Jasmin K.H. v. Deputy Director of Collegiate Education, Kozhikode; Director of Collegiate Education, Thiruvananthapuram; University of Calicut; Principal, Farook College, Kozhikode; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **WEDNESDAY, THE 9TH DAY OF JANUARY 2013/19TH POUSHA 1934** ## **WP(C).No. 26711 of 2012 (L)** **---------------------------** ## **PETITIONER(S):** **---------------------** **JASMIN K.H. ,** **LECTURER IN LAW (PART TIME),FAROOK COLLEGE,FEROKE, CALICUT,W/O.DR.P.M.MUBARAK PASHA, RESIDING AT 'THE PETALINE',EAST NELLOOR,FEROKE, CALICUT,PIN-673631.** **BY ADVS.SRI.P.K.IBRAHIM SMT.K.P.AMBIKA SMT.A.A.SHIBI** **RESPONDENT(S):** - **----------------------------** **1. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOZHIKODE-673660.** **2. DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM-695001.** **3. UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR,THENJIPALAM, MALAPPURAM DIST.,PIN-673635.** ## **4. THE PRINCIPAL,** - **FAROOK COLLEGE,KOZHIKODE-673632.** ## **5. STATE OF KERALA** - **REPRESENTED BY THE SECRETARY, HIGHER EDUCATION(D) DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM-695001.** **R1,R2 AND R5 BY GOVERNMENT PLEADER ADV. SMT. K.A. LOWSY R3 BY SRI.SANTHOSH MATHEW,S.C.,CALICUT UNIVERSITY R4 BY ADVS. SRI.K.M.FIROZ** **SMT.M.SHAJNA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **WP(C).No. 26711 of 2012 (L)** ## **APPENDIX** **PETITIONER(S) EXHIBITS :** **EXHIBIT P1: COPY OF THE STATEMENT IN PERFORMA 1.** **EXHIBIT P2: COPY OF THE COMMUNICATION DATED 3-3-2004.** **EXHIBIT P3: COPY OF THE APPOINTMENT ORDER DATED 17-7-2004.** **EXHIBIT P4: COPY OF THE JUDGMENT IN WPC 18523/2010 DATED 27-7-2010. EXHIBIT P5: COPY OF THE ORDER OF THE 5TH RESPONDENT DT.12-7-2011.** **EXHIBIT P6: COPY OF THE APPROVING THE APPOINTMENT OF THE PETITIONER BY 3RD RESPONDENT.** **EXHIBIT P7: COPY OF THE LETTER OF 3RD RESPONDENT TO 1ST RESPONDENT DATED 18-9-2012.** **RESPONDENTS' EXHIBITS : NIL** **/ TRUE COPY /** **NS** **P.A. TO JUDGE** ## **P.N.RAVINDRAN, J.** ## **----------------------------------------W.P.(C).No.26711 of 2012 ----------------------------------------Dated this the 9[th] day of January, 2013** ## **JUDGMENT** The petitioner was appointed as Lecturer (Part-time) in Farook College, Kozhikode, a college affiliated to the University of Calicut by Ext.P3 appointment order dated 17.7.2004 on a consolidated pay of Rs.4,000/- per mensem, plus dearness allowance. The said appointment was in the retirement vacancy of Sri.M.V.Padmanabhan Nambiar, Selection Grade Lecturer in Commerce, who was also handling law. The said teacher retired from service on 31.3.2004. The Standing Committee of the Syndicate on Staff of Affiliated Colleges that met on 19.5.2009 resolved to reject the request made by the management to approve the appointment of the petitioner for the reason that sanction of the Government had not been obtained before the appointment was made. Such a stand was taken having regard to the stipulation in sub-section (1) of section 57 of the Calicut University Act, 1975, as amended by Act 2 of 2005, that “appointments to the posts eligible to receive salary from the **W.P(C).No.26711 of 2012** -:2:- Government shall be made only against posts sanctioned by the Government or by such officers as may be authorized by the Government”. Pursuant thereto, the University of Calicut issued an order dated 23.6.2009 declining to approve the petitioner's appointment and the said order was communicated to the Principal of the College. It is relevant in this context to note that Act 2 of 2005 amending certain provisions including section 57 of the Calicut University Act, 1975, came into force on 6.1.2005, after the Standing Committee of the Syndicate on Staff of Affiliated Colleges resolved to reject the proposal to approve the petitioner's appointment. 2. After the University of Calicut declined to approve the petitioner's appointment, the Principal of the College submitted a letter dated 13.10.2009 once again requesting the Syndicate of the University of Calicut to approve the petitioner's appointment. The Standing Committee of the Syndicate on Staff of Affiliated Colleges that met on 16.3.2010 resolved to direct the management of the College to obtain Government sanction for the post of Part-time Law Lecturer having regard to the provisions contained in Act 2 of 2005, by which the Calicut University Act, 1975 was amended. The Standing Committee of the Syndicate on ## **W.P(C).No.26711 of 2012** -:3:- Staff of Affiliated Colleges took the stand that in view of subsection (1) of section 57 of the Calicut University Act, 1975, as amended by Act 2 of 2005, specific sanction from the Government is required for appointment. The petitioner thereupon filed W.P. (C).No.18523 of 2010 in this Court challenging the University order dated 23.6.2009 declining to approve his appointment and the decision taken by the Standing Committee of the Syndicate on Staff of Affiliated Colleges on 16.3.2010. When the said writ petition came up for admission hearing on 27.7.2010, taking note of the fact that the Principal of the College had taken up the matter with the Government, this Court disposed of the said writ petition with a direction to the Government to pass appropriate orders in the matter expeditiously and in any event within an outer limit of two months from the date of receipt of a copy of the judgment. 3. Pursuant thereto, the Government issued Ext.P5 order dated 12.7.2011 holding that the petitioner's appointment is not in order. The Government held that as no post of Part-time Lecturer in Law had been sanctioned in Farook College, the petitioner's appointment cannot be approved. The Principal of the College thereafter submitted a letter dated 9.8.2011 to the ## **W.P(C).No.26711 of 2012** ## -:4:- Registrar of the Calicut University requesting the University to reconsider the grant of approval to the petitioner's appointment as Part-time Law Lecturer with effect from 19.7.2004 against the retirement vacancy of Sri.M.V.Padmanabhan Nambiar. In that letter it was pointed out that the vacancy of Part-time Lecturer in Law arose on 1.4.2004 when Sri.M.P.Padmanabhan Nambiar, who was handling law, retired from service on 31.3.2004, that Act 2 of 2005 by which sub-section (1) of section 57 of the Calicut University Act, 1975 was amended, came into force only with effect from 6.1.2005 and therefore, it cannot govern the petitioner's appointment which was made on 19.7.2004. 4. The Standing Committee of the Syndicate on Staff of Affiliated Colleges that met on 17.11.2011 considered the said request and resolved to approve the petitioner's appointment as Part-time Lecturer in Law with effect from 19.7.2004. Consequently the University of Calicut issued Ext.P6 order dated 27.12.2011 approving the petitioner's appointment as Part-time Lecturer in Law with effect from 19.7.2004. A copy of Ext.P6 order was forwarded to the Director of Collegiate Education, Trivandrum, Deputy Director of Collegiate Education, Kozhikode, the management of the college and the petitioner. The Deputy ## **W.P(C).No.26711 of 2012** -:5:- Director of Collegiate Education objected to the said order by sending a letter dated 6.6.2012. The Syndicate of the University of Calicut that met on 4.9.2012 considered the said objection and resolved to confirm the decision taken by it to approve the petitioner's appointment. Thereupon Ext.P7 letter dated 18.9.2012 was sent to the Deputy Director of Collegiate Education, Kozhikode. This writ petition was thereupon filed on 12.11.2012 for an order directing respondents 1 and 2 to disburse salary and allowances to the petitioner having regard to Ext.P6 order issued by the University of Calicut approving her appointment with effect from 19.7.2004. 5. It is contended that as the petitioner's appointment was lawfully made after following the prescribed procedure, prior to the amendment of sub-section (1) of section 57 of the Calicut University Act, 1975 by Act 2 of 2005 and the appointment was against a post sanctioned by the University, the Government cannot decline to effect payment of salary and allowances to her. Relying on the decision of a Division Bench of this Court in _**Shalini Rachel v. Manager, Christian College**_ , 2007 (3) KLT 355, it is contended that for filling up the posts sanctioned by the University on the basis of work load or staff pattern, no prior ## **W.P(C).No.26711 of 2012** -:6:- permission of the Government is necessary and that once the Syndicate of the University grants approval for filling up the existing vacancies depending upon the workload and staff pattern, the Government are obliged to pay salary of the teachers appointed by the duly constituted Selection Committee. Various other related contentions are also raised in the writ petition. 