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2008 DIGILAW 583 (KER)

Menon Laxmi Bhuvanendra v. State Of Kerala

2008-09-23

K.BALAKRISHNAN NAIR, M.C.HARI RANI

body2008
Judgment :- Balakrishnan Nair, J. The main point that arises for decision in this Writ Petition is whether the Government are bound to pay salary to a private college teacher, working in a post sanctioned by the University in disregard of binding statutory provisions. 2. The brief facts of the case are the following: The writ petitioner is a Lecturer in Journalism, taking classes for B.A. Malayalam students in Farook College, Kozhikode. It is a College affiliated to the Calicut University. Initially, the College was conducting B.A. Course with Malayalam and Sociology as double main subjects (Pattern II). A proposal was mooted for bifurcation of that course into two degree courses, namely, B.A. Malayalam and B.A. Sociology, which was supported by the University as also the Government. The Government, on the motion of the Calicut University, issued Ext.P1 communication dated 111.1990, permitting bifurcation of the double main course into two single main courses during the academic year 1990-91, “subject to the specific condition that no expenditure now or in future is involved in this case”. Later, the Government issued Ext.P2 communication, deleting the words “or in future” in Ext.P1. The result was that the bifurcation was “subject to the specific condition that no expenditure now is involved in this case”. Pursuant to the bifurcation of the course, B.A. Malayalam and B.A. Sociology courses were started in the College. A new subject, Journalism, was included in the syllabus of B.A. Malayalam course. There were six hours for the said subject. So, creation of a part-time post for the said subject was permissible in terms of the relevant University ordinance and statutes. Therefore, the College invited applications for appointment to one post of part-time Lecturer in Journalism, as per Ext.P3 notification. The petitioner was a candidate for selection to the said post, which came under the open merit quota. The selection committee as per Ext.P4 minutes, included her in the merit list as Rank No.1. Pursuant to the said selection, the petitioner was appointed as part-time Lecturer with effect from 19.1996. The said appointment was approved by the University, as per Ext.P5 proceedings dated 8.1.1997. In the meantime, the Syndicate of the Calicut University at its meeting held on 29.7.1995, as per item No.95.315, resolved to sanction full-time posts of Lecturers in departments where there is only one post, regardless of the workload. The said appointment was approved by the University, as per Ext.P5 proceedings dated 8.1.1997. In the meantime, the Syndicate of the Calicut University at its meeting held on 29.7.1995, as per item No.95.315, resolved to sanction full-time posts of Lecturers in departments where there is only one post, regardless of the workload. The said decision was modified by the Syndicate at its meeting held on 210.1995, as per item No.95.314, in the following manner: “In all the newly started colleges, full-time posts of Lecturers be sanctioned in cases where there will be only one post in a department, regardless of the quantum of work” (see Ext.P22). The University by Ext.P7 order, accorded sanction for creation of a full-time post of Lecturer in Journalism, by abolishing the part-time post already created, so as to make the total staff strength in the department of Journalism as one with effect from 24.1999. The management of the petitioner’s College by Ext.P8, had already appointed her in the full-time post Lecturer in Journalism with effect from 24.1999, as per proceedings dated 29.1999. The said appointment was approved by the University as per Ext.P9 order dated 2.2000, with effect from 24.1999. But, when salary was claimed on behalf of the petitioner, the Deputy Director of Education, by Ext.P10 communication, informed the Registrar of the University that the creation of the full-time post was irregular. It was pointed out that the bifurcation of B.A. Malayalam and B.A. Sociology double main course in Farook College was permitted subject to the specific condition that no expenditure is involved on the part of the Government as well as the University. The Deputy Director further pointed out that the proposal for creation of a full-time post was declined by the Government and concurrence for creation of a part-time post for a workload of six hours was granted. So, the present creation of the full-time post and approval of the same by the University was irregular. It was also brought to the notice of the University that the creation of the post with effect from a day during the mid-summer vacation is unjustified. Accordingly, the Deputy Director requested for review of that order. The University, by Ext.P11 communication