Kerala High Court
Unknown vs By Advs.Sri.Roshen.D.Alexander on 11 November, 2016
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
MONDAY, THE 26TH DAY OF FEBRUARY 2018 / 7TH PHALGUNA, 1939
WP(C).No. 40219 of 2017
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PETITIONER
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ALEX.M.KURIAKOSE,
AGED 30 YEARS, S/O.KURIAKOSE, RESIDING AT MALIKUDI HOUSE,
IRINGOLE P.O., PERUMBAVOOR-683548,
PRESENTLY WORKING AS TECHNICAL ASSISTANT, U.C.COLLEGE, ALUVA.
BY ADVS.SRI.ROSHEN.D.ALEXANDER
SMT.TINA ALEX THOMAS
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,
HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM.
2. DIRECTORATE OF COLLEGIATE EDUCATION,
VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN-695033.
3. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
ERNAKULAM.
4. MAHATMA GANDHI UNIVERSITY,
PRIYADARSINI HILLS, ATHIRAMPUZHA, KOTTAYAM-685562,
REPRESENTED BY ITS REGISTRAR.
5. UNION CHRISTIAN COLLEGE,
U.C.COLLEGE, P.O.ALUVA-683102, REPRESENTED BY ITS MANAGER.
R1 TO R3 BY SENIOR GOVERNMENT PLEADER SMT NISHA BOSE
R4 BY SRI.ASOK M. CHERIAN, SC
R5 BY ADVS. SRI.SAJI VARGHESE
SMT.MARIAM MATHAI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26-02-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.V.
WP(C).No. 40219 of 2017 (L)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1- TRUE COPY OF THE G.O.(MS)NO.119/2004/H.EDN.
DTD.17/09/2004.
EXHIBIT P2- TRUE COPY OF THE PAGE NOS.1 TO 4 OF THE NOTE
FILE BEARING NO.20637/D3/11/H.EDN. OF THE HIGHER
EDUCATION DEPARTMENT CONTAINING THE
RECOMMENDATION OF HIGHER EDUCATION
DEPARTMENT.
EXHIBIT P3- TRUE COPY OF THE ADVERTISEMENT PUBLISHED IN
MALAYALA MANORAMA DAILY DTD.13/02/2012.
EXHIBIT P4- TRUE COPY OF THE LETTER BEARING
NO.20637/D3/11/H.EDN. DTD.08/04/2015.
EXHIBIT P5- TRUE COPY OF THE JUDGMENT DTD.18/03/2016 IN
W.P.(C)NO.31683/2015.
EXHIBIT P6- TRUE COPY OF THE G.O.(MS)NO.60/2016/H.EDN.
DTD.29/02/2016.
EXHIBIT P7- TRUE COPY OF THE ORDER NP.E5/18373/2016/COLL. EDN.
DTD.22/06/2016.
EXHIBIT P8- TRUE COPY OF THE ORDER BEARING NO.D2/313/2016/H.
EDN. DTD.27/10/2016.
EXHIBIT P9- TRUE COPY OF THE LETTER NO D2/313/16/H.EDN.DATED 11.11.2016
PRINCIPAL SECRETARY TO THE DIRECTOR OF COLLEGIATE EDUCATION.
EXHIBIT P10- TRUE COPY OF THE MINUTES OF THE MEETING OF THE
NON-TEACHING STAFFS OF THE SELECTION
COMMITTEE ON 14/11/2016.
EXHIBIT P11- TRUE COPY OF THE APPOINTMENT ORDER
DTD.19/12/2016 BY WHICH PETITIONER WAS APPOINTED
TO THE POST OF TECHNICAL ASSISTANT (COMPUTER
SCIENCE DEPARTMENT).
EXHIBIT P12- TRUE COPY OF THE JUDGMENT DTD.05/07/2017 IN
W.P.(C)NO.36088/2016.
EXHIBIT P13- TRUE COPY OF THE COUNTER AFFIDAVIT FILED ON
BEHALF OF THE 2ND RESPONDENT IN
W.P.(C)NO.36088/2016.
EXHIBIT P14- TRUE COPY OF THE ORDER NO.E5.12623/2017/DCE
DTD.16/10/17
EXHIBIT P15 TRUE COPY OF THE LETTER BEARING NO E5.12623/2017/DCE
DTD 15.11.17 FROM THE OFFICE OF THE DIRECTOR OF COLLEGIATE
EDUCATION.
EXHIBIT P16 TRUE COPY OF GO (RT) NO 318/2011/H.EDN DTD 26.2.2011.
