KASSIM KOYA O. Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner, who was regularised in service as full time Last Grade Servant in the 4th respondent aided college, with effect from 18/02/1981 as per Ext. P9 dated 22/06/1982, essentially prays in this Writ Petition (Civil) that directions are to be issued to the official respondents so as to regularise him in service in that post with effect from his initial date of appointment in service on 10/07/1972 or in the alternative with effect from 10/05/1977, etc.. The facts necessary for disposal of this matter are as follows. The petitioner claims that he was initially appointed as last grade peon (full time Last Grade Servant) in the 4th respondent-M.S.M. College, Kayamkulam, as per Ext. P1 dated 30/06/1972 and he had joined that post on 10/07/1972 and that he had continuous uninterrupted service in the said college from the said date upto his date of retirement. The 4th respondent-college and other similar private colleges affiliated to the 3rd respondent-University of Kerala, came under the purview of the Government's direct payment system pursuant to Ext. P2 G.O. dated 06/10/1972. The Government of Kerala and private colleges like the 4th respondent had arrived at an agreement for direct payment of salary to teaching and non-teaching staff of such colleges from the Government funds and pursuant to this understanding, Ext. P2 G.O. was issued on 06/10/1972. Clause 2 of Part II of Ext. P2 stipulated that the pattern and number of teaching staff, which may be accepted for the purpose of direct payment of salary shall conform to the Rules laid down in that behalf by the Universities with the approval of the Government and Clause 3 thereof stipulated the method for determining the number of admissible posts of teaching staff in such colleges based on the workload norms. As per Clause 3 of Part 1 of Ext. P2 the date commencement of Ext. P2 Rules is 1st September, 1972. Clause 7 thereof empowered the 2nd respondent-Director of Collegiate Education to fix the number of posts admissible for non-teaching staff, in consultation with the University and determine admissible number of such posts of non-teaching staff and fix their pay etc. Later Ext. P3 G.O. dated 04/09/1973 was issued by the Government ordering that pending fixation of teaching staff pattern of the Universities, all the teaching staff, who were on the rolls of private colleges in vacancies other than leave vacancies on or before 01/09/1972 will be given the benefit of direct payment of salaries irrespective as to whether their appointments and their posts were approved by the University or not and that this will include payment of salaries to those personnel, who have been/will be declared supernumerary by the Universities and that such of those who are found later to be excess of the staff pattern will be declared as supernumerary hands and retained as such until they are absorbed in regular vacancies or till they retire or resign from the service of the college. But that they will be entitled to all benefits admissible to regular teaching staff and wherever such supernumeraries exist, future vacancies arising in that cadre shall not be filled up before absorbing all the supernumeraries. Ext. P5 G.O. dated 19/11/1975 was also issued by the Government, which had ordered that the Government after examining the recommendations of the University, have accorded their concurrence to the University to approve the appointments of teachers in the list appended to that G.O. on condition that those who are in excess by the approved strength will be declared as supernumerary hands to be absorbed against future vacancies simultaneously abolishing supernumerary posts and that the Director of Collegiate Education has been requested for arranging for direct payment of salary to such teachers concerned etc. It is also pointed out by the petitioner that as per Ext. P4 proceedings dated 06/09/1974, the 2nd respondent-Director of Collegiate Education has noted the subsequent direction of the Government in their letter No. 9396/S3/73/Edn. dated 26/05/1973, whereby the Government have directed to allow direct payment of salary to the non-teaching staff as the position stood on 31/07/1972 until further orders. But for the direction issued by the Government in the Government letter dated 26/05/1973 referred to in Ext. P4 dated 06/09/1974 only those personnel holding non-teaching posts, which were within the admissible sanctioned strength as per the University workload norms and who are in service as on 01/09/1972, alone would have been entitled for the benefit of direct payment of salary. But it appears from Ext. P4 that in view of the above said direction of the Government in their letter dated 26/05/1973, it has been decided by the Government to allow direct payment of salary to non-teaching staff as the position stood on 31/07/1972 until further orders and that surplus posts already in existence on the basis of grant-in-aid Code will have to be declared supernumerary and abolished automatically as and when they become vacant due to resignation, retirement, promotion or otherwise. It is also pointed out that as per Ext. P6 Government order dated 03/10/1977, the Government on taking note of the fact that the staff pattern for private colleges provided for in the grant-in-aid Code did not contain provision for part time post in the last grade servants and that it envisages only full time post in the last grade service, decided that the part time contingent posts in Private Arts and Science Colleges existing on the rolls as on 01/09/1972 be brought under the direct payment system, subject to a maximum of three posts, depending upon the size of the college.

