Kerala High Court
Dr.Ajithkumar B vs The State Of Kerala on 18 May, 2010
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 21638 of 2000(A)
1. DR.AJITHKUMAR B.
... Petitioner
Vs
1. THE STATE OF KERALA
... Respondent
For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.)
For Respondent :SRI.A.JAYASANKAR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :18/05/2010
O R D E R
P.N.RAVINDRAN, J.
----------------------------
O.P.No.21638 of 2000
----------------------------
Dated this the 18th day of May, 2010
JUDGMENT
The petitioner, a post graduate degree holder in Hindi. He also possesses a Ph.D.degree in Hindi awarded by the Cochin University of Science and Technology. He was initially appointed as Lecturer in Hindi in Cochin College, an aided college affiliated to the Mahatma Gandhi University, by Ext.P1 order dated 15.9.1993 in a short term leave vacancy during the period from 15.9.1993 to 31.1.1994. Later, he was regularly appointed as Lecturer by Ext.P2 order dated 9.6.1995. While the petitioner was working as Lecturer in Hindi in Cochin College, he was appointed as Lecturer in Hindi in Sree Sankaracharya University of Sanskrit, Kalady by Ext.P3 order dated 1.9.1995. He thereupon submitted Ext.P4 application dated 20.9.1995 requesting the fourth respondent, the Manager of Cochin College, to grant him leave without allowances for a period of two years with effect from 20.9.1995 to enable him to join duty in Sree Sankaracharya University of Sanskrit. After submitting Ext.P4 application, the petitioner joined duty as Lecturer in Hindi in Sree Sankaracharya University of Sanskrit. The fourth respondent O.P.No.21638/2000 2 declined to sanction the leave applied for by the petitioner and issued Ext.P5 memorandum dated 25.9.1995 informing him that his application for leave has been rejected and he should join duty forthwith. He was also cautioned that if he fails to resume duty within three days from the date of receipt of the memorandum, he will be proceeded against for unauthorised absence.
2. On receipt of Ext.P5 memorandum, the petitioner submitted Ext.P6 application dated 4.10.1995 to the fourth respondent, requesting him to grant leave without allowances for a period of two years from the afternoon of 20.9.1995, to take up foreign assignment, in accordance with the provisions of the Kerala Service Rules. In response to the said request, the fourth respondent sent Ext.P7 letter dated 16.10.1995 informing the petitioner that under the provisions of the Kerala Service Rules, he is not entitled to leave without allowances to take up employment elsewhere. He was called upon to rejoin duty as Lecturer in Cochin College within three days from the date of receipt of that letter, failing which he was cautioned that disciplinary proceedings will be initiated against him, for unauthorised absence. The petitioner thereupon sent Ext.P8 letter dated 18.10.1995 to the fourth respondent, requesting him to treat that letter as his letter of resignation from the post of Lecturer in Hindi, with effect from O.P.No.21638/2000 3 20.9.1995, if it is difficult to sanction the leave without allowances applied for. He also requested for payment of salary and other benefits for the service rendered by him in Cochin College. The fourth respondent accepted the resignation tendered by the petitioner and issued Ext.P9 memorandum dated 20.10.1995 informing him that his resignation has been accepted and that he will not have any preferential claim for appointment in the college, in future. He was also informed that salary and other benefits will be claimed from the Government and disbursed to him in due course, as per the rules.
3. While matters stood thus, by judgment delivered on 12.4.1996 in O.P.No.16586 of 1994 and connected cases, a learned single Judge of this Court set aside the selection and appointment of Sanskrit Lecturers in Sree Sankaracharya University of Sanskrit on the ground that the selection committee was not properly constituted. The learned single Judge however permitted them to continue in service for a period of three months. The correctness of the decision of the learned single Judge was canvassed in W.A.No.826 of 1996 and connected cases. By judgment delivered on 18.7.1996 (Sree Sankaracharya University of Sanskrit v. State (1996 (2) KLT 378) the writ appeals were dismissed. Thereupon those Lecturers whose selection and appointment were set aside by O.P.No.21638/2000 4 this Court, were relieved from service with effect from 28.2.1997. Some among them moved the Government seeking repatriation to their parent colleges. The Government considered the said requests and issued Ext.P11 order dated 17.3.1997 whereby those teachers who were working in Government colleges/aided colleges before their appointment in Sree Sankaracharya University of Sanskrit and whose appointments in the Sree Sankaracharya University of Sanskrit were quashed by this Court were permitted to rejoin duty in their parent colleges, if there are vacancies, as a special case. Shortly thereafter, the Registrar, Sree Sankaracharya University of Sanskrit sent Ext.P10 letter dated 21.3.1997 to the petitioner, informing him that in view of the decision of this Court, his service is liable to be terminated. The Registrar also informed the petitioner that if he wishes to avail the benefit of Ext.P11 Government order, he may submit an application for repatriation, for onward transmission to the parent college. The petitioner thereupon sent a letter dated 17.4.1997 to the fourth respondent enquiring about the vacancy position in the Department of Hindi in order to enable him to submit an application claiming the benefit of Ext.P11 Government order dated 17.3.1997. It appears, there was no response in the matter. While matters stood thus, by Ext.P12 order dated 5.9.1997, the Sree Sankaracharya University of Sanskrit terminated the petitioner's O.P.No.21638/2000 5 service and he was relieved with effect from the afternoon of 8.9.1997. Shortly thereafter, the petitioner sent Ext.P13 letter dated 11.9.1997 to the fourth respondent referring to his earlier letter dated 17.4.1997 and Ext.P11 Government order dated 17.3.1997 and requested the fourth respondent to do the needful, to enable him to rejoin duty in the parent college, at the earliest. The fourth respondent did not reply to that request of the petitioner.
4. Though pursuant to Ext.P11 Government order many teachers were reappointed in their parent colleges, many were not thus re-appointed. A few such teachers thereupon submitted a representation dated 19.8.1997 to the Government, setting out their grievances. The Government called for the remarks of the Director of Collegiate Education. The Director of Collegiate Education reported to the Government that many teachers are yet to be absorbed in their parent institutions for want of vacancies and that they can be absorbed in their parent institutions, if supernumerary posts are created. The Government considered the opinion of the Director of Collegiate Education and issued Ext.P14 order dated 4.2.1998, according sanction for the creation of supernumerary posts to absorb the teachers named in the said Government order. The name of the petitioner was included in the list appended to the aforesaid Government order. After Ext.P14 Government order was O.P.No.21638/2000 6 issued, the petitioner submitted Ext.P15 representation dated 10.2.1998 and Ext.P16 representation dated 24.2.1998 to the fourth respondent, requesting for permission to join duty as Lecturer in Cochin College. Reference was also made to Ext.P14 Government order dated 4.2.1998. It appears, there was no response from the fourth respondent to the said requests also.
5. While matters stood thus, the Government issued Ext.P17 order dated 17.5.1999, according sanction for treating the period of service rendered by teachers of Government/aided colleges in the Sree Sankaracharya University of Sanskrit, as deputation. The petitioner thereupon submitted Ext.P18 representation dated 27.5.1999 referring to Exts.P14 and P17 Government orders and requested the fourth respondent to permit him to join duty as Lecturer in Hindi. When there was no response to the said representation also, the petitioner submitted Ext.P19 representation dated 15.9.1999 to the Director of Collegiate Education, requesting him to issue necessary directions to the management of Cochin College to permit him to rejoin the institution. It appears, there was no response to the said requests made by him. No action was taken by the fourth respondent on Ext.P18 or by the Director of Collegiate Education on Ext.P19 representation.
