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2025 DIGILAW 543 (KER)

Muhammed Abdul Raheem v. P VS State of Kerala

2025-03-11

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT Anil K. Narendran, J. The appellant, who is the petitioner in W.P.(C)No.10037 of 2015, has filed this writ appeal invoking the provisions under Section 5(i) of the Kerala High Court Act, 1958, challenging the judgment dated 16.11.2021 of the learned Single Judge in that writ petition, whereby the said writ petition was dismissed with a direction that the salary for the period 01.09.2014 to 15.06.2015 to be paid to the appellant-petitioner if he had actually rendered service as Lecturer in English in Sullamussalam Arabic College, Areacode, Malappuram District, as pleaded in the writ petition, within a period of 45 days from the date of receipt of a certified copy of that judgment, and the salary for the subsequent period when the service of the petitioner was taken with effect from 01.06.2020 shall also to be paid. 2. The aforesaid writ petition was one filed by the appellant seeking a writ of certiorari to quash Ext.P3 Government order dated 15.05.2013, Ext.P4 Government order dated 01.11.2013 and Ext.P5 Government letter dated 18.02.2014 to the extent to which those are sought to be invoked against the appellant; a declaration that Exts.P3, P4 and P5 cannot be invoked against the appellant, in the facts and circumstances of the case; a writ of certiorari to quash Ext.P6 Government letter dated 11.06.2014 addressed to the appellant, Ext.P7 letter dated 11.11.2014 of the 3 rd respondent Deputy Director of Collegiate Education, addressed to the 6 th respondent Principal, Sullamussalam Arabic College and Ext.P8 Government letter dated 31.01.2015 addressed to the appellant. 3. On 09.04.2015, when the writ petition came up for consideration, the learned Single Judge passed an interim order directing the University to take a decision regarding the approval for the appointment of the appellant. The salary due to the appellant was directed to be disbursed on getting approval of his appointment. By Ext.P10 letter dated 23.05.2015 of the Registrar of the 4 th respondent University, produced along with the interlocutory application filed in the writ petition, the appellant was informed that the whole matter on the approval of the appointment as Lecturer in English for the period from 01.09.2013 to 31.08.2014 against the extended Leave Without Allowance (LWA) vacancy of Abdul Gafoor Chozhakkattu is placed before the next SC on SAC for consideration. 4. 4. After considering the rival contentions, the learned Single Judge dismissed the writ petition with a direction that the salary for the period 01.09.2014 to 15.06.2015 to be paid to the appellant if he had actually rendered service as Lecturer in English in Sullamussalam Arabic College, as pleaded in the writ petition, within a period of 45 days from the date of receipt of a certified copy of the judgment, and also the salary for the subsequent period when the service of the petitioner was taken with effect from 01.06.2020. Paragraph 6 and also the last paragraph of that judgment read thus; ''6. There are no averments in the writ petition as to how and in what manner the appointments came to be in favour of the petitioner, whether any regular selection process was initiated by the Department by sending intimation to the public service. No document has been placed on record as to whether the salary paid to the petitioner was out of the corpus of the Government or otherwise. Thus, the petitioner cannot seek the indulgence of this Court for issuance of the writ in quashing the directions according to clauses of Exts.P6, P7 & P8 and under the garb of the same, seek the regular appointment and claim other benefits. It was only a stop-gap arrangement, that too, for a particular period and when the period was over, have again been in service. That cannot be to the benefit of continuity of service or deemed to have been considered an appointment in a substantive post. The only interference this Court can cause is with regard to the direction to the Management of the University to pay the salary, if not paid, to the petitioner for the period 01.09.2014 to 15.06.2015. The writ petition is dismissed with the direction that the salary for the period 01.09.2014 to 15.06.2015 to be paid to the petitioner if he had actually rendered service as pleaded in the writ petition within the period of forty-five (45) days from the date of receipt of a certified copy of the judgment. Salary for the subsequent period when the service of the petitioner was taken with effect from 01.06.2020 shall also be paid.'' (underline supplied) 5. Feeling aggrieved, the appellant-petitioner