Dr. Joseph Michael v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 6[TH] DAY OF JULY 2022 / 15TH ASHADHA, 1944 ``` # **`WP(C) NO. 14638 OF 2021`** ## **`PETITIONER:`** ``` DR JOSEPH MICHAEL, AGED 62 YEARS S/O M.P.JOSEPH, PUTHANPURAYIL HOUSE, KAYYOOR P.O, KOTTAYAM DISTRICT. ``` ``` BY ADV GEORGE ABRAHAM ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVAANANTHAPURAM-695 001.` - `2 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM-686 001.` - `3 MAHATMA GANDHI UNIVERSITY, REP. BY ITS REGISTRAR, PRIYADARSHINI HILLS, KOTTAYAM-686 560.` - `4 THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 003.` ``` SMT PARVATHY K-GP SRI SURIN GEORGE IPE-SC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WPC 14638/21 2 ## **`JUDGMENT`** At the crux of all the averments, assertions and allegations that have been made and urged in this writ petition, is the contention of the petitioner - who is seeking approval of his services as Lecturer/Assistant Professor in the Department of Botany of St.Dominic's College, Kanjirappally with effect from 01.12.1998 with all consequential benefits - that the orders of the University are being completely disregarded by the Government in spite of the judgment of this Court in Cherian Mathew v. Principal, S.B. College, Changanassery [1998 (2) KLT 144]. 2. Dr.George Abraham – learned counsel for the petitioner, pointed out that, as is evident from the aforementioned proceedings of the University, they have already approved the services of his client as mentioned therein and argued that since such decision has been reiterated in Ext.P20, the Government could not have rejected the same or disregarded it, going by the ratio in Cherian Mathew (surpa). He argued that, WPC 14638/21 3 therefore, Ext.P19 proceedings of the Government is without legs to stand on, particularly when Ext.P20 reiteration had been made by the University; and thus prayed that the reliefs sought for in this writ petition be granted. 3. In response, however, the learned Government Pleader – Smt.Parvathy K., submitted that what the petitioner has sought for in this writ petition is much beyond the recommendations of the University made in Ext.P18 and reiterated by them in Ext.P20. She submitted that, therefore, the Government cannot accede to it and that they were justified in having issued Ext.P19. She then pointed out that, in the said order, it has been explained why the petitioner cannot obtain approval with effect from 01.12.1998, since he was working as a Guest Lecturer until 11.09.2013; and hence that the prayers now made by him is an attempt to overreach even the recommendations of the University. She, therefore, prayed that this writ petition be dismissed. 4. Sri.Surin George Ipe – learned Standing Counsel for the University, on the other hand, submitted that his client had WPC 14638/21 4 made Ext.P18 recommendations with respect to the petitioner on 22.07.2020; but that when it was not acceded to by the Government through Ext.P19, a reiteration was made through Ext.P20 dated 08.04.2021. He, therefore, submitted that Government must consider Ext.P20 and acceded to the same in view of Cherian Mathew (supra). 5. When I evaluate and consider the afore submissions, it is indubitable that law has been well settled that it is the University which has the final say in matters relating to workload, posts and its approval particularly in Aided Colleges. When they issued Ext.P18 recommendation, it was not acceded to by the Government for the reasons stated in Ext.P19; but pertinently, the University reiterated their stand through Ext.P20 thereafter. 6. Going by Cherian Mathew (supra), this Court has declared it unmistakably that the Government cannot sit in judgment over the decision of the University regarding the number of teachers and that when they reiterate their decision taken earlier, it is binding on them and will have to lead to WPC 14638/21 5 consequential orders. 