Dr. Athira C.J. and others v. Principal NSS College Nilamel and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 24TH DAY OF JUNE 2016/3RD ASHADHA, 1938** **WP(C).No. 5116 of 2016 (L) ---------------------------** ## **PETITIONERS:** - **------------** **1. DR.ATHIRA C.J, ASSISTANT PROFESSOR, DEPARTMENT OF CHEMISTRY, N S S COLLEG, NILAMEL, 'VAISHNAVAM',TRA 58, THEKKEVILA P O, KOLLAM - 691016.** **2. DR.S SUPRABHA, ASSISTANT PROFESSOR, DEPARTMENT OF CHEMISTRY, N S S COLLEG, NILAMEL, 'SREERAG', MARUTHOORKONAM, KOTTUKAL P O, BALARAMAPURAM, THIRUVANANTHAPURAM - 695501.** **3. DR.SREENATH K, ASSISTANT PROFESSOR, DEPARTMENT OF CHEMISTRY, V T M N S S COLLEGE, DHANUVACHAPURAM, “PARAMEL KIZHAKKETHIL HOUSE”, CHUNAKARA NORTH.P.O, ALAPUZHA DISTRICT.** **4. DR.RATHEESHKUMAR V K, ASSISTANT PROFESSOR, DEPARTMENT OF CHEMISTRY, V T M N S S COLLEGE, DHANUVACHAPURAM, 'AISWARYA', PANANGODE, VENGANOOR P O,** **5. DR.SHYAM KRISHNAN K, ASSISTANT PROFESSOR, DEPARTMENT OF CHEMISTRY, M M N S S COLLEGE, KOTTIYAM, 'SREEVILASOM', PULLIKKANAKKU P O, KAYAMKULAM - 690537.** ## **BY ADV. SRI.S.MUHAMMED HANEEFF** **RESPONDENT(S):** - **--------------** **1. PRINCIPAL, N.S.S COLLEGE, NILAMEL - 691535.** **2. PRINCIPAL, V T M N S S COLLEGE, DHANUVACHAPURAM - 695503.** **--2--** **--2--** ## **WP(C).No. 5116 of 2016 (L) --------------------------** **3. PRINCIPAL, M M N S S COLLEGE, KOTTIYAM - 691573.** **4. UNIVERSITY OF KERALA, REP. BY ITS REGISTRAR, UNIVERSITY CAMPUS, KARIYAVATTOM, THIRUVANANTHAPURAM - 695034.** **5. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOLLAM - 691001.** **6. DIRECTOR OF COLLEGIATE EDUCATION,** - **6TH FLOOR, VIKAS BHAVAN, THIRUVANANTHAPURAM-695033.** **7. STATE OF KERALA,** **REP. BY ITS SECRETARY TO THE GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001.** **R1 TO R3 BY ADVS.SRI.P.GOPAL** **SRI.B.MURALEEDHARAN** **R4 BY ADV. SRI.PAUL JACOB, SC** **R5 TO R7 BY GOVERNMENT PLEADER SRI.P.V.ELIYAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-06-2016 ALONG WITH WPC.12726/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** **WP(C).No. 5116 of 2016 (L) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **-----------------------** - **P1:A TRUE COPY OF THE ADVERTISEMENT PUBLISHED IN MALAYALA MANORAMA DAILY DTD 10/4/2013.** - **P2:A TRUE COPY OF THE LETTER NO 17379/D2/13/H.EDN DTD 11/6/2013 ISSUED BY THE 7TH RESPONDENT.** - **P3:A TRUE COPY OF THE MINUTES MEETING OF THE SELECTION COMMITTEE HELDON 7/12/2013, 8/12/2013 AND 9/12/2013 AT NSS HEAD OFFICE, PERUNNA** - **P4:A TRUE COPY OF THE APPOINTMENT ORDER NO F/7844/2013 DTD 12/12/2013 ISSUED BY THE N S S COLLEGE CENTRAL COMMITTEE, N S S HEAD OFFICE, CHANGANACHERRY TO THE 2ND PETITIONER.** - **P5:A TRUE COPY OF THE APPOINTMENT ORDER NO F/3031/2014 DTD 5/6/2014 ISSUED BY THE N S S COLLEGES CENTRAL COMMITTEE, NSS HEAD OFFICE, CHANGANACHERRY TO THE 2ND PETITIONER.** - **P6:A TRUE COPY OF THE APPOINTMENT ORDER NO F/7843/2013 DTD 12/12/2013 ISSUED BY THE N S S COLLEGE CENTRAL COMMITTEE, NSS HEAD OFFICE, CHANGANACHERRY TO THE 3RD PETITIONER.** - **P7:A TRUE COPY OF THE APPOINTMENT ORDER NO F/7846/2013 DTD 12/12/2013 ISSUED BY THE N S S COLLEGE CENTRAL COMMITTEE, NSS HEAD OFFICE, CHANGANACHERRY TO THE 4TH PETITIONER.** - **P8:A TRUE COPY OF THE APPOINTMENT ORDER NO F/7842/2013 DTD 12/12/2013 ISSUED BY THE N S S COLLEGE CENTRAL COMMITTEE, NSS HEAD OFFICE, CHANGANACHERRY TO THE 5TH PETITIONER.** - **P9:A TRUE COPY OF THE ORDER AC.F.II/16764/2013 DTD 10/8/2015 ISSUED BY THE 4TH RESPONDENT.** - **P10:- A TRUE COPY OF THE LETTER ISSUED BY THE 5TH RESPONDENT NO B2/8581/2015 DTD 20/11/2015 TO THE 7TH RESPONDENT.** - **P11:- A TRUE COPY OF THE LETTER NO 372823/D1/15/H.EDN DTD 4/1/2016 TO THE 6TH RESPONDENT.** - **P12:- A TRUE COPY OF THE LETTER ISSUED BY THE 5TH RESPONDENT TO THE 7TH RESPONDENT.** **--2--** **--2--** **WP(C).No. 5116 of 2016 (L) --------------------------** **P13:- A TRUE COPY OF THE REPRESENTATION NO F/7050/2015 DTD 23/1/2016 SUBMITTED BY THE NSS COLLEGES CENTRAL COMMITTEE TO THE 6TH RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------** **EXT.R1(A): TRUE COPY OF THE WORKLOAD STATEMENT IN THE DEPARTMENT OF CHEMISTRY OF THE COLLEGE FOR THE YEAR 2013-14.** **EXT.R2(A): TRUE COPY OF THE WORKLOAD STATEMENT IN THE DEPARTMENT OF CHEMISTRY OF THE COLLEGE FOR THE YEAR 2013-14.** **EXT.R3(A): TRUE COPY OF THE WORKLOAD STATEMENT IN THE DEPARTMENT OF CHEMISTRY OF THE COLLEGE FOR THE YEAR 2013-14.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## ALEXANDER THOMAS, J. ----------------------------- W.P(C).Nos.5116 & 12726 Of 2016 --------------------------------- Dated this the 24th day of June, 2016. ## J U D G M E N T ## : W.P.(C).No.5116/2016 The grievances projected in this Writ Petition are in regard to the non-disbursal of pay and allowances due to the petitioners who are Assistant Professors in the various Private Affiliated Aided Colleges (contesting respondents 1 to 3) inspite of the fact that the 4th respondent-Kerala University had granted the statutory approval for such appointments in terms of the provisions contained in the Kerala University Act and the statutes and Ordinances framed thereunder. 