M.P.Vasudevan vs State Of Kerala
2022 Latest Caselaw 10088 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
   THURSDAY, THE 15TH DAY OF SEPTEMBER 2022 / 24TH BHADRA, 1944
                       WP(C) NO. 23726 OF 2017
PETITIONER:

          M.P.VASUDEVAN, SRI HARI, KOVILAKAMKUNDU, MANJERI P.O,
          MALAPPURAM WORKING AS JUNIOR SUPERINTENDENT,NSS
          COLLEGE, MANJERI.

          SRI.T.P.DEYANANTHAN
          SRI.S.KRISHNALAL
          SRI.A.V.RAMAKRISHNA PANICKER



RESPONDENTS:

    1     STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY
          TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT,GOVERNMENT
          SECRETARIAT, THIRUVANANTHAPURAM.695001.

    2     THE DIRECTOR OF COLLEGIATE EDUCATION
          VIKAS BHAVAN, THIRUVANATHAPURAM.33

    3     THE SECRETARY, NSS COLLEGES CENTRAL COMMITTEE,
          PERUNNA, CHANGANCHERRY, KOTTAYAM. 686102.

    4     PRINCIPAL, NSS COLLEGE, MANJERI, MALAPPURAM. 676505.

          SRI.P.GOPAL
          SRI.JOSHY THANNICKKAMATTAM-SR.GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 23726 OF 2017
                               2


                           JUDGMENT

The petitioner has now retired, on attaining the age of

superannuation, from the services of the NSS College,

Manjeri - of which the 4th respondent is its Principal.

2. According to Sri.T.P.Dayananthan - learned counsel

for the petitioner, his client was eligible to have been

promoted as a Senior Superintendent with effect from

01.07.2004, when the vacancy arose, but that the College

promoted him into such position only on 26.05.2005. He says

that this was interdicted by the Director of Collegiate

Education, through Ext.P26, saying that a Government Order

dated 17.09.2004, had been issued rendering the post of

Senior Superintendent excess and consequently abolished

with effect from 17.09.2004; and he argued that, therefore,

the action of the management in having not promoted his

client on 01.07.2004 is clearly illegal and unlawful. He

explained that, on the aforesaid date, the post was available

and that had his client been appointed on that day his

appointment surely would have been approved by the

competent Authority.

3. After saying as afore, Sri.T.P.Dayananthan pointed WP(C) NO. 23726 OF 2017

out that, pending this lis, based on the judgment of this

Court in another writ petition, Ext.P27 order has been issued

by the College promoting his client as a Senior

Superintendent with effect from 01.07.2004; but added that

this has not been yet considered or granted approval by the

competent Authority. He thus prayed that Ext.P26 be

quashed and the competent Authority be directed to take up

Ext.P27 appointment order issued by the College and grant

approval to the same.

4. Sri.P.Gopal - learned Standing Counsel appearing for

the 4th respondent, on the other hand, submitted that his

client had acted as per law and had promoted the petitioner

initially with effect from 26.05.2005. He, however, conceded,

to a pointed question from this Court, that there was a

vacancy in the post of Senior Superintendent available as on

01.07.2004, but to which his client was incapacitated from

making any appointment on account of a ban ordered by the

Government at that time. He submitted that when this ban

was reviewed and set aside by this Court, his client has

issued Ext.P27 appointing the petitioner with effect from

01.07.2004 and hence prayed that no further orders be

issued against them.

WP(C) NO. 23726 OF 2017

5. Sri.Joshy Thannikkamattom - learned Senior

Government Pleader, argued that Ext.P26 is irreproachable

and that Ext.27 order issued by the College is not on binding

on the Government. He explained that this is because the

College in question was downgraded as Category 'D' with

effect from 2009, since its student strength was not

sufficient; and hence that his earlier appointment to the post

of Senior Superintendent, with effect from 26.05.2005, was

clearly in error, the said post having had been abolished

through the order of the Government dated 17.09.2004, as

has been indited in Ext.P26. He thus prayed that this writ

petition be dismissed.

