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2025 DIGILAW 2639 (KER)

State Of Kerala v. Augustine Sumesh C. J.

2025-10-08

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT : Muralee Krishna, J. W.A.No.1510 of 2023 is filed by respondents 2, 3, and 4 in W.P.(C)No.13475 of 2020 and W.A.No.1547 of 2023 is filed by respondents 2 to 4 and 6 to 8 in W.P.(C)No.920 of 2020, under Section 5 (i) of the Kerala High Court Act 1958, challenging the common judgment dated 19.07.2022 passed by the learned Single Judge in those writ petitions. W.A.No.1547 of 2023 2. Going by the averments in W.P.(C)No.920 of 2020, from which the above writ appeal arose, the 1 st respondent was appointed as Assistant Professor in the Department of Physics at St.Albert’s College, Banerji Road, Ernakulam, in one of the retirement vacancies notified as per Ext.P1 notification dated 10.10.2012, with effect from 20.12.2013, under the community quota, by Ext.P3 appointment order. Immediately after the appointment of the 1 st respondent, the Principal of the College submitted the proposal to the Mahatma Gandhi University (‘M.G. University’, in short) for granting approval to the appointment. In the Department of Physics, there have been 155 hours of workload and 10 sanctioned posts as per Ext.P7 and P7 (a) workload statements dated 01.11.2011 and 01.11.2012, respectively. There had been 10 teachers in the department till the retirement of 3 teachers, the vacancy to which the 1 st respondent and two other teachers were appointed in pursuance of Ext.P1 notification. By Ext.P9 letter dated 16.09.2014, M.G. University refused to grant approval to the appointment of the 1 st respondent, stating the reason that the workload is not supportive for the 10 th faculty. On receiving Ext.P9 letter, the Principal of the College submitted Ext.P10 representation dated 18.12.2014 to the Vice Chancellor of the University seeking intervention in the matter. It was pointed out in Ext.P10 that by Ext.P11 letter dated 16.06.2013, while nominating the Government nominee to the Statutory Selection Committee, the Government accorded sanction for filling up three vacancies in the Department of Physics. 2.1. The 1 st respondent further states that even as per the UGC norms, for 155 hours of workload calculated at 16 hours per teacher, there will be 128 hours for 8 teachers and 12 hours for the Head of the department, leaving a balance of 15 hours for the 10 th teacher. As per M.G. University Ordinances, for every additional 6 hours and above, one post is to be sanctioned. As per M.G. University Ordinances, for every additional 6 hours and above, one post is to be sanctioned. Though the 1 st respondent was working on the basis of the appointment order issued with effect from 20.12.2013, he has not been paid salary for want of approval by the University. Therefore, the 1 st respondent, along with the Manager of the College, filed W.P.(C)No.18175 of 2015 before this Court, to quash Ext.P9 order to the extent it declares that there was no sufficient workload for the 10 th faculty and to approve his appointment and for other consequential reliefs. By Ext.P14 judgment dated 24.10.2016, this Court disposed of that writ petition directing the University to provisionally approve the appointment of the 1 st respondent. Certain other consequential directions were also issued in that judgment. 2.2. Pursuant to Ext.P14 judgment, the Principal of the College sent Ext.P15 letter dated 28.10.2016 to the M.G. University, requesting to approve the post of the 1 st respondent as Assistant Professor in Physics and also to speed up the procedure of workload calculation and fixation of staff in the Department of Physics. Since the direction in Ext.P14 judgment was not complied with, the 1 st respondent filed Con.Case (Cl) No.263 of 2017. By Ext.P15 (a) judgment dated 02.08.2017, this Court closed the contempt case, recording the submission of the respondents therein that the directions have been complied with. The 1 st respondent then filed Ext.P16 and P16(a) petitions dated 19.11.2019 under the provisions of Right to Information Act, for the copies of the orders dated 20.11.2017 and 12.01.2018, pursuant to which he was issued with Exts.P17 (a) and P17 (b) copies of those Government orders dated 20.11.2017 and 12.01.2018, respectively, with Ext.P17 covering letter dated 11.12.2019. From Ext.P17 (a), it is clear that the Government has directed conditional approval to the appointment of the 1 st respondent in the 10 th vacancy and permanent approval in the 9 th vacancy when the said vacancy arises. So also, it is clear from Ext.P17(b) that direction was given by the Government that till the permanent approval of the 1 st respondent is given in the 9 th vacancy, salary till that date be disbursed, and to recover it from the funds of the Manager. 