2. The case projected in this Writ Petition is as follows: The 1st petitioner was appointed as Assistant Profession in Chemistry in the 1st respondent-College in the retirement vacancy of one Sri.K.Radhakrishnan. The 2nd petitioner was appointed as Assistant Professor in Chemistry in the 1st respondent-College in the retirement vacancy of Sri.P.Sudhakaran Nair. The 3rd petitioner was appointed as Assistant Professor in Chemistry in the 2nd respondent-College in the transfer vacancy of Smt.Dr.M.Sujatha, who was transferred to ::2:: W.P(C).Nos.5116 & 12726 Of 2016 N.S.S.College for Women, Thiruvananthapuram on the retirement vacancy of Smt.P.Sudha. The 4th petitioner was appointed as Assistant Professor in Chemistry in the 2nd respondent-College in the transfer vacancy of Smt.Dr.D.Thankamony, who was transferred to N.S.S. College for Women, Thiruvananthapuram on the retirement vacancy of Smt.K.G.Usha. The 5th petitioner was appointed as Assistant Professor in Chemistry in the 3rd respondent-College in the retirement vacancy of Sri.K.Ajayakumar. That these incumbents joined duty on various dates pursuant to respective orders of appointment issued by the competent Corporate Manager in respect of those Aided Colleges which are affiliated to the 4th respondent-University of Kerala. 3. It is averred that the selection and appointment were pursuant to a selection conducted by the selection committee in full adherence to the provisions contained in the Kerala University Act and the statutes and Ordinances framed thereunder. Ext.P-1 is the advertisement in respect of the selection notification issued by the College Management inviting applications for selection to the above post in those Colleges from interested aspirants and Ext.P-2 dated 11.6.2013 is the proceedings of the Government nominating an Officer ::3:: W.P(C).Nos.5116 & 12726 Of 2016 as Government nominee in the selection committee, which was authorised to conduct the selection process. The selection process was duly conducted and Ext.P-3 is the minutes of the selection committee in respect of the selection of the petitioners concerned and the said selection committee consists of nominee of the Management, nominee of the Government, subject expert and the Principal in terms of the provisions contained in the Act and the statutes. That in Ext.P-3, the 1st petitioner secured rank No.3 in open merit and the 2nd petitioner secured rank No.7 in community merit, the 3rd petitioner secured rank No.2 in community merit, the 4th petitioner secured rank No.4 in the open merit and the 5th petitioner secured rank No.2 in the open merit. That pursuant to Ext.P-3 selection process, the appointment orders have been issued in terms of Exts.P-4 to P-8 by the Corporate Manager of the Colleges concerned, who is the appointing authority in terms of the provisions of the Act. Thereafter, contesting respondents 1 to 3 had forwarded necessary proposal for securing approval of appointment of the petitioners. Thereafter, it is pointed out that competent authority of the 4th respondent-University, viz, the Syndicate has considered the said proposal and granted statutory approval for the said appointment of the ::4:: W.P(C).Nos.5116 & 12726 Of 2016 petitioners as evident from Ext.P-9 proceedings dated 10.8.2015 issued by the University. Thereafter, the College authorities concerned had forwarded necessary proposals to the 5th respondent-Deputy Director of Collegiate Education, Kollam, for necessary action for admissibility of salary of the petitioners in terms of the provisions of the direct payment scheme which governs the field. Without deciding the matter, the 5th respondent in turn referred the matter as per Ext.P-10 to the 7th respondent-State Government for their sanction. The 7th respondentGovernment then sought for report from the 6th respondent-Director of Collegiate Education as evident from Ext.P-11. In response to Ext.P-11, the 5th respondent-Deputy Director informed that the post can be sanctioned in Chemistry in N.S.S. Colleges, at Nilamel, Kottiyam and Thiruvananthapuram, as evident from Ext.P-12. The Corporate Manager of the Colleges then submitted Ext.P-13 representation before the 6th respondent requesting to grant sanction for salary and other benefits to the petitioners as their appointments are made against admissible posts in terms of the workload in the College, more so, in the light of the statutory approval granted by the competent University authority for the above said appointments. Further, the Manager ::5:: W.P(C).Nos.5116 & 12726 Of 2016 clarified in the representation that not only sufficient workload is available in respondents 1-3 Colleges, but also that there us sufficient workload in the other Colleges under the same management viz., M.G.College, Thiruvananthapuram, N.S.S.College, Kottiyam and N.S.S.College, Nilamel. It is averred that inspite of approval from the 4th respondent-University and clarification issued by the Management, the 5th respondent has not sanctioned salary till date for no valid reasons and that the procedure adopted by the State authority is totally against the provisions of law contained in the Kerala University Act and subordinate legislations framed thereunder and further that the same is against catena of rulings of this Court and the Apex Court in the matter of liability of the Government to disburse the salary of aided College teachers consequent to approval of appointment by the University authorities concerned. It is in the light of these facts and circumstances that the petitioners have instituted the instant writ petition with the following prayers: - “i. Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents no.5 to 7 to sanction and disburse salary to the petitioners with arrears with effect from 12-12-2013, 09-06-2014, 19-122013, 17-12-2013 and 13-12-2013 respectively as per Ext.P9 within the time limit fixed by this Hon'ble Court with arrears. ::6:: W.P(C).Nos.5116 & 12726 Of 2016 - ii. Issue such other appropriate writ, order or direction as this Hon'ble Court deems fit and proper in the facts and circumstances of the case.” 4. The 5[th] respondent-Deputy Director of Collegiate Education has filed a statement dated 19.3.2016 in this Writ Petition. The aspects regarding the appointments of the petitioners are not in any way disputed in that statement. The crucial aspect of the matter raised in para 3 reads as follows: “3. It is submitted that the total workload of department in Chemistry in N.S.S.College Nilamel is 17 hours and the sanctioned post in one. At the times of appointment of petitioner then two teachers were working including the petitioner. As per the post Adalath workload there is one sanctioned post in the department of Chemistry. As per the rank list prepared by the Selection Committee, Athira C.J (IIIrd rank holder) have not given approval by this office, since the appointment is made in a non sanctioned post. In the case of Smt.Suprabha even though the appointment made in a sanctioned post at N.S.S.College, Nilamel, this office is not in a position to give concurrence due to non issuance of concurrence of seniors appointed in non sanctioned post. At the time of the appointment of the 3rd and IVth petitioner in VTMNSS College, Dhanuvachapuram there is sufficient workload and vacancy, seniors in the rank list have not been getting the approval. In the above circumstances the approval cannot be sanction to Dr.Sreenath .K and Dr.Radheeshkumar V.K. The total workload of department in chemistry in MM NSS College, Kottiyam is 63 hours and the sanctioned post is 4. At the time of the appointment of the vth petitioner, five teachers were working including the petitioner and the Principal. As per the Post Adalath Workload there is 4 sanctioned posts in the department of Chemistry.” Further, it is stated in para 4 thereof that appointment of petitioners 1 & 5 as Assistant Professor in Chemistry is in the surplus vacancy in N.S.S. College, Nilamel, M.M.College, Kottiyam, as per the existing workload statement and that the 5[th] respondent-Deputy Director of Collegiate ::7:: W.P(C).Nos.5116 & 12726 Of 2016 Education has referred the matter back to the 4th respondent-Kerala University and to the Government vide letter No.B2/8581/2015 dated 20.11.2015. It is contended in para 5 thereof that the contention that once the appointment is approved by the University, the Deputy Director is bound to sanction and disburse the salary is not applicable in this particular case. That amendment to Sec.57(1) of the Kerala University Act prescribes the appointment of the post eligible to receive salary from the Government shall be made only against posts sanctioned by the Government or by such officers as may be authorised by the Government and that the petitioners 1 & 5 have been appointed in a non sanctioned post and so the Government is not liable to pay salary as per the above condition and that the 5[th] respondent is awaiting reply from the University and Government for taking final decision in this matter. 5. Respondents 1 to 3 who are the Principals of the respective colleges concerned have filed separate counter affidavits in the matter. It is reiterated in all those pleadings of the college authorities that the petitioners have been duly appointed in accordance with the statutory procedure prescribed in the Act and the statutes and that they have ::8:: W.P(C).Nos.5116 & 12726 Of 2016 been appointed only as against admissible post in terms of the statutory recruitment norms prescribed by the statutory ordinances framed by the University and that the appointments have been duly approved by the competent authorities of the University etc. However, it may be pertinent to refer to one crucial paragraph in each of those pleadings which deals with the facts situation of the workload in the respective colleges. Para 5 of the counter of R1 reads as follows:- “ The subject Chemistry is imparting in the College as a subsidiary subject for B.Sc (BioChemistry) and B.Sc.(Zoology). The total teaching hours for chemistry in the college per week is 33. The total teaching hours for chemistry in the college per week is 33. The college is entitled to et two teaching posts in the Department of Chemistry in the college. A true copy of the workload statement of the Department of Chemistry of the college for the academic year 2013-14 is produced herewith Exhibit R1(a). The workload in the Department of Chemistry remains the same. The petitioners 1 and 2 are working in the said posts. I have forwarded the details regarding the appointment of petitioners 1 and 2 along with all documents to the 5th respondent and requested him to issue concurrence for claiming salary of the petitioners 1 and 2.” ## Para 5 of the counter of R2 reads as follows:- “The subject Chemistry is imparting in the College for B.Sc (Chemistry) and as a subsidiary subject for B.Sc (Physics), B.Sc (Botany) and B.Sc (Zoology). The total teaching hours for chemistry in the college per week is 87. The college is entitled to get 05 teaching posts in the Department of Chemistry in the college. A true copy of the workload statement of the Department of Chemistry of the college for the academic year 2013-14 is produced herewith Exhibit R1 (a). The workload in the Department of Chemistry remains the same. There are only five teachers working in the college. They are Smt.G.S.Sreelatha, Sri.P.Sutharsanan nair, Smt.S.Rajalakshmi, and petitioners 3 and 4. I have forwarded the details regarding appointment of petitioners 3 and 4 along with all documents to the 5th respondent and requested him to issue concurrence for claiming salary of the petitioners 3 and 4.” ::9:: W.P(C).Nos.5116 & 12726 Of 2016 ## Para 5 of the counter of R3 reads as follows:- “The subject Chemistry is imparting in the College for B.Sc (Polymer Chemistry) and as a subsidiary subject for B.Sc (Zoology) and B.Sc (Physics). The total teaching hours for chemistry in the college per week is 78. The college is entitled to get 05 teaching posts in the Department of Chemistry in the college. A true copy of the workload statement of the Department of Chemistry of the college for the academic year 2013-14 is produced herewith Exhibit R3 (a). The workload in the Department of Chemistry remains the same. There are only five teachers working in the college. They are Smt.K.G.Valsala Devi, Smt.T.L.Girija, Smt.T.S.Sujatha, Sri.R.Prakash Chandran and the 5th petitioner. I have forwarded the details regarding appointment of 5th petitioner along with all documents to the 5th respondent and requested him to issue concurrence for claiming salary of the 5th petitioner.” So the above said pleadings submitted by the contesting respondents 1 to 3 colleges clearly discloses the facts and figures regarding the teaching workload in the respective colleges concerned. 