Abin Jose, Seena Mathew, and Dr. Suvarna Devi E. v. Manager, St. Thomas College, Pala; Mahatma Gandhi University; Director of Collegiate Education; Deputy Director of Collegiate Education; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **THURSDAY, THE 31ST DAY OF MAY 2018 / 10TH JYAISHTA, 1940** ## **WP(C).No. 13806 of 2018** ## **------------------------** ## **PETITIONERS** ## **-------------** **1 ABIN JOSE ASSISTANT PROFESSOR IN SYRIAC, ST. THOMAS COLLEGE, PALA, ARUNAPURAM P.O., PIN-686574.** **2 SEENA MATHEW, ASSISTANT PROFESSOR IN PHYSICS, ST. THOMAS COLLEGE, PALA, ARUNAPURAM P.O., PIN-686574.** **3 DR. SUVARNA DEVI E., ASSISTANT PROFESSOR IN SANSKRIT, ST. THOMAS COLLEGE, PALA, ARUNAPURAM P.O., PIN-686574.** **BY ADVS.SRI.BABU VARGHESE (SR.) SRI.C.V.ALEXANDER SMT.TIJIMOL VARGHESE** ## **RESPONDENTS :** **-------------** **1. THE MANAGER ST. THOMAS COLLEGE, PALA, ARUNAPURAM P.O., PIN-686574.** **2. MAHATHMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS P.O., KOTTAYAM-686560.** **3. DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, PMG JUNCTION, THIRUVANANTHAPURAM-695001.** **4. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM-686560.** **5. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVT., DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **R3 TO 5 BY SR. GOVERNMENT PLEADER SMT.NISHA BOSE R2 BY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 13806 of 2018 (A)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS : --------------------------** - **EXHIBIT P1 TRUE COPY OF THE NOTIFICATION THAT APPEARED IN THE HINDU DAILY ON APRIL 13.04.2015. EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER DATED 7TH DAY OF DECEMBER 2016 IN W.P.(C)NO. 1334/2016. EXHIBIT P3 TRUE COPY OF THE GOVERNMENT LETTER NO. D2/533/2016/HEDN. DATED 27.12.2016. EXHIBIT P4 TRUE COPY OF THE MINUTES OF THE SELECTION COMMITTEE HELD ON 23.01.2017. EXHIBIT P4(A) TRUE COPY OF THE MINUTES OF THE SELECTION COMMITTEE HELD ON 23.01.2017. EXHIBIT P4(B) TRUE COPY OF THE MINUTES OF THE SELECTION COMMITTEE HELD ON 23.01.2017. EXHIBIT P5 TRUE COPY OF THE APPOINTMENT ORDER DATED 24.01.2017, ISSUED BY THE 1ST PETITIONER. EXHIBIT P5(A) TRUE COPY OF THE APPOINTMENT ORDER DATED 24.01.2017 ISSUED TO THE 2ND PETITIONER. EXHIBIT P5(B) TRUE COPY OF THE APPOINTMENT ORDER DATED 30.01.2017 ISSUED TO THE 3RD PETITIONER. EXHIBIT P6 TRUE COPY OF THE U.O.NO.6313/B2/02/ACADEMIC/2017 DATED 27.10.2017 APPROVING THE APPOINTMENTS OF THE PETITIONERS. EXHIBIT P7 TRUE COPY OF THE LETTER DATED 27.01.2018 ISSUED BY THE 4TH RESPONDENT TO THE UNIVERSITY. EXHIBIT P7(A) TRUE COPY OF THE RELEVANT PAGES OF THE UGC REGULATIONS 2010. EXHIBIT P8 TRUE COPY OF THE LETTER NO. B4/11829/17 DATED 31.01.2018 RECEIVED BY THE PRINCIPAL FROM THE 4TH REPONDENT. EXHIBIT P8(A) TRUE COPY OF THE LETTER NO. B4/11829/17 DATED AND 05.03.2018 RECEIVED BY THE PRINCIPAL FROM THE 4TH RESPONDENT. EXHIBIT P8(B) TRUE COPY OF THE CLARIFICATION LETTER DATED 20.02.2018 SENT BY THE PRINCIPAL TO THE 4TH RESPONDENT. EXHIBIT P8(C) TRUE COPY OF THE WORK LOAD STATEMENT AS ON 01.11.2014 SUBMITTED BY THE PRINCIPAL TO THE RESPONDENT UNIVERSITY AND THE 4TH RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE STAFF FIXATION ORDER ISSUED BY THE UNIVERSITY VIDE U.O.NO. 5773/BII/2011/ACAD DATED 24.10.2011.** **WP(C).No. 13806 of 2018 (A)** **EXHIBIT P9(A) TRUE COPY OF THE ADALATH STATEMENT DATED 18.12.2002.** **EXHIBIT P10 TRUE COPY OF THE INTERIM ORDER DATED 20.03.2018 IN W.P.(C)NO. 3458/2015.** ## **RESPONDENTS' EXHIBITS : NIL** **-----------------------** **/TRUE COPY/** **P.A TO JUDGE** **AV/31/5** ## **ANIL K.NARENDRAN, J. -----------------------------------** W.P.(C).No.13806 of 2018 **----------------------------------** Dated this the 31[st] day of May, 2018 ## **J U D G M E N T** The petitioners, who are working as Assistant Professors in St.Thomas College, Pala, Arunapuram which is under the management of the 1[st] respondent, have approached this Court in this writ petition filed under Article 226 of the Constitution of India, seeking a declaration that they are entitled to get salary and other benefits with arrears with effect from the respective dates of their appointment on the strength of Ext.P6 approval granted by the 2[nd] respondent University dated 27.10.2017. The petitioners have also sought for a writ of mandamus commanding the 4[th] respondent Deputy Director of Collegiate Education to honour Ext.P6 approval order and disburse salary and other benefits payable to them with arrears, on the strength of the dictum laid down by a Division Bench of this Court in _**Cherian Mathew v. S.B.College, Changanacherry [1998 (2) KLT 144]**_ and in _**State of Kerala and Others v. Dr.Sina A.R. And Others [2007 (3) KHC 96]**_ . 