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2010 DIGILAW 913 (KER)

Annie George v. State of Kerala

2010-11-19

T.R.RAMACHANDRAN NAIR

body2010
JUDGMENT : These three Writ Petitions concern a common issue. Therefore, they are disposed of by a common judgment. 2. The petitioners herein have been appointed by the St. Thomas College, Kozhencherry as Lecturers in the English Department. The main relief sought for in the Writ Petitions is for a direction to the 3rd respondent to issue concurrence to the appointment of the petitioners and to release the salary from the date of appointment. 3. The appointments were made after a due process of selection. The interview was conducted on 13.12.2007. The petitioner in W.P.(c)No.30579/2009 is named first in the rank list. The petitioner in W.P.(c)No.32052/09 stood as rank No.2 and the petitioner in W.P.(c)No.32535/09 is the 3rd rank holder. The petitioners in W.P.(c)No.30529/09 and 32052/2009 were appointed on 15.12.2007 and the petitioner in W.P.(c)No.32535/09 was appointed on 29.12.2007. The appointments were approved by the University vide Exhibits P5, P4 and P5 respectively in these cases. 4. As a next step for payment of salary, the papers were forwarded to the Deputy Director of Collegiate Education for concurrence. It appears that various objections had been taken up in the matter, even though the petitioners contended that such objections could not have been entertained at all. Having failed to get any positive response in the matter, the petitioners have filed these Writ Petitions. 5. The petitioners point out that one of the objections raised by the Deputy Director of Education is based on an order passed by the Government produced as Exhibit P6, in W.P.(c)No.302579/09, dated 1.7.2009, which is only after the appointments were approved. The said order envisages re-admission of teachers who have been deployed earlier to the Higher Secondary Schools from the College on de-linking of Pre-Degree. It is pointed out that the said re-deployment will not affect the employment of the petitioners for reasons more than one. At the time of appointment of the petitioners, there were only seven permanent Lecturers working in the College as against 12 sanctioned posts and 5 vacancies were existing at that time in the English Department. Out of the five, three are retirement vacancies and two vacancies consequent on grant of leave without allowance. The retirement vacancies are that of Smt. Annie Abraham on 1.3.2007, Shri Thomas Oommen on 31.3.2007 and Dr. Ramani Titus on 30.4.2007. The Lecturers who continue on leave without allowances are Smt.Laila M. Varghese and Shri Mathew Ninan. Out of the five, three are retirement vacancies and two vacancies consequent on grant of leave without allowance. The retirement vacancies are that of Smt. Annie Abraham on 1.3.2007, Shri Thomas Oommen on 31.3.2007 and Dr. Ramani Titus on 30.4.2007. The Lecturers who continue on leave without allowances are Smt.Laila M. Varghese and Shri Mathew Ninan. The learned counsel for the petitioner in W.P.(c)No.30579/09 also relied upon the details shown in Exhibit P10 and P11 in support of the plea that the total number of sanctioned posts are 12 and even if the two teachers who have been re-admitted from the Higher Secondary Schools, namely, respondents 5 and 6 are considered there will not be any excess strength in the Department. 6. A reading of Exhibit P10 shows that the reply was given by the Director of Collegiate Education to the father of the petitioner in W.P.(c)No.30579/09. It is mentioned in the reply that going by the work load sanctioned, 193 hours are available for the English Department and 12 sanctioned posts are there. Evidently, the appointments of the petitioners were in 2007 and the re-posting of the deployed teachers of the Higher Secondary Schools was after Exhibit P6 order was passed in 2009. It is evident from Exhibit P10 also that as on 17.12.2007, out of the 12 persons, nine persons were in service and when the last appointment was given in December, 2007, two were on leave without allowance also. Effective strength was only seven. 7. Exhibit P11 in W.P.(c)No.30579/2009 is a further reply given by the Deputy Director of Collegiate Education, Kottayam-the 3rd respondent to the petitioner's father, where a chart is given in the last page which also shows that in December, 2007 the strength of teachers including deployed junior Lecturers is nine. Therefore, it can be easily seen that at the time when the selection proceedings were finalised only seven teachers were there and including the teachers who have come back from the Higher Secondary School, it will be nine. Hence, even after appointment of the petitioners, sanctioned strength will not exceed 12. Proceedings of the University produced as Exhibit P5 dated 20.2.2009 granting approval of appointment of petitioners will show that they are in the retirement vacancies. 