O.P.No.21638/2000 7
6. The Government thereafter issued Ext.P21 order dated 10.3.2000 according sanction for treating the period between the date of relief of teachers like the petitioner from Sree Sankaracharya University of Sanskrit and the date on which they rejoined their parent institutions, as duty for all purposes, except for pay and allowances. Since there was no reply to the various requests made by the petitioner, from the management of Cochin College or from the Director of Collegiate Education, he filed Complaint No.152 of 1999 before the Kerala Lok Ayukta. By Ext.P22 order passed on 22.3.2000, the Kerala Lok Ayukta held that the complaint is not maintainable. It was accordingly rejected without prejudice to the right of the petitioner to seek other remedies. This writ petition was thereupon filed on 31.7.2000, seeking a direction to the fourth respondent to issue appropriate orders permitting the petitioner to rejoin duty as Lecturer in Hindi in Cochin College in implementation of Exts.P11 and P14 Government orders. He also prayed for a direction to the respondents to grant him all service benefits with reference to Exts.P11 and P14 Government orders.
7. The fourth respondent has filed a counter affidavit contending inter alia that the petitioner had served as Lecturer in Hindi in Cochin College only from 15.6.1995 to 20.9.1995, that even before completing the period of probation he absented from O.P.No.21638/2000 8 duty from the afternoon of 20.9.1995 after submitting Ext.P4 application for leave without allowances and that as the leave applied for was not admissible under the rules it was refused and he was intimated about the same by Ext.P5 memorandum dated 25.9.1995. It is also contended that though the petitioner was given an opportunity to rejoin duty, he did not rejoin duty but submitted Ext.P8 letter of resignation, that it was accepted by Ext.P9 memorandum subject to the condition that he will not have any preferential claim for appointment in future, that the vacancy that arose on the resignation of the petitioner was filled up by appointing Smt.K.S.Srividya from 1.1.1996 and the said appointment was approved by the Mahatma Gandhi University by order dated 2.7.1997. The fourth respondent has also contended that this fact was communicated to the Director of Collegiate Education by Ext.R4
(a) letter dated 6.11.1997 and that in reply to the letter dated 8.10.1999 sent by the Director of Collegiate Education, the management had sent Ext.R4(b) letter dated 12.11.1998 informing the Director of Collegiate Education that as the petitioner resigned from service and left the college and the resultant vacancy has already been filed up, the management is unable to provide employment to the petitioner. As regards Ext.P14 Government order by which the Government permitted creation of supernumerary O.P.No.21638/2000 9 posts, the fourth respondent has contended that there is no provision in the Mahatma Gandhi University Act or in the Statutes and/or Ordinances empowering the Government to create supernumerary posts, that the Government have no jurisdiction to create supernumerary posts, that Exts.P11, P14, P17 and P21 Government orders are not binding on the management, that the request made by the petitioner in Ext.P13 representation was rejected by the management and that the management is not bound to implement the Government orders relied on by the petitioner as they are ab initio void and have no efficacy.
8. The petitioner has filed a reply affidavit dated 14.12.2005 pointing out that he had applied for appointment as Lecturer in Hindi in Sree Sankaracharya University of Sanskrit prior to his regular appointment by Ext.P2 order dated 9.6.1995, that at that point of time he was not working in Cochin College and therefore it was not necessary for him to obtain the permission of the management to apply for appointment in Sree Sankaracharya University of Sanskrit. He has also contended that the fourth respondent is bound to implement every order passed by the Government and that in the absence of a challenge by the management to the Government orders by instituting appropriate proceedings, the management is bound to implement them and to O.P.No.21638/2000 10 permit him to join duty as Lecturer in Hindi in the college.
9. When the original petition came up for hearing on 13.12.2006, this Court after hearing the learned counsel on both sides passed the following interim order:
"Heard learned counsel for the parties.
In the nature of the contentions raised by the parties and in view of the materials on record, I am satisfied that an interim direction has to be issued to respondent No.4 to consider and pass orders on Exts.P15, P16 and P18 representations submitted by the petitioner. Ordered accordingly.
Respondent No.4 shall take a decision in the matter keeping in view Ext.P23 judgment rendered by a Division Bench of this Court. This shall be done as expeditiously as possible, at any rate on or before January 2, 2007. Respondent No.4 shall ensure that petitioner is afforded sufficient opportunity to be heard before any orders are passed."
As directed by this Court, the fourth respondent considered the request made by the petitioner in Exts.P15, P16 and P18 representations and passed Ext.P24 order dated 2.1.2007 rejecting the petitioner's request for reinstatement in service. The petitioner thereupon filed I.A.No.1506 of 2008 to amend the original petition by incorporating a challenge to Ext.P24 and seeking consequential reliefs. By order passed on 15.2.2008 the said application was allowed. The petitioner has in the original petition as amended prayed for the following further reliefs:
O.P.No.21638/2000 11
"(v) to issue a writ of certiorari or other appropriate writ direction or order calling for the records leading to Ext.P24 and to quash the same.
(vi) issue necessary direction or clarification so as to allay the apprehension of the 4th respondent that the possibility of filling up the vacancies in English Department would be reduced in case the Management is creating supernumerary post in Hindi as stated in Ext.P24 for the purpose of allowing the petitioner to rejoin the Cochin College."
10. After the original petition was amended, the fourth respondent filed an additional counter affidavit dated 28.2.2008 contending that there is no direction in Ext.P11 or Ext.P14 to appoint the petitioner as Lecturer in the college and that the Government have only granted permissive sanction to the college leaving it open to the fourth respondent to decide whether the petitioner should be re-inducted. As regards Exts.P11, P14, P17 and P21 Government orders, it is contended that they only confer a privilege on the management of the college without creating any corresponding duty in them and that the direction issued by the Government to reappoint teachers who were thrown out from Sree Sankaracharya University of Sanskrit in their parent colleges runs counter to the provisions in the Mahatma Gandhi University Act, the Statutes and the Ordinances which govern the selection and appointment of teachers in private aided colleges. It is also contended that consequent on the de- O.P.No.21638/2000 12 linking of the Pre-degree course there is surplus teaching staff in Cochin College, that the request for filling up vacant posts in English Department was turned down by the Director of Collegiate Education by Ext.R4(e) order dated 22.5.2006 for the reason that excess hands are working in other departments, that though Ext.P24 order was passed on 2.1.2007, the petitioner took steps to challenge the said order only on 28.1.2008 when I.A.No.1506 of 2008 was filed for amending the original petition and that the challenge to Ext.P24 is belated. It is further contended that Ext.P24 is an appealable order, that an appeal lies to the Mahatma Gandhi University Appellate Tribunal under Section 59(9) of the Mahatma Gandhi University Act and as the petitioner has an effective alternative remedy which has not been exhausted, the belated challenge to Ext.P24 should not be entertained.