is before this Court in this writ appeal. This writ appeal is one filed along with C.M.Appl. Salary for the subsequent period when the service of the petitioner was taken with effect from 01.06.2020 shall also be paid.'' (underline supplied) 5. Feeling aggrieved, the appellant-petitioner is before this Court in this writ appeal. This writ appeal is one filed along with C.M.Appl. No.1 of 2022 to condone the filing delay of 228 days. By the order of this Court dated 14.06.2023 the said delay was condoned and the matter was admitted on file. 6. The 4 th respondent University has filed a counter affidavit dated 13.03.2023, in which it is stated that the appellant was appointed as Lecture in English under the 5 th respondent College in a leave vacancy with effect from 31.01.2000. The leave period was up to 31.08.2014, which was approved by the University. The permanent teacher got an extension of leave. The appellant was appointed to that leave vacancy for the period from 01.09.2014 to 15.06.2015. The University rejected approval for the appointment for the reason that in terms of G.O.(Ms.)No.677/ 2013/H.Edn. dated 01.11.2013, the appointment to the leave vacancy should be made from the panel of teachers maintained by the Deputy Director of Collegiate Education as Guest Lecturer. The rejection of approval has become final and conclusive in nature. The appellant was subsequently appointed to the post on 01.06.2020. The said appointment was not approved by the University since the appellant had not undergone any selection process for such appointment and he does not possess the qualification prescribed, i.e., either NET or Ph.D. and he is unqualified to be appointed to that vacancy, which arose in the year 2020. The appellant, who is a Lecturer appointed purely against a temporary vacancy for a term, which was notified as such after a selection conducted for that purpose, whose subsequent appointment was rejected by the University, cannot claim that when a permanent vacancy arose he should be appointed in that post. Though the learned Single Judge dismissed the Writ Petition, made an observation in that judgment that the salary for the appellant for the period should be given by the University administration. Therefore, the University was constrained to file W.A.No.456 of 2022 and this Court granted an interim stay as prayed for, pending disposal of that writ appeal. Though the learned Single Judge dismissed the Writ Petition, made an observation in that judgment that the salary for the appellant for the period should be given by the University administration. Therefore, the University was constrained to file W.A.No.456 of 2022 and this Court granted an interim stay as prayed for, pending disposal of that writ appeal. Taking note of the submission of the learned counsel for the 1 st respondent-writ petitioner that the salary amounts have already been received in compliance with the directions of the learned Single Judge, the Division Bench made it clear that any amount, if already paid, need not be recovered, pending disposal of that writ appeal. In the counter affidavit filed in this writ appeal, it is contended that the appellant is not entitled to seek any relief against the University. 7. Heard the arguments of the learned counsel for the appellant, the learned Senior Government Pleader for respondents 1 to 3 and the learned Standing Counsel for the 4 th respondent University. 8. The learned counsel for the appellant-petitioner contended that while dismissing the writ petition the learned Single Judge failed to appreciate the manner of appointment of the petitioner as Lecturer in a substantive post, although in a leave vacancy. The appointment of the appellant was made in accordance with the prescribed norms and selection procedures. The appellant, who retired from service on 30.06.2023, is entitled to regularisation of his appointment against the substantive post and claim consequential benefits. 9. Per contra, after referring to the pleadings in the counter affidavit dated 13.03.2023 filed by the 4 th respondent University, the learned Standing Counsel for the University contended that the appellant is not entitled to seek any relief in the writ appeal, against the University. The University rejected approval for the appointment of the appellant stating valid reasons, which warrants no interference. The learned Senior Government Pleader contended that valid reasons had been stated in Exts.P6, P7 and P8 communications dated 11.06.2014, 11.11.2014 and 31.01.2015, respectively, for rejecting the claim of the appellant for salary on the pay scale, at the rate at which he had received the same up to 31.08.2014. 