8. Hence, even after appointment of the petitioners, sanctioned strength will not exceed 12. Proceedings of the University produced as Exhibit P5 dated 20.2.2009 granting approval of appointment of petitioners will show that they are in the retirement vacancies. 8. When the matter was taken up on the last occasion, the learned Government Pleader submitted that the 3rd respondent Deputy Director of Collegiate Education had raised an objection to the stand taken the University and the learned Standing Counsel for the University was directed to get instructions in the matter. Thereafter, the learned Standing Counsel for the University has filed a statement dated 18.11.2010. It is stated in paragraph 4 therein that the objection raised by the Deputy Director of Collegiate Education was again considered by the University and a decision is taken reiterating the earlier stand taken by the University. Accordingly, it was resolved that the approval of appointment of the petitioners already given is in order and it need not be revoked. 9. Heard the learned Senior Counsel appearing for respondents 5 and 6, the learned Government Pleader and the learned Standing Counsel for the University. Evidently, deployment of teachers from the Higher Secondary Schools will not affect the claim of the petitioners, especially since their appointment was approved by the University, which stand is reiterated by the University again. Apart from that, as discussed above, the sanctioned strength is 12 and even now two leave vacancies are there. The learned counsel for the Management based on the statement filed in W.P.(c) No.30579/09 submitted that at present a new post in the department arose in the context for regularisation of B.Com. Marketing Course as per G.O.(MS)No.260/ 2010/H.Edn. dated 20.8.2010. So, presently, there are 13 substantive posts and two substantive vacancies and one leave vacancy remain to be filled. 10. The learned counsel for the petitioner relies upon the decisions of this Court in Cherian Mathew v. Principal S.B.College, Changanassery ( 1998(2) KLT 144 ) and Shalini Rachel v. Manager, Christian College ( 2007(3) KLT 355 ) to contend for the position that the Government or other Officers of the Department cannot sit in appeal over the decision taken by the University regarding the number of teachers appointed as well as the approval granted. In the first of the decisions cited above, namely, Cheriyan's case, after examining the matter, Their Lordships held as follows in paragraphs 3 to 5. “3. In the first of the decisions cited above, namely, Cheriyan's case, after examining the matter, Their Lordships held as follows in paragraphs 3 to 5. “3. Kerala University First Ordinance 1978 inter alia provide for assessment of work load and pattern of teaching staff in Arts and Science Colleges. Chapter XIII of the First Ordinance deals with the said issues. Statute 3 is concerned with the procedure for calculating number of teachers required for a department. In the case of Mahatma Gandhi University, it is conceded before us, no separate Ordinance has been promulgated and the Kerala University First Ordinance govern all similar issues. Likewise the Calicut University First Ordinance controls the procedure for calculating number of teachers required for a department. 4. On the basis of the work load calculated in terms of Ordinance 3 in the Kerala University First Ordinance, teachers are allowed to be appointed in Colleges run by private management. The appointment so made in confirmity with the work load assessed by the University are approved by the concerned University. To the teacher whose appointments is so approved, salary should be paid by the Government through Director of Collegiate Education. In other words, when a teacher is appointed by private management in terms of the provisions contained in the Kerala University First Ordinance or the Calicut University First Ordinance as the case may be, his salary has to be disbursed by the Government if that appointment has been approved by the concerned University. In case the Director of Collegiate Education doubts the propriety of the appointment of a teacher in the sense that the work load did not require the appointment of such a teacher, the issue will have to be taken up by him with the University. The University then has to re-examine the entire issue and to take a decision on the issue as to whether the appointment was proper or not. When the University takes a decision on this aspect, that decision will be binding on the Government. 5. No provision of the University Act First Statutes, Ordinance or Regulations in force enables the Government to sit in judgment over the decision arrived at by the University regarding the number of teachers to be appointed in a Department in a college run by a private management. 