Dr. S. Meera Bhai Amma v. Manager, Assumption College, Changanacherry and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 3RD APRIL 2008 / 14TH CHAITHRA 1930 WP(C).No. 26360 of 2007(K) -------------------------PETITIONER: -----------DR. S.MEERA BHAI AMMA, LECTURER(SENIOR SCALE)IN SANSKRIT, ASSUMPTION COLLEGE, CHANGANACHERRY. BY ADV. SRI.BABU VARGHESE RESPONDENTS: ------------- 1. THE MANAGER, ASSUMPTION COLLEGE, CHANGANACHERRY. 2. THE MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS P.O., KOTTAYAM. 3. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM. 5. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM. BY GOVERNMENT PLEADER SMT.M.R.SREELATHA R1 BY SHRI.T.A.SHAJI, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.2.2008 THE COURT ON 3.4.2008 DELIVERED THE FOLLOWING: W.P(C).No. 26360/07. ## APPENDIX ## PETITIONER'S EXHIBITS: - P1. COPY OF THE APPROVAL ORDER BY THE UNIVERSITY. P2. COPY OF THE LETTER TO DY. DIRECTOR. P3. COPY OF THE REPLY BY R3 TO R2 DTD.10.7.02. P3A. COPY OF THE LETTER TO R2 BY R1 DTD.6.8.03. P3B. COPY OF THE REPRESENTATION BEFORE THE GOVT. P3C. COPY OF THE ORDER DTD.19.3.98 BY R1. P3D. COPY OF THE ORDER BY R4 IN IDENTICAL CASE DTD.18.10.90. P4. COPY OF THE ORDER DTD.21.10.02 BY R1. P5. COPY OF THE ORDER BY THE PRINCIPAL BASELIOUS COLLEGE DTD.20.11.96. - P6. COPY OF THE REPRESENTATION DTD.26.8.03 BEFORE THE DIRECTOR OF COLLEGIATE EDUCATION. - P7. COPY OF THE LETTER DTD.19.6.2004 BY R4. - P8. COPY OF THE JUDGMENT IN W.P.C.NO.22060/04 OF THIS COURT. - P9. COPY OF THE ORDER BY R1 DTD.2.8.06. - P9A. COPY OF THE -DO- DTD.2.8.06. - P10. COPY OF THE JUDGMENT IN W.A.NO.2594/05 DTD.5.7.06. - P11. COPY OF THE GOVT. ORDER DTD.23.9.06. - P12. COPY OF THE GOVT. LETTER DTD.15.5.06. - P13. COPY OF THE REPRESENTATION DTD.27.6.07. - P14. COPY OF THE LETTER BY R5 DTD.30.7.06 TO R1. ## RESPONDENTS' EXHIBITS: - R5(A). COPY OF THE LETTER DTD.23.8.07. ## Sdk+ ///True copy/// P.A. to Judge ## S.SIRI JAGAN, J. ================== ## W.P.(C).No.26360 of 2007 ================== Dated this the 3[rd] day of April, 2008 ## J U D G M E N T The petitioner is working as Lecturer (Sr. Scale) in Sanskrit in the Assumption College, Changanachery, as the only teaching staff of the Department of Sanskrit in that College. It was after undergoing a selection process, the 1[st] respondent manager of the College appointed her as a Lecturer in Sanskrit (part time) with effect from 24.10.1995, which was approved by the 2[nd] respondent Mahatma Gandhi University, by Ext.P1 order dated 7.1.1997. Although the work load for Sanskrit was only six hours per week in that College, the post being a solitary teaching post in the Department of Sanskrit, the College forwarded a proposal for converting the part time post as a full time post, which was rejected by the Government, by Ext.P3 letter dated 10.7.2002, on the ground that there is a ban on appointment. After the period of ban was over, the 1[st] respondent, by Ext.P3(a) letter dated 6.8.2003 forwarded Ext.P3(b) representation of the petitioner to the 3[rd] respondent, seeking conversion of her part- 2 W.P.(C)NO. 26360/07 time post as full time post. Even prior to that the 2[nd] respondent University had by Ext.P4 dated 21.10.2002 provisionally approved the petitioner's promotion as Lecturer (Senior Scale) (Part-time) with effect from 24.10.1999. The petitioner's claim for vacation salary was rejected by the 4[th] respondent by Ext.P7 dated 19.6.2004 on the ground that part-time lecturers are not entitled to vacation salary. 2. In the above circumstances, the petitioner filed W.P. (C) No.22060/2004, taking the contention that being the solitary teaching post in the Department, she is eligible to be appointed as a full time lecturer. At that time two other writ petitions namely O.P.Nos. 21268/02 and 29193/02 filed by similarly placed lecturers, raising the very same contention were pending consideration by this Court. O.P. No.29193/02 was filed by one T.V. Zachariah, an only teaching staff in the Department of Political Science of EMEA College of Arts and Science, Kondotty, where also the work load available for Political Science was only six hours a week. That lecturer also took the contention that in case of a solitary post in a Department notwithstanding the absence of work load fixed for a full time lecturer, the same has 3 W.P.