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2010 DIGILAW 496 (KER)

M. S. M. College v. University of Kerala

2010-07-05

C.T.RAVIKUMAR

body2010
Judgment : The petitioner is the Manager of M.S.M. College, Kayamkulam. This Writ Petition has been filed mainly with the prayer to quash Ext.P6 in so far as it imposes the condition that Government representative shall take part in the selection proceedings only in respect of the post of Lecturers in Arabic and Physics. Consequential reliefs have also been prayed for in this Writ Petition. 2. According to the petitioner, considering the workload and the pattern, the first respondent University has sanctioned and approved 35 posts in various departments of MSM College, Kayamkulam for the academic year 2008-09 in terms of the Kerala University First Ordinance, 1974. In the light of the judgment of this Court in Shalini Raphel v. Manager, Christian College reported in (2007 (3) KLT 355), in the matter of filling up of posts sanctioned by the University based on the workload and staff pattern, no prior permission of the Government is required, it is further submitted. Selection in respect of those sanctioned posts as per Ext.P2 has to be conducted by a selection committee. Going by the relevant provisions, a nominee has to be deputed by the Government in the matter of constitution of such a selection committee. In fact, Ext.P6 has been issued in accordance with the relevant provisions and honouring the said obligation. The petitioner is aggrieved by the rider in Ext.P6 whereby restricting the participation of the said Government nominee only for the selection of one lecturer each in the subjects of Arabic and Physics sanctioned as per Ext.P2. 3. Admittedly, as per Ext.P2, altogether 35 posts have been sanctioned for various departments in the MSM College, Kayamkulam by the first respondent University. Now, the question is whether in such circumstances the Government could impose such a condition as in Ext.P6 restricting the participation of its nominee in respect of selection to the post of Lecturers in Arabic and Physics. A statement has been filed by the third respondent in this Writ Petition. It is stated thereunder that the Government have accorded sanction to fill up 8 vacancies of different subjects in the college (Analytical Chemistry-1, Physics-1, Economics-2, Commerce-2, History-1 and Politics-1). In other words, Government have objection with respect to the sanctioning of the other 27 posts as per Ext.P2. The statement carries the objections with respect to the sanctioning of the said 27 posts. In other words, Government have objection with respect to the sanctioning of the other 27 posts as per Ext.P2. The statement carries the objections with respect to the sanctioning of the said 27 posts. In the nature of the order I propose to pass in this Writ Petition I do not think it necessary to consider the merits of such objections at this stage. In the light of the decision in reported in 2007 (3) KLT 355 (supra), the petitioner is not under an obligation to get prior permission from the Government in the matter of filling up of posts sanctioned by the University. Ext.P2 would reveal that 35 posts in various departments were sanctioned by the University considering the workload and staff pattern. The Division Bench judgment reported in 2007 (3) KLT 355 (supra) assumes relevance in this context and the same in so far as it is relevant, reads thus: “It is for the Syndicate of the University to sanction a post/approval in accordance with the work load and staff pattern and once the University grants approval for filling up the post sanctioned by it on the basis of work load and staff pattern, the Government has the obligation to disburse the salary. It is for the University to sanction the post as per clause (3) of Statute 14 of the Kerala University (Conditions of Service of Teachers and Members of Non-teaching staff) First Statutes, 1979 in case of private colleges coming under the direct payment scheme depending upon the work load and staff pattern fixed by the University.” Therefore, in the light of Ext.P2 and the decision reported in 2007 (3) KLT 355 (supra), I am of the considered view that the Government cannot impose such a restriction on its nominee in Ext.P6. So long as 35 posts have been sanctioned by the University as per Ext.P2, the petitioner is entitled to conduct selection to effect appointment against the said 35 posts. Clause 2 of Statute 14 of Chapter II of the Kerala University authorizes the Deputy Director of Collegiate Education to verify before making direct payment of salary as to whether the post for which the payment is claimed has been made in tune with the staff pattern and the workload fixed by the University. Clause 2 of Statute 14 of Chapter II of the Kerala University authorizes the Deputy Director of Collegiate Education to verify before making direct payment of salary as to whether the post for which the payment is claimed has been made in tune with the staff pattern and the workload fixed by the University. I am of the view that in the light of the aforesaid position, it is only at that stage that the Government could legally raise the objection, if any, with respect to the sanctioning of posts provided by the University in accordance with the staff pattern and workload. At any rate, there is no justification in putting such a rider in Ext.P6 at this stage of selection proceedings. In fact, the request of the petitioner is only for deputing the nominee for constituting the selection committee to fill up the vacancies sanctioned as per Ext.P2 by the University. No provision which enables the Government to put such a restriction has been brought to my notice by the learned Government Pleader. For all these reasons, I am of the view that Ext.P6 is liable to be quashed to the extent it imposes a restriction on the Government nominee to take part in the selection process except in respect of the posts of Lecturers in Arabic and Physics. The Government nominee deputed as per Ext.P6 for taking part in the selection process has to participate in the entire selection process for filling up of all the vacancies sanctioned as per Ext.P2. Ext.P6 is therefore quashed to the extent it puts such a restriction on the Government nominee deputed as per Ext.P6 to take part in the selection process except in respect of selection of lecturers, one each, in the subjects of Arabic and Physics. 4. The learned Government Pleader submitted that in view of the circumstances obtained in this case, the matter should be remitted back to the Government for the purpose of issuing appropriate orders authorizing the Government nominee to take part in the selection process. The learned counsel appearing for the petitioner submitted that such a course of action would further delay the selection process. Evidently the first respondent University has already sanctioned 35 posts in different departments in the MSM College as per Ext.P2 taking into account the workload and the staff pattern. The learned counsel appearing for the petitioner submitted that such a course of action would further delay the selection process. Evidently the first respondent University has already sanctioned 35 posts in different departments in the MSM College as per Ext.P2 taking into account the workload and the staff pattern. As already noticed hereinbefore, no prior permission is required from the Government to conduct selection against such vacancies sanctioned by the University. Government have also deputed the nominee to take part in the selection process based on Ext.P2. True that the Government have restricted participation of the nominee, as per Ext.P6, in respect of the subjects of Arabic and Physics. When once it is found that such restriction is unsustainable, I do not think it proper to remit the matter back to the Government solely for the purpose of granting permission to the nominee to take part in the entire selection process. In such circumstances, in interest of justice and taking into account Ext.P2 and the decision of this Court in 2007 (3) KLT 355 (supra), I am of the view that the matter need not be remitted back to the Government solely for the purpose of authorizing the said Government nominee to take part in the entire selection process and therefore, it is declared that the Government nominee already deputed to take part in the selection process, as per Ext.P6 is bound to take part in the entire selection process for filling up the 35 posts sanctioned as per Ext.P2. However, it is made clear that the participation of the Government nominee in respect of the selection process initiated based on Ext.P2 will not stand in the way of the right of Government to raise objection with respect to the appointments effected pursuant to Ext.P2 at the appropriate stage, in accordance with law. What exactly is the appropriate stage has been considered by this Court in the decision reported in 2007 (3) KLT 355 (supra) itself. Therefore, it is made clear that the objections raised against the sanctioning of 27 posts of faculties raised in paragraph 4 of the statement filed on behalf of the third respondent could be brought to the notice of the University at the appropriate stage by the appropriate authority. Government or the concerned authorities will be at liberty to resort to such other steps permissible under law in the matter. Government or the concerned authorities will be at liberty to resort to such other steps permissible under law in the matter. Subject to this observation, this Writ Petition is allowed to the above extent.