dated 211.2000 replied, stating that its action is permissible, in view of Ext.P1 communication issued by the Government. It was also brought to the notice of the University that the creation of the post with effect from a day during the mid-summer vacation is unjustified. Accordingly, the Deputy Director requested for review of that order. The University, by Ext.P11 communication dated 211.2000 replied, stating that its action is permissible, in view of Ext.P1 communication issued by the Government. But, by Ext.P12 order dated 112.2000, the date of effect of approval was modified by the University as 6.1999 instead of 24.1999. Even thereafter, when salary was not paid to her, the petitioner filed Ext.P13 representation before the Government. The petitioner submits, in the case of several other persons similarly placed like her, the University has permitted creation of full-time posts and they are receiving salary at the rate applicable to full-time posts. A list of such colleges wherein part-time posts were converted into full-time posts, on the strength of Exts.P22 and P19, is produced as Ext.P6. The petitioner submits, the denial of full-time salary to her by the Government is unjustified. She also relies on a decision of this Court in O.P.No.29193/2002, which was upheld by the Division Bench in W.A.No.2594/2005. Based on that decision, the Government issued order dated 29.2006, directing payment of salary to the petitioner in O.P.No.29193/2002, it is submitted. So, the petitioner prayed for payment of salary of the full-time post to her with effect from 6.1999. The Syndicate of the University, in the meantime, at its meeting held on 26.2003, as per item No.2003.313, decided to make applicable Ext.P22 decision to the existing colleges also. This is evident from Ext.P19 communication of the Registrar of the University dated 27.2003 to the Principal of Farook College. So, the petitioner points out that all the hurdles in her way in getting salary have, now been removed. 3. Mr. K.S. Madhusoodanan, learned counsel appearing for the petitioner, took us through the relevant statutory provisions, in support of the claim of the writ petitioner, Reference was made to statute 14 of the Calicut University (Conditions of Service of Teachers and Members of Non-Teaching Staff) First statutes, 1979. The relevant portions of statute 14 read as follows: “14. 3. Mr. K.S. Madhusoodanan, learned counsel appearing for the petitioner, took us through the relevant statutory provisions, in support of the claim of the writ petitioner, Reference was made to statute 14 of the Calicut University (Conditions of Service of Teachers and Members of Non-Teaching Staff) First statutes, 1979. The relevant portions of statute 14 read as follows: “14. Approval of appointment:- .(1) Approval of every appointment to the teaching post shall be made by the Syndicate subject to the condition that the appointment is in accordance with the staff pattern fixed by the University and that the person so appointed is fully qualified for the post. .(2) The Deputy Director of Collegiate Education concerned shall verify before making direct payment of salaries as to whether the post for which payment is claimed is in accordance with the staff pattern and workload fixed by the University. Doubtful cases shall be referred to the University for clarification and the correctness of direct payment ensured.” The fixation of posts is governed by statute 19, which reads as follows: “19. Fixation of posts : - (1) Each College shall send a proposal for fixation of the number of posts in each department in accordance with the norms laid down by the University. The University shall ordinarily communicate the fixation of posts within three months of the receipt of the proposals for fixation in the University Office. Proposals for changes in the fixation during the year shall be forwarded to the University by the 30th September for further approval of the Syndicate.” Statute 20 deals with payment of salary to the teachers. The said provision reads as follows: “20. Salary:-- (1) Except as otherwise specified in these statutes, the salaries of teachers for a month shall be paid by the Educational Agency before the fifth of the succeeding month. (2) In the case of those Educational Agencies which have entered into written agreements with the Government for direct payment of salary to their staff by Government, the salary shall be paid in accordance with the orders of Government issued from time to time and in accordance with such agreement.” Statute 75 of the said Statutes deals with inspection of workload by Director of Collegiate Education. The said provision reads as follows: “75. The said provision reads as follows: “75. Inspection of workload by the Director of Collegiate Education etc.:-- The Director of Collegiate Education or the officer authorized in that behalf by the Director of Collegiate Education shall be competent to examine in detail the workload of each department of study in each college and the staff be competent to examine in detail the workload of each department of study in each college and the staff position and satisfy himself that no extra staff is permitted to continue in service. The Director shall, if he so desire, have periodical consultation with the University in the matter.” 