2.3. So also, it is clear from Ext.P17(b) that direction was given by the Government that till the permanent approval of the 1 st respondent is given in the 9 th vacancy, salary till that date be disbursed, and to recover it from the funds of the Manager. 2.3. The 1 st respondent later came to know about Ext.P18 order dated 18.09.2017 issued by the M.G. University and also Ext.P20 letter dated 01.12.2017 issued by the Deputy Director of Collegiate Education. As per Ext.P18 order, approval was given by the University for the appointment of the 1 st respondent in the 10 th vacancy from 20.12.2013 in the retirement vacancy of an Associate Professor, which arose on 30.06.2008. On the basis of Ext.P18 order, the Deputy Director of Collegiate Education issued Ext.P20 letter dated 01.12.2017 to the Principal of the College, intimating that conditional approval has been granted to the appointment of the 1 st respondent in the 10 th vacancy with effect from 20.12.2013 and also that it be converted as permanent approval in the 9 th vacancy as and when it arises. The 3rd appellant again sent Ext.P21 letter dated 30.08.2019 to the Principal of the College to issue suitable consequential orders. Similarly, the University has sent Ext.P22 letter dated 30.08.2019 to the Manager of the College, reminding him of the necessity to issue suitable consequential orders. Thereafter, the Manager of the College has sent Ext.P23 reply dated 27.11.2019 to the University stating that the appointment given to the 1 st respondent was as per the Rules. With these averments, the 1 st respondent filed W.P.(C)No.920 of 2020 under Article 226 of the Constitution of India seeking the following relief: “(i) Issue a writ of mandamus or other appropriate writ or direction directing the Respondents to disburse the arrears of salary and other benefits to the petitioner from the date of his appointment, from 20.12.2013 to October 2017 in view of Ext. P14 judgment, and Exts.P17 (a), P17(b), as also, P19 and P20 Orders and also, to re-fix his current pay and all service benefits on that basis, and disburse all these benefits, within a time frame; (ii) Issue a writ of mandamus or other appropriate writ or direction, commanding the respondents to pay interest at 12% for the delayed payment of arrears of salary and other benefits till payment, as the non- payment was deliberate or on silly untenable reasons; (iii) To declare that the Petitioner is entitled to his arrears of pay and all other benefits from 20.12.2013 including re- fixation of his pay on that basis, and to get all these benefits disbursed within a time frame, in view of the orders and judgment mentioned above which are due to him, with interest at 12% till payment”. 2.4. In the writ petition, the 3 rd appellant filed a counter affidavit dated 26.02.2020, producing therewith Exts.R4(a) to R4(e) documents. In that counter affidavit, it was inter alia contended that as directed by this Court, the 1 st respondent was given salary from the Government exchequer from November 2017 onwards. Though he claims salary from 20.12.2013 onwards, there was no approved vacancy by the Government, and the Government cannot disburse salary to a person appointed by the management to a non-sanctioned post. In Ext.P14 judgment, this Court held that the syndicate of the University has the power to appoint teachers of aided colleges, subject to the conditions that those appointments are subject to the staff pattern fixed by the University and that persons are fully qualified. But for granting approval, a workload study was not done by the M.G. University. Though the 1 st respondent is eligible to be appointed with effect from 01.04.2017, the University has not regularised the appointments with effect from that date, and hence the 1 st respondent is handicapped to disburse the salary for 7 months from 01.04.2017 to October 2017. Though the 1 st respondent was appointed by the Manager on 20.12.2013, there was no sanctioned post, and he could be appointed in the sanctioned post only on a retirement vacancy which arose on 01.04.2017. 2.5. To the counter affidavit filed by the 3 rd appellant, the 1 st respondent filed a reply affidavit dated 02.03.2020. 2.6. On behalf of the 2 nd respondent, a statement was filed on 25.02.2022. 