Dr. V. Biju v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941** ## **WP(C).No.1905 OF 2012(K)** ## **PETITIONER/S:** **DR.V.BIJU AGED 38 YEARS, S/O. N.VIJAYAN, K-9 KYLAS NAGAR, PATTOM, THIRUVANANTHAPURAM** **BY ADV. SRI.R.SREEHARI** ## **RESPONDENT/S:** - **1 STATE OF KERALA & OTHERS REPRESENTED BY THE SECRETARY HIGHER EDUCATION DEPARTMET,SECRETARIAT, THIRUVANANTHAPRUAM 695001** - **2 THE DIRECTOR OF COLLEGIATE EDUCATION VIKAS BHAVAN THIRUVANANTHAPURAM** - **3 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION KOLLAM** - **4 UNIVERSITY OF KERALA REPRESENTED BY ITS REGISTRAR, UNIVERSITY BUILDINGS, THIRUVANANTHAPURAM** - **5 MANAGER THE SREE NARAYANA TRUST, KOLLAM** - **6 THE PRINCIPAL SREE NARAYANA COLLEGE, KOLLAM** **R1 BY GOVERNMENT PLEADER** - **R1 BY ADV. SRI.P.GOPALAKRISHNAN MVA** - **R1 BY ADV. SRI.A.N.RAJAN BABU** - **R1 BY ADV. SRI.GEORGE POONTHOTTAMSCKERALA UTY. R1 BY SRI.BECHU KURIAN THOMAS, SC, UNIVERSITY OF KERALA** - **R1 BY SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA R4 BY ADV. SRI.GEORGE POONTHOTTAM,SC,KERALA UTY.** ## **OTHER PRESENT:** ## **SR. GP. S. GOPINATHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.1905 OF 2012(K)** 2 ## **JUDGMENT** ## **Dated this the 9th day of December 2019** This writ petition is filed seeking the following reliefs: (a) “Issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Ext.P9 and to quash the same; (b) Declare that para 5(b) contained in the order Ext.P10 passed by the State of Kerala is illegal, arbitrary and unconstitutional and is not binding on the petitioner; _(c)_ Issue a writ of mandamus or other appropriate writ, order or direction, directing the Respondents 1 to 3 to pass orders granting salary and other benefits to the petitioner for the services rendered by him as Lecturer in Physics in the Sree Narayana College, Kollam under the Management of the 5[th] respondent from 03.12.2004 to 18.01.2007 AN.” 2. Heard the learned counsel appearing for the petitioner, the learned Senior Government Pleader, and the learned counsel appearing for the management as well as the learned Standing Counsel for the University. 3. It is submitted that the petitioner had been appointed as lecturer in Physics by Ext.P1 order. The petitioner had joined duty and by Ext.P2 order dated 25.11.2006, the University had approved the appointment of the petitioner from 03.12.2004 in the retirement vacancy of **WP(C).No.1905 OF 2012(K)** 3 Sri.Omanakuttan in the S.N. College, Kollam. The petitioner was thereafter relieved from service on 18.01.2007 to take up appointment as lecturer in Physics in the Government Polytechnic, Perumbavoor. 4. It is stated that in spite of the orders of approval, the salary due to the petitioner for the period from 03.12.2004 to 18.01.2007 was not paid to him on the ground that the assessment of working hours by the University was not correct. It is submitted that the Deputy Director of Collegiate Education had sought clarification from the University with regard to the assessment of work load and by Ext.P7 letter dated 04.04.2008, the University had reiterated that there are total number of 226 teaching hours in the Department of Physics in the S.N. College, Kollam, and that there would be 19 sanctioned posts in the Department, taking note of the total teaching hours available. It is stated that the petitioner's appointment was in a retirement vacancy and therefore, the petitioner would be entitled to payment of salary on the basis of the approval granted. 5. It is submitted that though the petitioner had made **WP(C).No.1905 OF 2012(K)** 4 repeated representations, his request for salary was rejected by Ext.P9 communication by the Deputy Director stating that the petitioner is not entitled to salary going by a Government order dated 20.08.2010. The said Government Order is produced by the petitioner as Ext.P10. It is stated that the Government Order only restricts appointments in non sanctioned post and requires the Deputy Directors to ensure that conditionally sanctioned post have adequate work load to justify the appointments. 6. It is submitted that in the instant case, the petitioner had been appointed against an existing post in a retirement vacancy. It is submitted that Exts.P2 and P7 would show that the University had specifically considered the question of existence of sufficient work load to approve the appointment of the petitioner and had accorded approval for the appointment after being satisfied of such existence. It is therefore, contended that the petitioner is entitled to the consequences of an approved appointment, that is, the payment of salary from 03.12.2004 to 18.01.2007. 