2. A statement has been filed on behalf of the 4[th] respondent opposing the reliefs sought for in this writ petition. Paragraphs 2 to 4 of the said statement reads thus : _“2. The Manager, St.Thomas College, Pala appointed the 1[st] petitioner as Assistant Professor in the Department of Syriac with effect from 24[th] January 2017. Dr.Babu Antoney, Joint_ W.P.(C).No.13806 of 2018 2 _Secretary to Government of Kerala was nominated as Government nominee in the selection committee in compliance with the Judgment in W.P.(C).No.1334/2016. The Mahatma Gandhi University, Kottayam approved the appointment in compliance with the Judgment in W.P. (C).No.1334/2016. The proposal for approval of appointment is pending in this office as the appointment of the 1[st] petitioner as Assistant Professor is in contravention of UGC norms, relevant rules and orders and for want of sufficient workload. The 1st petitioner does not qualify for appointment as Assistant Professor in the department of Syriac as he had not either qualified the NET in Syriac or awarded a PhD Degree. The matter had been referred to the 3rd respondent, Director of Collegiate Education, Thiruvananthapuram for guidance. Moreover, this respondent pointing out above facts has given objection before the University vide Exhibit P7. No final order is received from University._ _3. The Manager, St.Thomas College, Pala appointed the 3[rd] petitioner as Assistant Professor in the Department of Sanskrit with effect from 30[th] January 2017. Dr.Babu Antoney, Joint Secretary to Government of Kerala was nominated as Government nominee in the selection committee in compliance with the Judgment in W.P. (C).No.1334/2016. The Mahatma Gandhi University, Kottayam approved the appointment in compliance with the judgment in W.P.(C).No.1334/2016. The proposal for approval of appointment is pending in this office as the appointment was in a vacancy which does not have sufficient workload. As per the Government direction in Government Letter No.D2/316/2016/H.Edn dated 18[th] July, 2016, new appointments should have 16 hours of workload avoiding weightage for Post Graduate classes. The matter had been referred to the 3[rd] respondent for guidance. The_ W.P.(C).No.13806 of 2018 3 _3[rd] respondent vide letter No.D4/751/2018/Coll.Edn dated 3[rd] March, 2018 informed that the matter had been referred to Government for direction. After getting clarification from Government alone further action will be taken._ _4. The Manager, St.Thomas College, Pala appointed the 2[nd] petitioner as Assistant Professor in the Department of Physics with effect from 24[th] January 2017. Dr.Babu Antoney, Joint Secretary to Government of Kerala was nominated as Government nominee in the selection committee in compliance with the Judgment in W.P. (C).No.1334/2016.The Mahatma Gandhi University, Kottayam approved the appointment in compliance with the Judgment in W.P.(C).No.1334/2016. The proposal for approval of appointment is pending in this office as the appointment was in a vacancy which does not have sufficient workload. As per the Government direction in Government Letter No.D2/316/2016/H.Edn dated 18[th] July, 2016, new appointments should have 16 hours of workload avoiding weightage for Post Graduate classes. The matter had been referred to the 3[rd] respondent for guidance. The 3[rd] respondent vide letter No.D5/9656/2017/Coll.Edn dated 16[th] November, 2017 informed that the only 8 posts are admissible in Physics Department and the appointment in the ninth vacancy could not be approved. Hence steps are taken to file objection before University”._ _(Underline supplied)_ 3. Heard the learned counsel for the petitioners, the learned Standing Counsel for the 2[nd] respondent University and also the learned Senior Government Pleader for respondents 3 to 5. Considering the nature of relief proposed to be granted, service of notice on the 1[st] respondent Manager is dispensed with. W.P.