(C)NO. 26360/07 to be approved as a full time post. In that case, a learned Single Judge of this Court, apparently relying on the Division Bench decision of this Court in **Cherian Mathew V. Principal, S.B. College, Changanassery [1998(2) KLT 144]** , by judgment dated 5.11.2005, held that the petitioner in that case is entitled to have the conversion of his part time post as a full time post with effect from the date of effect of approval of the appointment by the University. It appears that O.P.No.21268/02 was also decided on the same lines earlier by judgment dated 26.3.2003. On 5.11.2005 itself, by Ext.P8 judgment, O.P. No.22060/2004 filed by the petitioner herein was also disposed of directing the Vice Chancellor of the University to take up the petitioner's issue and take a final decision on the question of granting the request of the petitioner and the Principal of the College for conversion of the post of the petitioner as a Full Time Post, in the light of the observations contained in the judgment in O.P. No.29193/02 and also in the light of the judgment in O.P.No.21268/02 dated 26.3.2003. Pursuant to the said judgment, by Ext.P9 order dated 4.1.2006, the Vice Chancellor of the University accorded sanction, subject to ratification by the Syndicate, to the post of 4 W.P.(C)NO. 26360/07 part-time lecturer in Sanskrit held by the petitioner, being converted to that of full time post in Sanskrit with effect from 24.10.1995 and to the continuance of the petitioner in the post. By order, Ext.P9(a), dated 2.8.06, the University informed that the Syndicate has in its meeting held on 29.06.2006 and continued on 12.7.06, resolved to ratify Ext.P9 decision of the Vice Chancellor. In the meantime, the judgment in O.P. No.29193/02 was upheld by the Division Bench, by Ext.P10 judgment. By Ext.P11 order dated 23.9.2006 the Government also concurred with the decision of the University in accordance with the judgment in O.P.No.29193/02. But in the case of the petitioner, the 5[th] respondent took the stand that a full time post can be sanctioned only if there is a work load of more than six hours and since in this case the work load was only six hours, only a part time post can be sanctioned. The 5[th] respondent also took the stand that since the order of the University, granting approval to the conversion of the petitioner's post as full time post with retrospective effect from the date of appointment, was issued after the University Laws (Amendment) Act of 2005 which came into force with effect from 6.1.2005, such order which 5 W.P.(C)NO. 26360/07 involves financial commitment by the Government, could not have been passed without concurrence from the Government and, therefore, the Government have no obligation to disburse salary to the petitioner. Stating those reasons, by Ext.P14 communication dated 30.7.2007, directed the University to review their orders. It is under the above circumstances, the petitioner has filed this writ petition, seeking the following reliefs: - “i) issue a writ of certiorari or any other appropriate writ, order or direction, quashing Exhibit P14 so far as it went to the conclusion that “2[nd] and 3[rd] cited orders, ie. Exhibits P9 and P9 (a) are ultravires the provisions of University Laws(Amendment) Act 2005”, which is not applicable to the instant case. - ii) declare that the petitioner is entitled to get the salary and other benefits with arrears as that of a Full Time Lecturer with effect from 24.10.1995 and to be paid in the same including vacation salary for all these years, in the light of Exhibits P9 and P9(a) University Orders. - iii) Issue a writ of mandamus or any other appropriate writ order or direction commanding the 5[th] Respondent to honour Exhibits P9 and P9(a) and to disburse salary and other benefits with arrears as that of a Full Time Lecturer with effect from 24.10.1995 including vacation salary, within a period specified by this Honourable Court. - iv) award cost and interest to the petitioner for the delayed payment.” 3. The fifth respondent has filed a counter affidavit, supporting Ext.P14. According to him, a full time post can be sanctioned only if the work load is more than six hours and in 6 W.P.(C)NO. 26360/07 this case the work load is only six hours. He further contends that in view of the University Laws (Amendment) Act, the University could not have passed orders converting the post as full time post without concurrence from the Government. It is further contended that there is no existing post of full time lecturer in Sanskrit in the first respondent's College and as held by this Court, the Government have no obligation to pay salary if appointments are made to a non-existent post. The learned Government Pleader relies on the Division Bench decision of this Court in **State of Kerala** v. **Arun George [2008(1)KLT 195]** He further contends that the decision in O.P.No.29193/02 is not applicable to the petitioner's case in so far as in the said decision there was already an approval by the University prior to the University Laws (Amendment) Act, 2005, whereas in the petitioner's case there was not. Therefore the University could not have relied on that decision to grant approval for the conversion of the post. He further points out that neither in O.P.No.29193/02 nor in Ext.P8 judgment is there is a decision to the effect that even where the work load is less than seven hours, a full time post can be sanctioned. 