6. When I consider and evaluate the afore rival

submissions, it is evident that there are two broad issues

involved in this case, namely:

(a) Whether the college could have appointed the

petitioner with effect from 01.07.2004, on account of the ban

of appointment in force at that time, at the instance of the

Government; and

(b) Whether Ext.P27 order now issued by the College

is deserving to be directed to be considered by the

competent Educational Authority.

WP(C) NO. 23726 OF 2017

7. The facts involved in this case is not greatly in

dispute and I would, therefore, only record it in a

compendious manner.

8. The petitioner was in service while a vacancy in the

post of Senior Superintendent arose, with effect from

01.07.2004. There is no case that the petitioner was not

eligible to be considered for promotion to the said post, but

the management did not appoint him because there was a

ban of appointment by the Government at the relevant time.

They, thereafter, chose to appoint him with effect from

26.05.2005, which was, however, interdicted by the Director

of Collegiate Education, through Ext.P26, saying that the

post in question had been abolished with effect from

17.09.2004. However, this Court intervened and set aside

the policy of the Government in ordering ban of

appointments at the relevant time and this has now spurred

the college to issue Ext.P27 order, appointing the petitioner

retrospectively with effect from 01.07.2004.

9. It is thus luculent that if the petitioner had been

appointed by the college on 01.07.2004, such appointment

would have had to be approved by the competent Authority,

since the vacancy was available and since the said post had WP(C) NO. 23726 OF 2017

not been abolished until 17.09.2004, concededly. Obviously,

therefore, when the college has now promoted the petitioner

through Ext.P27, with effect from 01.07.2004, this is a

matter which will have to be considered by the Director of

Collegiate Education de hors Ext.P26, since the said order

has been issued solely on the basis that the petitioner was

promoted with effect from 26.05.2005, when the post of

Senior Superintendent stood abolished with effect from

17.09.2004. This is more so because, the policy of the

Government, in ordering ban of appointment, has been

interdicted by this Court in a subsequent judgment, based on

which, the college appears to have issued Ext.P27.

10. In the afore circumstances, I order this writ

petition with the following directions:

(a) Ext.P26 is set aside

(b) The fourth respondent is directed to forward an

apposite proposal for approval of appointment of the

petitioner based on Ext.P27 to the Director of Collegiate

Education within a period of one month from the date of

receipt of a copy of this judgment.

(c) On the aforementioned proposal for approval of

appointment of the petitioner being received by the Director WP(C) NO. 23726 OF 2017

of Collegiate Education, the said Authority will hear him, as

also the fourth respondent, and take an apposite decision

thereon, based on all relevant and germane factors including

the judgment of this Court in WA No.329/2014.

Needless to say, if, through the afore exercise, the

approval to the petitioner's appointment based on Ext.P27 is

granted, all eligible benefits shall be disbursed to him within

a period of three months thereafter.

Sd/- DEVAN RAMACHANDRAN JUDGE mc/stu WP(C) NO. 23726 OF 2017

APPENDIX OF WP(C) 23726/2017

PETITIONER EXHIBITS

EXHIBIT P1 THE TRUE COPY OF THE STUDENTS STRENGTH AS ON 11.97 WAS 1812.

EXHIBIT P2 THE TRUE COPY OF THE STAFF FIXATION ORDER ISSUED BY THE 2ND RESPONDENT IN ESTT. 4-50210/97 COLL. EDN.4.2.97.

EXHIBIT P3 THE TRUE COPY OF THE CIRCULAR NO.ESST.

E1-56284/01/COLL. EDN. DATED 5.12.01.

EXHIBIT P4 THE TRUE COPY OF THE ORDER NO.G.O.(MS) 119.04.H.EDN DATED 17.9.2004.

EXHIBIT P5 THE TRUE COPY OF THE G.O(MS) 145/04/H EDN. DATED 3.11.2004.