2.5. To the counter affidavit filed by the 3 rd appellant, the 1 st respondent filed a reply affidavit dated 02.03.2020. 2.6. On behalf of the 2 nd respondent, a statement was filed on 25.02.2022. It was contended in that statement that, as per UGC Regulations 2010, for 147 hours/week of workload, 10 teachers including 7 Associate Professors, are permissible. But as per Post Adalath Review of 2002 and G.O. No.260/2010/HEdn, the Government has sanctioned only 9 posts in the Department of Physics of St. Albert's College, Ernakulam. This was intimated to the Manager of the College vide Ext.P18 letter dated 25.07.2017. Therefore, the contention of the 1 st respondent that, as per Ext.P7, there are 155 hours of workload and 10 posts is untenable. The 1 st respondent was well aware of this fact and has produced Ext.P18 along with the writ petition. 2.7. To this statement filed on behalf of the 2 nd respondent, the 1 st respondent filed a reply affidavit dated 07.03.2022 along with an interlocutory application by producing Exts.P25 to P29 documents. W.A. No.1510 of 2022 2.8. Over and above the pleadings in W.P.(C)No.920 of 2020, in W.P.(C)No.13475 of 2020 the 1 st respondent further pleaded that the M.G. University has issued Ext.P23 letter dated 26.04.2020 directing the Manager to re-assign the date of appointment of certain teachers in Physics and Chemistry departments including that of the 1 st respondent as has been directed by the Government in the order dated 12.01.2018. It is stated in Ext.P23 letter that the explanation dated 27.11.2019 given by the Manager was considered by the Sub-committee on approval of the Syndicate, and has decided, as per its minutes dated 03.03.2020, that the salary of such teachers will have to be withheld if the Government direction of reassignment of appointments as stated in the letter is not complied with. On that basis, direction is also given in Ext.P23 letter to submit new appointment orders, re-assigning the appointment of the 1 st respondent and others, from subsequent dates as proposed urgently. Ext.P24 letter dated 08.02.2019 of the M.G. University referred in Ext.P23 is an earlier letter which also directed the Manager to re-assign the appointment of the 1 st respondent, as per the Government direction. Ext.P24 letter dated 08.02.2019 of the M.G. University referred in Ext.P23 is an earlier letter which also directed the Manager to re-assign the appointment of the 1 st respondent, as per the Government direction. Though the 1 st respondent has submitted Ext.P25 application dated 24.06.2020 for a copy of the minutes dated 03.03.2020 of the sub-committee for approval of the syndicate, which decision has been communicated by Ext.P23, the same has not been issued to him. Contending that Ext.P23 letter and the decision of the sub committed dated 03.03.2020 communicated through that letter as illegal and it shall not affect the right of the 1 st respondent to receive salary and all other benefits from 20.12.2013 onwards as directed in Ext.P14 judgment and consequential orders, the 1 st respondent filed W.P.(C)No.13475 of 2020 under Article 226 of the Constitution of India seeking the following reliefs: “(i) Issue a writ of certiorari or other appropriate writ or direction, quashing Ext.P23 and also, the decision dated 03.03.2020 of sub-committee on approval of the syndicate of R1, which is communicated through Ext.P23, being patently illegal, unjust and arbitrary. (ii) Issue a writ of mandamus or other appropriate writ or direction, commanding the respondents to grant approval to the petitioner's appointment unconditionally from 20.12.2013, as it was made against a substantive retirement vacancy and as there was sufficient workload and also, to disburse all service benefits, including arrears, despite the remarks in Ext.P16(a), P18, P19,P20,P21, P23, P24, as the petitioner's case is covered by Ext.P14 and Ext.P15(a) judgments and consequential orders. (iii) To declare that the Petitioner is entitled to get approval to his appointment from 20.12.2013 and all service benefits and arrears of salary from that date, despite the remarks in Ext.P16(?), ?18, ?19, P20, P21, P23 and P24, as the issue relating to the petitioner's appointment had become final in view of Ext.P14 and P15(a) judgments and consequential orders on workload and approval issued by competent authorities”. 2.9. The 3 rd appellant filed a counter affidavit dated 25.08.2020 in W.P.(C)No.13475 of 2020 and an additional counter affidavit dated 04.04.2022 producing therewith Exts.R4(a) to R4(f) documents. Apart from reiterating the contentions raised in W.P.