(C).No.13806 of 2018 4 4. The sole issue that arises for consideration in this writ petition is as to whether the 4[th] respondent can withhold approval for the appointment of the petitioners and sanction disbursement of salary and other consequential benefits to them after Ext.P6 order of approval granted by the 2[nd] respondent University. The issue is no more _res integra_ in view of the dictum laid down by this Court in _**Cherian Mathew's case**_ and in _**Dr.Sina A.R.'s case**_ referred to supra. 5. In _**Cherian Mathew's case**_ (supra), the Division Bench of this Court held that to the teacher, whose appointment is approved on the basis of the workload calculated by the University, salary should be paid by the Government through the Director of Collegiate Education. In case, the Director of Collegiate Education doubts the propriety of the appointment of the teacher in the sense that workload did not require appointment of such teacher, the issue will have to be taken up by the said authority with the University. Paragraphs 3 and 4 of the said judgment reads thus : _“3. Kerala University First Ordinance, 1978 inter alia provide for assessment of work load and pattern of teaching staff in Arts and Science Colleges. Chap.13 of the First Ordinance deals with the said issues. Statute 3 is concerned with the procedure for calculating number of teachers required for a department. In the case of Mahathma Gandhi University, it is conceded before us, no separate Ordinance has been promulgated and the Kerala_ W.P.(C).No.13806 of 2018 5 _University First Ordinance govern all similar issues. Likewise the Calicut University First Ordinanace which is in para materia with that contained in Kerala University First Ordinance controls the procedure for calculating number of teachers required for a department._ _4. On the basis of the work load calculated in terms of Ordinance 3 in the Kerala University First Ordinance, teachers are allowed to be appointed in Colleges run by private management. The appointments so made in confirmity with the work load assessed by the University are approved by the concerned University. To the teacher whose appointments is so approved, salary should be paid by the Government through Director of Collegiate Education. In other words, when a teacher is appointed by private management in terms of the provisions contained in the Kerala University First Ordinance or me 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 properiety of the appointment of a teacher in the sense that the work load did not require 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.”_ 6. In _**Dr.Sina A.R's case**_ (supra), the Division Bench of this Court has reiterated that it is for the Syndicate of the University to W.P.(C).No.13806 of 2018 6 sanction the post/approval in accordance with the workload and staff pattern and once the University grants approval for filling up the post sanctioned by it on the basis of the workload and staff pattern, the Government have the obligation to disburse salary. In the said judgment, the Division Bench has made it clear that if the University grants approval for the appointment, if it is in accordance with the staff pattern 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. Paragraphs 8 and 9 of the said judgment reads thus : _“8. Statute 14 deals with approval of appointment. For easy reference we may extract Statute 14 in its entirety._ _14. 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 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. 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_ W.P.