State Of Kerala v. Poornima. C. C. , D/o. P. P. Ramachandran
2022-08-23
C.S.SUDHA, P.B.SURESH KUMAR
body2022
DigiLaw.ai
JUDGMENT : P.B.Suresh Kumar, J. Does sanctioning of teaching posts in private colleges coming under the Direct Payment Scheme of the State Government in terms of Section 59(1) of the Mahatma Gandhi University Act, 1985 (the Act) consequent on sanctioning of new courses relate back to the date of sanctioning of the courses, is the question which we are called upon to answer in this appeal. 2. The appeal arises from W.P.(C) No.8704 of 2021. The State and its officials in the Directorate of Collegiate Education who were respondents 1 to 3 in the writ petition are the appellants. Parties and documents are referred to in this judgment, unless otherwise mentioned, as they appear in the writ petition. 3. The facts, sans unnecessary details, are the following: (i) After a due process of selection, the petitioners were appointed as Assistant Professors in Hindi and Malayalam in the fifth respondent, the Cochin College (the College) on 22.01.2018. The College is one coming under the Direct Payment Scheme. Earlier, when the workload in Hindi and Malayalam in the College increased on account of two additional courses sanctioned to the college viz, B.Sc. Botany and Plant Bio-technology and B.Com, the College requested the Directorate of Collegiate Education to take necessary steps to depute a nominee of the Government for conducting the selection for appointment of two Assistant Professors, one in Hindi and the other in Malayalam. Consequent on the said request, the Director of Collegiate Education recommended to the Government to depute its nominee for constituting a Selection Committee for making appointments as requested for. Later, the Director of Collegiate Education has also recommended to the Government at the instance of the College, to sanction to the College two additional posts of Assistant Professor, one in Hindi and the other in Malayalam. (ii) Since the Government did not act upon the recommendation made by the Directorate of Collegiate Education for deputing its nominee so as to enable the College to conduct selection, the College filed a writ petition before this Court for appropriate directions, and this Court, in terms of Ext.P20 judgment, directed the Government to do the needful to depute its nominee for the said purpose. Later, as directed by this court, a nominee of the Government was deputed for conducting the selection and the selection was accordingly conducted.
Later, as directed by this court, a nominee of the Government was deputed for conducting the selection and the selection was accordingly conducted. The petitioners were appointed pursuant to the said selection on 22.01.2018 and they have joined duty on 24.01.2018. (iii) Later, proposals were made by the Manager of the College before the Mahatma Gandhi University (the University) to which the College is affiliated, for approval of the appointments of the petitioners. While the said proposals were pending, on 30.12.2020, the Government created new teaching posts of Assistant Professor in various aided Arts and Science Colleges in the State including two posts in the College, one in Hindi and the other in Malayalam. Ext.P22 is the order issued by the Government in this regard. Since the posts required to accommodate the petitioners were sanctioned only with effect from 30.12.2020, the University took the stand that the proposals made by the Manager for approval of the appointments of the petitioners with effect from their date of joining cannot be considered. Ext.P24 is the communication issued by the University in this regard. The writ petition was filed in the above background challenging Ext.P24 communication and also for a direction to the University to approve the appointments of the petitioners with effect from the date of joining duty. The petitioners also sought a declaration in the writ petition that sanctioning of the posts by the Government is effective from the date of sanctioning of additional courses resulting in the increased workload. (iv) The case set out by the petitioners in the writ petition is that insofar as there was sufficient workload in the College for sanctioning additional posts when they joined duty, the University was obliged to approve the appointments with effect from their date of joining, as otherwise, they will not be able to claim salary for the work done till the date of sanctioning of posts. 4. Earlier, in terms of the judgment in W.P.(C) No.33527 of 2016, this Court disposed of a similar writ petition directing the Government to pass orders sanctioning additional posts commensurate with the workload and directing the University to approve the appointment of the petitioners therein with effect from their date of appointment, if posts are sanctioned. The said judgment is part of the records as Ext.P25. Ext.P25 judgment was though challenged by the State in appeal, the same was dismissed as per Ext.P26 judgment.