6. A counter affidavit dated 3.12.2012 has been filed on behalf of the first respondent, Deputy Director of Collegiate Education, Kozhikode. The principal contention raised therein is that no post of Part-time Lecturer in Law has been sanctioned in Farook College and that pursuant to the directions issued by this Court in Ext.P4 judgment, the Government considered the issue regarding approval of the petitioner's appointment and declined to approve the petitioner's appointment on the ground that a post of Part-time Lecturer in Law has not been sanctioned in Farook College. The reference evidently is to sub-section (1) of section 57 of the Calicut University Act as amended by Act 2 of 2005. The petitioner has filed a reply affidavit dated 13.12.2012 reiterating the contentions raised by her in the writ petition. 7. I heard Sri.P.K.Ibrahim, learned counsel appearing for the petitioner, Smt.K.A.Lowsy, learned Government Pleader ## **W.P(C).No.26711 of 2012** -:7:- appearing for respondents 1, 2 and 3, Sri.Santhosh Mathew, learned standing counsel appearing for the University of Calicut and Sri.K.M.Firoz, learned counsel appearing for the fourth respondent Principal. Sri.P.K.Ibrahim, learned counsel appearing for the petitioner contended, relying on the decision of the Division Bench of this Court in _**Shalini Rachel v. Manager, Christian College**_ , 2007 (3) KLT 355 that apart from the fact that the amendment to sub-section (1) of Section 57 of the Calicut University Act, 1975 by Act 2 of 2005 to stipulate that appointment to 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, came into force only with effect from 6.1.2005, as the petitioner's appointment was against a post sanctioned by the University on the basis of workload or staff pattern, no prior permission of the Government was necessary to effect the petitioner's appointment. The learned counsel contended that the amendment to sub-section (1) of section 57 of the Calicut University Act, by Act 2 of 2005 took effect only from 6.1.2005, that the appointment in the instant case was made on 19.7.2004 and therefore, section 57(1) cannot be relied on to deny payment ## **W.P(C).No.26711 of 2012** -:8:- of salary and allowances to the petitioner. The learned standing counsel appearing for the University of Calicut and the Principal of the College supported the submission made by the learned counsel for the petitioner. Per contra, the learned Government Pleader appearing for respondents 1, 2 and 3 contended that as the Government had not sanctioned the post of Part-time Lecturer in Law in Farook College, Calicut, the Government are not bound to pay salary and allowances to the petitioner in view of the stipulations contained in that regard in section 57(1) of the Calicut University Act, 1975. 8. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. The short question that arises for consideration in this writ petition is whether the petitioner is entitled to payment of salary and allowances as stipulated in Ext.P3 appointment order having regard to the fact that her appointment as Part-time Lecturer in Law stands approved by the University of Calicut by Ext.P6 order dated 27.12.2011. The principal objection raised by the Government for payment of salary and allowances to the petitioner is that the Government have not sanctioned the post in **W.P(C).No.26711 of 2012** -:9:- question. Such a contention is raised relying on section 57(1) of the Calicut University Act, 1975 as amended by Act 2 of 2005 with effect from 6.1.2005. The very same provision was considered by a Division Bench of this Court in _**Shalini Rachel v. Manager, Christian College**_ , 2007 (3) KLT 355. The Division Bench held that though sub-section (1) of section 57 stipulates that appointments to the posts eligible