High Court of KeralaSingle Judge2013-07-04Writ petition disposed; 3rd respondent directed...

Femina E.P. and others v. The State of Kerala and others

Case / Petition Number:WP(C).No. 34828 of 2010 (C)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. M. Shaffique
Judgment Date: 2013-07-04
Court Decision / Holding: The writ petition is disposed of with the following operative direction: The 3rd respondent shall countersign and pass the salary/arrears bills for disbursing the amount due to the 1st petitioner from the date of approval of the appointment as lecturer (Exts. P8 and P9). The payments shall be made within three months from the date of receipt of a copy of the judgment.
Final Disposition: Writ petition disposed; 3rd respondent directed to countersign and pass salary/arrears for 1st petitioner from the date of appointment approval; payments to be made within three months of judgment.,

Parties to the Case

Appellants / Petitioners

Femina E.P.
Shiney C.N.
Deepa K.A.
Thoufeeq Rahman Vazhakkat
Bindil M.B.

Respondents

The State of Kerala represented by the Principal Secretary, Department of Higher Education, Government of Kerala, Thiruvananthapuram
The Director of Collegiate Education, Vikash Bhavan, P.M.G. Junction, Thiruvananthapuram
The Deputy Director of Collegiate Education, Office of the Deputy Director of Collegiate Education, Thrissur
University of Calicut represented by the Registrar, Calicut University
Muslim Educational Society represented by the General Secretary, Dr. P.K. Fazal Gafoor
The Principal, MES ASMABI College, Vemballur

Legal Representation & Advocates

Counsels for Petitioners

• Sri Nooshad Thottathil
• Sri Noorji Noushad

Counsels for Respondents

• Sri M. Ramprasad Unni
• Sri P.C. Sasidharan
• Sri Santhosh Mathew
• Sri Jagan George
• Sri K.A. Noushad
• Sri P.G. Pramod
• Smt. M.A. Vaheeda Babu
• Sri Babu Karukapadath

Case Synopsis & Summary

This writ petition concerns five lecturers of MES ASMABI College who were appointed as teaching staff following recommendations of the college Selection Committee (Exhibits P1–P3) and whose appointment orders (Exhibits P4–P7) were later approved by the University of Calicut (Exhibits P8–P9). The petitioners allege non-payment of salary and arrears despite university approval, seeking a writ of mandamus to compel the third respondent to countersign and pass salary/arrears bills from the date of approval. Petitioners 2–5 eventually received salary and fixation under UGC guidelines, but petitioner 1 did not; the petitioner contends that no government concurrence is required for salary fixation where the university approves the appointment. The third respondent, in its counter, states that a government concurrence proposal had been forwarded and that concurrence was awaited; the counter also, in paragraph 7, contends that government concurrence is not required, implying that concurrence is an empty formality. The court relies on prior Kerala decisions—Cherian Mathew v. Principal S.B. College, Changanassery (1998) and State of Kerala v. Dr. Sina A.R. (2007)—to hold that government concurrence is not a prerequisite when university approval exists. The petition is disposed by directing the third respondent to countersign and pass the salary/arrears for the 1st petitioner from the date of approval, with payment to be made within three months of the judgment.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that once the University of Calicut approved the appointments (Exts. P8–P9) and the Selection Committee recommended appointment (Exts. P1–P3), salary fixation and payment should follow, irrespective of government concurrence. They point to the non-payment of salary to the 1st petitioner and argue that the concurrence of the Government is not a prerequisite for salary processing in light of the court’s own precedents (Cherian Mathew; Sina A.R.). They seek mandamus directing the 3rd respondent to countersign and pass salary/arrears bills, with payments to be effected from the date of approval and within a short period. They note that respondents 2–5 have received salary under UGC guidelines and urge uniform application.