The said judgment is part of the records as Ext.P25. Ext.P25 judgment was though challenged by the State in appeal, the same was dismissed as per Ext.P26 judgment. In the light of Exts.P25 and P26 judgments, the learned Single Judge set aside Ext.P24 communication and directed the University to reconsider the proposals for approval of the appointments of the petitioners taking note of Exts.P25 and P26 judgments. It is aggrieved by this judgment that the State and its officials have come up in this appeal. 5. It is seen that at the time of admission, this Court passed an interim order staying the impugned judgment on condition that the petitioners shall be paid salary after approving their appointments provisionally with effect from 30.12.2020, the day on which the posts have been sanctioned. Pursuant to the said interim order, the appointments of the petitioners have been approved provisionally by the University and they are being disbursed salary from 30.12.2020. 6. Heard the learned Government Pleader as also the learned counsel for the petitioners. 7. Section 59(1) of the Act provides that appointments to 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 authorised by the Government. Placing reliance on the said statutory provision, the learned Government Pleader submitted that it is the mandatory requirement of law that there shall be sanctioned posts for a College covered by the Direct Payment Scheme to make regular appointments so as to enable the appointees to receive salary from the Government under the said Scheme. The learned Government Pleader did not, however, dispute the fact that on account of the sanctioning of the new courses at the time when the petitioners joined duty, there was sufficient workload in the College to accommodate them as Assistant Professors. But, according to him, that does not confer on the College authority to make regular appointments without the Government sanctioning additional posts. It was submitted by the learned Government Pleader that the impugned judgment in effect makes the sanction of posts by the Government in terms of Ext.P22 order retrospective, which the Court cannot do. It was also submitted by the learned Government Pleader that where appointments are necessitated on account of sanctioning of new courses, the Government used to issue orders permitting appointments of Guest Lecturers.
It was also submitted by the learned Government Pleader that where appointments are necessitated on account of sanctioning of new courses, the Government used to issue orders permitting appointments of Guest Lecturers. The learned Government Pleader has brought to our notice a few orders issued by the Government permitting the colleges covered by the Direct Payment Scheme to appoint Guest Lecturers under similar circumstances. It was, however, made clear by the learned Government Pleader that if appointments are made against posts that are already sanctioned, it is well within the domain of the University to approve the appointments, after ensuring that there exists sufficient workload, and in that event, the Government is obliged to disburse salary to the appointees. The learned Government Pleader has relied on the judgments of this Court in W.A.Nos.2164 of 2018 and 1240 of 2020 in support of his arguments. 8. On a query from the Court, it was conceded by the learned Government Pleader that the appointments of the petitioners are liable to be approved with effect from 30.12.2020, the day on which the Government sanctioned the posts. It was also pointed out by the learned Government Pleader that insofar as there was sufficient workload in the College for appointing one additional Assistant Professor each in Hindi and Malayalam, the Government would have permitted the College to appoint Guest Lecturers in the subject till the date of sanctioning of the posts. 9. The learned Standing Counsel for the University supported the arguments advanced by the learned Government Pleader pointing out that since the College was precluded from making appointments without there being sanctioned posts in the light of the provisions contained in Section 59 (1) of the Act, the University was not empowered to approve the appointments of the petitioners. It is all the more so since, according to the learned Standing Counsel, the agreement executed by the College with the State Government to avail the benefit of the Direct Payment Scheme specifically provides that appointments made otherwise than in accordance with the provisions of the Act and the terms and conditions of the agreement will not be admitted for direct payment of the salary to the persons appointed.
It was, therefore, the submission of the learned Standing Counsel that when salary is not liable to be paid by the Government when the appointments are not in accordance with the provisions of the Act, the petitioners who are appointed otherwise than in accordance with the provisions of the Act cannot be heard to contend that their appointments are liable to be approved with effect from the date of joining duty merely for the reason that posts have been sanctioned subsequently. 10. The learned counsel for the petitioners, per contra, submitted that in the light of Exts.P25 and P26 judgments, the Government is precluded from contending that the Colleges covered by the Direct Payment Scheme are not entitled to make appointments when there exists sufficient workload in the College in terms of the provisions contained in the Ordinances issued by the Government under the Act relating to determination of workload and fixation of staff strength of teachers in private colleges. According to the learned counsel, if there is sufficient workload in terms of the said Ordinances, sanctioning of posts by the Government will relate back to the date of sanctioning of the courses resulting in the increased workload. The learned counsel has relied on the decision of the Apex Court in State of Kerala v. Arun George, 2015 (1) KLT 833 (SC) [1] and the decisions of the Division Benches of this Court in Shalini Rachel v. Manager, Christian College, 2007 (3) KLT 355 and State of Kerala v. Arun George, 2009 (4) KLT 972 [2]. It was also argued by the learned counsel that insofar as this Court permitted the management to conduct selection for making regular appointments by directing the Government to depute its nominee in the Selection Committee to be constituted for the said purpose, in the absence of any challenge against the said direction, the Government, at any rate, is precluded from contending that the appointed teachers are not entitled to salary till the posts are sanctioned by the Government. It was also argued by the learned counsel that neither the Government nor the University has any power to direct engagement of Guest Lecturers and that the argument advanced by the learned Government Pleader that the College should have appointed Guest Lecturers until the posts are sanctioned by the Government is unsustainable in law.