7. In the case at hand, it is without contest that the University has reiterated their earlier stand and resultantly, it is now incumbent upon the Government to consider the same and issue appropriate orders in terms of the recommendations therein. This is the mandate of Cherian Mathew (supra), which cannot be violated by the University in any manner whatsoever. Resultantly, I order this Writ Petition and direct the competent Authority of the Government to reconsider the claim of the petitioner, adverting to Ext.P20 recommendations of the University, after affording him, as also the Manager of the College, an opportunity of being heard; thus culminating in an appropriate order and necessary action thereon, scrupulously adverting to the holdings and ratio in Cherian Mathew (supra). The afore exercise shall be completed as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. At this time, the learned Government Pleader intervened to say that, pending this Writ Petition, an interim order had been WPC 14638/21 6 issued to the Deputy Director of Education to reconsider the petitioner’s claim and that it has ended in an order dated 26.04.2022. She submitted that, therefore, the afore directions may not be now relevant. However, Dr.George Abraham – learned counsel for the petitioner, showed me a copy of the aforementioned order to point out that the Deputy Collector has not considered his client’s claim, but has only said that it is not within his province to do so, because a final decision will have to be taken by the Government. It is, therefore, indubitable that the afore directions require to be maintained and I order so, notwithstanding the order of the Deputy Director dated 26.04.2022. It is also made clear that the decision to be taken by the Government as ordered above, shall be de hors Ext.P19, but implicitly in terms of Ext.P20 recommendations of the University. ``` Sd/- ``` ``` RP/RR ``` ``` DEVAN RAMACHANDRAN JUDGE ``` WPC 14638/21 7 ## **`APPENDIX OF WP(C) 14638/2021`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF THE NO OBJECTION`| ||`CERTIFICATE ISSUED BY THE MANAGER, ST.`| ||`MARYS COLLEGE, SULTAN BATHERY DATED`| ||`7.7.2003`| |`Exhibit P2`|`TRUE COPY OF ORDER OF THE DEPUTY`| ||`DIRECTOR OF COLLEGIATE EDUCATION DATED`| ||`19.5.2000 APPROVING THE APPOINTMENT OF`| ||`THE PETITIONER FROM 16.6.1999 TO`| ||`31.3.2000`| |`Exhibit P3`|`TRUE COPY OF THE PROCEEDING OF THE`| ||`DEPUTY DIRECTOR OF COLLEGIATE EDUCATION`| ||`DATED 2.11.2001`| |`Exhibit P4`|`TRUE COPY OF THE COMMUNICATION ISSUED BY`| ||`THE CONTROLLER OF EXAMINATIONS TO THE`| ||`PETITIONER DATED 28.6.2006`| |`Exhibit P5`|`TRUE COPY OF THE ORDER ISSUED BY THE`| ||`CONTROLLER OF EXAMINATIONS DATED`| ||`11.5.2010`| |`Exhibit P6`|`TRUE COPY OF JUDGMENT IN WPC 939/06`| ||`DATED 7TH OCTOBER 2009`| |`Exhibit P7`|`TRUE COPY OF THE JUDGMENT IN WPC 482/05`| |`Exhibit P8`|`TRUE COPY OF THE ORDER PASSED BY THE`| ||`HON'BLE SUPREME COURT IN SPECIAL LEAVE`| ||`PETITIONS NO 19846-19847 OF 2010`| |`Exhibit P9`|`TRUE COPY OF THE ORDER PASSED BY THE`| ||`HONBLE SUPREME COURT DATED 28.9.2010`| |`Exhibit P10`|`TRUE COPY OF THE LIST OF TEACHERS`| ||`WORKING IN ST. DOMINICS COLLEGE,`| ||`KANJIRAPPALLY.`| |`Exhibit P11`|`TRUE COPY OF THE COMMUNICATION ISSUED BY`| ||`DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,`| ||`KOTTAYAM DATED 9.5.2011`| |`Exhibit P12`|`TRUE COPY OF THE GOVERNMENT ORDER GO(MS)`| ||`NO 607/2013/H.EDN DATED 10.9.2013`| |`Exhibit P13`|`TRUE COPY OF ORDER PROCEEDINGS OF THE`| ||`UNIVERSITY DATED 23.4.2014`| |`Exhibit P14`|`TRUE COPY OF JUDGMENT IN CRL.APPEAL NO`| ||`8463/2010 DATED 14TH JANUARY, 2015`| |`Exhibit P15`|`TRUE COPY OF THE JUDGMENT IN WPC NO`| ||`16895/15 DATED 23.11.2019`| |`Exhibit P16`|`TRUE COPY OF THE JUDGMENT IN WPC NO`| ||`1326/2019 DATED 2ND JANUARY, 2019`| |`Exhibit P17`|`TRUE COPY OF THE APPOINTMENT ORDER DATED`| WPC 14638/21 8 - `8.11.2019 ISSUED BY THE MANAGER` - `Exhibit P18 TRUE COPY OF THE ORDER ISSUED BY THE MAHATMA GANDHI UNIVERSITY DATED 22.7.2020` - `Exhibit P19 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 3RD RESPONDENT DATED 9.10.2020` - `Exhibit P20 TRUE COPY OF THE ORDER PASSED BY THE MG UNIVERSITY DATED 8.4.2021` - `Exhibit P21 TRUE COPY THE PROCEEDINGS OF THE UNIVERSITY OF CALICUT DATED 23.3.1995` - `Exhibit P22 TRUE COPY OF CERTIFICATE ISSUED BY THE ST.MARY'S COLLEGE SULTAN BATHERY SATED 3.8.2002.` - `Exhibit P23 TRUE COPY OF THE MAHATMA GANDHI UNIVERSITY DATED 19.4.2011.` - `Exhibit P24 TRUE COPY OF ORDER ISSUED BY THE CONTROLLER OF EXAMINATION DATED 4/11/2010.` - `Exhibit P25 TRUE COPY OF PROCEEDINGS OF THE CONTROLLER OF EXAMINATIONS DATED 11/5/2010.` - `Exhibit R2(a) TRUE COPY OF THE RELEVANT CLAUSES IN AGREEMENT ENTERED INTO BETWEEN THE UNIVERSITY AND THE GOVERNMENT PURSUANT TO THE DIRECT PAYMENT SCHEME.`