4. The learned counsel for the petitioner also took us through the relevant portions of the Calicut University First Ordinances, 1978, dealing with calculation of workload. Ordinance 1(ii)(d) of Chapter XIII of the First Ordinances deals with the workload of Lecturers in Arts Subjects. The said provision reads as follows: “(d) Lecturer: (i) Arts Subjects:-- The normal hours of lecture including conduct of composition and translation classes per week shall be 14. In addition to the above, the teacher shall attend to correction work for 4 house per week.” After the introduction of the U.G.C. Scheme, the teaching hours per week of a Lecturer have been enhanced to 16. Ordinance 3 of the above Chapter deals with the procedure for calculating the number of teachers. The said ordinance reads as follows: “3. Procedure for calculating the number of teachers:-- The following shall be the basis for fixing the number of teachers required for a Department. .(i) The total number of lecture hours including hours for the conduct of composition and translation classes per week in the case of Arts Subjects and the total number of lecture hours and supervision periods for practical classes in the case of Science Subjects shall be calculated first on the basis of the hours prescribed for the concerned subject in the syllabus for the respective courses and the strength of students. .(ii) Form the total hours calculated above, the workload of the Head of the Department, and if he happens to be also the Principal, that of the Principal shall be deducted. (iii) The balance hours so arrived at shall be divided by X-1 where ‘X’ stands for the normal hours of lecture work including conduct of composition and translation prescribed for a lecturer in the case of arts subjects viz. (iii) The balance hours so arrived at shall be divided by X-1 where ‘X’ stands for the normal hours of lecture work including conduct of composition and translation prescribed for a lecturer in the case of arts subjects viz. 14 and the normal hours of lecture work and supervision of practical classes prescribed for a lecturer in the case of Science subjects, viz. 15. (iv) After the division as prescribed at(iii) above, if there is any balance of hours, one more hour of work a week shall be assigned to each teacher including the Professor. If there is still any balance of hours left, a proposal for the creation of an additional post may be made and on the appointment of a teacher in the additional post sanctioned by the University, the work shall be distributed among all the teachers of the Department. Note:- In the case of subjects, like Syriac, Arabic, Urdu, Latin, Law for B.Com., etc., where the total workload is below 12 hours per week only a part-time teacher shall be appointed.”(Emphasis supplied) The learned counsel for the petitioner made special reference to clause (iv) of Ordinance 3 quoted above. In the light of the above provisions, the learned counsel submitted that it is for the University to create a post and the University has done the same rightly in this case. Further, since there is only one post in the Department of Journalism, the University decided to treat it as a full-time post, as was done in similar cases. So, this College being one which entered into direct payment agreement with the Government, The Deputy Director is bound to honour the salary bills of the petitioner. Therefore, the learned counsel for the petitioner prayed for issuing appropriate directions to the Deputy Director of Collegiate Education to release the salary payable to her as a full-time Lecturer. 5. The respondents 2 and 3 have filed a counter affidavit in R.P.No.89/2007, filed by the writ petitioner in this writ petition. In para 10 of that counter affidavit, it is stated as follows: “But in the petitioner’s case, what the University has done is clearly illegal and it is clearly illegal and it is against the statutory provisions also. Without prior concurrence of the Government, the University created a Full Time post for which there is no sufficient workload. In para 10 of that counter affidavit, it is stated as follows: “But in the petitioner’s case, what the University has done is clearly illegal and it is clearly illegal and it is against the statutory provisions also. Without prior concurrence of the Government, the University created a Full Time post for which there is no sufficient workload. Sub-section (xiii) of Section 5 of Chapter II