10. The learned Senior Government Pleader contended that valid reasons had been stated in Exts.P6, P7 and P8 communications dated 11.06.2014, 11.11.2014 and 31.01.2015, respectively, for rejecting the claim of the appellant for salary on the pay scale, at the rate at which he had received the same up to 31.08.2014. 10. W.A.No.456 of 2022 filed by the University, feeling aggrieved by the direction contained in the impugned judgment of the learned Single Judge dated 16.11.2021 in W.P.(C)No.10037 of 2015, based on the observation contained in paragraph 6 of that judgment with regard to the direction to the management of the University to pay salary to the writ petitioner for the period 01.09.2014 to 15.06.2015, if not already paid, has already been disposed of by the judgment dated 10.12.2024, by setting aside the impugned judgment of the learned Single Judge to the extent of directing the appellant University to pay salary to the 1 st respondent-writ petitioner for the period from 01.09.2014 to 15.06.2015. Paragraphs 7 to 10 and also the last paragraph of the said decision read thus; “7. The writ petitioner was appointed as Lecturer in English in Sullamussalam Arabic College, Areecode, vide Ext.P1 order dated 30.10.2000 issued by the Manager of the said College, the 5 th respondent herein. The said appointment was against a leave without allowance vacancy in the said College for the period from 01.09.2014 to 15.06.2015. The appointment of the writ petitioner as Lecturer in English in Sullamussalam Arabic College, Areacode, which is a college affiliated with the appellant University, was not approved by the University. The denial of approval was based on Exts.P3 and P4 Government orders. As per clause (vii) of Ext.P3 Government order dated 15.05.2013, no regular appointment shall be made in vacancies which arise against Leave Without Allowance of both teaching and non-teaching staff and the management will have to engage guest lecturers/contract or daily wage employees, as the case may be, in those vacancies by paying them from their own funds. Moreover, the liability to pay salary to the teaching and non- teaching staff of a college affiliated with Calicut University, which has entered into Direct Payment Agreement with the Government, is not on the University. Therefore, the role of the appellant University is only to consider the proposal for approval of the appointment, when such a proposal is submitted by the Manager of the school. Therefore, the role of the appellant University is only to consider the proposal for approval of the appointment, when such a proposal is submitted by the Manager of the school. Even if approval is granted by the University, the Deputy Director of Collegiate Education is the competent authority to countersign the salary bill submitted by the Principal of the College. If the salary bills are duly submitted, the salary is being paid to the teaching and non-teaching staff of such a college, by the Government. 8. In Oriental Bank of Commerce v. Sunder Lal Jain [ (2008) 2 SCC 280 ] the Apex Court held that in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. 9. In the instant case, as already noticed, the liability to pay salary to the teaching and non-teaching staff of Sullamussalam Arabic College, Areecode affiliated with the appellant University, which has entered into Direct Payment Agreement with the Government, is not on the University. In case the University has granted approval for the appointment, then the 4 th respondent Deputy Director of Collegiate Education, Kozhikode is the competent authority to countersign the salary bill submitted by the 6 th respondent Principal of the College. If the salary bills are duly submitted, the salary is being paid to the teaching and non-teaching staff of such a college, by the 2 nd respondent State. If the salary bills are duly submitted, the salary is being paid to the teaching and non-teaching staff of such a college, by the 2 nd respondent State. In the absence of a legal right with the 1 st respondent-writ petitioner to compel the appellant University to disburse salary for the period from 01.09.2014 to 15.06.2015, as sought for in the writ petition, the learned Single Judge went wrong in issuing a direction to the management of the University to pay salary for the said period, if not already paid. 10. In the above circumstances, this writ appeal is disposed of by setting aside the impugned judgment of the learned Single Judge to the extent of directing the appellant University to pay salary to the 1 st respondent-writ petitioner for the period from 01.09.2014 to 15.06.2015. In the order dated 06.04.2022, this Court noticed the submission made by the learned counsel for the 1 st respondent-writ petitioner that the salary amounts have already been received in compliance with the direction of the learned Single Judge. Therefore, the Division Bench made it clear that any amount, if already paid, need not be recovered, pending disposal of this writ appeal. Since the direction to that effect in the impugned judgment of the learned Single Judge is set aside, we deem it appropriate to permit the appellant University to recover the said amount from the 1 st respondent-writ petitioner.” 