11. A counter affidavit dated 28.11.2008 has been filed on behalf of the State of Kerala by the Under Secretary to Government, Higher Education Department. Therein it is contended that Exts.P11, P14, P17 and P21 Government orders were issued in the wake of the decision of this Court setting aside the appointments made in Sree Sankaracharya University of Sanskrit, to protect and safeguard the interests of those teachers who were rendered jobless. It is also contended that the management is bound to abide by the O.P.No.21638/2000 13 Government orders issued from time to time and that acceptance of Government control in the appointment of staff is a pre-condition for payment of salary and allowances to the teaching and non-teaching staff appointed in private aided colleges. The first respondent has also contended that the management has a social obligation to take back the petitioner who was a regular teacher of the college, as he was rendered jobless when the selection and appointment of Sanskrit Lecturers in Sree Sankaracharya University of Sanskrit was invalidated by this Court.
12. I heard Sri. T.V.Ajayakumar, learned counsel appearing for the petitioner, Miss.Nisha Bose, learned Government Pleader appearing for respondents 1 to 3 and Sri.Manu Govind, learned counsel appearing for the fourth respondent. Relying on the decisions of the Apex Court and this Court in Patel Narshi Thakershi & others v.Shri.Pradyumansinghji Arjunsinghji (1971) 3 SCC 844), State of Punjab v. Gurdev Singh (AIR 1991 S.C. 2219), State of Kerala v. M.K.Kunhikannan (AIR 1996 SC 906), M.Meenakshi & others v. Metadin Agarwal (dead) by LRs & others (2006) 7 SCC 470), Pune Municipal Corporation v. State of Maharashtra & others (2007) 5 SCC 211), Indo-Marine Agencies v. Sales Tax Officer, O.P.No.21638/2000 14 Bombay (1979 KLT 845), State of Kerala v. Official Liquidator (1987 (1) KLT 801), Gopalakrishnan Nair v State of Kerala (ILR 1992 (3) Ker. 739), State of Kerala v. Krishna Kumar.T.G. (2009 (3) KHC 137 (DB) and Pavithran v. State of Kerala (2009 (4) KLT 20 (FB), which I shall refer to in detail later, the learned counsel appearing for the petitioner contended that as the management has not chosen to challenge the Government orders evidenced by Exts.P11, P14, P17 and P21 and are bound by the directions therein, they cannot collaterally attack the said Government orders in this original petition or ignore them on the plea that the said orders are void and are not binding on them. The learned counsel for the petitioner also contended that the management is bound to implement the Government orders issued from time to time, that under the provisions of the Mahatma Gandhi University Act, appointments can be made only to the posts sanctioned by the Government, that an order although void in law will remain effective and operative until it is challenged and its invalidity is declared by a competent court and that it is a well settled principle of administrative law that there are no void orders in the absolute sense. The learned counsel further contended that unless the person aggrieved by the order takes appropriate remedy at the O.P.No.21638/2000 15 appropriate time, even an illegal order has to be treated as valid and binding. The learned counsel for the petitioner contended that as the management has not chosen to directly challenge any of the Government orders and the validity of Exts.P11, P14, P17 and P21 orders has already been upheld by a learned single Judge of this Court in Narayanan v. Manager, S.D.College (2001 (3) KLT 592), the management is bound to give effect to the same by appointing the petitioner as Lecturer in Hindi in Cochin College.
13. Per contra, the learned counsel appearing for the fourth respondent contended that Exts.P11, P14, P17 and P21 orders accord only permissive sanction, giving liberty to the management to re-appoint persons like the petitioner without creating a corresponding duty in the management. The learned counsel also contended that there is no right duty correlation between the petitioner and the management in the matter of re-appointment, as the petitioner had resigned from service following his appointment as Lecturer in Hindi in Sree Sankaracharya University of Sanskrit. Relying on Section 59(1A) of the Mahatma Gandhi University Act the learned counsel for the fourth respondent contended that appointment of Lecturers is to be made by direct recruitment by the educational agency and as the statute prescribes a method of appointment and the agency competent to effect the appointment, O.P.No.21638/2000 16 the Government cannot make the appointment. It was contended that when the law mandates a particular thing to be done in a particular manner, it should be done in that manner or not at all. The learned counsel for the fourth respondent also contended that the validity of the Government orders relied on by the petitioner can be subjected to collateral challenge in this proceedings. Reliance was placed on the decisions of the Apex Court in Nawabkhan Abbaskhan v. State of Gujarat (AIR 1974 SC 1471) and Bharathidasan University v. All India Council for Technical Education ((2001) 8 SCC 676) and of this Court in State of Kerala & others v. Arun George & others (2009 4 KHC 477) and Radhamani v. Director of Public Instruction & others (ILR 2009 4 Ker. 783) in support of the said contention. Lastly it was contended that the challenge to Ext.P24 is belated, that an appeal lies from Ext.P24 under section 59(9) of the Mahatma Gandhi University Act and therefore, on that ground also, the original petition is liable to be dismissed. The learned Government Pleader appearing for the official respondents contended that as the Government is the pay master and the management is bound to abide by the Government orders issued from time to time, the management has to re-appoint the petitioner in implementation of Exts.P11, P14, P17 and P21 Government orders. The learned O.P.No.21638/2000 17 Government Pleader also submitted that the petitioner's service in Sree Sankaracharya University of Sanskrit was terminated in the wake of the decision of this Court setting aside the selection and appointment of Sanskrit Lecturers in that University and that it was taking note of the fact that a large number of teachers who were formerly working in Government/aided colleges were rendered jobless that the Government issued Exts.P11, P14, P17 and P21 orders in order to ameliorate the difficulties of such teachers. It was contended that the Government orders have been issued to protect the interests of teachers who were rendered jobless for no fault of theirs and that the management has a social obligation to reappoint them against supernumerary posts, as directed by the Government.
14. I have considered the rival submissions made at the Bar by the learned counsel appearing on either side. The validity of the various Government orders relied on by the petitioner has not been directly challenged by the fourth respondent though in the counter affidavit the fourth respondent has raised a collateral challenge to the validity of the said Government orders. The main question that arises for consideration in this original petition is whether the Government have the power and authority to issue the Government orders marked as Exts.P11, P14, P17 and P21 and whether the management of the college can collaterally O.P.No.21638/2000 18 challenge the said Government orders in this original petition. The pleadings and the materials on record disclose that when the petitioner applied for appointment as Lecturer in Hindi in Sree Sankaracharya University of Sanskrit, he was not working in Cochin College. The petitioner was initially appointed as Lecturer in Hindi in Cochin College, in a leave vacancy, on 15.9.1993. The Sree Sankaracharya University of Sanskrit was established by an Ordinance which came into force with effect from 25.11.1993. The first Vice Chancellor of the Sree Sankaracharya University of Sanskrit took charge on 28.2.1994. By then, the term for which the petitioner had been appointed as Lecturer in Hindi in Cochin College had expired. It was thereafter that the Sree Sankaracharya University of Sanskrit invited applications from eligible persons for appointment as Lecturer in various subjects. The petitioner applied and while his application was pending, he was regularly appointed as Lecturer in Hindi in Cochin College by Ext.P2 order dated 9.6.1995. Shortly thereafter, based on his application, the Sree Sankaracharya University of Sanskrit appointed him as Lecturer in Hindi by Ext.P3 order dated 1.9.1995. It is not in dispute that the petitioner left Cochin College in the afternoon of 20.9.1995 to take up employment as Lecturer in Hindi in Sree Sankaracharya University of Sanskrit and that his application for leave to take up that employment was O.P.No.21638/2000 19 rejected. Placed in that situation, the petitioner submitted Ext.P8 letter dated 18.10.1995 requesting the fourth respondent to treat that letter as his letter of resignation. The letter of resignation was accepted and the said decision was communicated to the petitioner by Ext.P9 memorandum dated 20.10.1995 whereby, the petitioner was also informed that as he has resigned from service, he will not have any preferential claim for future appointment in the college.
