY OF THE APPOINTMENT ORDER OF THE IST PETITIONER DTD. 7.12.2001.** **P1(a):- COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DTD. 7.12.2001.** **P2:- COPY OF THE JUDGMENT IN OP. NO.25669/2002 DTD. 4.4.2003.** **P3:- COPY OF THE STAFF FIXATION ORDER NO.AC.BII-2586/99 DTD. 6.12.2003.** **P3(a):- COPY OF THE STAFF FIAXTION STATEMENT FOR THE YEAR 2001 2002.** **P4:- COPY OF THE WORK STATEMENT FOR THE YEAR 2001-2002 SUBMITTED BY THE 4TH RESPONDENT TO M.G.UNIVERSITIY.** **P5:- COPY OF THE APPROVAL ORDER NO.AC.B II /2/1223/93 PART III DTD. 25.2.2004.** **P6:- COPY OF THE REPORT OF THE 2ND RESPONDENT DTD. 16.10.2003 BEARING NO.UGC CELL 1(2)/35999/2002(1).** **P6(a):- COPY OF THE ATTACHED STATEMENT FOR THE RE-ASSESSMENT OF WORK LOAD ON THE BASIS OF MEETING ON 18.12.2002 DTD. 16.10.2003.** ## **P7:- COPY OF THE REPORT DTD. 26.4.2004 ADDRESSED BYU THE IST RESPONDENT TO THE 3RD RESPONDENT.** ## **RESPONDENT'S EXHIBITS:-** ## **NIL** **//TRUE COPY//** ## **P.A. TO JUDGE** tss ## **T.R.RAMACHANDRAN NAIR, J.** **-------------------------------------------------W.P.(C)No.16126 of 2004 -------------------------------------------------DATED THIS THE 12[th] DAY OF MARCH, 2012** ## **JUDGMENT** Both the petitioners are Lecturers respectively working in the Department of Zoology and Department of Physics of M.A.College, Kothamangalam. Challenge is against the inspection report, Exhibit P7, whereby the recommendation is to cancel the approval of appointment of the petitioners. 2. This Court by interim order dated 31.5.2004 granted stay of further proceedings pursuant to Exhibit P7, which stands extended until further orders. 3. The learned counsel for the petitioners submitted that in the light of Exhibit P2 judgment of this Court, the recommendations in Exhibit P7 report cannot have any value at all, since the appointments have been approved by the University as per Exhibit P5 from 7.12.2001, after the ban period was over. 4. The circumstances under which the petitioners have approached this Court are the following: 5. Exhibits P1 and P1(a) are the respective appointment W.P.(C)No.16126/04 -2- orders issued in favour of the petitioners dated 7.12.2001. Pursuant to the Pre-degree Course (Abolition) Act, 1997, which was brought into force from 3.6.1997, there was a ban for a period of three years. The petitioners' appointments were made after the period of the ban was over. But, still, based on a Circular No.15860/B1/2000/H.Edn. dated 23.6.2000, the ban was sought to be extended until further orders. The non-approval of the appointment by the University relying upon the ban order was the subject matter of a Writ Petition before this Court filed by the petitioners and others and Exhibit P2 is the judgment in O.P.No.25669/2002, wherein the petitioners herein are petitioners 1 and 3. The said Writ Petition was allowed taking the view that Exhibit P1 produced therein has already been quashed by this Court in O.P.No.21268/2002 and connected cases by judgment dated 26.3.2003. A direction was therefore issued stating that the direction in the above batch of cases will govern the case of the petitioners also. 6. Exhibit P2(6) is the judgment of this Court in O.P.No.21268/02 and connected cases. Thereafter the approval of appointment of the petitioners were granted by the University W.P.(C)No.16126/04 -3- by proceedings dated 25.2.2004. 7. Exhibit P7 is the report on inspection in respect of appointments made by certain aided colleges in Kottayam, Pathanamthitta and Ernakulam districts. The specific objection raised therein regarding the appointment of the petitioners and certain others is that appointments were made during the ban period. The said conclusion is arrived at by relying upon the Circular No.15860/B1/2000/H.Edn. dated 23.6.2000. 8. Heard the learned counsel for the petitioners and the learned Government Pleader. 9. The learned counsel for the petitioners submitted that in the light of Exhibit P2 judgment of this Court and the judgment in Exhibit P2(6), no objection can be raised against the approval of appointment issued to the petitioners. 10. A reading of the judgment Exhibit P2(6) will show the following: 11. This Court was considering the challenge against the proceedings of the M.G.University dated 28.6.2002 produced as Exhibit P10, deciding to reject the proposal for approval for fresh appointments of 14 Lecturers of St.Peter's College, Kolencherry, W.P.(C)No.16126/04 -4- 6 of M.A.College of Engineering, Kothamangalam and 8 of St.Thomas College, Pala. The petitioners herein are among the six Lecturers appointed in the M.A.College of Engineering. Paragraph No.9 of the judgment will show that the Government therein relied upon Circular No.15860/B1/2000/H.Edn. dated 23.6.2000 to show that the ban period has been extended until further orders and argued for dismissal of the writ petitions. After elaborately considering the matter, this Court in paragraph No.13 held thus: “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 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 W.P.(C)No.16126/04 -5- 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 appointments or their approval are invalid. It is declared so. ..... ..........” This Court was of the view that the statutory ban created under Section 5 of the Pre-Degree Course(Abolition) Act is over and therefore there cannot be any ban in the eye of law against making fresh appointments to teaching posts or against approving them. It was held that any executive order or circular issued by the Government banning appointments or their approval are invalid. Accordingly a direction was issued to the University to fix the strength of teaching staff in the Colleges of the petitioners from the academic year 2000-01 onwards and consider the grant of approval. 12. Relying upon the said judgment, the Writ Petition filed by the petitioners as O.P.No.25669/02 was allowed. The said judgment is extracted below: W.P.(C)No.16126/04 -6- “ The order impugned in this Original Petition, Exhibit P1, has already been quashed by this court in O.P.No.21268/2002 and connected cases by judgment dated 26.3.2003. Accordingly, this Original Petition is allowed. The direction issued in the above batch of cases will govern the case of the petitioners herein also. No costs.” It will be clear from the appendix to the judgment that Exhibit P1 which was quashed is the same that was quashed by the detailed common judgment. 13. Therefore the petitioners are entitled for the benefit which flows from the judgment. 14. The learned Government Pleader submitted that the Circular, namely Circular No.15860/B1/2000/H.Edn. dated 23.6.2000 extended the ban order and therefore the petitioners were appointed during the ban period. As rightly pointed out by the learned counsel for the petitioners, the very same objections were raised in the earlier Writ Petition also, which was found against by this Court and the Government cannot rely upon the same. It is clear that the appointment of the petitioners are after the expiry of the statutory ban period. Therefore, they are rightly W.P.(C)No.16126/04 -7- appointed by the University, especially since the approval was granted pursuant to the judgment in Exhibit P2. It is submitted that the petitioners have already received salary and are continuing in service. In that view of the matter, the recommendation in Exhibit P7 cannot survive. Accordingly, Exhibit P7 as far as it recommends cancellation of the approval of the appointment cannot be justified and accordingly the same is quashed. The Writ Petition is hence allowed. No costs. ## Sd/-( **T.R.RAMACHANDRAN NAIR** , **JUDGE)** dsn