11. Along with this writ appeal, the appellant-petitioner has filed I.A.No.1 of 2022, invoking the provisions under Rule 154 of the Rules of the High Court of Kerala, 1971 seeking an order to accept Annexures I to X as additional documents in this writ appeal. 12. As per Annexure I minutes dated 30.10.2010 of the meeting of the selection committee for appointment of Lecturer, the appellant was appointed to the post of Lecturer in English in Sullamussalam Arabic College. By Annexure II letter dated 02.04.2002 of the Registrar of the University, the Principal of the College was required to obtain Government concurrence for filling up the LWA vacancy of Abdul Gafoor Chozhakkattu, since the Government imposed certain restrictions, vide G.O.(P)No.56/ 2002/Fin. dated 16.01.2002. As per the said Government order, all vacancies should be filled up only after obtaining prior approval from the Government. dated 16.01.2002. As per the said Government order, all vacancies should be filled up only after obtaining prior approval from the Government. The Principal of the College, vide Annexure III letter dated 29.04.2022 informed the Registrar of the University that there is no restriction regarding the appointment of teaching or non-teaching staff in Arabic College as per Government letter No.25803/2000/H.Edn. dated 08.08.2001. The Government order, i.e., G.O.(P)No.56/2002/Fin. dated 16.01.2002 takes effect only from the date of that order. The appointment of the appellant is valid from 31.10.2000. Hence no Government concurrence is needed for the said appointment. The University, vide Annexure IV order dated 19.07.2001, granted approval for the appointment of the appellant as Lecturer in English against the LWA vacancy of Abdul Gafoor Chozhakkattu for a period of 5 years, with effect from 31.10.2000. Regarding the re-appointment of the appellant as Lecturer in English (Non-UGC) in Sullamussalam Arabic College, with effect from 01.06.2020, vide Annexure VI appointment order, the Registrar of the University vide letter No.51629/GA-II-H3/2013/CU dated 15.03.2021 sought clarification. The Principal of the College, vide Annexure V letter dated nil, clarified that the re-appointment of the appellant is in a permanent Non-UGC vacancy created as per University order No.GA-II/A1/3852/90 dated 25.03.1992, the vacancy which arose consequent to the retirement of Abdul Gafoor Chozhakkattu, Lecturer in English, who retired from service on 31.05.2020. In Annexure V letter, it was pointed out that the appellant had been working in the college as a Lecturer in English from 31.10.2000 to 15.06.2015 in the vacancy of Abdul Gafoor Chozhakkattu who proceeded on LWA, and that the appointment of the appellant was made in accordance with the prescribed norms and selection procedures. Annexure VII is the joining report dated 06.07.2020 of the appellant, regarding his re-appointment with effect from 01.06.2020 FN. Similar persons in other Arabic Colleges are granted UGC Scheme benefits vide Annexure VIII Government order, i.e., G.O.(Ms.)No.85/2014/H.Edn. dated 21.02.2014, based on Annexure IX Government order, i.e., G.O.(Ms.)No.109/2013/ H.Edn. dated 27.04.2013 extending UGC Scale of Pay and Scheme benefits to teachers in Arabic Colleges. In Annexure X letter dated 16.05.2022 of the 3 rd respondent Deputy Director of Collegiate Education, it is clarified that, as per Annexure IX Government order dated 21.02.2014, as and when vacancies arise after 01.04.2013 in UGC Scheme, the same shall be filled up from among those existing teachers who were appointed up to 31.03.2013. In Annexure X letter dated 16.05.2022 of the 3 rd respondent Deputy Director of Collegiate Education, it is clarified that, as per Annexure IX Government order dated 21.02.2014, as and when vacancies arise after 01.04.2013 in UGC Scheme, the same shall be filled up from among those existing teachers who were appointed up to 31.03.2013. Teachers who have joined before 27.03.2010 are exempted from UGC-prescribed qualifications such as NET/PhD. Others who have joined on or after 27.03.2010 and who do not have the qualifications will be given 5 years to acquire the qualifications of NET or PhD. Relying on Annexures I to X additional documents produced in this writ appeal, the learned counsel for the appellant contended that the appellant, who retired from service on 30.06.2023, is entitled to regularisation of his appointment against the substantive post and claim consequential benefits. 