It was also argued by the learned counsel that neither the Government nor the University has any power to direct engagement of Guest Lecturers and that the argument advanced by the learned Government Pleader that the College should have appointed Guest Lecturers until the posts are sanctioned by the Government is unsustainable in law. Placing reliance on University Grants Commission (Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 which was in force at the time of appointment of the petitioners, the learned counsel has also contended that teachers are not expected to be appointed in colleges on contract basis unless it is absolutely necessary and that even if they are appointed on contract basis, they are entitled to be paid salary as that of the regularly appointed teachers. The learned counsel has relied on the judgment of this court in W.A.No.96 of 2022 and connected cases, in support of the said submission. 11. We have anxiously considered the submissions made by the learned counsel for the parties on either side. 12. There is no dispute in this case as regards the relevant facts. The materials on record reveal that the Government had sanctioned to the College two additional courses namely, B.Sc. Botany and Plant Bio-technology and B.Com. and on account of the commencement of the said courses, the workload of the languages, viz, Hindi and Malayalam increased, necessitating the requirement of one Assistant Professor each for both subjects in terms of the Ordinances, viz, Mahatma Gandhi University Ordinances Regarding Work Load and Staff Pattern of Teaching Staff, 1995 (the Ordinances). It is also revealed from the materials that the said fact has been brought to the notice of the Directorate of Collegiate Education by the College with a request to sanction one additional post of Assistant Professor each in Malayalam and Hindi and also with a request to take necessary steps to depute a Government nominee for constituting a Selection Committee for appointment to the said posts in terms of the Mahatma Gandhi University Statutes, 1997 (the Statutes).
It is also revealed from the materials that on the said fact being brought to the notice of the Directorate, in terms of Ext.P16 dated 21.08.2014, the Director of Collegiate Education has recommended to the Government to depute the Government nominee for conducting selection for appointment to the posts and later, in terms of Ext.P17 dated 23.07.2015, the Director of Collegiate Education has recommended to the Government to sanction two additional posts of Assistant Professor, one in Hindi and the other in Malayalam. As noted, since Ext.P16 was not acted upon by the Government, the College approached this Court in a writ petition, and this Court directed the Government to depute the Government nominee for conducting the selection for appointment of Assistant Professors and it is pursuant to the selection conducted thereupon, the petitioners have been appointed on 22.01.2018 as Assistant Professors in the College. As noted, the posts required for accommodating the petitioners have been sanctioned by the Government only much later, on 30.12.2020 in terms of Ext.P22 order. Insofar as there was sufficient workload in the College in terms of the Ordinances to accommodate one additional Assistant Professor each for both Malayalam and Hindi at the time of sanctioning of the posts, there is no dispute as regards the right of the petitioners to get their appointments approved with effect from the date on which posts have been sanctioned by the Government, viz, 30.12.2020. The dispute pertains only to the right of the petitioners to get their appointments approved with effect from the date of joining viz, 24.01.2018. The petitioners do not challenge Section 59(1) of the Act. Instead, they set out a case that Ext.P22 order sanctioning posts by the Government in terms of Section 59(1) of the Act to accommodate the petitioners will relate back to the date of sanctioning of the courses which resulted in the increased workload, for if the said contention is not accepted, they will not be entitled to get their appointments approved with effect from 24.01.2018, the date of joining and consequently draw their salary with effect from the date of joining under the Direct Payment Scheme. 13.
13. Statute 1(1)(b) of Chapter 45 of the Statutes dealing with the Conditions of Service of Teachers and Members of Non-Teaching Staff in Private Colleges, provides that unless the context otherwise requires, “Direct Payment Scheme” means the scheme introduced by the Government for direct payment of salary to the teaching and non-teaching staff of Private Colleges under the Educational Agencies which have agreed for Government control in the matter of appointment of the teaching and non-teaching staff, in the admission of students and which have executed an agreement with the Government for that purpose. Statute 1(1)(e) of Chapter 45 of the Statutes provides that substantive vacancy means a vacancy which has arisen permanently by reason of the retirement of a person holding a permanent appointment in that post or by reason of a temporary post being made permanent by an order of the competent authority or by reason of termination of suspension of a lien of a person holding a permanent appointment in that post. Statute 15 in Chapter 45 provides that every appointment of teaching staff shall be made by a written order of the Manager and a copy of every such order shall be forwarded with a report thereon to the University for approval. Statute 16 of Chapter 45 dealing with approval of the appointment of teaching staff reads thus: 16. Approval of appointment : (1) Approval of every appointment to the teaching post shall be made by the Syndicate subject to the conditions 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 verity 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. (3) In the case of those private colleges coming under the Direct payment Scheme, the Director of Collegiate Education or the Officer authorised by him in this behalf shall verify in consultation with the University as to whether the teaching post in private colleges are in excess of the posts sanctioned by the University.