15. While matters stood thus, the selection and appointment of Lecturers in Sanskrit in Sree Sankaracharya University of Sanskrit was set aside by a learned single Judge of this Court by judgment delivered on 12.4.1996 on the ground that selection committee was not properly constituted. The said decision was affirmed by a Division Bench of this Court in (Sree Sankaracharya University of Sanskrit v. State (supra). Thereupon, the Sanskrit Lecturers whose selection and appointment was set aside by this Court were relieved from service with effect from 28.2.1997. Many among them were, prior to their appointment in Sree Sankaracharya University of Sanskrit, working in Government/aided private colleges. When they were rendered jobless, they moved the Government seeking repatriation to their parent colleges. The Government considered their requests and passed Ext.P11 order dated 17.3.1997 permitting such teachers to O.P.No.21638/2000 20 rejoin duty in their parent colleges if there are vacancies, as a special case. While passing the said order, the Government took note of the fact that the appointments were quashed for no fault of the teachers and therefore they have a right to go back to their parent colleges. After the aforesaid Government order was issued, the petitioner's service in Sree Sankaracharya University of Sanskrit was terminated and he was relieved from service on 8.9.1997. This was for the reason that the irregularity in the selection process noticed by this Court applied to the selection and appointment of Lecturers in Hindi also. Thereupon, the petitioner moved the management seeking repatriation to his parent college, relying on Ext.P11 Government order. The management did not reply to the said request of the petitioner. In the meanwhile, the Government, taking note of the fact that a large number of teachers were not able to rejoin duty in their parent institutions for want of vacancies, passed Ext.P14 order dated 4.2.1998 according sanction for the creation of supernumerary posts to enable absorption of teachers like the petitioner who were thrown out of service from Sree Sankaracharya University of Sanskrit. The name of the petitioner finds a place in Ext.P14. The petitioner moved the management and the Director of Collegiate Education seeking repatriation to his parent college relying on Ext.P14 also. The said requests were not acceded to. The O.P.No.21638/2000 21 Government thereafter passed Ext.P17 order dated 17.5.1999 according sanction for treating the period of service rendered by teachers like the petitioner in the Sree Sankaracharya University of Sanskrit as period spent on deputation. Later, the Government issued Ext.P21 order dated 10.3.2000 according sanction for treating the period between the date of relief of teachers like the petitioner from Sree Sankaracharya University of Sanskrit and the date on which they rejoined duty in their parent institutions as duty for all purposes, except for pay and allowances. The management did not choose to challenge Exts.P11, P14, P17 and P21 orders though they were aware of the same, the petitioner having brought the said orders to the notice of the management in his various representations. It was in such circumstances that this original petition was filed on 31.7.2000 seeking the intervention of this Court. It is in this factual background that I have to examine the question whether it is open to the fourth respondent to collaterally challenge Exts.P11, P14, P17 and P21 Government orders and whether there is any merit in the said challenge.
16. I shall now refer to the various decisions referred to and relied on by the learned counsel for the petitioner. In Indo- Marine Agencies v. Sales Tax Officer, Bombay (1979 KLT 845) Kochuthomman, J. (as His Lordship then was) considered the O.P.No.21638/2000 22 question whether the petitioner therein who was assessed to sales tax under section 35 of the Bombay Sales Tax Act, 1959 and was also held liable to pay penalty can collaterally challenge the said orders while challenging the steps taken by the revenue authorities under the Kerala Revenue Recovery Act, 1968 and the Revenue Recovery Act, 1890 to recover the tax/penalty assessed/levied under the Bombay Sales Tax Act, 1959. Overruling the contention of the petitioner that the order of assessment and the order levying penalty are void orders, the learned Judge held that an order although void in law, remains effective and operative until it is challenged and its invalidity is declared by a competent body or court and that it is not open to a person to ignore an order made against him by a competent authority in the purported exercise of its statutory power solely on the ground that the order is null and void and resist all consequences flowing from it. It was held that as the petitioner had not sought the right remedy at the right time in the right proceedings in the right forum, the orders impugned even if invalid are effective and operative against him.
17. A Division Bench of this Court in State of Kerala v. Official Liquidator (1987 (1) KLT 801) considered the question whether an order of assessment passed under the Kerala Agricultural Income Tax Act, 1950, that had attained finality can be collaterally O.P.No.21638/2000 23 challenged in an application filed by the State of Kerala under section 446 of the Companies Act, 1956 for recovery of the amounts due under the orders of assessment. The learned Company Judge dismissed the said application with a declaration that the assessment orders are illegal for the reason that they were issued otherwise than in compliance with the principles of natural justice, as the Official Liquidator had not been heard. Reversing the decision of the learned Company Judge, the Division Bench of this Court held as follows:
"4. It is a well accepted principle of administrative law that, except in cases of total nullity - a rare and exceptional phenomenon in public law - the order of a competent authority remains effective and operative until set aside or declared void by due process of law. It is true that an error going to jurisdiction - breach of natural justice is such an error - makes the order void, but not so void as to be a total nullity. It is void only in so far as it is voidable: and until set aside or its invalidity declared, it continues to operate against the person against whom it was made. But once it is quashed, it is deprived of all legal effect right from its inception. On the other had an order which is not void, but only voidable - a distinction which is neither clear-cut nor logical in public law, and which is a concept inappropriately borrowed from private law - remains valid even when it is quashed for the period of its operation. See the authorities cited in Govindan Unnithan v. Industrial Tribunal (1981 KLT 342) and Indo- Marine Agencies v. Sales Tax Officer, Bombay (1979 KLT 845)."
18. In Gopalakrishnan Nair v State of Kerala (ILR 1992 (3) Ker. 739) a Division Bench of this Court while considering O.P.No.21638/2000 24 the validity of an executive order which ran counter to the stipulations in special rules held as follows:
"18. But at the same time it is equally a well settled principle that unless a court of law either sets aside or declares an administrative instruction, direction or order as invalid and inoperative, it will be presumed to be valid and operative. The Supreme Court in the decision reported in State of Punjab v. Gurudev Singh (AIR 1991 SC 2219) has stated the principle thus:
"Apropos to this principle, Prof.Wade states: the principle must be equally true even where the `brand of invalidity' is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the court (see: Administrative Law 6th Ed. p. 352). Prof. Wade sums up these principles:
The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the `void' order remains effective and is in reality valid. It follows that an order may be void against one person but valid against another". (Ibid p.352) The Court has further observed that "the party aggrieved by the invalidity of the order has to approach the court for relief of declaration that the order against him is inoperative and not binding upon him". In this connection it is also useful to refer to the following observation of Radcliffe in the decision reported in Smith v. East Elloe Rural District Council ((1956) A.C. 736 at p.769).
"An order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its fore-head. Unless the necessary proceedings are taken at law to establish the cause of O.P.No.21638/2000 25 invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders".