of the Calicut University Act, 1975 stipulates that previous sanction of the Government is required to regulate the pattern and conditions of service of teachers in private colleges. It is also pertinent to note that the Government had issued an order to the 6th respondent stipulating the conditions to be observed during bifurcation of courses. Here, B.A. Malayalam and Sociology. The said bifurcation was subject to the specific condition that no financial commitment to the Government is involved. But, on bifurcation, the Full Time post of Lecturer in Journalism was rejected and only Part-Time post was allowed to be retained.” Section 5(xiii) of the Calicut University Act, 1975, relied on by Government, reads as follows: “5. Powers of the University:-- The University shall have the following powers, namely:- (i)…………………………… (xiii) with the previous sanction of the Government, to regulate the emoluments and pattern and to prescribe the duties and conditions of service of teachers and non-teaching staff in private colleges.” 6. The learned Senior Government Pleader Sri. Benjamin Paul submitted that the sanction of bifurcation was subject to the condition that there shall not be any additional financial commitment to the Government and the University. Therefore, the creation of the full-time post of Lecturer in Journalism without the requisite number of teaching hours as per the Ordinances, is plainly illegal. The learned Senior Government Pleader also relied on the decision of this Court in State of Kerala v. Arun George [2008 (1) KLT 195], in support of his submissions. 7. We heard Mr. P.C. Sasidharan, learned standing counsel for the Calicut University and Dr. K.B. Mohammed Kutty, learned senior counsel appearing for the College. 8. Having regard to the rival submissions and the decisions relied on by both sides, we feel that broadly the following two points arise for decision in this case. 7. We heard Mr. P.C. Sasidharan, learned standing counsel for the Calicut University and Dr. K.B. Mohammed Kutty, learned senior counsel appearing for the College. 8. Having regard to the rival submissions and the decisions relied on by both sides, we feel that broadly the following two points arise for decision in this case. (1) Whether sanction of the bifurcation of the course by the Government without additional financial commitment was only for the academic year concerned, as contended by the learned counsel for the petitioner and whether the restrictions under section 5(xiii) of the Calicut University Act will apply to the present conversion of the post. (2) Whether the University Act, Statutes and Ordinances permit the University to convert a part-time post of Lecturer having only six hours teaching per week into a full-time post. 9. We will consider the second point first. The provisions of the Ordinance regarding workload for creation of a post of Lecturer in Arts Subjects are contained in Ordinance 1 of the Calicut University First Ordinances, 1978. Going by that provision, 14 lecture hours per week are mandatory (as per the new amendment 16) for creation of a full-time post. It is common case that there are only six lecture hours for the subject Journalism in B.A. Malayalam Main course in the college, as per the syllabus approved by the University. But, the Syndicate of the University has taken Ext.P22 decision, diluting that statutory requirement, which was made applicable to existing colleges also, as per Ext.P19. The Syndicate of the University is bound by the provisions of the Ordinances in the matter of creation of posts. The Syndicate of the University is empowered by section 36 of the Calicut University Act to frame ordinances, inter alia, concerning the workload and pattern of teaching in college. section 5(xiii) of the said Act, which we have already quoted above, says that the University can regulate, inter alia, the pattern and conditions of service of teachers and non-teaching staff in private colleges with the previous sanction of the Government. If the conversion of a part-time post into a full-time post, when there is only one post in a department, is treated as modification of the pattern of staff in private colleges, then sanction of the Government is necessary. If the conversion of a part-time post into a full-time post, when there is only one post in a department, is treated as modification of the pattern of staff in private colleges, then sanction of the Government is necessary. At any rate, the University cannot take action to sanction posts, ignoring the workload fixed as per the ordinances, as the statutory provisions in the ordinances cannot be over-ridden by executive decisions in the nature of Ext.P22. In this case, we notice that the post of part-time Lecturer in Journalism has been converted by the University into a full-time post, in violation of the provisions regarding workload, contained