(3) In the case of those private colleges coming under the Direct payment Scheme, the Director of Collegiate Education or the Officer authorised by him in this behalf shall verify in consultation with the University as to whether the teaching post in private colleges are in excess of the posts sanctioned by the University. However, in the case of incumbents declared as supernumeraries by the University, the controlling officers shall ensure that no fresh appointment is made against future vacancies until all the supernumeraries are absorbed against those vacancies. The direct payment of salaries shall not be made to the persons appointed against fresh vacancies, before the absorption of supernumeraries. As evident from the extracted Statute, the Syndicate of the University which is the competent authority to approve the appointment of teaching posts is empowered to approve the appointment of teaching staff only if the appointment is in accordance with the staff pattern fixed by the University. It is also evident from the extracted Statute that it is the obligation of the Deputy Director of Collegiate Education concerned to 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. It is also evident from the extracted Statutes that in the case of those Private Colleges coming under the Direct Payment Scheme, the Director of Collegiate Education or the Officer authorised by him in this regard shall verify in consultation with the University as to whether the teaching posts in Private Colleges are in excess of the posts sanctioned by the University. Statute 21 clarifies that 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. 14. Clause 11 of the standard form agreement prescribed by the Government for the said purpose provides that appointments/promotions of teaching and non-teaching staff made otherwise than in accordance with the provisions of the University Act and the Statutes, Ordinances, Regulations etc. issued thereunder and the terms and conditions of the agreement shall not be admitted for direct payment of salary to persons so appointed/promoted.
issued thereunder and the terms and conditions of the agreement shall not be admitted for direct payment of salary to persons so appointed/promoted. The said provision reads thus: "Appointments/promotions of teaching and non-teaching staff made otherwise than in accordance with the provisions of the University Act and the Statutes, Ordinances, Regulations etc issued thereunder and the terms and conditions of the Agreement shall not be admitted for direct payment of salary to persons so appointed/promoted" 15. The question whether Government is entitled to impose a condition that prior approval of the Directorate of Collegiate Education is a pre-requisite for appointment of teachers in Private Colleges came up for consideration before this Court in Cherian Mathew v. Principal, S.B. College, Changanassery, 1998 (2) KLT 144 . Having regard to the pari materia provisions contained in the Kerala University Act and in the First Statutes and Ordinances issued under the said Act, a Division Bench of this Court held that in the absence of any provision in the said Act and in the First Statutes and Ordinances framed, the Government is not entitled to impose a condition that prior approval of the Directorate of Collegiate Education is needed for appointing teachers and staff in Private Colleges. The relevant portion of the judgment reads thus: “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 appointments so made in confirmity with the work load assessed by the University are approved by the concerned University. To the teacher whose appointment 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.
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. 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.” 16. It is after the decision of this Court in Cherian Mathew, Sub-section (1) in Section 59 was introduced in the Act in terms of Act 2 of 2005 in Chapter VIII of the Act dealing with with Private Colleges. The said provision provides that appointments to posts eligible to receive salary from the Government shall be made only against those posts sanctioned by the Government or by such officers as may be authorised by the Government. Section 59(1) reads thus : “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 authorised by the Government.]” As evident from the extracted provision, it was intended to clarify that only appointments made against posts sanctioned by the Government will be eligible to receive salary from the Government.
Thus it is clear that the position after the amendment aforesaid is that if only sanction is accorded by the Government, appointments can be made by the management against those posts in accordance with the staff strength fixed by the University and if those appointments are approved by the University, having regard to the provisions contained in the respective Statutes and Ordinances dealing with work load assessment and fixation of staff strength, the Government is bound to disburse salary to the appointed teachers under the Direct Payment Scheme. In other words, sanctioning of posts by the Government which is the paymaster is a mandatory prerequisite for private colleges to make regular appointments in order to make the appointees eligible to receive salary from the Government and they cannot make appointments against non-existent posts. 17. There is no provision in the Act from which it could be inferred that the statutory scheme mentioned in the preceding paragraph does not apply to appointments necessitated on account of sanctioning of new courses to the existing colleges and consequent increase in the workload, warranting a change in the staff pattern fixed for the College by the University. In other words, it has to be held that even if sanctioning of new courses in an existing college results in increase in the work load of any subject, it is obligatory for the colleges to obtain sanction from the Government for additional posts before making appointments, in order to make the appointees eligible to receive salary from the Government under the Direct Payment Scheme. Needless to say, if appointments are made against non-existent posts, the University is precluded from approving the same and the Government has no obligation to pay salary to such appointees. This aspect has been clarified by this court in Shalini Rachel v. Manager, Christian College, 2007 (3) KLT 355 . Shalini Rachal was a case in which a Division Bench of this court took the view that the University Statute involved in that case and the statutes and ordinances issued thereunder do not provide for sanction of the State Government for filling up the posts sanctioned by the University and that sanction of the State Government is required only for filling up newly sanctioned posts.