In the light of the above principles it may have to be held that unless Ext.P4 is set aside or declared to be void and inoperative it will remain efficacious for the purpose for which it was issued.
If that is so it is also beyond doubt that the impugned direction in the judgment appealed against is directly opposed to the direction contained in Ext.P4. The question thus is which of the two directions should be allowed to stand in law."
19. A Division Bench of this Court has in State of Kerala v. Krishna Kumar.T.G. (2009 (3) KHC 137 (DB)) held that in administrative law even if an order of the Administrator is null and void, the same will continue to have legal efficacy unless someone having standing approaches the appropriate court within the prescribed time limit and gets a declaration that the said order is ultra vires and therefore void. Recently a Full Bench of this Court in Pavithran v. State of Kerala (2009 (4) KLT 20 (FB)) held as follows:
"8. Whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, the said order will become final and the person, affected by it, will also be bound by it. It is a well settled principle in Administrative Law that, there are no void orders in absolute sense in administrative matters. There are only voidable orders. Unless a person aggrieved takes recourse to the appropriate remedy at the appropriate time, O.P.No.21638/2000 26 even an illegal order will be treated as valid and binding. See the observations of Wade in Administrative Law, 6th Edn.
"The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another. A common case where an order, however void, becomes valid is where a statutory time limit expires after which its validity cannot be questioned. The statute does not say that the void order shall be valid; but by cutting off legal remedies it produces that result."
The above statement of law has been quoted with approval by the Apex Court in several decisions, and one of them is State of Punjab v. Gurdev Singh (1992(1) KLT SN 28 (C.No.37) SC = (1991) 4 SCC
1). We notice that Exts.P2 and P3 orders were passed by competent statutory authorities. They could have granted the reliefs sought by the sixth respondent, but, they have declined to do that. The sixth respondent has not chosen to challenge those orders before the higher forum or this Court and as mentioned earlier, he allowed them to become final. Therefore, those orders are to be treated as valid. They cannot be ignored or treated as void ab initio and therefore, of no effect now."
20. In Patel Narshi Thakkershi & others v. Shri. Pradyumansinghji Arjunsinghji ((1971) 3 SCC 844), dealing with the effect of an order passed by the Government, exercising the power of review, which it did not have, the Apex Court held as O.P.No.21638/2000 27 follows:
"4. The first question that we have to consider is whether Mr.Mankodi had competence to quash the order made by the Saurashtra Government on October 22, 1956. It must be remembered that Mr.Mankodi was functioning as the delegate of the State Government. The order passed by Mr.Mankodi, in law amounted to a review of the order made by Saurashtra Government. It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order. The question whether the Government's Order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence the same cannot be ignored. The subordinate Tribunals have to carry out that order. For this reason alone the order of Mr.Mankodi was liable to be set aside."
21. In State of Punjab v. Gurdev Singh (AIR 1991 S.C. 2219) the Apex Court, while considering the question whether a period of limitation has been prescribed for the suit instituted by the respondent before the Apex Court, for a declaration that he continues to be in service since his dismissal from service is void and illegal, held as follows:
"5. In the instant cases, the respondents were dismissed from service. May be illegally. The order of dismissal has clearly infringed their right to continue in the service and indeed they O.P.No.21638/2000 28 were precluded from attending the office from the date of their dismissal. They have not been paid their salary from that date. They came forward to the Court with a grievance that their dismissal from service was no dismissal in law. According to them the order of dismissal was illegal, inoperative and not binding on them. They wanted the Court to declare that their dismissal was void and inoperative and not binding on them and they continue to be in service. For the purpose of these cases, we may assume that the order of dismissal was void, inoperative and ultra vires, and not voidable. If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs.
6. But none the less the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v. East Elloe Rural District Council, (1956) AC 736 at p.769 Lord Radcliffe observed:
"An order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
7. Apropos to this principle, Prof. Wade states: "the principle must be equally true even where the 'brand of invalidity' is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the Court (See: Administrative Law 6th Ed. p.352). Prof. Wade sums up these principles:
O.P.No.21638/2000 29
"The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another."
(Ibid p.352)".
8. It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for."
It was held that a declaration that the order dismissing the respondent from service is inoperative and not binding cannot be given after the period of limitation for instituting a suit seeking that relief has expired.
22. In State of Kerala v. M.K.Kunhikannan (AIR 1996 SC 906) the Apex Court held that even a void order or decision rendered between the parties cannot be said to be non-existent in all cases and in all situations and that ordinarily such an order will infact be effective inter-parties until it is successfully avoided or challenged in a higher forum. The Apex Court held as follows:
"6. ........... Mere use of the word "void" is O.P.No.21638/2000 30 not determinative of its legal impart. The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise and in this case, the only complaint about the initiation of the suo motu proceedings by Board was, that it was not initiated on intimation by the State Land Board about the non-filing of the statement as required by Section 85(7) of the Kerala Land Reforms Act. In our opinion, this is not a case where the infirmity is fundamental. It is unnecessary to consider the matter further.
7. In Halsbury's Laws of England, 4th edition, (Reissue) volume 1(1) in paragraph 26, page 31, it is stated thus:-
"If an act or decision, or an order or other instrument is invalid, it should, in principle, be null and void for all purposes; and it has been said that there are no degrees of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a court of competent jurisdiction. Until its validity is challenged, its legality is preserved."
In the Judicial Review of Administrative Action, De Smith, Woolf and Jowell, 1995 edition, at pages 259-260 the law is stated thus:-
"The erosion of the distinction between jurisdictional errors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void and voidable decisions. The courts have become increasingly impatient with the distinction, to the extent that the situation today can be summarised as follows:-
(1) All official decisions are presumed to be valid until set aside or otherwise held to be invalid by a court of competent jurisdiction."O.P.No.21638/2000 31
Similarly, Wade and Forsyth in Administrative Law, Seventh edition - 1994, have stated the law thus at pages 341-342:-
"..... every unlawful administrative act, however invalid, is merely voidable. But this is no more than the truism' that in most situations the only way to resist unlawful action is by recourse to the law. In a well-
known passage Lord Radcliffe said:
An order, even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its fore-head. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.
This must be equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects."
23. In M.Meenakshi & others v. Metadin Agarwal (dead) by LRs & others ((2006) 7 SCC 470) the Apex Court held as follows:
"18. It is a well-settled principle of law that even a void order is required to be set aside by a competent court of law in as much as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non est. An order cannot be declared to be void in a collateral proceeding and that too in the absence of the authorities who were the authors thereof. The orders passed by the authorities were not found to be wholly without jurisdiction. They were not, thus, nullities." (emphasis supplied)
24. In Pune Municipal Corporation v. State of O.P.No.21638/2000 32 Maharashtra & others ((2007) 5 SCC 211) the Apex Court held as follows:
"36. It is well settled that no order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law. As Prof. Wade states:
"The principle must be equally true even where the `brand of invalidity' is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court."
He further states:
"The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another."
37. In Smith v. East Elloe Rural District Council (1956 AC 736 at p.769), Lord Radcliffe had an occasion to consider a similar argument (that the order was null and void). Negativing the contention, the Law Lord made the following oft-quoted observations: (All ER p.871 G-H) "(T) his argument is, in reality, a play on the meaning of the word nullity. An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the O.P.No.21638/2000 33 cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable f orders."