(C)No.920 of 2020, the 3 rd appellant further stated in his counter affidavit that the 3 rd appellant directed the management to submit the required proposals in consonance with the directions of the Government. Apart from reiterating the contentions raised in W.P.(C)No.920 of 2020, the 3 rd appellant further stated in his counter affidavit that the 3 rd appellant directed the management to submit the required proposals in consonance with the directions of the Government. Prior to the receipt of the letter dated 30.08.2019 itself, the 3 rd appellant sent a letter to the Manager directing him to grant arrears of salary amount to the 1 st respondent for the years 2013-2017. The Manager issued a letter dated 29.02.2020 refusing to do so. Even though the Principal submitted a salary statement of the 1 st respondent for the period between 20.12.2013 to 31.03.2017, it was not accompanied by the revised appointment order or orders of the University approving the same. 2.10. After hearing both sides and on appreciation of materials on record, the learned Single Judge allowed the writ petitions. In W.P.(C)No.920 of 2020, the Government is directed to act strictly in terms of Ext.P14 judgment and to issue appropriate orders approving the appointment of the 1 st respondent with effect from the date on which he was appointed, that is, from 20.12.2013, and to grant him all relevant benefits pursuant thereto within a period of three months. In W.P.(C)No.13475 of 2020, Ext.P23 order issued by the M.G. University is set aside. Being aggrieved, the appellants filed these writ appeals. For convenience of reference, we are referring the parties to these writ appeals as they are in W.A. No. 1547 of 2023, and documents are referred to as in W.P.(C)No. 920 of 2020 unless otherwise stated. 3. Heard the learned Senior Government Pleader, the learned counsel for the 1 st respondent, the learned Standing Counsel for M.G. University and the learned counsel appearing for the 3 rd respondent Manager. 4. The learned Senior Government Pleader would submit that the liability of the Government to pay salary is only against the appointments made in the sanctioned post as per the relevant provisions of the University Act. The Government made it clear in Exts.P17 (a) and (b) that the appointment of the 1 st respondent be given conditional approval from 20.12.2013 in the 10 th vacancy, and it be converted as permanent approval in the 9 th vacancy as and when the vacancy arose in the 9 th post. The Government made it clear in Exts.P17 (a) and (b) that the appointment of the 1 st respondent be given conditional approval from 20.12.2013 in the 10 th vacancy, and it be converted as permanent approval in the 9 th vacancy as and when the vacancy arose in the 9 th post. The salary from the date of appointment be given and it is to be recovered from the funds of the Manager. Even if there is sufficient workload for a post, the Manager or the University cannot make the appointment unless there is a sanctioned post. Even in a sanctioned post with sufficient workload, the Managers should seek permission from the Government before making a fresh appointment, as the Government is the pay master. As per M.G. University Act Section 59(1), the Government is bound to disburse salary only to those appointees who are appointed in the post duly sanctioned by the Government. Creation of post is the wisdom of the Government. The court shall not issue any direction to create the post with retrospective or prospective effect. The impugned judgment was passed by the learned Single Judge without considering these crucial aspects. 5. On the other hand, the learned counsel for the 1st respondent argued that Ext.P14 is an inter-party judgment passed by this court in W.P.(C)No.18175 of 2015, and the appellants cannot escape from the directions issued in that judgment. From Ext.P29 Government order dated 03.06.2021, it is evident that the Government has created a post in a similar situation. The 1 st respondent is entitled to salary arrears from the date of his provisional appointment in the 10 th post. Now the Government has initiated steps to recover the salary paid to the 1 st respondent, and the same is under challenge in W.P.(C)No.13475 of 2020. The learned Single Judge correctly analysed the facts based on Ext.P14 judgment, and no interference is needed by this Court by exercising appellate jurisdiction. 