The contention of the State in that case was that in the light of the provision contained in Section 57(1) of the Kerala University Act corresponding to Section 59(1) of the Act, even for filling up of the vacancies in the existing sanctioned posts, the sanction of the Government is required. This court repelled the stand of the Government, holding that it is for the University to sanction the required number of posts in terms of the relevant statutory provisions in the case of private colleges coming under the Direct Payment Scheme, depending upon the work load and staff pattern fixed by the University and once the University accords sanction of a post and grants approval, it is obligatory for the State Government to disburse salary under the Direct Payment Scheme. It was also held in the said case that the power of the University to sanction posts and grant approval for appointments made against sanctioned posts is not taken away in terms of Section 57(1) of the Act and that sanction of the Government is required for making appointments only when new courses are sanctioned. Paragraphs 2 and 9 to 12 of the judgment in the said case read thus : “2. A Learned Single Judge in W.P.C. No 12109 of 2006 took the view that filling up of the vacancies to the post of teachers in private aided colleges is governed by the provisions of the University Act and Statutes and the University Laws (Amendment) Act does not provide that for filling up of vacancies in existing sanctioned posts Government sanction is necessary, but sanction is required only for filling up the newly sanctioned posts. State maintained the stand that even for filling up the vacancies in the existing sanctioned posts and also for the newly sanctioned posts, permission of the Government or the Officers authorised by the Government is necessary. Similar issue came up for consideration in another Writ Petition, W.P.C. No. 9563 of 2006 and another learned Judge of this Court doubted the correctness of the decision in W.P.C.No. 12109 of 2006 and referred the matter for consideration by a larger Bench for an authoritative pronouncement on the question raised.
Similar issue came up for consideration in another Writ Petition, W.P.C. No. 9563 of 2006 and another learned Judge of this Court doubted the correctness of the decision in W.P.C.No. 12109 of 2006 and referred the matter for consideration by a larger Bench for an authoritative pronouncement on the question raised. Later few other cases have also been referred and we are now called upon to examine the impact of S.57 (1) of the Kerala University Act, 1974 as amended by Act 2 of 2005 on the various other provisions of the Kerala University Act, Statutes and Ordinances framed thereunder and other related provision in various other University laws. x x x x x 9. We are of the view, above mentioned provisions of the University Act, Statutes and Ordinances would clearly indicate that 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 the case of private colleges coming under the Direct Payment Scheme, depending upon the work load and staff pattern fixed by the University. Once University accords sanction of a post and grants approval depending upon the work load and staff pattern, the Deputy Director of Collegiate Education 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. If the University grants approval noticing that it is in accordance with the staff pattern and work load fixed by it, the Director of Collegiate Education or the officers concerned are obliged to make payment of salary as per the direct payment scheme. 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.
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. 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 Cherian 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. 12. We allow all the Writ Petitions and declare that it is obligatory on the part of the Government to release salary due to the teachers whose appointments are approved by the University.
12. We allow all the Writ Petitions and declare that it is obligatory on the part of the Government to release salary due to the teachers whose appointments are approved by the University. Government have however no obligation to disburse salary, if appointments are made by the aided colleges, to a non existent posts, when a new subject is sought to be introduced, or, division is sought to be started, for which Government sanction is a pre-condition as provided under S.57 (1) of the University Act. Universities are also not expected to grant their approval in such a situation. For existing posts on grant of approval from the University on the basis of work load and staff fixation, Government and the officers authorised by, the Government, have to honour the Direct Payment agreement and release the salary due to the teachers. In view of the declaration, of law made by us, Universities would process the request for approval of appointment and orders be issued accordingly without delay and on that basis, the Deputy Director of Collegiate Education would release the salary of the teachers.” (underline supplied) As is evident from the extracted paragraphs, it was however made clear by the Division Bench in the said case that the Government has no obligation to disburse salary, if appointments are made by the aided colleges, to non-existent posts. It was also made clear by this court in the said case that Universities are not obliged and expected to approve appointments made against non-existent posts. 18. The view aforesaid is seen followed by another Division Bench of this court in Writ Appeal No.2164 of 2018. Paragraphs 9 and 10 of the said judgment read thus : “9. A bare perusal of the statutory provision itself indicates that the Government's obligation to pay salary is in respect of posts which are sanctioned by the Government or the competent officer. In the present case, there is no dispute about the fact that the Government had not sanctioned the second post, which was created pursuant to Exts.P4 and P9. However, the contention is that, even if the said post is not sanctioned by the Government, once the University has approved the working hours as well as the approval of the post, Government is bound to pay salary. Paragraphs 9 to 12 of the decision in Dr. Sina's case (supra) reads as under: “9.