(2.) It is common ground that the petitioner was not occupying a post in the cadre of full time last grade servant in the college, which was within the admissible sanctioned strength of such post as per the University and Government norms. Since the petitioner's service commenced only on 10/07/1972, he was not entitled for the benefit of the Government direction referred to in Ext. P4 as that benefit was confined only to those full time last grade servants, who were in service as on 31/03/1972. More over as he was not occupying a post within the sanctioned admissible strength as on the date of coming into force of direct payment system, viz., 01/09/1972, he was obviously a supernumerary or excess hand. The 2nd respondent-Director of Collegiate Education as per proceedings No. NI-8714/74 dated 26/09/74 (produced along with the memo dated 25/03/2014 filed by the Government Pleader) and referred to in para 2 of Ext. P13, the Director of Collegiate Education directed the 4th respondent-college authorities to retrench nine excess hands in that college including the petitioner as they were all excess hands and were appointed much after the cut of date of 31/03/1972. It can be seen from the said proceedings dated 26/09/1974 that all the nine incumbents mentioned therein including the petitioner have been appointed in July, 1972. It was ordered therein that the above said nine incumbents including the petitioner should be retrenched and could be given appointment against future vacancies arising in the college. The petitioner submitted representations as can be seen from Exts. P7 and P8 and requested official respondents 1 and 2 that he has been uninterruptedly continuing in service of the college and that he should be ordered to be regularised with effect from at least 1977, which is with effect from the alleged occurrence of some vacancies. The official respondents 1 and 2 considered the request of the petitioner and disallowed the claim for retrospective regularisation, but decided to regularise the petitioner in a newly created vacancy with effect from 18/02/1981 in the 4th respondent-college as per Ext. P9 proceedings dated 22/06/1982. Aggrieved by Ext. P9 to the extent it disallowed the claim of the petitioner for retrospective regularisation in service, the petitioner submitted Ext. P10 representation dated 05/06/95, which was rejected by the Government as per Ext. P11 dated 18/11/99. The petitioner challenged the above rejection orders by filing a Writ Petition as OP No. 2431/2000 before this Court. This Court as per Ext. P12 judgment dated 01/08/2003 disposed of OP No. 2431/2000 by holding that Ext. P11 order herein has been passed without hearing the petitioner and that is a bald and cryptic order without taking into account any of the relevant Government orders on the subject and that the matter requires serious re-consideration at the hands of the Government. Accordingly this Court as per Ext. P12 judgment quashed Ext. P11 herein and directed the Government to hear the petitioner and reconsider the claim of the petitioner and pass appropriate orders taking into account all the relevant materials placed before the Government etc. The Government after affording an opportunity of hearing to the petitioner again rejected the claim of the petitioner as per impugned Ext. P13 proceedings dated 01/12/2003 by holding that the petitioner was a supernumerary or excess hand, who could not claim the direct payment salary as he was not occupying the post within the sanctioned strength prior to 18/02/1981 and that there was no regular vacancy to accommodate the petitioner and that he was directed to be retrenched as an excess hand as per the aforementioned proceedings dated 26/09/1974 issued by the 2nd respondent Director and the claim of the petitioner for retrospective regularisation was thus rejected. It is challenging these orders rejecting the request of the petitioner for retrospective regularisation that the present Writ Petition has been filed.

(3.) The 2nd respondent-Director of Collegiate Education has filed a counter-affidavit dated 30/10/2012 resisting the claim and contentions of the petitioner. The 3rd respondent-University has also filed a counter-affidavit dated 01/12/2011 praying for dismissal of the prayers of the petitioner.