in Ordinance 1(ii)(d) of Chapter XIII of the Calicut University First Ordinances. Therefore, if the Government resist the demand for payment of salary for the full-time post made on the strength of the decision of the University, we feel that this Court is not justified in interfering with the same. We hold that the Government cannot be compelled to pay salary for a post created in violation of the relevant ordinances governing workload. The contesting respondents also pointed out that the “Note” under Ordinance 3 quoted above will govern the subject Journalism also, even though it is not specifically mentioned therein. We are of the view that such an interpretation of the Note is certainly plausible. This view further fortifies the stand of the Government. 10. Now, we will deal with the first point formulated by us. When Exts.P1 and P2 are read together, it is clear or rather it is admitted by the petitioner that for the academic year 1990-91 there cannot be any additional financial commitment for the State. But, it is not clear, in future whether additional financial commitment can be fastened on the Government without its knowledge or concurrence. Going by the opening sentence in Ext.P7, it would appear that the University has understood the sanction granted for bifurcation as one without any financial commitment to the University and the Government. The said sentence reads as follows: “In the U.O. cited first above, sanction was accorded by the Vice-Chancellor for the bifurcation of .B.A. Malayalam and Sociology double main course under pattern II in Farook College, Feroke to .B.A. Malayalam and B.A. Sociology single main courses during the year 1990-91 subject to specific condition that no expenditure is involved in the bifurcation on the part of Government and University”. It is true, there is some lack of clarity on that point because of the words used in Exts.P1 and P2. If the students strength and consequential enhancement of workload justify the creation of posts in future, in terms of the relevant statutes and ordinances, the Government may have to bear the burden. But, the vagueness in Ext.P1 as amended by Ext.P2 cannot be stretched to saddle the Government with the liability to pay salary for the post created contrary to the ordinances, that is without sufficient number of lecture hours for the subject concerned. Further, if the University wants to change the pattern of staff in aided colleges, in any manner, sanction of the Government is necessary under Section 5(xiii) of the Calicut University Act, 1975. The conversion of a part-time post into a full-time post without requisite number of lecture hours, when there is only one post in a department, will be covered by the above statutory provision in the University Act. Therefore, we are of the view that even under the earlier provisions of the Act, as they stood before the amendment dated 6.1.2005, the University cannot change the staff pattern without the previous sanction of the Government. The decision of the Syndicate of the University to convert the part-time post of Lecturer in Journalism without the prescribed workload, when there was only one post in the department, into a full-time post, will amount to change of staff pattern in relation to teaching staff of private colleges. So, even in the absence of the newly introduced Section 57(1), in 2005, the previous sanction of the Government was necessary for conversion of the post. Section 57(1) of the Calicut University Act, introduced with effect from 6.1.2005, reads as follows: “57. Appointment of teachers in private colleges:- (1) Appointments to the posts eligible to receive salary from the Government shall be made only against posts sanctioned by the Government or by such officers as may be authorized by the Government. Though the above provision will not apply to the present case, as it operates only prospectively, we hold that no relief could be granted to the petitioner, in view of our findings on the two points formulated by us. Adverse decision on one of the points is sufficient to non-suit the petitioner. Though the above provision will not apply to the present case, as it operates only prospectively, we hold that no relief could be granted to the petitioner, in view of our findings on the two points formulated by us. Adverse decision on one of the points is sufficient to non-suit the petitioner. The decision relied on by the petitioner does not have any application to the facts of this case, as in that case, the sanction of the new course was allowed without any reference to financial commitment. The decision more appropriate to the facts of the case is the decision in State of Kerala V. Arun George [2008 (1) KLT 195], wherein this Court considered the question of sanctioning of courses without additional financial commitment. In the result, the Writ Petition fails and it is dismissed.