6. The 4[th] respondent Kerala University has filed a counter affidavit dated 22.6.2016, the details of the appointments of each of the writ petitioners have been statutorily dealt with in paragraphs 3 to 6 of the said counter affidavit. In para 7 thereof, it is stated by the 4[th] respondent that as per the workload assessed by the Kerala University, there is a workload of 78 hours in the Chemistry Department of MM/NSS College, Kottiyam and therefore five teachers are permissible (i.e, 16 hours for one teacher ; 16 x 4 = 64 ; 78 hrs - 64 = 14 hrs) and that it may be noted that out of the balance 14 hrs, five hours of the ::10:: W.P(C).Nos.5116 & 12726 Of 2016 workload has been allotted to the Principal since at the time of the appointment of the 5[th] petitioner, in the subject of Chemistry, the subject handled by the incumbent in the post of Principal also happened to be Chemistry. That hence, the balance workload available is 9 hours against which, the 5[th] teacher can be appointed. In that regard it is pointed out by the learned Standing Counsel for the 4[th] respondent Kerala University that since the balance workload available is 9 hours in that college, an additional post is clearly admissible in terms of the statutory norms prescribed in the ordinances framed under the University Act. It is thus pointed out that the approvals of the appointments have been granted as per the resolution of the Syndicate held on 6.6.2015. It is further pointed out in para 8 of the counter affidavit of the 4[th] respondent, that the 5[th] respondent Deputy Director of College Education had forwarded Letter No.B2/8581/2015 dated 20.11.2015, seeking clarification regarding the approval given to the appointment of the first petitioner as Assistant Professor, Chemistry in NSS College, Nilamel. That, in response thereof a clarification letter dated 8.1.2016 was sent in reply thereto wherein the clear details as to how the workload calculated by the University was also explained. It is ::11:: W.P(C).Nos.5116 & 12726 Of 2016 further stated therein that the workload in NSS College Nilamel, as per post Adalath Review-2002 is 17 hours and that there is an additional post permissible with the workload of 9 hours in that college. That in G.O.(M.S.)No.260/2010/H.Edn dated 20.8.2010, it is seen that no additional post is sanctioned for Chemistry at NSS College, Nilamel and that it has come to the notice of the University that several mistakes have been crept into the above mentioned G.O. dated 20.8.2010 and that as per the calculation of University of Kerala, there is a workload of 39 hours and two posts are permissible in the Department of Chemistry at NSS College, Nilamel. Thus it is evident that the 4[th] respondent University has re-considered the matter based on the request sought for clarification contained in the 5[th] respondent Deputy Director’s letter dated 20.11.2015 and intimation in that regard was given by the University to the 5[th] respondent as per letter dated 8.1.2016, pointing out that the stand of the Government and the department that no additional post can be sanctioned for the NSS College, Nilamel based on G.O.(Ms.) dated 20.8.2010 is wrong and that several mistakes have been crept into the above mentioned G.O and as per the calculation of the 4[th] respondent University in terms of the statutory ordinance ::12:: W.P(C).Nos.5116 & 12726 Of 2016 dealing with workload requirements there is indeed a workload of 39 hours and two posts are permissible in the departments of Chemistry at NSS College Nilamel. It is also reiterated in para 9 of the said counter affidavit that additional post are permissible if there are periods above 8 hours. In this context it may also be relevant to note the contents of the aforementioned letter No.Ac.FII/50387/2015 dated 8.1.2016 send by the 4th respondent-University to the 5th respondent-Deputy Director of Collegiate Education, which reads as follows: 'No.Ac.FII/50387/2015 Thiruvananthapuram Dated: 08-01-2016 From The Registrar To Deputy Director, Directorate of Collegiate Education, Kollam. Sir, Sub: NSS College, Nilamel - Initial appointment of Assistant Professor in Chemistry-Clarification - reg- Ref: 1. Letter No.B2/8581/2015 dated 20.11.2015 from Deputy Director of Collegiate Education, Kollam. With reference to the above I write to clarify the following. 1. Dr.Athira C.J was posted in the vacancy of Dr.K.Radhakrishan, retired. The Secretary NSS Colleges' Central Committee, Changanacherry has submitted a certificate that when the incumbent was appointed as Assistant Professor in Chemistry at NSS College, Nilamel, there were no supernumerary teachers in ::13:: W.P(C).Nos.5116 & 12726 Of 2016 NSS Colleges (Copy of certificate appended). 