38. A similar question came up for consideration before this Court in State of Punjab v. Gurdev Singh ((1991) 4 SCC 1). In Gurdev Singh a suit for declaration was instituted by the plaintiff contending that the order dismissing him from service was ultra vires, unconstitutional, violative of principles of natural justice and void ab initio and he continued to be in service. Such suit, in accordance with the provisions of Article 113 of the Limitation Act, 1963,must be filed within three years from the date of passing of order or where departmental appeal or revision is filed from the date of dismissal of such appeal/revision. The suit was, however, filed beyond the period of three years. The High Court held that since the order was void, the provisions of the Limitation Act would not apply to such order. The aggrieved State approached this Court.
39. Setting aside the decree passed by all the courts and referring to several case, this Court held that if the party aggrieved by invalidity of the order intends to approach the Court for declaration that the order against him was inoperative, he must come before the Court within the period prescribed by limitation. "If the statutory time of limitation expires, the court cannot give the declaration sought for."
40. The Court then stated: (Gurdev Singh case, ((1991)4 SCC 1; p.6, para 7) "If an Act is void or ultra vires it is enough for the court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A O.P.No.21638/2000 34 declaration merely declares the existing state of affairs and does not `quash' so as to produce a new state of affairs."
The principles laid down by the the Apex Court and this Court in the decisions referred to above are that in administrative law, there are no void orders in the absolute sense, there are only voidable orders and unless the person aggrieved takes recourse to the appropriate remedy at the appropriate time, even illegal orders have to be treated as valid and legal and that such orders cannot be declared void in a collateral proceeding.
25. I shall now refer to the decisions of the Apex Court in Nawabkhan Abbaskhan v. State of Gujarat (AIR 1974 SC 1471) and Bharathidasan University & another v. All India Council for Technical Education & others((2001) 8 SCC 676) and of this Court in State of Kerala & others v. Arun George & others (2009 (4) KHC 477) and Radhamani v. Director of Public Instruction & others (ILR 2009 (4) Ker. 783) relied on by the learned counsel for the fourth respondent. In Nawabkhan Abbaskhan v. State of Gujarat (supra) the Apex Court was dealing with the case of a citizen who was prosecuted for violation of an externment order issued under section 56 of the Bombay Police Act, 1951. While the trial of the criminal case was pending, the appellant before the Apex Court challenged the order of externment in a writ petition filed O.P.No.21638/2000 35 under Article 226 of the Constitution of India. By judgment delivered on 16.7.1968, the order of externment was quashed and the said judgment attained finality. The trial court acquitted the appellant before the Apex Court. The State of Gujarat appealed to the High Court of Gujarat by filing Crl.A.No.673 of 1968. That appeal was allowed and the appellant before the Apex Court was convicted. The High Court took the view that the order passed by the High Court on 16.7.1968 quashing the order of externment did not render the order of externment nonest and that order was valid till it was set aside by the High Court in another jurisdiction. On appeal, the Apex Court held that as the order of externment had been issued in violation of section 59 of the Bombay Police Act, 1951, the order of externment was rightly quashed by the High Court and the externment order was therefore of no effect and its violation constituted no offence. In that context, the Apex Court held as follows:
"20. We express no final opinion on the many wide-ranging problems in public law of illegal orders and violations thereof by citizens, grave though some of them may be. But we do hold that an order which is void may be directly and collaterally challenged in legal proceedings. An order is null and void if the statute clothing the administrative tribunal with power conditions it with the obligation to hear, expressly or by implication.
Beyond doubt, an order which infringes a fundamental freedom passed in violation of the audi alteram partem rule is a nullity. When a compete court holds such official act or order O.P.No.21638/2000 36 invalid, or sets it aside, it operates from nativity, i.e., the impugned act or order was never valid. The French jurists call it L'inexistence or outlawed order (Brown and Garner : French Administrative Law, p.127) and could not found the ground for a prosecution. On this limited ratio the appellant is entitled to an acquittal. We allow his appeal."
The order of externment the violation of which was the subject matter of the appeal before the Apex Court had already been set aside by the High Court in a writ petition under Article 226 of the Constitution of India while the appellant was being prosecuted for violation of the externment order under section 142 of the Bombay Police Act, 1951 and that judgment had attained finality. The trial court acquitted the appellant, but the High Court, convicted him on the ground that the order of externment was valid till it was set aside. It was in such circumstances that the Apex Court interfered with the order of conviction and sentence and acquitted the appellant holding that the appellant cannot be said to be guilty of flouting an order which never legally existed. In other words, the Apex Court was only considering the effect of the writ of certiorari issued by the High Court of Gujarat quashing the order of externment.
26. In Bharathidasan University & another v. All India Council for Technical Education & others (supra) the question considered by the Apex Court was whether Bharathidasan University is a technical institution as defined under section 2(h) of O.P.No.21638/2000 37 the All India Council for Technical Education Act, 1987. The Bharathidasan University started courses in Information Technology & Management, Bio-engineering & Technology, Petrochemical Engineering & Technology, Pharmaceutical Engineering & Technology etc., without obtaining the prior approval of the All India Council for Technical Education (the AICTE for short). The AICTE thereupon filed a writ petition in the High Court of Madras seeking a writ in the nature of mandamus directing the Bharathidasan University to forbear from conducting the courses. It was contended that technical courses cannot be conducted without the prior approval of the AICTE. Reliance was placed on Regulation 4 of the All India Council for Technical Education (Grant of Approval for Starting new Technical Institutions, Introduction of Courses or programmes and Approval of Intake Capacity of Seats for the Courses or Programmes) Regulations, 1994. The Bharathidasan University contended that it is not a "technical institution" as defined in section 2(h) of the All India Council for Technical Education Act, 1987. It was contended that the regulation relied on by the AICTE is in excess of the regulation making power of the AICTE and is consequently null and void and cannot be enforced against the university to the extent it obliged even universities to seek and secure prior approval from AICTE before commencing technical courses. The learned single Judge of O.P.No.21638/2000 38 the Madras High Court accepted the contention of the AICTE and allowed the writ petition. The appeal before the Division Bench was rejected. On appeal, reversing the decision of the Madras High Court, the Apex Court held that Regulations 4 and 12 of the Regulations are opposed to and inconsistent with the provisions of the Act and consequently void and unenforceable. In that context the Apex Court held as follows:
"14. The fact that the Regulations may have the force of law or when made have to be laid down before the legislature concerned does not confer any more sanctity or immunity as though they are statutory provisions themselves. Consequently, when the power to make regulations is confined to certain limits and made to flow in a well-defined canal within stipulated banks, those actually made or shown and found to be not made within its confines but outside them, the courts are bound to ignore them when the question of their enforcement arises and the mere fact that there was no specific relief sought for to strike down or declare them ultra vires, particularly when the party in sufferance is a respondent to the lis or proceedings cannot confer any further sanctity or authority and validity which it is shown and found to obviously and patently lack. It would, therefore, be a myth to state that Regulations made under Section 23 of the Act have "constitutional" and legal status, even unmindful of the fact that any one or more of them are found to be not consistent with specific provisions of the Act itself. Thus, the Regulations in question, which AICTE could not have made so as to bind universities/UGC within the confines of the powers conferred upon it, cannot be enforced against or bind a university in the matter of any necessity to seek prior approval to commence a new department or course and programme in technical O.P.No.21638/2000 39 education in any university or any of its departments and constituent institutions."