However, the contention is that, even if the said post is not sanctioned by the Government, once the University has approved the working hours as well as the approval of the post, Government is bound to pay salary. Paragraphs 9 to 12 of the decision in Dr. Sina's case (supra) reads as under: “9. We are of the view, above mentioned provisions of the University Act, Statutes and Ordinances would clearly indicate that 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 the case of private colleges coming under the Direct Payment Scheme, depending upon the workload and staff pattern fixed by the University. Once University accords sanction of a post and grants approval depending upon the workload and staff pattern, the Deputy Director of Collegiate Education 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. If the University grants approval noticing that it is in accordance with the staff pattern and workload fixed by it the Director of Collegiate Education or the officers concerned are obliged to make payment of salary as per the direct payment scheme. 10. Scope of Section 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 workload 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.
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-section (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 workload 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 Cherian 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 dismissed W.A. No. 940 of 2007. 12. We allow all the writ petitions and declare that it is obligatory on the part of the Government to release salary due to the teachers whose appointments are approved by the University. Government have however no obligation to disburse salary, if appointments are made by the aided colleges, to a non existent posts, when a new subject is sought to be introduced, or division is sought to be started, for which Government sanction is a pre condition as provided under S.57(1) of the University Act. Universities are also not expected to grant their approval in such a situation.
Universities are also not expected to grant their approval in such a situation. For existing posts on grant of approval from the University on the basis of workload and staff fixation, Government and the officers authorised by the Government, have to honour the Direct Payment agreement and release the salary due to the teachers. In view of the declaration of law made by us, Universities would process the request for approval of appointment and orders be issued accordingly without delay and on that basis, the Deputy Director of Collegiate Education would release the salary of the teachers." (emphasis supplied) 10. Though it is strenuously argued by the learned counsel for the 1st respondent/petitioner that Section 57(1) of the Act had been watered down by the aforesaid judgment, we do not think so. In so far as Section 57(1) remains in the Statute, merely for the reason that the University had approved a post does not enable the management to appoint a person to the college unless sanction is obtained in terms of Section 57 (1). The Division Bench while deciding the aforesaid case has only stated that “sub-section (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 workload or staff pattern, no prior permission of the Government is necessary”. It only indicates that prior permission is not required for the University for fixing the workload or staff pattern. But it does not indicate that for making appointment which require payment of salary by the Government, sanction of the Government is not required. In order to direct the Government to pay salary, it should be an existing post. Even according to the petitioner, an additional post was created only by Exts.P4 and P9, when the number of teaching hours get enhanced from 18 to 27 and then to 31. In Dr. Sina's case (supra) appointments were made in leave vacancies and retirement vacancies. If we take a different view, it will violate the Statute. Under such circumstances, we are of the view that, the judgment in Dr. Sina's case (supra) cannot be applied to the factual situation that has arisen in this case.
In Dr. Sina's case (supra) appointments were made in leave vacancies and retirement vacancies. If we take a different view, it will violate the Statute. Under such circumstances, we are of the view that, the judgment in Dr. Sina's case (supra) cannot be applied to the factual situation that has arisen in this case. For that reason itself, we set aside the judgment of the learned Single Judge and sustain the orders passed by the University. However, it shall be open for the management to approach the Government to seek sanction of the post in the light of the staff fixation orders passed by the University, in which event, the management shall submit a representation to the Government within a period of one month from the date of receipt of a copy of this judgment, which shall be considered within a further period of three months, in accordance with law.” The view aforesaid has been reiterated by another Division Bench in Writ Appeal No.1240 of 2020 as well. Paragraph 17 of the said judgment reads thus : “17. From the law laid down in Shalini Rachel (supra), it is rather clear that if a new subject is sought to be introduced or a division is sought to be started, Government sanction u/s 57(1) of the University Act is a precondition and Universities are not expected to grant their approval in such a situation. Therefore, the Division Bench in Shalini Rachel (supra) had categorized the existing sanctioned posts and non-existent posts differently. If appointments are made by the aided colleges to sanctioned posts, no prior sanction from Government is required. But if a new post is to be sanctioned or a new subject is to be introduced, or a new division is to be started, Government sanction is a precondition and unless such a sanction is granted by the Government, University is not expected to approve the appointment.” 19. That apart, as far as private colleges are concerned, it is in terms of the provisions contained in the Direct Payment Scheme and the statutory agreement executed by the colleges with the Government for availing the benefits of the same permitting Government control in the matter of appointment of the teaching and non-teaching staff and for admission of students, salary of the teaching and non-teaching staff is being disbursed by the Government.
