DR.AJI PANICKER & Ors. v. NONE

T.R.RAMACHANDRAN NAIR, J. -------------------------------------------------- W.P.(C)No.16126 of 2004 -------------------------------------------------- DATED THIS THE 12th DAY OF MARCH, 2012 JUDGMENTBoth the petitioners are Lecturers respectively working inthe Department of Zoology and Department of Physics ofM.A.College, Kothamangalam. Challenge is against theinspection report, Exhibit P7, whereby the recommendation is tocancel the approval of appointment of the petitioners.2.This Court by interim order dated 31.5.2004 grantedstay of further proceedings pursuant to Exhibit P7, which standsextended until further orders.3.The learned counsel for the petitioners submitted thatin the light of Exhibit P2 judgment of this Court, therecommendations in Exhibit P7 report cannot have any value atall, since the appointments have been approved by the Universityas per Exhibit P5 from 7.12.2001, after the ban period was over.4.The circumstances under which the petitioners haveapproached 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, whichwas brought into force from 3.6.1997, there was a ban for aperiod of three years. The petitioners' appointments were madeafter the period of the ban was over. But, still, based on aCircular No.15860/B1/2000/H.Edn. dated 23.6.2000, the ban wassought to be extended until further orders. The non-approval ofthe appointment by the University relying upon the ban orderwas the subject matter of a Writ Petition before this Court filed bythe petitioners and others and Exhibit P2 is the judgment inO.P.No.25669/2002, wherein the petitioners herein arepetitioners 1 and 3. The said Writ Petition was allowed taking theview that Exhibit P1 produced therein has already been quashedby this Court in O.P.No.21268/2002 and connected cases byjudgment dated 26.3.2003. A direction was therefore issuedstating that the direction in the above batch of cases will governthe case of the petitioners also.6.Exhibit P2(6) is the judgment of this Court inO.P.No.21268/02 and connected cases. Thereafter the approvalof 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 ofappointments made by certain aided colleges in Kottayam,Pathanamthitta and Ernakulam districts. The specific objectionraised therein regarding the appointment of the petitioners andcertain others is that appointments were made during the banperiod. The said conclusion is arrived at by relying upon theCircular No.15860/B1/2000/H.Edn. dated 23.6.2000.8.Heard the learned counsel for the petitioners and thelearned Government Pleader.9.The learned counsel for the petitioners submitted thatin the light of Exhibit P2 judgment of this Court and the judgmentin Exhibit P2(6), no objection can be raised against the approvalof appointment issued to the petitioners.10.A reading of the judgment Exhibit P2(6) will show thefollowing:11.This Court was considering the challenge against theproceedings of the M.G.University dated 28.6.2002 produced asExhibit P10, deciding to reject the proposal for approval for freshappointments 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 ofSt.Thomas College, Pala. The petitioners herein are among thesix Lecturers appointed in the M.A.College of Engineering.Paragraph No.9 of the judgment will show that the Governmenttherein relied upon Circular No.15860/B1/2000/H.Edn. dated23.6.2000 to show that the ban period has been extended untilfurther orders and argued for dismissal of the writ petitions. Afterelaborately considering the matter, this Court in paragraph No.13held thus:“13. It is trite law that no executive order orcircular issued by the Government can overridethe statutory provisions. As per the provisionsof the MG University Act and the Statutes madethereunder, the private college managementsare competent to appoint teachers having postspermissible, in accordance with the workloadprescribed by the ordinance. The appointmentsso made are liable to be approved by theUniversity in accordance with law. (See thedecision of this Court in Cherian Mathew v.Principal, S.B.College, Changanacherry - 1998(2)KLT 144). The power of the University in thisregard is a power coupled with a duty to act W.P.(C)No.16126/04 -5-when circumstances warranting exercise of thatpower are shown to exist and a personinterested makes an application for exercising it.After the statutory ban created under Section 5of Ext.P3 Act is over, there is no ban in the eyeof law against making fresh appointments toteaching posts or against approving them. Anyexecutive appointments or their approval areinvalid. It is declared so. ..... ..........”This Court was of the view that the statutory ban created underSection 5 of the Pre-Degree Course(Abolition) Act is over andtherefore there cannot be any ban in the eye of law againstmaking fresh appointments to teaching posts or againstapproving them. It was held that any executive order or circularissued by the Government banning appointments or theirapproval are invalid. Accordingly a direction was issued to theUniversity to fix the strength of teaching staff in the Colleges ofthe petitioners from the academic year 2000-01 onwards andconsider the grant of approval.12.Relying upon the said judgment, the Writ Petition filedby the petitioners as O.P.No.25669/02 was allowed. The saidjudgment 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 courtin O.P.No.21268/2002 and connected cases byjudgment dated 26.3.2003. Accordingly, thisOriginal Petition is allowed. The direction issued inthe above batch of cases will govern the case of thepetitioners herein also. No costs.”It will be clear from the appendix to the judgment that Exhibit P1which was quashed is the same that was quashed by the detailedcommon judgment.13.Therefore the petitioners are entitled for the benefitwhich flows from the judgment.14.The learned Government Pleader submitted that theCircular, namely Circular No.15860/B1/2000/H.Edn. dated23.6.2000 extended the ban order and therefore the petitionerswere appointed during the ban period. As rightly pointed out bythe learned counsel for the petitioners, the very same objectionswere raised in the earlier Writ Petition also, which was foundagainst by this Court and the Government cannot rely upon thesame. It is clear that the appointment of the petitioners are afterthe 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 wasgranted pursuant to the judgment in Exhibit P2. It is submittedthat the petitioners have already received salary and arecontinuing in service.In that view of the matter, the recommendation inExhibit P7 cannot survive. Accordingly, Exhibit P7 as far as itrecommends cancellation of the approval of the appointmentcannot be justified and accordingly the same is quashed. TheWrit Petition is hence allowed. No costs.Sd/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn