Bincy P.J. v. State of Kerala and others

WPC.3349/2014 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 16TH DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944** ## **WP(C) NO. 3349 OF 2014** ## **PETITIONER:** BINCY.P.J ASSISTANT PROFESSOR(MALAYALAM), CATHOLICATE COLLEGE PATHANAMTHITTA, RESIDING AT: PLAVUNILKKUNATHIL HOUSE, KAIPUZHA, KULANADA PO, PANDALAM, PATHANAMTHITTA DISTRICT. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN ## **RESPONDENTS:** STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO THE 1 DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. DIRECTOR OF COLLEGIATE EDUCATION 2 DIRECTORATE OF COLLEGIATE EDUCATION, 6TH FLOOR VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, 3 OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM-686 038. MAHATMA GANDHI UNIVERSITY, 4 REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS ATHIRAMPUZHA PO, KOTTAYAM- 686 562. 5 THE CORPORATE MANAGEMENT OF MALANKARA WPC.3349/2014 2 ORTHODOX CHURCH COLLEGES, REPRESENTED BY ITS MANAGER, OFFICE OF THE CORPORATE MANAGEMENT OF M.O.C COLLEGE, DEVALOKA, KOTTAYAM-686 038. PRINCIPAL, CATHOLICATE COLLEGE, 6 PATHANAMTHITTA- 689 645 BY ADVS. SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY SRI.BABY ISSAC ILLICKAL SRI.ISAAC KURUVILLA ILLIKAL DR.P.LEELAKRISHNAN, SC, M.G.UNIVERSITY ## **OTHER PRESENT:** R1 TO R3 BY SRI. JOBY JOSEPH, SR.GP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.3349/2014 3 ## **JUDGMENT** Dated this the 16th day of September, 2022 ## This writ petition is filed seeking the following reliefs: i) Issue a writ in the nature of mandamus or any other appropriate writ, direction or order directing the respondents 1 and 2 to direct the 3rd respondent to approve the appointment of the petitioner in Malayalam Department in Catholicate College, Pathanamthitta; or/and ii) Issue a writ in the nature of mandamus or any other appropriate writ, direction or order directing the 3rd respondent to approve the appointment of the petitioner in Malayalam Department in Catholicate College, Pathanamthitta; or iii) Issue a writ in the nature of mandamus or any other appropriate writ, direction or order directing the 3rd respondent to grant the approval sought for by the 6th respondent through Ext.P10, or iv) Issue a writ in the nature of mandamus or any other appropriate writ, direction or order directing the 3rd WPC.3349/2014 4 respondent to consider and pass orders on Ext.P10, within such time as may be fixed by this Honourable Court. 2. In fact the main issues raised by the petitioner were considered by the learned Single Judge while passing an interim order dated 25.06.2014, which reads thus: “Admit. Learned Government Pleader takes notice for respondents 1 to 3. Sri. Varughese M. Easo, learned standing counsel takes notice for the fourth respondent. Sri. Baby Issac Illickal, learned standing counsel takes notice for respondents 5 and 6. Heard Sri. George Varghese (Perumpallikuttiyil), learned counsel appearing for the petitioner, Sri M.A. Fayaz, learned Government Pleader appearing for respondents 1 to3 and Sri. Varughese M. Easo, learned standing counsel appearing for the Mahatma Gandhi University on the interim relief prayed for. The main grievance voiced by the petitioner is that though he was selected by a duly constituted selection committee and his appointment as Assistant Professor of Malayalam in Catholicate College, Pathanamthitta has been approved by the Mahatma Gandhi University, notwithstanding the stand taken by the Director of Collegiate Education in Ext.P7 letter dated 23.3.2013 an d Ext.P13 letter dated 16.11.2013 in the matter of payment of salary and allowances to the second rank holder who was selected along with the petitioner, the Deputy Director of Collegiate Education, Kottayam has WPC.3349/2014 5 taken a different stand in the case of the petitioner. Relying on the decision of a Division Bench of this Court in Cherian Mathew v. Principal S.B. College, Changanassery (1998(2) KLT 144) it is contended that once the University has approved the appointment, the government are bound to pay the salary and allowances. Relying on Ext.P4 Government Order it is contended that the Government had also sanctioned the required posts and therefore there is no reason to withhold payment of salary and allowances. The stand taken by the Deputy Director of Collegiate Education, Kottayam in the statement dated 4.3.2014 is that the notification inviting applications was only in respect of one post in the community quota but three posts were filled and therefore, a clarification had been sought from the University as to whether the procedure prescribed in the statutes was followed when the appointments were made. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. The respondents have no case that Ext.P1 notification was not duly published. Their only objection is that as against one vacancy which was notified, three appointments have been made. Ext.P4 Government order discloses the fact that after Ext.P1 notification was issued, three more vacancies were sanctioned in the Malayalam department at Catholicate College and one vacancy at Baselius College. The vacancies are retirement vacancies. The petitioner is rank No.3 in the select list. The records WPC.3349/2014 6 disclose that the appointment of rank No.2 was also likewise approved and no objection was taken by the Deputy Director of Collegiate Education or the Director of Collegiate Education to his appointment being approved. Exts. P7 and P13 letters establish the said fact. As regards the query raised by the Deputy Director of Collegiate Education, the answer lies in my opinion in Exts. P8 and P21 letters. The Government have in Ext. P8 letter clarified that notwithstanding the fact that the notification relates to a lesser number of vacancies which arise before the expiry of the rank list can be filled up from the select list. The only requirement in Ext.P8 Government letter and Ext. P21 Government order is that the vacancies must actually exist. In the absence of any case for the respondents that the vacancy against which the petitioner is appointed does not exist, I am prima facie of the opinion that the objection taken by the Deputy Director of Collegiate Education, Kottayam cannot be sustained. I am therefore of the considered opinion that the petitioner is entitled to an interim order directing the respondents to take steps to draw and disburse arrears of salary and allowances to him. There will accordingly be an interim order directing respondents 3 and 6 to take steps to draw and disburse arrears of salary and allowances to the petitioner and to continue to pay him salary and allowances at the applicable rates pending disposal of the writ petition. Arrears of salary and allowances shall be drawn and disbursed to the petitioner within one month from the date on which the WPC.3349/2014 7 principal submits the salary bill before the third respondent.” 3. Today, when the matter was taken up, learned counsel for the petitioner submitted that pursuant to the interim order granted by this court, salary is paid to the petitioner. It is in fact clear from the arguments put forth that the appointment was made by the management to a sanctioned post and the University has approved the same. As per the procedure contemplated under law, after approval by the University, the same has to be forwarded to the Deputy Director of Education for sanction and concurrence. Even though the University has approved the appointment, the Deputy Director of Education has not concurred with the approval by the University, which necessitated the petitioner to approach this Court. 4. It is settled in law that once an appointment is made by the Management to a sanctioned post and it is approved by the University and when sent for concurrence of the Deputy Director of Education, necessarily that has to be done. All these matters were considered by the learned Single Judge when the interim order was passed. 5. Having considered the submissions at the Bar and perusing the materials on record, I am of the considered opinion that the WPC.3349/2014 8 interim order dated 25.06.2014 passed by this court can be made absolute. Accordingly, I do so. Therefore the writ petition is allowed by making the interim order dated 25.06.2014 absolute. Sd/- ## **`SHAJI P.CHALY`** ``` JUDGE ``` sb WPC.3349/2014 9 ## **APPENDIX OF WP(C) 3349/2014** |PETITIONER EXHIBITS|| |---|---| ||A TRUE COPY OF NOTIFICATION NO.| |EXT.P1|R(T)/1394/2010 DATED 11-5-2010 PUBLISHED| ||IN UNIVERSITY NEWS| ||A TRUE COPY OF LETTER| |EXT.P2|NO.28393/D2/2010/H.EDN DATED 17-8-2010| ||ISSUED BY THE 1ST RESPONDENT TO THE 2ND| ||RESPONDENT| ||EXT.P3 A TRUE COPY OF PANEL OF NAMES| |EXT.P3|PREPARED BY THE STAFF SELECTION COMMITTEE| ||DATED 21-10-2010| |EXT.P4|A TRUE COPY OF GO(RT)NO.1685/2011/H.EDN.| ||DATED 19-10-2011| |EXT.P5|A TRUE COPY OF G.O(RT)NO..1685/2011H.EDN.| ||DATED 19-10-2011| ||A TRUE COPY OF ORDER| |EXT.P6|U.O.NO.4883/B1/2012/ACAD/DATED 11-9-2012| ||OF THE 4TH RESPONDENT.| ||A TRUE COPY OF LETTER| |EXT.P7|NO.4/3823/2013/H.EDN. DATED 23-3-2013 BY| ||THE 2ND RESPONDENT TO THE 3RD RESPONDENT| ||A TRUE COPY OF LETTER| |EXT.P8|NO.28878/D2/13/H.EDN. DATED 12-9-2013| ||ISSUED BY THE 1ST RESPONDENT| ||A TRUE COPY OF COMMUNICATION NO.C1-| |EXT.P9|1105/13/TS ISSUED BY THE 3RD RESPONDENT TO| ||THE 6TH RESPONDENT| |EXT.P10|A TRUE COPY OF LETTER| ||NO.G1/APPRL/221/1018/2013 DATED 31-10-2013| WPC.3349/2014 10 BY THE 6TH RESPONDENT TO THE 3RD RESPONDENT A TRUE COPY OF CERTIFICATE DATED 29-102013 ISSUED BY THE 5TH RESPONDENT ALONG EXT.P11 WITH THE UNDERTAKING GIVEN BY THE PETITIONER - A TRUE COPY OF STATEMENT OF WORKLOAD OF - EXT.P12 CATHOLICATE COLLEGE PATHANAMTHITTA FOR THE YEAR 2011-12 A TRUE COPY OF LETTER - EXT.P13 NO.D4/39319/2013/H.EDN DATED 16-11-2013 BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT A TRUE COPY OF NO.D4/39947/2013/H.EDN EXT.P14 DATED 15-01-2014 ISSUED BY THE 2ND RESPONDENT TO HE 3RD RESPONDENT A TRUE COPY OF COMPLAINT FILED BYTHE EXT.P15 PEITIONER BEFORE THE HON'BLE CHIEF MINISTER OF KERALA