7 W.P.(C)NO. 26360/07 4. In reply, the counsel for the petitioner points out that the requirement of more than six hours of work load for sanctioning a full time post is applicable only when additional posts are to be sanctioned and a solitary post in a Department has to be sanctioned as a full time post only. He points out that in O.P.No.29193/02 also there were only six hours of work load and it was since the post was a solitary post, full time post was sanctioned. He relies on Ext.P3 order of the Calicut University and other cases referred to in Ext.P8 judgment where also a solitary post in a Department has been approved as a Full Time Post. He therefore submits that the case of the petitioner being identical the denial of full time post to the petitioner amounts to discrimination and violative of the fundamental rights of the petitioner. 5. I have examined the rival contentions in detail. 6. It is not disputed in the counter affidavit of the 5[th] respondent that there is a Sanskrit Department in the 1[st] respondent's College. In paragraph 5 of the writ petition, the petitioner avers that as per the University Laws for every subject of study in a college there should be a department irrespective of 8 W.P.(C)NO. 26360/07 whether the subject is taught as a subsidiary subject or a main subject. She buttresses this statement by relying on Ext.P3 order of the Additional Director of Collegiate Education and Ext.P5 order of the Principal of the Baselius College, whereby the post of Sanskrit which was attached to the Malayalam Department of Baselius College, Kottayam was bifurcated into separate departments of Malayalam and Sanskrit and the Sanskrit Department was put in charge of the solitary teacher in Sanskrit. It is also pointed out that in that College also the work load in Sanskrit is only 6 hours a week. These facts have not been disputed before me. Therefore I shall proceed further on the premise that there is a Department of Sanskrit in the 1[st] respondent's College, that there are only six hours or work load for Sanskrit and that the petitioner is the solitary teaching faculty of that Department. 7. The judgment in O.P.No.29193/02 has been made available to me for perusal. Although therein the contention of the petitioner that in the case of a solitary post in a Department a full time post has to be sanctioned irrespective of the work load available, no finding thereon is discernible from the 9 W.P.(C)NO. 26360/07 judgment. That decision has been rendered following the earlier decisions of this Court to the effect that once the University approves the appointment, the Government is bound to pay salary. In that case the University had already approved the appointment of the petitioner in that case as a full time lecturer. On the other hand at the time of rendering Ext.P8 judgment, the University had not approved the appointment of the petitioner herein as a Full Time Lecturer. It is on consideration of the petitioner's representation as directed in Ext.P8 judgment that the University had sanctioned the conversion of the petitioner's part time post as a full time post. Therefore, I am of opinion that without entering a definite finding as to whether or not a solitary post in a department has to be sanctioned only as a full time post, simply by relying on the decision in O.P.No.29193/02 upheld in Ext.P10 judgment, the petitioner's case cannot be decided especially in view of the coming into force of the University Laws (Amendment) Act, 2005 and the decisions of this Court to the effect that the Government does not have obligation to disburse salary if appointments are made to a non-existent post or where there is no financial commitment by the 10 W.P.(C)NO. 26360/07 Government to the post. Therefore, the decision in this writ petition has to essentially depend on the answer to the question as to whether in the case of a solitary teaching faculty in a Department in a College the same has to be approved as a full time post. Therefore, I shall proceed to decide that question first. 