13. As already noticed, I.A.No.1 of 2022 filed by the appellant seeking an order to accept Annexures I to X as additional documents in this writ appeal, is one invoking the provisions under Rule 154 of the Rules of the High Court of Kerala, 1971. It is trite law that quoting of a wrong provision of law will not disentitle the party to the relief sought in the application, in case the applicant has made out grounds necessary for the Court to exercise powers under the relevant provision, in the affidavit filed in support of that application. In the instant case, the application ought to have been filed under Order XLI, Rule 27 of the Code of Civil Procedure, 1908. The only averment in the affidavit filed in support of I.A.No.1 of 2022 is that for a proper appraisal of the contentions in the writ appeal, it has become necessary to produce Annexures I to X documents, which are relevant documents, which may be received in evidence in the writ appeal. 14. In Baby Joseph and others v. Kerala State Electricity Board and others [ 2016 (4) KHC 251 ] a Division Bench of this Court in which one among us [Anil K. Narendran, J.] was a party held that in an appeal filed under Section 5 of the Kerala High Court Act, 1958 admission of additional evidence is permissible, by invoking the provisions under Order XLI Rule 27 of the Code of Civil Procedure, 1908. However, such power can be exercised only in cases where the appellant has established grounds necessary for such exercise, as contemplated under Order XLI Rule 27 of the Code of Civil Procedure, 1908. Therefore, the writ petition should contain the basic pleadings necessary for admission of such additional evidence and the appellant has also to satisfy the Court that, though such an issue was raised in the writ petition, notwithstanding the exercise of due diligence such documents were not within his knowledge or could not after the exercise of due diligence, be produced before the learned Single Judge at the time when the judgment appealed against was pronounced. This is for the reason that, in an intra-court appeal filed under Section 5 of the Kerala High Court Act, the appellant cannot be permitted to expand the scope of the writ petition by raising grounds which were neither urged nor pressed into service before the learned Single Judge. 15. The law laid down in Baby Joseph [2016 (4) KHC 251] was reiterated in Laxmi Civil Engineering Services Pvt. Ltd. v. Kerala Water Authority and others [2023 (5) KHC 560] 16. As already noticed hereinbefore, the only averment in the affidavit filed in support of I.A.No.1 of 2022 is that for a proper appraisal of the contentions in the writ appeal, it has become necessary to produce Annexures I to X documents, which are relevant documents, which may be received in evidence in the writ appeal. Therefore, in the affidavit filed in support of I.A.No.1 of 2022, the appellant has not even made out a ground necessary for exercising the powers of the appellate court, as contemplated under Order XLI Rule 27 of the Code of Civil Procedure, for accepting additional documents in a writ appeal. 17. The pleadings and materials on record would show that the appointment of the appellant as Lecture in English in Sullamussalam Arabic College, in LWA vacancy of Abdul Gafoor Chozhakkattu was approved by the 4 th respondent University up to 31.08.2014. On extension of leave by Abdul Gafoor Chozhakkattu, the appellant was appointed in that leave vacancy for the period from 01.09.2014 to 15.06.2015. The University rejected approval for the appointment of the appellant in view of the provisions contained in Ext.P4 Government order, i.e., G.O.(Ms.)No.677/2013/H.Edn. On extension of leave by Abdul Gafoor Chozhakkattu, the appellant was appointed in that leave vacancy for the period from 01.09.2014 to 15.06.2015. The University rejected approval for the appointment of the appellant in view of the provisions contained in Ext.P4 Government order, i.e., G.O.(Ms.)No.677/2013/H.Edn. dated 01.11.2013, whereby the Government, on a re-examination of the matter, made certain modifications to Ext.P2 Government order, i.e., G.O.(Ms.)No.190/ 2013/H.Edn. dated 15.05.2013. 