The Manager, Bam College vs State of Kerala

A.K. Jayasankaran Nambiar, J.—The 1st petitioner is the Manager of B.A.M. College, Thuruthicad and the other petitioners except the 2nd petitioner, are Last Grade Employees. The 2nd petitioner is a Mechanic working in the 1st petitioner''s College. Consequent to the delinking of pre-degree course from the Colleges, the State Government had issued orders revising the staff pattern and work norms of Non-Teaching Staff of Aided Private Arts and Science Colleges. In accordance with the revised staff pattern and work norms approved by the Government, the 1st petitioner recruited one Mechanic and five Last Grade Employees. This recruitment was made through a statutorily constituted Selection Committee, constituted in accordance with the provisions of Statute 46 of the Mahatma Gandhi University First Statute. The grievance of the petitioners in the writ petition is that though the appointments were made on the recommendations of the Statutory Selection Committee, when the proposals as contained in Exts. P4 and P4(a) were submitted to the 2nd respondent for approval, he returned the same vide Exts. P5 and P5(a) communications.

Thereafter, the 2nd respondent vide Ext. P7 letter dated 10.05.2013, directed the 1st petitioner to cancel the appointments made against the vacancies of Mechanic and Peons on the ground that the said appointments were made by a Committee comprising of a Government nominee who had not been approved by the Government through a specific order at the time of conducting the selection. Ext. P7 letter was issued on the basis of yet another Government letter dated 30.04.2013 which is produced as Ext. P7(a). It was feeling aggrieved by Exts. P5, P5(a), P7 and P7(a) that the petitioners approached this Court through the writ petition.

A counter affidavit has been filed on behalf of the 1st and 2nd respondents. Therein, the stand taken by the Government is that by Ext. R1(c) Government Order dated 15.5.2013, which in turn refers to the earlier Government Order dated 11.04.2013 (Ext. P9), it had been made clear by the Government that Government officers who are permitted by the Government to be its nominees in the Selection Committee constituted for the purposes of recruitment in Private Aided Colleges, should not attend the Selection Committee until formal orders are issued by the Government nominating them as Government representatives in the Staff Selection Committee. Thus, it is the stand of the Government that in so far as the Selection Committee in the instant case comprised of a nominee of the Government, in whose favour a formal order by the Government nominating him as the Government representative was not issued, the selection conducted by the Committee of which he was a representative could not be approved.

In a reply affidavit filed by the petitioners, in response to the counter affidavit filed by the Government, it is contended that the orders relied upon by the Government were all issued subsequent to the selection conducted by the petitioners and, at any rate, could have only prospective effect and could not affect the selection already conducted. It is also pointed out that prior to the changed stand adopted by the Government, the procedure adopted by them was in compliance with the provisions of Statute 46(2) of the Mahatma Gandhi University First Statute and hence a subsequent Government order could not have the effect of affecting the statutory provisions that existed during the time of selection. The petitioners have also produced Exts. P13 and P14 which are documents that indicate that the Government itself has since decided to condone the cases where the constitution of the Selection Committee with the Government nominee was done without prior approval of the Government. It is therefore contended that even if the stand of the Government in its counter affidavit were to be accepted, Exts. P13 and P14 would show that the irregularity, if any, was only a technical one which stood condoned by the Government itself.

I have heard Senior counsel Sri Babu Varghese for the petitioners and also the learned Government Pleader.

On a consideration of the facts and circumstances of the case, I am of the view that in the instant case the selection procedure that was followed while recruiting the petitioners 2 to 7 in the writ petition was one that was in compliance with the procedural requirements under the Mahatma Gandhi University First Statute. As a matter of fact, the Government orders issued during the relevant time (Ext. P8), also adopted the same procedure. As per the said procedure, the 1st petitioner was only obliged to nominate one among the specified persons under Statute 46 of the Mahatma Gandhi University First Statute as the Government nominee and intimate that fact to the State Government. There was no requirement of the Government nominee obtaining a specific order of permission from the Government prior to his inclusion in the Selection Committee that conducted the recruitments. The change in the stand of the Government was brought about only by Ext. P9 order which is dated 11.4.2013. Although, the stand of the Government in Ext. P9 appears to be contrary to the express provisions of the Statute 46 of Mahatma Gandhi University First Statute, I do not think it is necessary to decide that issue since I am of the view that Ext. P9 can only be prospective in its operation and cannot affect the selections already completed prior to the date of Ext. P9. That apart, it is also relevant to note that vide Exts. P13 and P14, which are produced subsequently by the petitioners, the Government itself has taken the stand that it will condone the technical lapses occasioned in the matter of nomination of Government nominees in Selection Committees that are constituted for the purposes of carrying out selection of teaching and non-teaching staff in Private Aided Colleges. Thus in any view of the matter, Exts. P7 and P7(a) orders have necessarily to be quashed and I do so.

The writ petition is thus allowed by quashing Exts. P7 and P7(a) orders and directing the 2nd respondent to consider the proposals contained in Exts. P4 and P4(a) and to grant approval to the appointment of the petitioners 2 to 7 immediately and at any rate within a period of one month from today.

No costs.