2. The workload of Chemistry Department at NSS College, Nilamel as calculated by University of Kerala is 39 hours and thereby 2 teachers are permissible in the Department. The Post Adalat Review statement shows a workload of 17 hours per week only and also that one teacher more is permissible as there is an additional 9 hours. 3. As per Statute 14, Chapter 2 (Conditions of Service of Teachers in Private Colleges) of Kerala University First Statutes 1979, “Approval of every appointment to the teaching post shall be made by the Syndicate subject to the condition 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.” The approval was made on the last post of the Department which has a workload of 16 hours. The approval was given on the basis of the resolution of the meeting of the Syndicate held on 06.06.2015 stating that “that additional posts are permissible if there are periods above eight hours” and also “to approve the appointments in the posts fixed by the University”. 4. The detailed calculation of workload in the Department of Chemistry in N.S.S College, Nilamel is as follows: |Course|I Year<br>T T|II Year<br>T P|III year<br>T P|Total| |---|---|---|---|---| |B.Sc Botany - Sub<br>(Sanctioned strength - 24)|2 + 4|3 + 4|................|13| |B.Sc Zoology - Sub<br>(Sanctioned Strength - 24)|2 + 4|3 + 4|................|13| |B.Sc Biochemistry - sub<br>(Sanctioned Strength - 16)|2 + 4|3 + 4|................|13| |||||39 hours| Thanking You Yours faithfully, sd/- Deputy Registrar (Academic I) For Registrar' ::14:: W.P(C).Nos.5116 & 12726 Of 2016 7. Heard Sri.S.Muhammed Haneef, learned counsel for the writ petitioners, the learned Government Pleader appearing for the official respondents 5 to 7, Sri.Paul Jacob, learned Standing Counsel appearing for the 4[th] respondent Kerala University and Sri.P.Gopal, learned Standing Counsel for the College Management appearing on behalf of the respondents 1 to 3. 8. The position that emerges based on the above said pleadings on record is that the petitioners have been appointed by the Corporate Manager of the colleges concerned and that their appointments have already been approved by the University. It is not in dispute that their appointments are made in strict adherence to the selection procedure prescribed as per the University Act and the statutes. The 4[th] respondent University would also clearly state in their pleadings that the petitioners have been indeed appointed as against post admissible in terms of the statutory ordinances regulating the workload norms of teaching staff. The respondents 5 to 7 would contend that the appointments of the 1[st] and the 5[th] petitioners are against non-admissible post and that they had sought a clarification from the University after the grant of approval by the University and ::15:: W.P(C).Nos.5116 & 12726 Of 2016 that those posts in question are not admissible going by the terms and conditions of the norms concerned etc. It is also now on record that the University reconsidered the matter after the issuance of letter dated 20.11.2015 issued by the 5[th] respondent Deputy Director of Collegiate Education seeking clarification as to how the approvals were given to the appointments in question and that after such consideration, the University has already communicated their decision as per their reply letter dated 8.1.2016, informing the Government department concerned that the post is indeed admissible as per the workload norms prescribed by the statutory ordinances concerned. 9. Hence, the crucial issue is as to whether the writ petitioners who are teaching staff are entitled for disbursal of pay and allowances under the direct payment scheme of the State Government, in so far as, their appointments in question have been duly approved by the 4[th] respondent University and so far as University had even reconsidered the matter and had reiterated their decision to the Government Department that the post in question are indeed admissible going by the statutory norms. To decide on this controversy, it may be pertinent to refer to the legal principles laid down by the rulings of this Court and ::16:: W.P(C).Nos.5116 & 12726 Of 2016 the Apex Court on that aspect of the matter. 10. A Division Bench of this Court in the case Cherian Mathew V. Principal S.B.College, Changanassery reported in 1998 (2) KLT 144 = [1998 (3) ILR Ker 1] has held that when a teacher is appointed in a college run by a private management affiliated to the University and aided by the Government, his/her salary is to be disbursed by the Governmental authorities concerned, approve upon statutory approval of that appointment by the competent authority of the University concerned. It will be profitable to refer to para 6 of Cherian Mathew’s case (supra) reported in 1998 (2) KLT 144 . Para 6 of the said ruling reads as follows:- “6. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx When a teacher is appointed in accordance with the work load assessed in the above terms, the said appointment is to be honoured by the Director of Collegiate Education and salary disbursed, if the said appointment is approved by the University. In case the Director doubts the correctness of that appointment, he will be at liberty to take up the matter with the University. When such a step is resorted to by the Director, the University has to examine the issue afresh and take a decision thereon. The decision so taken by the University as seen from the provisions of the Ordinance, Statute and Act is binding on the Director. In such a situation, the Director will have no other course than to disburse the salary of the teacher whose appointment is approved by the University.” ::17:: W.P(C).Nos.5116 & 12726 Of 2016 11. The above said judgment in Cherian Mathew’s Case (supra) was rendered on 25.3.1996 in O.P.No.33 of 1996 and connected cases. Later, an amendment was enacted as per State Act 2 of 2005 published in Kerala Gazette extraordinary no. 524 dated 9.3.2005, with effect from 6.1.2005 and the provisions contained in Section 57 (1) read as follows:- “Sec.57. Appointment of teachers in private colleges.