18. As per clause (a) of Ext.P4 Government order dated 01.11.2013, in the LWA vacancy of teachers, Guest Lecturers can be appointed on a contract basis and paid from the Government exchequer as per the existing orders of payment to Guest Lecturers. These Guest Lecturers will be appointed from the panel available with respective Deputy Directors, failing which the payment should be made by Management from their own funds. Such appointments must be not for more than one academic year and then continued when the college re-opens, if necessary. No vacation salary will be paid to them. In colleges where Guest Lecturers have already been appointed by Management, their name, qualifications and other necessary details must be submitted to respective Deputy Directors, and their name must be added to the panel available with Deputy Directors, and their salary will be paid from Government exchequer from the date of empanelment. In cases of subjects where such a panel is not available with Deputy Directors, the Management can make the selection, and particulars, as stated above, which shall be informed to Deputy Directors for empanelment on condition that before appointing such Lecturers, the Management must obtain a letter of concurrence from the Deputy Director that such a panel is not available with the Deputy Director. 19. The specific stand taken by the 4th respondent University in the counter affidavit dated 13.03.2023 filed in this writ appeal is that in terms of Ext.P4 Government order dated 01.11.2013, the appointment to the LWA vacancy for the period from 01.09.2014 to 15.06.2015 should be made from the panel of teachers maintained by the Deputy Director of Collegiate Education, as a Guest Lecturer. Therefore, the University rejected approval for the appointment of the appellant for the above reason. The rejection of approval by the University has become final and conclusive. The appellant was subsequently appointed to the post on 01.06.2020. Therefore, the University rejected approval for the appointment of the appellant for the above reason. The rejection of approval by the University has become final and conclusive. The appellant was subsequently appointed to the post on 01.06.2020. The said appointment was also not approved by the University since the appellant had not undergone any selection process for such appointment, and he does not possess the qualification prescribed, i.e., either NET or Ph.D. 20. The appointment in the LWA vacancy, which had arisen on 01.09.2014, can only be filled up in terms of Ext.P4 Government order dated 01.11.2013, by appointing a Guest Lecturer. The contentions to the contra raised by the appellant are absolutely untenable and can only be repelled. Valid reasons had been stated in Exts.P6, P7 and P8 communications dated 11.06.2014, 11.11.2014 and 31.01.2015, respectively, for rejecting the claim of the appellant for salary on the pay scale, at the rate at which he had received the same up to 31.08.2014. In the impugned judgment dated 16.11.2021 in W.P.(C)No.10037 of 2015, the learned Single Judge rightly found that the petitioner- appellant herein cannot seek the indulgence of this Court for issuance of a writ of certiorari to quash the directions in Exts.P6, P7 and P8 and under the grab of the same seek regular appointment and claim other benefits. We notice that the appellant has not made out any ground warranting interference of this Court, either on Exts.P3 to P5 or Exts.P6 to P8. 21. In the judgment dated 10.12.2024 in W.A.No.456 of 2022 filed by the 4 th respondent University, against direction contained in the impugned judgment of the learned Single Judge dated 16.11.2021 in W.P.(C)No.10037 of 2015, based on the observation contained in paragraph 6 of that judgment with regard to the direction to the management of the University to pay salary to the writ petitioner for the period 01.09.2014 to 15.06.2015, if not already paid, this Court has already set aside the said judgment of the learned Single Judge to the extent of directing the appellant University to pay salary to the 1 st respondent-writ petitioner for the period from 01.09.2014 to 15.06.2015. By the said judgment, this Court permitted the University to recover from the appellant herein-petitioner, the salary amounts already received in compliance with the direction contained in the impugned judgment of the learned Single Judge. 22. By the said judgment, this Court permitted the University to recover from the appellant herein-petitioner, the salary amounts already received in compliance with the direction contained in the impugned judgment of the learned Single Judge. 22. In the above circumstances, we find that the appellant-petitioner has not made out any ground warranting interference either on Exts.P3 to P5 or Exts.P6 to P8. The impugned judgment of the learned Single Judge, which has already been interfered with to a certain extent in the judgment dated 10.12.2024 in W.A.No.456 of 2022 filed by the 4 th respondent University, warrants no interference in this writ appeal. In the result, this writ appeal fails and the same is accordingly dismissed.