5. No provision of the University Act First Statutes, Ordinance or Regulations in force enables the Government to sit in judgment over the decision arrived at by the University regarding the number of teachers to be appointed in a Department in a college run by a private management. In the absence of such a provision, the Government is not entitled to impose a condition that prior approval from the Director of Collegiate Education is needed for a management to appoint a teacher in its staff.” 11. The said decision was relied upon in the later decision in Salini's case. Therein also in paragraphs 10 and 11 the legal position was reiterated thus: “10. Scope of S.57(2) of the Kerala University Act has to be tested in the light of the above mentioned statutory provisions. Power of the University in granting approval as well as sanctioning posts after ascertaining the work load and fixation of staff pattern as per the Statutes has not been taken away by the University Amendment Act 2 of 2005. Clear cut provisions have been made in the University Statutes and Ordinances as to how the work load has to be assessed and staff strength fixed so as to avoid unnecessary appointments.Further the interest of the students is also to be safeguarded by appointing sufficient number of teachers without delay. Power is also conferred on the Deputy Director of Collegiate Education to take up the matter with the University in case there is any doubt with the approval granted. In appropriate cases, Government can also examine the action taken by the Deputy Director and address the University through him. 11. We have no reason to think that an august body like Syndicate or the Deputy Director of Collegiate Education would act arbitrarily or against public interest while exercising powers statutorily conferred on them. Sub-s.(1) of S.57 only says that appointments to the posts eligible to receive salary from the Government shall be made only after getting prior sanction from or from such officers authorised by the Government. For filling up the posts sanctioned by the University on the basis of work load or staff pattern, no prior permission of the Government is necessary. Sub-s.(1) of S.57 only says that appointments to the posts eligible to receive salary from the Government shall be made only after getting prior sanction from or from such officers authorised by the Government. For filling up the posts sanctioned by the University on the basis of work load or staff pattern, no prior permission of the Government is necessary. Once Syndicate of the University grants approval for filling up the existing vacancies depending upon the workload and staff pattern Government is obliged to pay salary of the teachers appointed by duly constituted Selection Committee. If Government or its Officers find that the approval was granted by the University illegally it can always take up the matter before the University or other forums so that public interest will not suffer. S.57(1) was introduced not to take away the statutory powers already conferred on the Syndicate of the University. Principle laid down in Cheriyan Mathew's case, supra in our view, still holds good. In view of the above mentioned circumstances, we are inclined to affirm the judgment of the learned single Judge in W.P.(c)No.12109 of 2006 and dismiss W.A.No.940 of 2007.” Going by the above dictum, the Officers of the Government itself can take up the matter with the University and once the University reiterates the position, they cannot raise any further objections in the matter. 12. In that view of the matter, as is evident from the facts of these cases, the objection taken by the 3rd respondent has already been considered by the University and they have confirmed again the approval and appointment of the petitioners. Therefore, the objection by the 3rd respondent with regard to the payment of salary cannot be justified. 13. The learned Government Pleader submitted that the Government may be granted an opportunity to challenge the orders passed by the University. The said submission is opposed by the learned counsel for the petitioners by submitting that in these cases all the aspects have been considered by the University while granting approval and the reply given by the Director as Exhibit P10 in W.P.(c) No.30579/09 will show that sanctioned strength is there to accommodate all the teachers. Therefore, I reject the said plea. In that view of the matter, the Writ Petitions are allowed. It is declared that the petitioners are entitled to be paid salary consequent on approval of their appointments. Therefore, I reject the said plea. In that view of the matter, the Writ Petitions are allowed. It is declared that the petitioners are entitled to be paid salary consequent on approval of their appointments. On forwarding the bills claiming salary of the petitioners, the 3rd respondent will counter sign the same and pass the bills including the arrears within a period of two months.