It was held that when the power to make regulations is confined to certain limits and made to flow in a well defined canal within stipulated banks, the courts are bound to ignore those regulations actually made or shown and found to be not made within its confines but outside them, when the question of their enforcement arises and the mere fact that no specific relief was sought to strike down or declare the regulations as ultra vires cannot confer any sanctity or authority and validity on the regulations when it is shown and found to be without authority.
27. In State of Kerala & others v. Arun George & others (supra) the Division Bench of this Court was considering the question whether it is open to an educational agency to challenge the conditions stipulated by the Government while sanctioning additional courses. The Division Bench held that as the conditions imposed by the Government when it sanctioned the additional courses are in violation of the provisions contained in the University Statutes and the Direct Payment Agreement, those conditions are ultra vires and illegal and in such circumstances, when those conditions are sought to be enforced, even in the absence of a formal challenge to those conditions, this Court would be justified in ignoring such conditions. O.P.No.21638/2000 40 Reliance was placed on the decision of the Apex Court in Bharathidasan University & another v. All India Council for Technical Education & others (supra).
28. In Radhamani v. Director of Public Instruction & others (supra) a learned single Judge of this Court considered the effect of an executive order which runs counter to the provisions in Rule 2 of Chapter XXXI of the Kerala Education Rules. Relying on the decision of the Apex Court in Bharathidasan University & another v. All India Council for Technical Education & others (supra) and of this Court in State of Kerala & others v. Arun George & others (supra) it was held that as the executive order is inconsistent with the statutory rules, even in the absence of a specific challenge to the executive order, this Court can ignore the stipulations therein as it is one contrary to the statutory rules. The decisions relied on by the fourth respondent are not in my opinion an authority for the proposition that an administrative order can be collaterally attacked on the ground that it is void, when it is sought to be relied on and enforced. In the light of the principles laid down by the Apex Court and this Court in the various decisions referred to above, I hold that the fourth respondent cannot collaterally challenge Exts.P11, P14, P17 and P21 Government orders in this writ petition. It is not therefore necessary for me to consider whether the O.P.No.21638/2000 41 Government had the jurisdiction to issue the said orders.
29. That apart, the validity of Exts.P11, P14, P17 and P21 Government orders relied on by the petitioner was upheld by this Court in O.P.No.31780 of 2000 wherein they were produced and marked as Exts.P3, P6, P7 and P8 respectively. That original petition was heard and disposed of along with O.P.No.11591 of 2000 by judgment delivered on 12.9.2001 in Narayanan v. Manager, S.D.College (2001 (3) KLT) 592). The petitioner in O.P.No.11591 of 2000 was working as Selection Grade Lecturer in Sanatana Dharma College, Alappuzha. He was sent on deputation to Sree Sankaracharya University of Sanskrit, Kalady as Lecturer by order passed on 24.7.1995. Pursuant to the decision of this Court in Sree Sankaracharya University of Sanskrit v. State (supra) his appointment in the Sree Sankaracharya University of Sanskrit was terminated. Though he requested for re-appointment in the college, that request was rejected on the ground that a substitute has already been appointed in his place. The Government thereafter passed Exts.P11, P14, P17 and P21 orders. The petitioner therein was thereupon reappointed in service as Selection Grade Lecturer on a substantive basis. Respondents 5 to 8 in O.P.No.11591 of 2000 who were juniors to the petitioner therein, objected to his appointment. The management of the college thereupon gave charge of the post of O.P.No.21638/2000 42 Head of the Department to the fifth respondent in that original petition who was junior to the petitioner in O.P.No.11591 of 2000. He thereupon filed O.P.No.11591 of 2000 seeking a declaration that he is entitled to all service benefits including seniority and monetary benefits. He also sought a direction to respondents 1 and 2 therein to treat him as the senior most teacher in the Department of History. Respondents 5 to 8 in O.P.No.11591 of 2000 resisted the petition. The learned single Judge held that as the petitioner had not been substantively appointed in Sree Sankaracharya University of Sanskrit and had not been confirmed in the post which he was holding on deputation, it cannot be said that he had lost his lien in the parent college. The learned single Judge also held that he is therefore entitled to be repatriated with all attendant benefits including seniority. The fifth respondent in O.P.No.11591 of 2000 who was junior to the petitioner in that original petition had filed O.P.No. 31780 of 2000 challenging Exts.P11, P14, P17 and P21 Government orders. The writ petitions were heard together and disposed of by the common judgment in Narayanan v. Manager, S.D.College (supra) wherein it was held as follows:
"17. On hearing the petitioner in O.P.No.31780/2000, I am not satisfied that there exists any justification for striking off the said Government Orders as unconstitutional. It was pursuant to the orders of this Court vide O.P.No.21638/2000 43 judgment in Sankaracharya University of Sanskrit v. State (1996 (2) KLT 378) that the teachers had to be repatriated. It was for the Government to ameliorate their difficulties and redress their grievances especially when it was not pursuant to any resignation that the teacher left their parent institutions and joined the University. The persons for whose benefit the said Government Orders were passed form a class by themselves. There is no arbitrary discrimination shown to them. It is to be remembered here that the present petitioner is a person who joined the college much later than the date of joining of the 2nd respondent. At the time, when the petitioner joined duty in the College on 26.11.1979 she had no expectation at all that she could steal a march over the 2nd respondent, who is said to be her former teacher. No equity is hence available in favour of the petitioner. The Government Orders were issued to perpetrate justice and in the absence of any arbitrariness. I am not satisfied that there exists justification for striking down the said Government Orders. It is also to be mentioned here that treating of the period of deputation spent by the 2nd respondent in the University as period of duty in the college was not merely based on Exts.P3 to P6; but taking into consideration of various other Government Orders like Ext.P20 marked in the other Original Petition. When there is no prayer for setting aside those Government Orders, the petitioner cannot be granted the relief merely by striking down Exts.P3 to P6.
18. The contention that the Government has absolutely no right to intervene in administrative matters of private colleges has also no merit because under the subsisting system evidenced by Ext.P16 Government Order, the Government has the responsibility to pay for these teachers and as such Government has control over the sanction of posts in the matter of prescribing a method of appointment of teachers O.P.No.21638/2000 44 and in the matter of promotions. Such general powers will certainly include the power to intervene to administer justice to the persons who were on deputation to the University when the deputation has ceased to be effective.
19. In the circumstances, O.P.No. 31780/2000 is found to be without merit and it is dismissed."
The learned single Judge held that the impugned Government orders were issued to do justice to teachers who were thrown out from service following the decision of this Court in Sree Sankaracharya University of Sanskrit v. State (supra). The contention that the Government had no right to interfere was rejected holding that as the Government is the pay master and has control over the sanctioning of posts, that power would include the power to intervene to administer justice to persons who were on deputation to the university after the deputation ceased to be effective.