(C).No.13806 of 2018 7 _whether the teaching posts in private colleges are in excess of the post 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._ _Above mentioned provisions of the Statute make it very clear that every appointment made to the teaching staff should get the approval of the University. Statute 14(3) says that in the case of 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 posts in private colleges are in excess of the post sanctioned by the University. Expression, "post sanctioned by the University" needs emphasis. Power is statutorily conferred on the Syndicate and the University to approve the appointment if it is in accordance with the staff pattern fixed by the University and the person so appointed is fully qualified to the post. Further Clause (2) of statute 14 authorise the Deputy Director of Collegiate Education to verify before makingdirect 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. Therefore it is for the Syndicate of the University to sanction a post/approval in accordance with the work load and staff pattern and once the University grants approval for filling up the post ¦ sanctioned by it on the basis of workload and staff pattern the Government have the obligation to_ W.P.(C).No.13806 of 2018 8 _disburse the salary. Power is therefore conferred on the Syndicate of the University to sanction the post and approve the same and the Deputy Director to verify whether the post sanctioned/approved is in accordance with the staff pattern and work load fixed by the University and in doubtful cases he can take up the matter with the University._ _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 Nonteaching 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.”_ 7. During the course of arguments, the learned Senior Government Pleader could not point out any legal or tenable objection against the approval for the appointment of petitioners 2 and 3 based on Ext.P6 approval granted by the 2[nd] respondent University. In the case of the 1[st] petitioner, the learned Senior W.P.(C).No.13806 of 2018 9 Government Pleader would point out that the 4[th] respondent Deputy Director of Collegiate Education is awaiting certain clarifications from the Government with respect to the qualification of the 1[st] petitioner and the said fact was made known to the 2[nd] respondent University vide Ext.P7 communication dated 27.01.2018. 8. The specific stand taken in this writ petition with reference to clause 4.4.1.(iv) of University Grants Commission (Minimum Qualification for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 is that NET/SLET/SET is not required for such Masters Programmes in disciplines for which NET/SLET/SET is not conducted. In such circumstances, this writ petition is disposed of with the following directions : (i) The 4[th] respondent Deputy Director of Collegiate Education shall pass necessary orders for approval of the appointment of petitioners 2 and 3 and for disbursal of the salary and other benefits payable to them in terms of the approval granted by the 2[nd] respondent University to their appointments, vide Ext.P6 order of approval. The consequential monetary benefits shall be disbursed to petitioners 2 and 3 within a period of two months from the date of receipt of a certified copy of this judgment. (ii) As far as the 2[nd] petitioner is concerned, it would be open W.P.(C).No.13806 of 2018 10 to the 4[th] respondent to make a request before the 2[nd] respondent University within a period of two weeks from the date of receipt of a certified copy of this judgment, if any clarification is required regarding the qualification of the 1[st] petitioner with reference to Clause 4.4.1.(iv) of the UGC Regulations, 2010. If any such clarification is sought for, the 2[nd] respondent University shall furnish the same within a period of two weeks from the date of receipt of such request. Thereafter, on the basis of the clarification so received, the 4[th] respondent shall pass necessary orders for approval of the appointment of the 1[st] petitioner and for disbursal of the salary and other benefits payable to him in terms of the approval granted by the 2[nd] respondent University to his appointment, vide Ext.P6 order of approval. The consequential monetary benefits shall be disbursed to the 1[st] petitioner within a period of two months thereafter. **Sd/ANIL K.NARENDRAN** ## AV/31/5 The words **“2[nd] petitioner”** in the first line of the paragraph 8(ii) in the judgment dated 31/05/2018 in W.P.(C) No.13806/2018 is corrected and substituted as **“1[st] petitioner”** as per order dated 09/07/2018 in I.A.No.11958/2018 in W.P.(C) No.13806/2018. Sd/- **Registrar (Judicial)**