Contentions of Respondents

The respondents defend the position that salary fixation is governed by government concurrence and administrative procedures. The 3rd respondent’s counter affidavit states that a proposal seeking Government concurrence had been forwarded and concurrence was awaited, though in paragraph 7 it later argues that Government concurrence is not strictly required. The respondents rely on established rules and administrative processes for salary fixation and contend that any liability to pay depends on constitutional and statutory parameters, including approvals by the government and the University, and proper disbursement channels.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Cherian Mathew v. Principal S.B. College, Changanassery	1998(2) KLT 144	Positive	The court relied on this decision to support the proposition that government concurrence is not required for salary fixation when the university has approved the appointment.
State of Kerala and Others v. Dr. Sina A.R. and Others	2007(3) KHC 96	Positive	Cited to reinforce that government concurrence is not a prerequisite where university approval exists.
W.P.(C).No.35957 of 2008	W.P.(C).No.35957 of 2008	Mentioned Only	Referenced as Exhibit P13 (a prior judgment of this Court) without explicit reliance for the current principle; used for context.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **THURSDAY, THE 4TH DAY OF JULY 2013/13TH ASHADHA, 1935** ## **WP(C).No. 34828 of 2010 (C)** ## **-------------------------------------** ## **PETITIONERS:** - **---------------------** ## **1. FEMINA E.P.** - **LECTURER, DEPARTMENT OF COMMERCE, MES ASMABI COLLEGE, VEMBALLUR.P.O, KODUNGALLUR, THRISSUR DISTRICT.** **2. SHINEY.C.N, LECTURER, DEPARTMENT OF COMMERCE, MES ASMABI COLLEGE, VEMBALLUR.P.O, KODUNGALLUR, THRISSUR DISTRICT.** **3. DEEPA.K.A, LECTURER, DEPARTMENT OF COMMERCE, MES ASMABI COLLEGE, VEMBALLUR.P.O, KODUNGALLUR, THRISSUR DISTRICT.** **4. THOUFEEQ RAHMAN VAZHAKKAT, LECTURER, DEPARTMENT OF ARABIC, MES ASMABI COLLEGE, VEMBALLUR.P.O, KODUNGALLUR, THRISSUR DISTRICT.** **5. BINDIL.M.B,** - **LECTURER, DEPARTMENT OF PHYSICAL EDUCATION, MES ASMABI COLLEGE, VEMBALLUR.P.O, KODUNGALLUR THRISSUR DISTRICT.** **BY ADVS.SRI.NOUSHAD THOTTATHIL SRI.NOORJI NOUSHAD** ## **RESPONDENTS:** - **-----------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.PIN - 695 001** **2. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, P.M.G. JUNCTION, THIRUVANANTHAPURAM. PIN - 695 001** **3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, THRISSUR.PIN - 688 544** **MJL** ## **WP(C).No. 34828 of 2010 (C)** ## **4. UNIVERSITY OF CALICUT, REPRESENTED BY THE REGISTRAR, CALICUT UNIVERSITY, THENHIPALAM.P.O, MALAPPURAM DISTRICT. PIN - 683 134** **5. MUSLIM EDUCATIONAL SOCIETY, REPRESENTED BY THE GENERAL SECRETARY, DR.P.K. FAZAL GAFOOR. PIN - 683 133** ## **6. THE PRINCIPAL,** - **MES ASMABI COLLEGE, VEMBALLUR.P.O, KODUNGALLUR THRISSUR DISTRICT. PIN - 688 544** ## **R1, R2 & R3 BY GOVERNMENT PLEADER SRI.M.RAMPRASAD UNNI** **R4 BY ADVS. SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY. SRI.SANTHOSH MATHEW, SC,CALICUT UNIVERSITY** **R5 BY ADVS. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU** **SRI.JAGAN GEORGE SRI.K.A.NOUSHAD SRI.P.G.PRAMOD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MJL** ## **WP(C).No. 34828 of 2010 (C)** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT -P-1 : COPY OF THE MINUTES OF THE MEETING OF THE SELECTION COMMITTEE HELD ON 31ST DECEMBER 2008 EXHIBIT -P-2 : COPY OF THE MINUTES OF THE MEETING OF THE SELECTION COMMITTEE HELD ON 11TH MARCH 2009 EXHIBIT -P-3 : COPY OF THE MINUTES OF THE MEETING OF THE SELECTION COMMITTEE HELD ON 29TH DECEMBER 2008 EXHIBIT -P-4 : COPY OF THE APPOINTMENT ORDER NO.MES/AC/E948/05, DATED 09.02.2009 ISSUED BY THE FIFTH RESPONDENT TO THE SECOND PETITIONER EXHIBIT -P-5 : COPY OF THE APPOINTMENT ORDER NO.MES/AC/E948/05, DATED 09.02.2009 ISSUED BY THE FIFTH RESPONDENT TO THE THIRD PETITIONER EXHIBIT -P-6 : COPY OF THE APPOINTMENT ORDER NO.MES/AC/E948/05, DATED 05.06.2009 ISSUED BY THE FIFTH RESPONDENT TO THE FOURTH PETITIONER EXHIBIT -P-7 : COPY OF THE APPOINTMENT ORDER NO.MES/AC/E948/05, DATED 09.02.2009 ISSUED BY THE FIFTH RESPONDENT TO THE FIFTH PETITIONER EXHIBIT -P-8 : COPY OF THE ORDER NO.GA-II/A3/1399/2009 DATED 23.10.2009 ISSUED BY THE FOURTH RESPONDENT FOR MAKING THE APPROVAL OF APPOINTMENT OF THE PETITIONERS 1 TO 3 AND 5 EXHIBIT -P-9 : COPY OF THE ORDER NO.GA-II/A3/2232/2009 DATED 27.02.2010 ISSUED BY THE FOURTH RESPONDENT FOR MAKING THE APPROVAL OF APPOINTMENT OF THE FOURTH PETITIONER EXHIBIT -P-10 : COPY OF THE STATEMENT OF WORKLOAD ASSESSED ON 18.12.2002 IN RESPECT OF FIFTH RESPONDENT COLLEGE EXHIBIT -P-11 : COPY OF THE LETTER NO.B3/1701/10 DATED 14.05.2010 ISSUED BY THE THIRD RESPONDENT BY WITHHOLDING THE SALARY OF THE FIRST PETITIONER.