6. The learned Standing Counsel for the M.G. University submitted that, as per Section 59 (1) of the M.G. University Act, the appointment can be made only against a sanctioned post. Therefore, the University is supporting the stand of the Government. The learned counsel for the 3 rd respondent Manager, submitted that the college is supporting the 1 st respondent, and the University has not conducted the workload study even though directed in Ext.P14 judgment. 7. Therefore, the University is supporting the stand of the Government. The learned counsel for the 3 rd respondent Manager, submitted that the college is supporting the 1 st respondent, and the University has not conducted the workload study even though directed in Ext.P14 judgment. 7. In State of Kerala v. Anas N. [ 2025 (6) KHC 1 ] , a Full Bench of this Court, while answering the reference whether Government sanction is required for approval for appointment in private aided colleges affiliated to University, held thus : “17. From the foregoing discussion, we deduce the law relating to sanction and approval of posts as follows: i. We affirm the proposition of law laid down in Poornima (supra), subject to the rider that no sanction of the Government is required if the post does not exceed the strength of posts already created in the College as on the date of the 2005 amendment. However, if the post sought to be approved would result in an excess over the posts sanctioned as of 2005, the University cannot approve unless new posts are created by the Government. ii. Upon workload assessment, the University is duty - bound to examine whether the post for which approval is sought, either on account of the introduction of a new course or otherwise, would fall within or exceed the strength of posts already created in the college as on the date of the 2005 amendment. The University shall not grant approval if, in its opinion, the appointment would exceed the number of posts created as of that date. iii. In respect of posts that do not exceed the strength of created posts, the University is competent to approve appointments without any further sanction from the Government, provided it is satisfied, on workload assessment, that the appointment is justified. iv. Workload assessment is mandatory for both creation of posts and approval of appointments, and such assessment shall be carried out strictly in accordance with the UGC Regulations.v. Based on workload assessment before 2005, if any post stood reduced, such post shall nevertheless be deemed to continue in existence unless it has been expressly abolished by the approving authority. For future approval, no sanction of the Government is required in respect of such posts, provided they have not been abolished by the approving authority, and the workload assessment justifies approval of appointments to them. vi. For future approval, no sanction of the Government is required in respect of such posts, provided they have not been abolished by the approving authority, and the workload assessment justifies approval of appointments to them. vi. Based on workload assessment, if a new post is required to be created, the University shall forward the proposal to the Government and shall permit colleges to engage teachers on a daily or contract basis till a decision is taken by the Government on the creation of posts. The Government shall take a decision on the proposal within a reasonable time without delay in the light of the UGC regulation that discourages employing teachers on a contract basis”. (Underline supplied) 8. The 1 st respondent was appointed in St.Albert’s College, Banerji Road, Ernakulam, as an Assistant Professor in Physics by Ext.P3 appointment order dated 20.12.2013. Admittedly, it is in the 10 th post; the appointment was made by the manager of the college. According to the 1 st respondent, there is a sanctioned 10 th post in the physics department and therefore, the appointment of the 1 st respondent has to be approved from that date, and he is entitled to salary and other service benefits. But according to the Government, there were only 9 sanctioned posts in the college. The 1 st respondent was provisionally appointed in the 10 th post. The approved vacancy for the appointment of the 1 st respondent arose only in the month of October 2017 due to the retirement of a teacher, and the Deputy Director granted approval for the appointment of the 1 st respondent with effect 01.12.2017. 