to receive salary from the Government shall be made only after getting prior sanction from the Government 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. It was held that once the Syndicate of the University grants approval for filling up the existing vacancies depending upon the work load and staff pattern, the Government are obliged to pay salary to the teachers appointed by the duly constituted selection committee. The Division Bench also observed that if the 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 and that section 57(1) was not amended with a view to take away the statutory powers already conferred **W.P(C).No.26711 of 2012** ## -:10:- on the Syndicate of the University. Apart from contending that the post in question is not a post sanctioned by the Government, no other contention is put forward to deny payment of salary and allowances to the petitioner. The Note to Ordinance 3 in Chapter XIII of the Calicut University First Ordinance, 1978 stipulates that in the case of subjects like Syriac, Arabic, Urdu, Latin, Law for B.com., etc. where the total work load is below 12 hours per week, only a part-time teacher shall be appointed. In the instant case the work load per week is stated to be 8 hours. There is no stipulation in Chapter XIII of the Calicut University First Ordinance, 1978 to the effect that where the work load is 8 hours per week no appointment even of a part-time Law Lecturer can be made. All that the Ordinance stipulates is that where the total work load is below 12 hours per week, only a part-time teacher shall be appointed. The respondents have no case that the petitioner was not selected by a duly constituted selection committee or after following the prescribed procedure. In such circumstances as the petitioner's appointment was lawfully made against a post sanctioned by the University of Calicut having regard to the provisions contained in Chapter XIII of the Calicut University First Ordinance, 1978 and applying the principles laid ## **W.P(C).No.26711 of 2012** -:11:- down by the Division Bench of this Court in **Shalini Rachel** (supra), it has to be necessarily held that the objection raised by the State of Kerala through the Deputy Director of Collegiate Education, Kozhikode to the payment of salary and allowances to the petitioner cannot be sustained. Though initially the Syndicate of the University was also of the opinion that in view of section 57 (1) of the Calicut University Act, 1975 the Government will have to sanction the post, in view of the declaration of law by this Court in **Shalini Rachel** (supra) the University re-visited its earlier decision and decided to approve the appointment. The University has in Ext.P6 order given the reasons which compelled it to approve the petitioner's appointment. Though a review was sought by the Deputy Director of Collegiate Education, that request was rejected. In the light of the binding decision of the Division Bench of this Court in **Shalini Rachel** (supra) the Government cannot, in my opinion, object to the approval of the petitioner's appointment and payment of salary and allowances to her. I accordingly hold that the petitioner is entitled to succeed. I accordingly allow the writ petition and direct the respondents to draw and disburse salary and allowances payable to the petitioner having regard to the fact that the University of ## **W.P(C).No.26711 of 2012** **==> picture [28 x 9] intentionally omitted <==** Calicut has by Ext.P6 order dated 27.12.2011 approved her appointment as Part-time Lecturer in Law in the Department of Commerce in Farook College, Calicut with effect from 19.7.2004. The needful in the matter shall be done and arrears of salary and allowances at the rates stipulated in Ext.P3 appointment order drawn and disbursed to the petitioner expeditiously and in any event within an outer limit of two months from the date on which the petitioner produces a certified copy of this judgment before the Deputy Director of Collegiate Education, Kozhikode. **P.N.RAVINDRAN, Judge.** ## **ahg.** **P.N.RAVINDRAN, J. --------------------------W.P.(C).No.26711 of 2012 ----------------------------** ## **JUDGMENT** **9[th] January, 2013**