WP(C).No. 40219 of 2017 (L)
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EXHIBIT P17; TRUE COPY OF THE REQUEST FOR APPROVAL DTD 18.10.2016 OF THE
PRINCIPAL, ST.PIUS X COLLEGE, RAJAPURAM TO THE 2ND RESPONDENT.
EXHIBIT P17(A): TRUE COPY OF THE MINUTES OF THE MEETING OF THE STAFF SELECTION
COMMITTEE CONDUCTED ON 15.10.2016.
EXHIBIT 17(B) TRUE COPY OF THE APPROVAL ORDER FOR APPROVING THE APPOINTMENT
ISSUED BY THE 2ND RESPONDENT.
RESPONDENTS EXHIBITS:
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R2(A) TRUE COPY OF THE COMPLAINT DATED 28.10.2016
R2(B) TRUE COPY OF COMPLAINT DATED NIL
/TRUE COPY/
K.V. P.S.TO JUDGE
26.03.2018
ANU SIVARAMAN, J.
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W.P.(C) No.40219 of 2017
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Dated this the 26th day of February, 2018
JUDGMENT
The prayers in this writ petition are as follows:-
i. To issue a writ in the nature of certiorari and calling for the records leading to the issuance of Exts.P14 and P15 and quashing the same.
ii. To issue a writ in the nature of declaration declaring that petitioner's appointment by Ext.P11 is perfectly valid in the eye of law and petitioner's appointment is entitled to be approved.
2. Heard learned counsel appearing for the petitioner, learned counsel appearing for the 5th respondent College, the learned Standing Counsel appearing for the 4 th respondent University and the learned Government Pleader.
3. It is submitted by the learned counsel for the petitioner that the petitioner had been appointed as Technical Assistant in the 5th respondent's college in pursuance of a proper selection conducted. It is stated that a Government nominee had been deputed to the selection committee as well. However, on the ground that the notification which preceded the selection was dated 13.12.2012 which is a date before the post was W.P. C No.40219 of 2017 2 sanctioned by Ext.P7 order dated 22.06.2016, the petitioner's appointment has not been approved.
4. It is contended by the learned counsel for the petitioner that the post had been sanctioned to the college much earlier and that it was in anticipation of sanction that the post of Technical Assistant, which is an essential post, had been advertised on 13.12.2012. It is stated that after the post was sanctioned on 22.09.2016, the Government nominee was deputed for the conduct of the selection and proper selection had been conducted and the petitioner who was a fully qualified hand had been appointed. It is therefore contended that the denial and payment of salary on the ground that the advertisement notifying the post preceded the grant of sanction for the post is completely unjustifiable.
5. The fifth respondent has filed a counter affidavit contending that pursuant to de-linking of pre-degree courses for colleges, the Government had approved revised work norms and staff pattern of non teaching staff of the aided colleges. It is stated that the post of Technical Assistant is W.P. C No.40219 of 2017 3 available in a private college if Electronics or Computer Science Laboratories are established and the subject is taught in the college. It is stated that B.Sc Computer Science course was started in the college in the year 2001-02 and Computer Science lab was in existence. It is further stated that by Government order dated 20.08.2010, 1599 posts of lecturers in private colleges had been created and this included the teaching posts in Computer Science as well. It is therefore contended that in anticipation of the sanction of the post of Technical Assistant, which was actually operated in the college, the fifth respondent had notified the vacancy. After the post of Technical Assistant was sanctioned by Ext.P7 order, the College had sought deputation of the Government nominee. The selection was conducted in accordance with law and the petitioner who is a fully qualified hand had been appointed. It is stated that the rejection of approval on the ground that the advertisement preceded the sanction of the post is unsustainable.
6. The counter affidavit filed on behalf of the second W.P. C No.40219 of 2017 4 respondent contends that the post of Technical Assistant had been created in the college only by a proceedings dated 22.06.2016 and based on the guidelines issued in the Government Order dated 29.02.2016. It is further contended that the revision of non teaching staff pattern of the aided colleges was effected by G.O.(Ms) No.50/08 H.Edn. dated 9.5.2008 and the courses started after 1997 without financial commitment to Government could not be considered for revision. It is therefore contended that the Technical Assistant post was not sanctioned to the 5th respondent's college, since the B.Sc Computer Science was a course permitted to be started after 1997 without financial commitment. Accordingly, the proposal of the 5th respondent for creation of one post of Technical Assistant had been rejected by the Government on 8.4.2015. It is stated that it was only by Ext.P7 dated 22.06.2016 that the post had been sanctioned and the selection conducted on the basis of pre-existing notification was therefore completely illegal. It is further contended that the first respondent had deputed the Government nominee for W.P. C No.40219 of 2017 5 selection and filling up of one vacancy of Technical Assistant and one vacancy of Office Assistant as per the Government Order dated 27.10.2016. It is stated that consequent to complaints received, Government had stayed the notification which was challenged by a candidate who had applied for the post of Office Attendant by filing W.P.C. No.36088 of 2016. It is stated that a counter affidavit had been filed in W.P.(C). No.36088 of 2016 contending that the notification for filling up of the post of Office Attendant was in order, but the notification for Technical Assistant was not in order since the notification preceded the sanction of the post. The writ petition was therefore disposed of, but the issue of illegality in the selection to the post of Technical Assistant had not been considered. It is therefore contended that the notification inviting application for the post of Technical Assistant issued in 2012 and the selection conducted pursuant thereto were illegal and since several persons who would have acquired qualifications in the interregnum had not been included in the selection process and the entire process was vitiated.