As noted, it is so provided in Statute 21 of the Statutes. It is categorically made clear in the said statute that salary shall be paid by the Government only in accordance with the orders of the Government issued from time to time, and in accordance with the provisions contained in the agreement. As rightly pointed out by the learned Standing Counsel for the University, the agreement executed by the College with the State Government to avail the benefit of the Direct Payment Scheme specifically provides that appointments made otherwise than in accordance with the provisions of the Act and the terms and conditions of the agreement will not be admitted for direct payment of the salary to the persons appointed. This fact is not disputed. In other words, when there is an interdiction in the statute that appointment shall not be made against non-existent posts, such appointees cannot claim salary under the Direct Payment Scheme. This position has been made clear in a similar matter by the Apex Court in Govt. of A.P. v. K. Brahmanandam, (2008) 5 SCC 241 holding that if the obligation of the State to pay salary arises under a statute or an agreement, the State is not liable to pay the salary as no legal right accrues in favour of those who had been appointed violating the provisions of the statute and the terms of the agreement. That was a case relating to the statutory obligation of the State Government to pay salary to teachers appointed in recognised schools. Paragraph 14 of the said judgment reads thus: “The liability of the State to pay salary to a teacher appointed in the recognised schools would arise provided the provisions of the statutory rules are complied with, subject to just exception. The right to claim salary must arise under a contract or under a statute. If such a right arises under a contract between the appointee and the institution, only the latter would be liable therefore. Its right in certain situation to claim reimbursement of such salary from the State would only arise in terms of the law as was prevailing at the relevant time.
If such a right arises under a contract between the appointee and the institution, only the latter would be liable therefore. Its right in certain situation to claim reimbursement of such salary from the State would only arise in terms of the law as was prevailing at the relevant time. If the State in terms of the statute is not liable to pay the salary to the teachers, no legal right accrues in favour of those who had been appointed in violation of mandatory provisions of the statute or statutory rules.” In the light of the discussion aforesaid, we are unable to agree with the contention of the petitioners that sanctioning posts will relate back to the date of sanctioning of the courses which resulted in the increased work load. That apart, sanctioning of additional posts in a college covered by the Direct Payment Scheme involves financial implications and since a fiduciary duty is cast upon the State to act prudently and wisely while dealing with the public money generated at the taxpayers' expense, the freedom to decide as to the appropriate time at which additional posts in private colleges involving financial implications are to be sanctioned, shall certainly be conceded to the State. We are fortified in this view by the position that creation, abolition and regulation of posts are purely executive functions involving financial implications and the decisions on such matters are to be taken having regard to the economic realities and the burden it creates on the taxpayer [See Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Limited, (2007) 1 SCC 408 and Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683 ]. 20. Now, let us consider the contentions raised by the learned counsel for the petitioners. The first and foremost contention raised by the learned counsel for the petitioners that the stand taken by the petitioners that when additional courses are sanctioned to an existing college covered by the Direct Payment Scheme, the colleges are entitled to appoint teachers if there is sufficient work load in terms of the provisions of the Ordinances framed under the Act is covered in their favour by the decision of the Division Bench of this court in Arun George[2] which has been affirmed by the Apex Court in Arun George [1].
It is seen that the question considered in Arun George [2] was whether the Government can absolve themselves from the financial commitment involved in sanctioning of new courses in colleges covered by Direct Payment Scheme. The question was answered in the negative by this court holding that if the courses are aided, the Government is obliged to honour the Direct Payment agreement and it cannot absolve themselves from the liability under a statutory contract. It is that decision that has been affirmed by the Apex Court in Arun George [1]. Paragraphs 17, 18 and 19 of the judgment of the Apex Court read thus : “17. Although, initially approval was not granted for the appointments of respondent Nos. 1 to 7, the University granted approval to these appointments vide its order No. AC.B1/1/3169/05 dated 29.10.2005. As noticed earlier, sanction of new courses led to the increase of work load and the services of respondent nos. 1 to 7 were utilised by the 8th respondent – management. The courses are purely aided courses and therefore, the provisions of Direct Payment Agreement are undoubtedly applicable. The State administration cannot shirk its responsibility of ensuring proper and quality education in Schools and Colleges on the plea of lack of resources. In the facts and circumstances of the case in hand, we do not deem it necessary to consider this question in further detail. 18. It is also to be noted that by perusal of the records viz. Annexures R8/14, 15, 16, 17 & 18, it is evident that respondent nos. 1 to 7 were appointed only against sanctioned posts. It is not the case of the Government that 8th respondent – management violated the terms of the Direct Payment Agreement. For many years i.e., from 2002, services of respondent nos. 1 to 7 have been utilized for imparting instruction, invigilation and other duties. By perusal of the information obtained under Right to Information Act that the Government has paid salaries and emoluments to some of the lecturers appointed in other private colleges. When the respondent nos. 1 to 7 were appointed by the Statutory Selection Committee, we find no reason as to why respondent nos. 1 to 7 should be denied the payment of salary. When respondent nos. 1 to 7 have been appointed by the Statutory Selection Committee, it becomes obligatory for the Government to honour these appointments and pay the salary.