-(1) 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 authorised by the Government.” 12. Therefore, subsequently certain objections were raised by the Governmental authorities concerned that so long as the post to which the appointments of the private aided affiliated college teacher is not sanctioned either by the Government or by such officers as may be authorized by the Government on that behalf as envisaged in the amended provision of Section 57 (1), such appointment are not liable for approval. The contention based on those amended provisions was considered in detail by a Division Bench of this Court in the case Shalini Rachel V. Manager, Christian College reported in 2007 (3) KLT 355, after exhaustively considering the various provisions contained in the University Act, the provisions in the first statutes, first ordinances etc, ::18:: W.P(C).Nos.5116 & 12726 Of 2016 the Division Bench noted therein that the said provisions in the statute make it clear that every appointment made to the teaching staff should get approval of the University and that 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 authorized by him in this regard shall verify in consultation with the University as to whether the teaching post in the private colleges are in excess of the post sanctioned by the University and that the expression “post sanctioned by the University” needs emphasis. The 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 that the persons who are appointed should be fully qualified to hold the post. Statute 14 (2) authorized the Deputy Director of Collegiate Education to verify before making direct payment of salaries as to whether the post for which the payment is made is in accordance with the staff pattern and workload fixed by the University. Accordingly, it was held that it is for the Syndicate of the University to sanction a post and grant approval to appointment to the said post in accordance with the workload and staff pattern and once the University grants approval for filling up the ::19:: W.P(C).Nos.5116 & 12726 Of 2016 post sanctioned, on the basis of workload and staff pattern, the Government shall have the obligation to disburse the salary under the direct payment scheme. Therefore, it is held that power is hence conferred on the Syndicate of the University to sanction the post and approve the same and the Deputy Director of Collegiate Education is to verify whether the approval/sanction of the post is in accordance with the staff pattern and workload norms of the University and in doubtful cases, it can take up the matter with the University. Very crucially in para 11 thereof, the Division Bench held in Shalini Rachael’s Case (supra) that Section 57 (1) only says that appointment to post eligible to seats already from the Government shall be made only after getting prior sanction from Government or such other officers authorized by the Government and that for filling up the post sanctioned by the University on the basis of workload or staff pattern, no prior permission of the Government is necessary. That, once the Syndicate of the University grants approval for filling up the existing vacancies, depending upon the workload and staff pattern, the Government is then obliged to pay salary to the teachers appointed by duly constituted Selection Committee and if the Government or its officers finds that the ::20:: W.P(C).Nos.5116 & 12726 Of 2016 approval is 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. Very crucially, it was held by the Division Bench that Section 57 (1) was introduced not to take away the statutory powers already conferred on the Syndicate of the University and that the principles laid down by the Division Bench in its earlier rulings in Cherian Mathew’s case (supra) still holds good. In that view of the matter, their Lordships of the Division Bench had affirmed the impugned directions of the learned single Judge, rendered therein directing the disbursal of the salaries by the Government Department in the light of the approval secured for such appointments from the University. It would be pertinent to refer to paragraphs 10 to 11 of Shalini Rachael's case ## (supra) (See KLT report) which reads 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. Pwer of the University in granting approval as well as sanctioning posts after ascertaining the work load 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 work load has to be assessed and staff strength fixed so as to avoid unnecessary appointments. Further the interest of the students is also to be safeguarded by apponiting 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 ::21:: W.P(C).Nos.5116 & 12726 Of 2016 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 Edication 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 work load 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 uppon 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 statuory powers already conferred on the Syndicate of the University. Principle laid down in Cherina Mathew's case, supra in our view, still holds good. In view of the above mentioned circumstances, we are inclined to affirm the judgment of the learned single Judge in W.P.(C).No.12109 of 2006 and dismiss W.A.No.940 of 2007.” 