Aswathy Balachandran v. Secretary, Mar Athanasius College Association/Manager, Mar Athanasius College, Kothamangalam; Mahatma Gandhi University; State of Kerala; Director of Collegiate Education; Deputy Director of Collegiate Education, Ernakulam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 22ND DECEMBER 2010 / 1ST POUSHA 1932 WP(C).No. 35013 of 2010(B) -------------------------- PETITIONER(S): - --------------- ASWATHY BALACHANDRAN, LECTURER, DEPARTMENT OF ENGLISH, MAR ATHANASIUS COLLEGE, KOTHAMANGALAM. BY ADV. SRI.BABU VARGHESE, SENIOR ADVOCATE SRI.JOHNSON T. JOHN RESPONDENT(S): - --------------- 1. THE SECRETARY, MAR ATHANASIUS COLLEGE ASSOCIATION/MANAGER MAR ATHANASIUS COLLEGE, KOTHAMANGALAM-686 691. 2. THE MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS P.O., KOTTAYAM-686 560. 3. THE STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVT., DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1. 4. THE DIRECTOR OF COLLEGIATE EDUCATION VIKAS BHAVAN, PMG JUNCTION, THIRUVANANTHAPURAM-1. 5. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM, KOCHI-682 011. GOVERNMENT PLEADER SMT.NISHA BOSE SRI.T.A.SHAJI, SC, UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 35013/2010 ## APPENDIX ## PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE MINUTES OF THE MEETING OF THE SELECTION COMMITTEE HELD ON 7.1.2010 FOR THE SUBJECT ENGLISH. - EXT.P2: COPY OF THE APPOINTMENT ORDER DATED 16.1.2010 ISSUED BY THE FIRST RESPONDENT. EXT.P3: COPY OF THE ORDER DATED 15.6.2010. EXT.P4: COPY OF THE STATEMENT OF WORK LOAD SUBMITTED BY THE PRINCIPAL EXT.P4(a) : COPY OF THE STAFF FIXATION ORDER DATED 24.11.2009 ISSUED BY THE SECOND RESPONDENT UNIVERSITY. EXT.P5: COPY OF THE RELIEVING ORDER OF SMT.SHIMA MATHEW DATED 1.3.2005. - EXT.P5(a) : COPY OF APPROVAL ORDER ISSUED IN FAVOUR OF SMT.SHIMA MATHEW DATED 8.6.2007. EXT.P5(b) : COPY OF RELEVANT PAGES OF ACQUITTANCE ROLL SHOWING THE PAYMENT OF ARREARS. - EXT.P6: COPY OF THE STATEMENT SHOWING THE STAFF POSITION (SENIORITY LIST) AS ON 1.11.2010 OF THE DEPARTMENT OF ENGLISH. - EXT.P7: COPY OF THE REMINDER DATED 18.11.2010 SENT BY THE PETITIONER TO THE FIFTH RESPONDENT. EXT.P8: COPY OF THE ORDER DATED 26.10.1995 PASSED IN O.P.NO.16572 OF 1995. EXT.P8(a) : COPY OF THE ORDER DATED 24.1.2000 PASSED IN O.P.NO.24481 OF 1998. //TRUE COPY// P.A. TO JUDGE ## **K.T.SANKARAN, J.** ---------------------------------- W.P.(C).No.35013 of 2010 B ---------------------------------Dated this the 22[nd] day of December, 2010 ## **JUDGMENT** The petitioner is working as Lecturer in the Department of English in Mar Athanasius College, Kothamangalam. She was appointed in the vacancy of Smt.Shima Mathew, who was relieved from the college to enable her to take up her assignment as Lecturer in English, Government Polytechnic, Kothamangalam. It is stated that the appointment of Shima Mathew was approved and she was paid salary. The petitioner was appointed on the basis of a recommendation made by the statutory selection committee consisting of a Government nominee as well. The appointment of the petitioner was approved by the University. However, when the salary bill was presented, the Deputy Director of Collegiate Education did not honour the same. The petitioner submitted Exhibit P7 representation to the Deputy Director of Collegiate Education. However, no action was taken by the Deputy Director. WPC No.35013/2010 2 2. The grievance of the petitioner is that in spite of approval of her appointment by the University, salary was not paid to her. 3. The reliefs prayed for in the Writ Petition are the following : “(i) declare that the petitioner is entitled to get the salary and other benefits with arrears with effect from 18.1.2010 on the strength of Exhibit P3 approval order and Exhibits P8 and P8(a) orders of this Honourable Court. (ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the fifth respondent to honour Exhibits P3, and to disburse salary and other benefits with arrears with effect from 18.1.2010 on the strength of Exhibit P3 approval order. WPC No.35013/2010 3 (iii) award costs and interest to the petitioner for the delayed payment. (iv) issue such other order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case.” 4. The learned Government Pleader submitted that prior concurrence of the Government was not obtained before appointing the petitioner. It is not a legal requirement. The petitioner has produced Exhibit P4 to show that there is sufficient work load to justify the appointment of the petitioner. There is no case for the respondents that there is no sufficient work load. 5. The question of law involved in the Writ Petition is well settled in favour of the petitioner in **Cherian Mathew v. Principal, S.B.College, Changanassery** _**(1998(2) KLT 144)**_ and **Shalini Rachel v. Manager, Christian College** _**(2007(3) KLT 355)**_ . In Cherian Mathew's case, it was held that a teacher WPC No.35013/2010 4 whose appointment is approved by the University, should be paid the salary by the Government. It was also held that in case the Director of Collegiate Education doubts the propriety of the appointment of a teacher in the sense that the workload did not justify the appointment of such a teacher, the issue will have to be taken up by him/her with the University. The University has to re-examine the entire issues and to take a decision on the issue as to whether the appointment was proper or not. It was also held that when the University takes a decision on that aspect, that decision will be binding on the Government. 6. Paragraphs 10 and 11 in Shalini Rachels case read as follows: _“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 workload 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_ WPC No.35013/2010 5 _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 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_ WPC No.35013/2010 6 _judgment of the learned single Judge in W.P.C.No.12109 of 2006 and dismiss W.A.No.940 of 2007.”_ 7. In view of the binding and authoritative pronouncements mentioned above, the petitioner is entitled to the reliefs prayed for in the Writ Petition. The fifth respondent shall honour the salary bills in respect of the petitioner. Arrears of salary shall be paid within a period of two months. The salary due to the petitioner shall be paid without default. 8. Learned Government Pleader submitted that the right to address the University as mentioned in Cherian Mathew's case may be reserved. In the facts and circumstances, the respondents would be entitled to get such reservation. However, it is made clear that such reservation should not stand in the way of implementation of the directions contained in the preceding paragraph. **K.T.SANKARAN** **JUDGE** csl