1 to 7 were appointed by the Statutory Selection Committee, we find no reason as to why respondent nos. 1 to 7 should be denied the payment of salary. When respondent nos. 1 to 7 have been appointed by the Statutory Selection Committee, it becomes obligatory for the Government to honour these appointments and pay the salary. 19. In our considered view, the learned Single Judge of the High Court and the Division Bench in review petitions rightly held that respondent nos. 1 to 7 are entitled to the payment of salary for the relevant period and we find no reason to interfere with the same.” As is evident from the extracted paragraphs, the view taken is that if teachers are appointed against posts sanctioned by the University and if they are selected by statutory committees, they cannot be denied salary by the Government. The effect of Section 59(1) of the Act is not seen considered by this court and the Apex Court in that matter obviously since the appointments involved in the said case were appointments made prior to the introduction of the said statutory provision. As such, we are of the view that the said judgment may not stand in the way of this Court deciding the impact of Section 59(1) of the Act in the case on hand. 21. Another contention urged on behalf of the petitioners is that in the light of Ext.P20 judgment of this court, the official respondents are precluded from challenging the impugned judgment. We do not find any merit in this contention. As noted, at the instance of the College, the Director of Collegiate Education recommended to the Government even before making a recommendation for sanction of additional posts, to depute its nominee for conducting a selection. The Government did not act upon the said recommendation and it is in the said circumstances this Court rendered Ext.P20 judgment directing the Government to depute its nominee for conducting the selection. A perusal of Ext.P20 judgment would indicate that this court has not considered the question as to whether the college was entitled to make appointments without the posts being sanctioned by the Government. The judgment does not also indicate that this court was apprised of the fact that the post has not been sanctioned by the Government.
A perusal of Ext.P20 judgment would indicate that this court has not considered the question as to whether the college was entitled to make appointments without the posts being sanctioned by the Government. The judgment does not also indicate that this court was apprised of the fact that the post has not been sanctioned by the Government. On the other hand, the judgment would indicate that the writ petition was disposed of at the admission stage itself directing the Government to depute its nominee for the selection on the premise that there exist substantive vacancies in the College, for the filling of which the College would be legitimately entitled to conduct the selection. The said judgment, according to us, does not preclude the Government from contending that it has no obligation to pay salary to teachers who were appointed against non-existent posts. 22. Another contention is the contention raised based on Ext.P26 judgment affirming Ext.P25 judgment. Neither Ext.P25 nor Ext.P26 judgments refer to the statutory provision viz, Section 59(1) of the Act which absolves the Government from the obligation to pay salary to teachers appointed without obtaining sanction from the Government. The said judgments also, according to us do not deter this court in any manner from undertaking an adjudication on the question as to whether the Government is obliged to pay salary to teachers who have been appointed against non-existent posts. 23. True, in W.A.No.96 of 2022 and connected cases, it was observed by this court that the University involved in that case, viz, Sree Sankaracharya University of Sanskrit is expected in terms of the provisions of the statute under which it is created to institute teaching posts keeping in view of the work load with prior approval of the State Government and it has to discharge its teaching functions making use of the teachers appointed on regular basis. The said observation was made having regard to the fact that the State run University was resorting to contract appointments to discharge its teaching functions instead of resorting to its obligations under the Statute. The said observations according to us, do not help the petitioners in bringing home the point that their appointments are liable to be approved, even if there are no sanctioned posts. 24.
The said observations according to us, do not help the petitioners in bringing home the point that their appointments are liable to be approved, even if there are no sanctioned posts. 24. As regards the arguments based on the provisions contained in the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Other Measures for Maintenance of Standards in Higher Education) Regulations, 2010, it is to be stated that the question in this case is not as to whether there is compliance of the provisions of the Regulations, but as to whether the appointment of the petitioners is in accordance with the provisions of the Act and also whether such appointments are liable to be approved by the University so as to enable the appointees to receive salary from the Government under the Direct Payment Scheme. The petitioners are not persons appointed by the Government in any Government College or by the University concerned in any of the institutions run by it. They are persons appointed by private bodies and they are eligible to claim salary from the Government only in terms of the Direct Payment Scheme. As such, there is absolutely no merit in the contention raised based on the provisions contained in the said Regulations. In the result, the Writ Appeal is allowed, the impugned judgment is set aside and the writ petition is dismissed. It is, however, made clear that if any proposal is made for disbursement of the pay and allowances applicable to Guest Lecturers to the petitioners for the period from the date of their appointment till the date of sanctioning of the posts, this judgment will not preclude the official respondents from considering the same.