8. A Department in a college should have a Head of Department with whose supervision only the Department can efficiently function. In order that the Head of Department should devote himself for the betterment of the Department and students it is essential that, he works full time in the Department. In view of the very nature of the duties alloted to a part time lecturer, he cannot function with the efficiency required of the situation. Therefore, it is imperative that a Department should be under the control of a full time lecturer in the interest of the student and their education. In a newly created Department there may not always the minimum workload fixed for a lecturer. Therefore, in the interest of the students, education and the college, it is necessary that a solitary teaching faculty in a Department should be a full time faculty. In other words, there 11 W.P.(C)NO. 26360/07 should at least one full time teaching faculty in every Department in a college. I am of opinion that the statutory provisions in the Mahatma Gandhi University Ordinances Regarding Work Load and Staff Pattern of Teaching Staff also support my above view. Ordinances 4 and 5 read as under: - _“4. Staff Pattern for the Colleges_ : - (a) College having Post-graduate courses - (i) Principal - (ii) Head of the Department (Post-Graduate)- if available, the seniormost Reader shall be the Head of a Post-Graduate department. - (iii) Reader/Lecturer (Selection grade) - (iv) Lecturer (Senior Grade). - (b) Colleges having Degree Courses: - (i) Principal - (ii) Head of the Department - (iii) Reader/Lecturer (Selection Grade) - (iv) Lecturer (Senior Grade) - (v) Lecturer. - (c) Junior Colleges - (i) Principal - (ii) Lecturer (Selection Grade), Lecturer (Senior Grade) Lecturer. 5. The number of post(s) for each category of teachers in a College 12 W.P.(C)NO. 26360/07 (Degree and Post-Graduate) - (i) Principal One - (ii) Head of the Department - - (a) One for each department. - (b) One for English in a fulfledged college, viz., College having 1[st] , IInd & IIIrd year class without English Main. - (c) For Language Department in a fulfledged College. - (iii) Reader/ Lecturer (Selection Grade) /Lecturer (Senior Grade)/ Lecturer Total number of posts permissible shall be according to the workload and staff pattern under the U.G.C. guidelines. ## _Physical Education_ - (iv) Reader/ Lecturer (Selection (a) One where the number of Grade) /Lecturer (Senior students does not exceed Grade)/ Lecturer 1000. - (b) Two where the number of students exceeds 1000. Provided that where the number of lady students exceed 400 in a mixed college, a lady teacher in Physical Education shall be appointed. This will not however affect the existing staff.” These Ordinances specify that each department shall have a Head of the Department. If there is only one teaching faculty, then only that teaching faculty can be the Head of the Department. A part time lecturer cannot be Head of the Department by the very 13 W.P.(C)NO. 26360/07 ## nature of the duties and responsibilities. Ordinance 6 of the Mahatma Gandhi University Ordinances reads thus: “ _6. Procedure for calculating the number of teachers required for a_ _Department._ - (i) Total hours of teaching work per week (Lecture/Practical) shall be 25. Apart from the above there shall be provision for tutorials, Tests, Exams, Field work and extra circular activities. The total number of lecture hours per week and supervision periods of practical classes for science subjects shall be calculated first on the basis of hours prescribed for the concerned subject in the syllabus for the respective hours and strength of students. From the total hours so calculated the workload of Principal (if the Principal belong to that Department) and the Head of the Department shall be deducted. The balance hours so arrived at shall be divided by the maximum workload of a teacher after deduction as prescribed above. If there is balance of hours exceeding six hours a proposal for the creation of an additional post may be made and with the sanction of the University an additional post can be created. The workload shall be distributed equally among all teachers. Provided that in the case of Law for B.Com. where the total - workload is less than 7 hours only a part time teacher shall be appointed as it is not covered under the U.G.C. Scheme. ## (underlining supplied) The above Ordinance does not specifically envisage a situation wherein a Department the workload available is six or less. The prescription that creation of post shall be only if the workload exceeds six hours, is applicable only to additional posts. 