8. A counter affidavit has been placed on record by the **WP(C).No.1905 OF 2012(K)** 5 ## 1[st] respondent. It is stated in paragraph 3 of the counter affidavit as follows. “As regards Para 2 of the WP(C), it is submitted, that the petitioner was appointed during the period when the above said rules were existing. At that time, there were eleven lecturers working in the Physics Department of SN College, Kollam and their salary was being admitted. As per the Post Adalath review conducted by the Director of Collegiate Education during 2002, the assessed work load in Physics Department was 149 hours and only nine lecturers were permissible. Hence two surplus lecturers were there in the Physics Department already claiming salary during the appointment of the petitioner. So no further appointments were allowable in the Physics Department. It is submitted that the Management filled up vacancies unauthorisedly without the prior permission of Government as the ban imposed by the Government was in force. Besides, managements cannot fill up the vacancies if any arising without accommodating all the excess lecturers in the colleges under them. Fresh recruitments can be possible only after absorbing the number of teachers already working in the concerned subjects are made according to the permissible workload in that subject with the prior concurrence or sanction of posts from the Government. Therefore, the action of the Manager in appointing the petitioner without ensuring that all the excess lecturers working in the colleges under that educational agency were absorbed in subsequent vacancies and without obtaining prior concurrence of Government to fill up such vacancies was highly irregular.” 10. It is submitted by the learned Government Pleader that the question with regard to appointment in non sanctioned post stands covered by a judgment of a Division Bench of this Court in W.A.No.2164/18. It is stated that this **WP(C).No.1905 OF 2012(K)** 6 Court had considered the provisions of Section 57(1) of the Kerala University Act, which provides that appointments shall be made only against posts sanctioned by the Government or by such officers as may be authorized by the Government and had held that the decision of the Division Bench in **State of Kerala & Others v. Dr.Sina A.R & Others [2007(3) KHC** **96],** could not apply in a case where appointment is against non sanctioned post. It is stated that where the additional post is only subsequently created, there has to be sanctioned post before appointment can be considered by the University. 11. I have considered the contentions advanced. It is the specific case of the petitioner as well as the Management and the University that the petitioner's appointment was in a retirement vacancy against an existing sanctioned post. Apart from contending that a post adalat review was conducted by the Director of Collegiate Education during 2002 and the work load assessed was 149 hours, no material has been placed on record to show that the number of sanctioned post was less than 19 as has been specifically contended by the University. This assessment of work load at the “post adalat **WP(C).No.1905 OF 2012(K)** 7 review” apparently does not take note of the new BSC courses sanctioned in the college. Ext.P7 reply given by the University to the query raised by the Deputy Director would make it clear that there were 19 sanctioned posts in the S.N. College, Kollam in the Department of Physics taking into account the new BSC Degree Course in Computer Application also and that the appointment of the petitioner is against a retirement vacancy. The issue of existence of adequate work load for approval of appointment has been specifically considered by the University and it has been clear that there is sufficient work load to justify the approval of appointment. 12. In the above view of the matter, the decision in **Dr.Sina A.R** (supra), on all fours to the instant case, where the work load has been properly assessed by the University and where the appointment is against a sanctioned post. The Authorities of the Collegiate Education Department cannot withhold payment of salary for approved periods of service of teachers in Private Colleges covered by the direct payment systems. The decision of the Division Bench in W.A.No.2164/18 has absolutely no application in the instant **WP(C).No.1905 OF 2012(K)** 8 case, since, it is specifically contended by the Management and the University that the appointment is against a retirement vacancy and against a duly sanctioned post. 13. In the above view of the matter, I am of the opinion that the prayers sought for in the writ petition are liable to be granted. The writ petition is therefore allowed. There will be a direction to respondents 2 and 3, to immediately disburse the salary and allowances due to the petitioner for the period from 03.12.2004 to 18.01.2007. Needful shall be done by the respondents within a period of three months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. **Sd/-** **ANU SIVARAMAN** Dxy **JUDGE** **WP(C).No.1905 OF 2012(K)** 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE APPOINTMENT ORDER DATED 22.11.2004 ISSUED TO THE PETITIONER BY THE 5TH RESPONDENT. EXHIBIT P2 PHOTOCOPY OF THE ORDER DATED 25.11.2006 OF THE 4TH RESPONDENT. EXHIBIT P3 PHOTOCOPY OF THE REQUEST OF THE PETITIONER TO THE 5TH AND 6TH RESPONDENT DATED 21.12.2005. EXHIBIT P4 PHOTOCOPY OF THE REQUEST OF THE PETITIONER TO THE 5TH AND 6TH RESPONDENT DATED 2.3.2006. EXHIBIT P5 PHOTOCOPY OF THE REQUEST OF THE PETITIONER TO THE 5TH AND 6TH RESPONDENT DATED 18.1.2007. EXHIBIT P6 PHOTOCOPY OF THE RELIEVING ORDER DATED 18.1.2007 ISSUED BY THE 6TH RESPONDENT. EXHIBIT P7 PHOTOCOPY OF THE LETTER DATED 4.4.2008 SENT BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT. EXHIBIT P8 PHOTOCOPY OF THE LETTER DATED 1.4.2009 SENT BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT. EXHIBIT P9 PHOTOCOPY OF THE ORDER DATED 19.8.2011 SENT BY THE 3RD RESPONDENT TO THE 6TH RESPONDENT. EXHIBIT P10 PHOTOCOPY OF THE ORDER PASSED BY THE 1ST RESPONDENT G.O.(MS) NO.260/2010/H.EDN. DATED 20.8.2010. EXHIBIT P11 PHOTOCOPY OF JUDGMENT OF THIS COURT IN O.P. NO.1795/1995 L DATED 25.3.1996.**