** **MJL** ## **WP(C).No. 34828 of 2010 (C)** **EXHIBIT -P-12 : COPY OF THE LETTER NO.B3/3403/10 DATED 03.08.2010 ISSUED BY THE THIRD RESPONDENT BY WITHHOLDING THE SALARY OF THE PETITIONERS 2 TO 5. EXHIBIT -P-13 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 26.11.2009, PASSED IN W.P.(C).NO.35957 OF 2008 EXHIBIT -P-14 : COPY OF THE GOVERNMENT ORDER (G.O.(M.S) NO.63/2008/H.EDN.DATED 23.06.2008 EXHIBIT -P-15 : COPY OF THE REPORT NO.A3-6966/11 DATED 17.02.2012 SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R3 (a) : COPY OF THE G.O.(MS).NO.63/2008/H/.EDN.DATED 23.06.2008 EXHIBIT R3 (b) : COPY OF THE GOVERNMENT LETTER NO.170/D2/2012/H.EDN. DATED 18.01.2012 EXHIBIT R3 (c ) : COPY OF THE OFFICE LETTER NO.B3/1007/12 DATED 29.02.2012 EXHIBIT R - 5 (a) : A TRUE COPY OF A STATEMENT, SHOWING VACANCIES OF TEACHING STAFF IN THE VARIOUS DEPARTMENTS OF THE COLLEGE, AT THE TIME OF APPOINTMENT OF THE PETITIONERS IN THE COLLEGES UNDER MES, INCLUDING MES ASMABI COLLEGE** **EXHIBIT R 5 (b) : A TRUE COPY OF THE JUDGMENT DATED 17/01/2007 OF THIS HON'BLE COURT IN W.P.(C) NO.12109/2006** **/TRUE COPY/** **P A TO JUDGE** **MJL** ## **A.M. SHAFFIQUE, J** ## **---------------------------------------** ## **W.P.(C). NO. 34828 OF 2010** ## **----------------------------------------** Dated this the 4[th ] day of July, 2013 ## **JUDGMENT** ## This writ petition is filed seeking the following reliefs:- - (1) To call for the records relating to Exts. P1 to P13 and issue a Writ of Mandamus, or any other Writ, Order, or Direction, directing the third respondent to countersign and pass the Salary/Arrears Bills for disbursing the amount due to the petitioners on account of their appointment and approval as the Lecturers. - (2) To issue a writ of Mandamus or any other appropriate writ, order or direction, directing the third respondent to perform his duties in accordance with Law in regard to the disbursement of Salary due to the petitioners on account of their appointment as Lecturers in the M.E.S. Asmabi College. - (3) To declare that the petitioner are entitled to get salary and resultant arrears on account of their appointment to the post of Lecturers, with effect from their date of appointment approved by Ext. P8 and Ext. P9 Orders. W.P.(C). NO. 34828 OF 2010 **2** 2. The facts as disclosed would show that the petitioners were appointed in the 5[th] respondent's college as teaching staff in terms of Ext. P1, P2 and P3 proceedings of the Selection Committee. The appointment orders in respect of petitioners 2 to 5 are Exts. P4 to P7. By Ext. P8 and P9 the appointment orders of the petitioners were approved by the University of Calicut. The complaint raised by the petitioners is that though their appointment were approved by the University, they were not paid salary. Several representations did not yield any result, hence seeks the relief as prayed for. 3. The learned counsel for the petitioners submits that during the pendency of the writ petition, the petitioners 2 to 5 were already granted the salary and fixation of salary as per UGC guidelines. However in regard to the 1[st] petitioner no such action had been taken. 4. Counter affidavit is filed by the 3[rd] respondent inter alia stating that as far as the 1[st] petitioner is concerned necessary proposal seeking concurrence of her appointment W.P.(C). NO. 34828 OF 2010 **3** has been forwarded to the Government and the concurrence of the Government is awaited. In paragraph 7, the 3[rd] respondent however states that no such Government concurrence is required. Apparently, getting a concurrence with the Government is only an empty formality and once the University has approved the appointment of the 1[st] petitioner, the 3[rd] respondent is bound to issue necessary concurrence to enable the 1[st] petitioner to get salary and fixation of pay. 5. Having regard to the aforesaid admission in the counter affidavit and having regard to the fact that the Government's concurrence is not required in the matter especially in the light of the judgments of this Court in **Cherian Mathew v. Principal S.B. College, Changanassery [1998(2) KLT 144]** and **State of Kerala and Others v. Dr. Sina A.R. and Others [2007(3) KHC 96]** , the 3[rd] respondent need not wait for any Government concurrence for fixing the salary of the 1[st] petitioner and necessary orders in that regard has to be passed as early as W.P.(C). NO. 34828 OF 2010 **4** possible. 6. In the result, this writ petition is disposed of as follows:- The 3[rd] respondent shall counter sign and pass the salary/arrears bills for disbursing the amount due to the 1[st] petitioner with effect from the date of approval of the appointment as lecturer and the said payments shall be paid within a period of three months from the date of receipt of a copy of the judgment. Sd/- **A.M. SHAFFIQUE JUDGE** DCS