13. A more compex issue came up for consideration before the Division Bench of this Court in the case State of Kerala v. Arun George reported in 2009 (4) KLT 972 wherein the specific question raised therein was as to whether when there is direct payment agreement in respect of aided courses, whether the State Government can fix unilateral conditions such as absolving itself from financial commitments for sanctioning of new courses. It was held that in paras 22 and 23 thereof, that Government and the University had accepted ::22:: W.P(C).Nos.5116 & 12726 Of 2016 the courses additionally sanctioned in existing aided affiliated college as aided courses, those authorities that bound to reckon the additional workload and consider the proposal of the college for approval of the appointments made in respect of the workloads flowing out from such additional sanctioned posts in aided colleges, having due regard to the provisions contained in Statute 16 of Chapter 45 of the University Statutes and that the Government is thereupon obliged to pay the salary and other benefits to such teachers who are appointed as against post which are admissible in terms of the workload that arise out of such additional aided posts sanctioned in those colleges and that Government cannot evade from such responsibility merely by saying that a unilateral condition was fixed by them while santioning those adiditonal posts that there will be no obligation for the Government to remove financial obligation from the Government to run such additional courses in aided colleges etc. The above said judgment of the Division bench of this Court in Arun George's case (supra) was taken up in SLP and civil appeal proceedings before the Apex Court and the Apex Court had affirmed the view of the Division bench in the case State of Kerala V.Arun George reported in 2015 (1) KLT 833 (SC) . Their Lordships of ::23:: W.P(C).Nos.5116 & 12726 Of 2016 the Apex Court held therein that so long as there is an agreement for direct payment system between the State Government and the private affiliated aided colleges concerned and so long as the Management has not violated the terms of the direct payment system, the Governmental Authorities concerned are obligated to disburse the pay and other benefits to teachers appointed by such aided colleges if they have been duly appointed by following the prescribed procedure of selection through the Statutory Selection Committee and so long as such appointments are made to post which are admissible based on the workload norms which eminate from the running of such additional posts in the colleges concerned. 14. Hence, a scanning of the above said major rulings of this Court and the Apex Court, would make it clear like the daylight that if the Management has adhered to the statutory selection procedure, and if the post is admissible based on the statutory workload norms of the University prescribed as per the statutory ordinances and if such appointments have been duly approved, by the competent Authority of the University concerned, then the Governmental authorities concerned are obliged to disburse pay and allowances and all such other benefits ::24:: W.P(C).Nos.5116 & 12726 Of 2016 to such teachers appointed in aided affiliated colleges. But, if the Governmental Authorities concerned have any reservation or doubts as to the correctness or otherwise, of the statutory approval granted by the University authorities, then they are empowered in law to refer the matter to the University for re-consideration and if the University retains its decison, then the appointees concerned are entitled for salary and other benefits based on the direct payment system that governs the field. In the instant case, the pleadings of the University clearly disclose that they are fully convinced in granting approval to the appointments of the petitioners as those appointments were made to the post which are admissible in terms of the workload prescribtions as per the statutory ordinances framed under the Kerala University Act. Before parting with this case, it is to be noted that there is slight divergence in the stand taken by the respondent University and the respondent colleges concerned as to the extra post admissible based on the balance teaching hours available and as to the total workload in NSS College, Nilamel. The respondent colleges concerned have stated that extra post is available, if balance teaching hours is more than 6hours and that this is the prescription that governs the field based on the statutory ::25:: W.P(C).Nos.5116 & 12726 Of 2016 workload and that the same has not been amended till now. The learned Standing Counsel for the Kerala University would submit that the Syndicate of the Kerala University has now taken a subsequent decision on 6.6.2015 that more than 8 hours should be available for the admissibility of the additional posts. In this regard, it is also pointed out by the respondent colleges that the decision if any, taken by the Syndicate later have not fructified in the statutory amendment as per the due process prescribed in the Kerala University Act. On another count, the respondent college would state that the total workload in NSS College, Nilamel (to which petitioners 1 and 2 have been appointed) is only 33 hours whereas, the counter affidavit of 4th respondent University states that the total workload in that college is actually 39 hours. Irrespective as to whether the balance teaching hours required is more than 6 hours as stated by the College or 8 hours as stated by the University or whether the total workload in NSS College, Nilamel is 33 hours as contended by the College or 39 hours stated by the University, makes no difference as far as the appointments of the petiitoner herein are concerned and as regards the liability of the governmental authorities concerned to disburse the salary, in the facts of this case. ::26:: W.P(C).Nos.5116 & 12726 Of 2016 Therefore, this Court need not go into these aspects. 