9. By Ext.P14 judgment, which is an inter-party judgment, a learned Single Judge of this Court disposed of that writ petition with the following directions: “(i) The 1 st respondent University shall provisionally approve the appointment of the 2 nd petitioner, who was appointed, pursuant to Ext.P1 notification, by Ext.P3 appointment order dated 20.12.2013. (ii) It shall be open to the 1 st respondent University to conduct a workload study pertaining to the academic years in question, and to complete the staff fixation in accordance with the said workload study done by the respondent University. The respondent University shall endeavour to complete the said exercise within three months from the date of receipt of a copy of this judgment. The respondent University shall endeavour to complete the said exercise within three months from the date of receipt of a copy of this judgment. (iii) The 2 nd petitioner shall, based on the provisional approval to his appointment as Assistant Professor in the Department of Physics, be paid the monthly salary from the current month onwards. It is made clear, however, that his entitlement to receive salary and other allowances attached to the post of Assistant Professor will be subject to the outcome of the workload study and staff fixation conducted by the 1 st respondent University, within the time frame indicated above. (iv) If on the completion of the work load study and the staff fixation in the 1 st petitioner college, the 2 nd petitioner's appointment is entitled to an approval, then the 2 nd petitioner shall be paid the arrears of salary and other allowances that flow from such approval within a further period of four months from the date of approval by the 1 st respondent University. (v) The 4 th respondent shall take note of the directions in this judgment and shall commence the payment of provisional salary to the 2 nd petitioner on monthly basis forthwith, and shall disburse the arrears of salary and other allowances, if found due and payable to the 2 nd petitioner consequent to the approval, if any, granted by the 1 st respondent University, within four months from the grant of approval by the 1 st respondent University”. (Underline supplied) 10. Section 59 (1) of the M.G University Act reads thus: “59(1). Appointment of teachers in private Colleges. 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”. 11. From the judgment in Anas. N [ 2025 (6) KHC 1 ] and from the provision referred to supra, it is clear that the liability of the Government to pay salary and other benefits to a teacher appointed in an aided college arises only from the date of his/her approved appointment in the sanctioned post. It is true that in Ext.P18 University letter dated 25.7.2017, it is stated that, as per the workload, 10 teaching posts are permissible in the Physics department. It is true that in Ext.P18 University letter dated 25.7.2017, it is stated that, as per the workload, 10 teaching posts are permissible in the Physics department. But only for the said reason, it cannot be said that there were 10 sanctioned posts of Assistant Professors in Physics available in the college. In Ext.P14 judgement also no specific direction was given to the effect that the Government has to sanction the 10 th post with retrospective effect on completion of the workload study by the University. 12. In such circumstances, we find no reason to hold that the liability of the Government to pay salary to the 1 st respondent arises from his provisional appointment on 20.12.2013. In Exts. P17 (a) and (b) orders, the Government made it clear that the appointment of the 1 st respondent be given conditional approval from 20.12.2013 in the 10 th vacancy and be converted as permanent approval in the 9 th vacancy as and when the vacancy arises in the 9 th post. It was further directed to pay salary to the 1 st respondent until his permanent appointment is approved in the 9 th post and recover it from the manager. Therefore, the liability to pay salary to the 1 st respondent from 20.12.2013 till approval of the appointment of the 1 st respondent in the 9 th vacancy on 01.12.2017 is on the Manager. Therefore, we find no ground to sustain the impugned judgment. 13. Having considered the pleadings and materials on record and submissions made at the Bar, we find that the learned single judge failed to properly analyse the materials on record and the rival contentions of the parties in the light of the provisions governing the field, while passing the impugned judgment. Therefore, the writ appeals are to be allowed by setting aside the impugned judgment. In the result, the writ appeals are allowed by setting aside the impugned judgment dated 19.07.2022, passed by the learned single judge in W.P.(C)Nos. 920 and 13745 of 2020, and the writ petitions stand dismissed.