EXHIBIT P6 THE TRUE COPY OF THE JUDGMENT DATED 3.4.2006 IN WPC 28955 OF 2004 (V)

EXHIBIT P7 THE TRUE COPY OF THE ORDER OF THE MANAGER IN NO.H.6079/02 DATED 12.6.2003 GIVING FULL ADDL. CHARGE.

EXHIBIT P8 THE TRUE COPY OF THE ORDER NO.H/3446/05 DATED 26.5.2005 PROMOTING SENIOR SUPERINTENDENT.

EXHIBIT P9 THE TRUE COPY OF THE STAFF FIXATION ORDER NO.E4/47959/2005/COLL. EDN. DATED 28.12.2005.

EXHIBIT P10 THE TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT IN E4-30425/05/COLL. EDN. DTD 28.9.2006.

EXHIBIT P11 THE TRUE COPY OF THE ORDER NO.H.5528/2005 DATED 24.8.2005 REVERTING AS JUNIOR SUPERINTENDENT.

EXHIBIT P12 THE TRUE COPY OF THE ORDER E4-39170/08 COLL. EDN. DTD. 1.4.2009 REVISING STAFF WP(C) NO. 23726 OF 2017

FIXATION.

EXHIBIT P13 THE TRUE COPY OF THE COURSE STRENGTH AND STUDENTS STRENGTH SANCTIONED BY THE UNIVERSITY FOR THE YEAR 11/2001, 11/2002, 11/2003

EXHIBIT P14 THE TRUE COPY OF THE LETTER OF 2ND RESPONDENT VIDE E4-16167/09/COLL.EDN. DATED 18.12.2009 TO RECTIFY DEFECT.

EXHIBIT P15 THE TRUE COPY OF THE LETTER E4-

2406/2009/COLL.EDN. DATED 3.7.2009 RECOMMENDING THE PROMOTION TO PETITIONER.

EXHIBIT P16 THE TRUE COPY OF THE LETTER NO.21830/D3/2009/H.EDN. DTD.22.2.2010.

EXHIBIT P17 THE TRUE COPY OF THE ORDER NO.

H3406/2010 DATED 14.8.2010 OF THE MANAGER.

EXHIBIT P18 THE TRUE COPY OF THE G.O(MS) NO.260/2010/H.EDN. DATED 20.8.2010 TO RECKON COURSES 1998-2001

EXHIBIT P19 THE TRUE COPY OF THE NEW COURSES SANCTIONED 1998-99

EXHIBIT P20 GO(MS) 162/99/H.EDN. DATED 6.12.1999 SANCTIONED NEW COURSES.

EXHIBIT P21 THE TRUE COPY OF THE COUNTER AFFIDAVIT DATED 14.1.11 FILED BY R2.

EXHIBIT P22 THE TRUE COPY OF THE REPLY AFFIDAVIT TO THE COUNTER AFFIDAVIT OF R2.

EXHIBIT P23 COUNTER AFFIDAVIT DATED 10.1.2011 FILED BY THE 3RD RESPONDENT.

EXHIBIT P24 JUDGMENT IN WA NO. 329/2014 ALLOWED SETTING ASIDE THE JUDGMENT IN WP(C) 29650/2010 DATED 13.1.2016, WP(C) NO. 23726 OF 2017

EXHIBIT P25 THE TRUE COPY OF THE JUDGMENT DATED 29.2.2012 IN WP(C) 26202 OF 2009

EXHIBIT P26 THE TRUE COPY OF THE ORDER NO. EX.E4-

9172/2014/ COLL. EDN. DATED 20.6.2017

EXHIBIT P27 THE TRUE COPY OF THE PROMOTION ORDER AS SS DATED 26.4.2016

EXHIBIT P28 THE TRUE COPY OF THE PROPOSAL FOR APPROVAL AS SS DATED 23.5.2016

EXHIBIT P28 TRANSLATION OF EXT.P28

RESPONDENT EXHIBITS

EXHIBIT R2(a) TRUE COPY OF EXHIBIT P4.