14 W.P.(C)NO. 26360/07 Therefore, according to me, going by the Ordinances themselves, in case where a particular Department consists of a solitary teaching faculty, in order to appoint a full time faculty to that post it is not necessary that the workload should exceed six hours. This is clear from the proviso to the Ordinance which specifically states that in the case of Law for B.Com. Degree where the total work load is less than seven hours, only a part time teacher shall be appointed as it is not covered under the UGC scheme. That would indirectly mean that in the case of a post covered under the UGC scheme, when the total workload of the Department is less than 7 hours also, a full time lecturer shall be appointed. This position has been accepted by both the Government and the University also as is clear from the fact that as evidenced by Exts.P3(c), P3(d) and P5 in other colleges in Departments where the total workload is less than 7 hours a full time faculty has been approved and salary disbursed. This is further clear from Ext.P8 judgment where also an instance of a part time lecturer by name, Smt.Iysha, an Arabic Lecturer in Edathala College has been promoted as Lecturer (Senior Scale) and approved by the University. In fact in O.P.No.29193/2002 15 W.P.(C)NO. 26360/07 also, the situation was identical. Sri.T.V.Zacharia, the petitioner in that case, was a solitary faculty in the Department of Political Science of E.M.E.A. College of Arts and Science Kondotty. Pursuant to the judgment in that O.P. confirmed in Ext.P10 judgment, the Government itself, has by Ext.P11 order, accepted him as full time lecturer. Taking a different view in the case of the petitioner would amount to discrimination and violative of the fundamental rights of the petitioner, also. In such situation I have no doubt in my mind that whenever a new Department is started in a college, when the Department is manned by a solitary teaching faculty, even if the workload is less than 7 hours, then that teaching faculty shall be a full time lecturer. The petitioner in this case being a solitary teaching faculty in the Sanskrit Department in the 1[st] respondent's college, she is also entitled to be approved as a full time teaching faculty. 9. I do not also find any merit in the contention of the 5[th] respondent that since the approval of the petitioner's appointment as full time lecturer by the University was subsequent to the coming into force of the University Laws (Amendment) Act of 2005, the conversion of the part time post 16 W.P.(C)NO. 26360/07 into a full time post could only have been with prior concurrence of the Government. Admittedly the petitioner was appointed with effect from 24.10.1995. In view of my above decision, she should have been appointed and approved as a full time lecturer at the time of appointment itself. That appointment was 10 years prior to the coming into force of the said Amendment Act. What has now been done is only correction of a mistake committed in 1995. It goes without saying that in view of my findings as above, the other contentions of the 5[th] respondent based on the decisions of this Court does not pass muster. Therefore, Exts.P9 and P9(a) orders passed by the University are perfectly valid and proper. Consequently, Ext.P14 order of the 5[th] respondent is clearly unsustainable. Therefore, I quash Ext.P14 order. 10. Now comes the reliefs to be granted to the petitioner. She was appointed on 24.10.1995 as a part time lecturer. All along she has been claiming for conversion of the part time post into full time post, which was done by the University only by Ext.P9. Therefore, although she is entitled to have service benefits as a full time lecturer with effect from 24.10.1995, arrears of monetary benefits shall be granted to the petitioner 17 W.P.(C)NO. 26360/07 only from the date of Ext.P9, viz., 4.1.2006, since she had worked only as a part time Lecturer till that date. However, she would be entitled to have her pay fixed as full time lecturer with effect from the original date of appointment without arrears of monetary benefits till 3.1.2006. For all other purposes, her service as full time lecturer must be deemed to have commenced on 24.10.1995. Consequently, there would be a direction to the 5[th] respondent to pass appropriate orders and disburse salary and arrears of monetary benefits due to the petitioner as a Full Time Lecturer within two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above, but without any order as to costs. sdk+ Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge W.P.(C)NO. 26360/07 18