15. The upshot of the above discussion is that the respondents 5 to 7 are obliged to disburse pay and allowances and all other benefits due to the petitioners consequent on the approval of their appointments by the 4th respondent University. Accordingly, the competent authority among respondents 1 to 3 and respondents 5 and 6 will ensure that all necessary formalities for clearance of pay and allowances to the petitioners are competed without much delay and the competent authority among respondents 5 to 7 will ensure that the current pay and allowances admissible to the petitioners for the periods in question shall be disbursed without much delay, at any rate, within a period of two months from the date of production of a certified copy of this judgment and the arrears of pay and allowances envisible to the petitioners shall be paid without much delay, at any rate, within an outer time limit of four months from the date of production of a certified copy of this judgment. W.P.(C).No.12726 of 2016 16. The facts in this case are broadly similar and identical to those in W.P.(C).No.5116 of 2016, in which, the judgment was ::27:: W.P(C).Nos.5116 & 12726 Of 2016 already rendered by this Court today. 17. The petitioner herein, was appointed as Assistant Professor in the Commerce Department of the 5th respondent Nehru Arts and Science College, Kanhangad by Ext.P-2 dated 12.2.2013 consequent to the selection process conducted by the Statutory Selection Committee as per Ext.P-1 proceedings. The above said appointment of the petitioner as per Ext.P-2 has been duly approved by the 4th respondent Kannur University as per Ext.P-3 proceedings dated 22.10.2013. Thereafter, necessary proposal was submitted to the Government Department Authorities concerned for necessary action for disbursal of pay and allowances to the petitioner. By Ext.P-4 letter dated 1.10.2015, the first respondent Government had expressed doubt regarding the correctness of the approval granted to the above said appointment and this has been duly intimated to the 4th respondent University. Thereupon, the 4th respondent University has re-considered the matter and has reiterated its stand again as per Ext.P-5 that the approval of the petitioner granted by the University is in order and to treat the appointment as regular for the purpose of disbursal of salary and other benefits and this position is confirmed by the learned Standing Counsel for the 4th respondent ::28:: W.P(C).Nos.5116 & 12726 Of 2016 Kannur University . It is further averred that still then, the respondents 1 to 3 had refused to pay salary and other benefits to the petitioner. The petitioner relied on the rulings in Cherian Mathew v. Principal, S.B.College reported in [1998 (2) KLT 144], Shalini Rachel v. Manager reported in [2007 (3) KLT 355] etc.,to urge that the respondents 1 to 3 are obliged to disburse pay and allowances and other benefits to the petitioner in the light of the statutory approval granted to his appointment by the 4th respondent Kannur University. It is in the light of these aspects, the petitioner has preferred the instant writ petition (civil) with the following prayers:- - “i) Issue a writ of mandamus or writ of similar nature or order or direction, directing the respondents to ratify the appointment of the petitioner as Asst. Professor in the Department of Commerce in Nehru Arts and Science College, Kanhangad with effect from 13.2.2013 and to sanction and to disburse the arrears of salary from 13.2.2013 onwards forthwith; - ii) Issue a writ of mandamus or writ of similar nature or order or direction, commanding the respondents No.1 to 3 to sanction and disburse the salary to the petitioner with arrears from 13.2.2013 forthwith; iii) Such other reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.” 18. Heard Sri.Mohammed Al Rafi, learned counsel for the writ petitioner, the learned Government Pleader appearing for the official respondents 1 to 3, Sri.Viju Thomas, learned Standing Counsel for the ::29:: W.P(C).Nos.5116 & 12726 Of 2016 Kannur University appearing for the 4th respondent and Sri.M.Gopikrishnan Nambiar, learned counsel appearing for the 5th respondent College. 19. On a consideration of the matter, this Court is of the considered opinion that the matter in issue is covered by the aforesaid Division Bench rulings and that this writ petition can also be disposed of in the light of the judgment in W.P.(C).No.5116 of 2016. Accordingly it is to be only to be held that the respondents 1 to 3 are obliged to pay salary and allowances and other benefits to the petitioner who has been appointed in an aided college as his appointment has been duly approved by the University and the University had reconsidered the matter and reiterated that the approval granted by them is in order. In the light of these aspects, it is ordered that respondents 1 to 3 and respondent no.5 will complete all necessary formalities required for the payment of pay and allowances to the petitioner without much delay and the competent authorities among respondents 1 to 3 will ensure that the current salary due to the petitioner shall be paid within two months from the date of production of a certified copy of this judgment and arrears of pay and allowances and other benefits ::30:: W.P(C).Nos.5116 & 12726 Of 2016 admissible to the petitioner consequent to the above said appointment shall be disbursed to him without much delay at any rate within a period of four months from the date of production of a certified copy of this judgment and the With these observations and directions, this writ petition (civil) stands finally disposed of. ALEXANDER THOMAS, Judge. bkn/AVK