W.P. C No.40219 of 2017 6
7. A reply affidavit has been filed by the petitioner contending that there were absolutely no complaints raised against the selection to the post of Technical Assistant and the anonymous complaint submitted only referred to the post of Office Attendant. It is stated that B.Sc Computer Science course was started in the college in the year 2001-02 and in view of the Government Order dated 17.09.2004, the college would have been entitled to an additional post of Technical Assistant. It is stated that teaching posts in respect of B.Sc Computer Science course had already been sanctioned in 2010 and the delay in according sanction for the non teaching posts which were essential for the conduct of the course which was being offered by the college was unjustifiable. The said delay cannot be taken as a reason by the Government to refuse sanction.
8. The learned counsel for the petitioner contended that since there is no allegation that the petitioner was not qualified or that there was any illegality in the selection conducted, the appointment should be approved with effect from the date of W.P. C No.40219 of 2017 7 the appointment itself.
9. The learned Government Pleader relied on the decision of the Apex Court in CHANDGI RAM V. UNIVERSITY OF RAJASTHAN [(2001) 10 SCC 556] as also a decision reported in K.Shekar v. V.Indiramma and others, [AIR 2002 SC 1230] to contend that where there is a time lag between the date of the notification and the date on which selection is actually conducted, there should have been a fresh notification of the vacancy and a consideration of the persons who had acquired the qualifications in the meanwhile as well. It is contended by the learned Government Pleader that the notification issued before the formal sanction to the post by the Government was illegal and selection made thereto is therefore vitiated.
10. I have considered the contentions advanced. The 5 th respondent's college had been granted permission to start the B.Sc Computer Science course as early as in 2010. It is therefore clear that the Computer Science laboratory was in existence in the college. Teaching posts were also duly W.P. C No.40219 of 2017 8 sanctioned for the conduct of the course. Ext.P1 Government Order provided for sanction of one post of Technical Assistant in private college where B.Sc computer Science course had been sanctioned. The Higher Education Department had forwarded the recommendation for concurrence of the Finance Department for granting formal sanction for the post of Technical Assistant in the 5th respondent's college on the basis of Ext.P1 Government Order. At that time the advertisement was published on 13.12.2012. The post was formally sanctioned by Ext.P6 order dated 29.02.2016. On the basis of the staff fixation orders, the second respondent had permitted to fill up the post of Technical Assistant also by Ext.P7 order. Thereafter, the Government nominee was also deputed for the selection.
11. The contention of the Government Pleader is to the effect that the selection had been stayed by the Government and stay had been vacated by Ext.P12 judgment only in respect of the Office Attendant post. However, from a reading of Ext.P12, it is clear that the issue of continuance of the stay W.P. C No.40219 of 2017 9 in respect of the Technical Assistant post had not been clarified in the said judgment. The only contention raised against the selection and appointment of the petitioner is to the effect that the advertisement preceded the sanctioning of the post. It is not in dispute before me that B.Sc Computer Science course was being offered by the College. Therefore, going by Ext.P1 Government Order, a post of Technical Assistant was available in the college. It is true that formal sanction had been granted for filling up the post only by Exts.P6 and P7 orders. However, this, according to me, cannot be a ground for holding that the selection is vitiated, especially in view of the fact that the selection to the post was never called in question before the Government or any higher authority. In the above view of the matter, I am of the opinion that the contentions raised by the Government Pleader do not merit consideration.
12. In the result, the impugned orders are therefore set aside. There will be a direction to the respondents to approve the appointment of the petitioner as Technical Assistant and to grant all monetary benefits to the petitioner, within a period of W.P. C No.40219 of 2017 10 three months from the date of receipt of a copy of this judgment.
The writ petition is ordered accordingly.
Sd/-
ANU SIVARAMAN JUDGE rmm // True copy // P.A. To Judge