30. Ext.P11 Government order was issued way back on 17.3.1997, in the wake of the decision of this Court in Sree Sankaracharya University of Sanskrit v. State (supra), that was rendered on 18.7.1996. By the said decision, this Court set aside the selection and appointment of Sanskrit Lecturers in Sree Sankaracharya University of Sanskrit on the ground that the selection committee was not properly constituted. It was taking note of the fact that the appointments of teachers were quashed by this O.P.No.21638/2000 45 Court on a technical ground and not due to any fault of the teachers that the Government issued Ext.P11 order. The Government also took note of the fact that the teachers were formerly working in Government/aided colleges. Later, the Government issued Ext.P14 order dated 4.2.1998 according sanction for the creation of supernumerary posts to absorb teachers like the petitioner. The fourth respondent was made aware of the said orders by the petitioner. Thereafter, the Government issued Exts.P17 and P21 orders, the former according sanction for treating the period of service rendered by the thrown out teachers in Sree Sankaracharya University of Sanskrit, as period spent on deputation and the later, according sanction for treating the period between the date on which they were thrown out from Sree Sankaracharya University of Sanskrit till the date of their reappointment in their parent colleges as duty for all purposes, except for pay and allowances. Ext.P17 order was issued on 17.5.1999 and Ext.P21 on 10.3.2000. More than a decade has passed thereafter.
31. The management which was aware of the said orders, did not question them by instituting appropriate proceedings in this Court. Instead, the management sat on the request made by the petitioner for repatriation to Cochin College for long; thereby compelling him to move this Court. Pursuant to the interim order O.P.No.21638/2000 46 passed by this Court on 13.12.2006, the fourth respondent issued Ext.P24 order dated 2.1.2007 expressing inability to reappoint the petitioner in service. In that order, the main reason set out by the fourth respondent to decline the petitioner's request for repatriation is that Ext.P11 Government order dated 17.3.1997 by which the Government permitted teachers like the petitioner to rejoin their parent colleges gives only permissive sanction to the management to reappoint the teachers in their respective colleges. Though reference was made to Ext.P14 Government order dated 4.2.1998 according sanction for the creation of a supernumerary post to absorb the petitioner, the fourth respondent declined to implement the direction in the said Government order on the ground that the vacancy that arose on the resignation of the petitioner was filled up by appointing Smt.K.S.Srividya and if the petitioner is reappointed, it will lead to overcrowding in the department. Yet another reason stated is that though there is dearth of hands in English Department, the Government has not permitted the management to fill up the vacancies, on the ground that excess hands are working in departments like English and French and therefore, if a supernumerary post is created in Hindi Department to accommodate the petitioner, the chances of filling up vacancies in English Department will be further reduced.
O.P.No.21638/2000 47
32. In my considered opinion, there is no merit in any one of the said contentions. In view of the admitted fact that the management has not chosen to challenge Exts.P11, P14 and other related Government orders, the fourth respondent cannot in my opinion contend for the position that he is not bound to implement them. Even if the said orders are voidable orders, till they are set aside by this Court in appropriate proceedings instituted within time, the fourth respondent cannot be heard to contend that the said orders are not binding on him or the management. Further, the Government have in Ext.P14 permitted creation of a supernumerary post of Lecturer in Hindi in Cochin College, with a view to enable the petitioner to rejoin duty as Lecturer in Hindi. Since the Government accorded sanction to create a supernumerary post to accommodate the petitioner as Lecturer in Hindi in Cochin College, the reason stated by the fourth respondent that the department will be overcrowded disproportionately is without any merit. When the Government which is the pay master has permitted the management to have a supernumerary post to accommodate the petitioner, the management cannot be heard to contend that it will lead to overcrowding. Similarly, there is also no merit in the contention that if the petitioner is appointed, the possibility of filling up of vacancies in the English Department will be further reduced. The Government O.P.No.21638/2000 48 had declined permission to the management to fill up vacancies in the department of English for the reason that there are 22 excess teachers in various subjects in Cochin College. The vacancy in the department of English is only one. It cannot therefore be said that by accommodating the petitioner in the supernumerary post of Lecturer in Hindi, for which the Government had given sanction, the possibility of filling up the vacancy in the English Department will be further reduced. The stand taken by the fourth respondent in Ext.P24 cannot therefore be sustained.
33. I shall now consider whether the petitioner should be relegated to the alternate remedy provided under section 59(9) of the Mahatma Gandhi University Act as contended by the fourth respondent. The petitioner was relieved from Sree Sankaracharya University of Sanskrit on 8.9.1997. Prior to 8.9.1997 and thereafter also, the petitioner has been repeatedly representing to the fourth respondent to reinstate him in service as Lecturer in Hindi. The fourth respondent did not even sent a reply to the petitioner informing him of the reason why he cannot be reinstated in service. The management did not also challenge the Government orders. It was only after this Court passed an interim order on 13.12.2006 that the management considered the petitioner's request for repatriation to the parent college. In such circumstances, I am of the opinion O.P.No.21638/2000 49 that it will not be just or proper or equitable at this distance of time; more than a decade after the petitioner sought reinstatement in service, to relegate him to the alternate remedy. In view of the fact that the management has not taken steps to challenge Exts.P11, P14, P17 & P21 Government orders and the said orders remain valid and effective and in view of my finding that the management is not entitled to collaterally challenge the said Government orders in this writ petition, I hold that the petitioner is entitled to the benefits flowing therefrom. Necessarily therefore it has to be held that Ext.P24 cannot be sustained.
34. The petitioner was thrown out from service on 8.9.1997. For the past more than 12 years he has been pursuing the management to reinstate him in implementation of the directions issued by the Government. As a result of the stand taken by the management, the petitioner has been denied salary and allowances for the past more than a decade. Even without challenging the Government orders, the management denied him the benefits flowing therefrom. The management did not even reply to the various representations submitted by the petitioner seeking reappointment in the college. In such circumstances, I am of the considered opinion that the petitioner is entitled to be compensated by award of costs, which I fix as Rs.10,000/-, to be paid by the O.P.No.21638/2000 50 fourth respondent.
For the reasons stated above, I allow the original petition, quash Ext.P24 and direct the fourth respondent to re-appoint the petitioner in service as Lecturer in Hindi forthwith. The fourth respondent shall issue necessary orders appointing the petitioner as Lecturer in Hindi within two weeks from the date on which the petitioner produces a certified copy of this judgment before him and shall immediately thereafter forward the appointment order together with the proposal to approve the appointment of the petitioner to the competent authorities. The petitioner will be entitled to have the period from 20.9.1995 (the date on which he joined service in Sree Sankaracharya University of Sanskrit) to 8.9.1997 (the date on which he was relieved from Sree Sankaracharya University of Sanskrit) treated as period spent on deputation in terms of Ext.P17 Government order. He will also be entitled to have the period from 8.9.1997 (the date on which he was relieved from Sree Sankaracharya University of Sanskrit) till the date of his rejoining the Cochin College reckoned as duty for all purposes in terms of Ext.P21 Government order, except for pay and allowances during the said period. Needless to say, the petitioner will be entitled to have the said period reckoned for the purpose of seniority and pay fixation and all other service benefits. The respondents shall also take steps to O.P.No.21638/2000 51 have pay of the petitioner fixed in terms of Exts.P17 and P21 Government orders, taking note of the periodical pay revisions. Respondents 1 to 3 and the Mahatma Gandhi University shall approve the petitioner's appointment as Lecturer in Hindi pursuant to this judgment within one month from the date of receipt of the appointment order together with the proposal for approval from the fourth respondent. The fourth respondent shall pay the sum of Rs.10,000/= as costs to the petitioner within one month from the date on which the petitioner produces a certified copy of this judgment before him.
P.N.RAVINDRAN Judge TKS