Jyolsna v. Mahatma Gandhi University & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 **WP(C).No. 10607 of 2010(A)** PETITIONER: --------------- JYOLSNA, LECTURER, DEPARTMENT OF ECONOMICS, N.S.S.HINDU COLLEGE,CHANGANACHERY. BY ADV. SRI.S.MUHAMMED HANEEFF RESPONDENTS: --------------- 1. MAHATMA GANDHI UNIVERSITY REP.BY ITS REGISTRAR, UNIVERSITY GAMPUS, ATHIRAMPUZHA, KOTTAYAM. 2. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM. 3. THE DIRECTOR OF COLLEGIATGE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM. R1 AND R2 BY GOVERNMENT PLEADER SRI.T.T.MUHAMOOD R3 BY STANDING COUNSEL SRI.T.A.SHAJI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** EXT.P1 TRUE COPY OF THE RE-APPOINTMENT ORDER ISSUED BY MANAGEMENT OF N.S.S. TO THE PETITIONER, DATED 26.5.2009. EXT.P2 TRUE COPY OF THE ORDER OF APPROVAL PASSED BY THE M.G.UNIVERSITY DATED 28.11.2009. ## **RESPONDENTS' EXHIBITS:** NIL //TRUE COPY// AHZ/ ## **K.T.SANKARAN, J.** ## **-----------------------------------------------------W.P.(C). NO. 10607 OF 2010 -----------------------------------------------------Dated this the 6[th] day of Setpember, 2010** ## **JUDGMENT** The petitioner was appointed as Lecturer in Economics in NSS Hindu College, Changanacherry with effect from 12.1.2006 to 31.5.2008, in the leave vacancy of N.Rajeev. The appointment was approved by the Mahatma Gandhi University. When Rajeev rejoined duty, the management transferred the petitioner to NSS College, Pandalam with effect from 30.5.2008 in a retirement vacancy. NSS College, Pandalam is affiliated to the University of Kerala. The University of Kerala objected to the mode of appointment. Thereafter, the management issued a letter dated 26.5.2009 appointing the petitioner in the retirement vacancy of L.Jayanthi Pillai in NSS Hindu College, Chenganacherry with effect from 1.6.2009. Ext.P1 is the reappointment order dated 26.5.2009. Ext.P1 appointment order was approved by the M.G.University as per Ext.P2 order dated 28.11.2009. It is submitted that though the appointment of the petitioner was approved by the MG University, respondents 2 and 3 have not sanctioned and disbursed salary to the petitioner till date. W.P.(C) NO.10607 OF 2010 :: 2 :: 2. The relief sought for by the petitioner in this Writ Petition is to issue a writ of mandamus commanding the second respondent to sanction and disburse salary to the petitioner with effect from 1.6.2009. 3. In the counter affidavit filed by the second respondent, the defence taken is contained in paragraphs 3 and 4, which read as follows: “3. Again the petitioner Smt.Jolsna.S., was reappointed as Lecturer in Economics at the NSS Hindu College, Changanacherry w.e.f. 1.6.2009 against the retirement vacancy of Smt.Jayanti Pillai, Lecturer Selection Grade. The M.G.University approved the reappointment w.e.f. 1.6.2009 as per University Order No.5267/B1/2009/Acad. dated 28.11.2009. The Principal, NSS Hindu College, Changanacherry submitted the proposal for sanction for claiming the salary w.e.f. 1.6.2009 vide letter No.G1/212/2009 dated 3.12.2009. But, the proposal was returned for retransmission along with the service book of the incumbent vide this Office letter No.B1/9964/2009 dated 22.1.2010. The same was resubmitted by the Principal ## W.P.(C) NO.10607 OF 2010 :: 3 :: vide letter No.G1/212/2009 dated 1.2.2010 along with the service book. On verification of the proposal, it is found defective and hence returned to the Principal vide letter No.B1/9964/2009 dated 18.2.2010 for retransmission along with the documents such as the concurrence of the Government for filling up the retirement vacancy of Smt.Jayanti Pillai, no excess certificate from the Zonal Deputy Directors of Collegiate Education at Ernakulam, Kollam, Thrissur and Kozhikode, and a certificate from the Manager to the effect that there are no deployed teachers to be redeployed to the parent institution as laid down in the G.O.(MS) No.75/2009 dated 1.7.2009. 4. This respondent as per letter No.B1/9964/2009 dated 18.2.2010 has requested the Zonal Deputy Directors of Collegiate Education at Ernakulam, Kollam, Thrissur and Kozhikode, to report as to whether any excess teachers working in the discipline of Economics in NSS Colleges under their jurisdiction. As per clause (iii) to para 4 of G.O.(MS) No.95/2006/H.Edn. dated 10.8.2006 has stipulated that “the management will not be allowed to fill up any post in any subject if there are excess posts in any discipline in the college, as identified by the Collegiate Education Department”. In the case of corporate managements, workload statement for the concerned department of all the W.P.(C) NO.10607 OF 2010 :: 4 :: colleges and the excess teachers if any working in the discipline under the same management, are to be verified. Sub clause 2 of statute 21, part b of Chapter 45 of M.G.University Statutes reads that “in the case of those Educational Agencies which have entered into written agreement with the Government for direct payment of salary to their staff by the Government, the salary shall be paid in accordance with the orders of Government issued from time to time and in accordance with such agreement”.” 4. The learned counsel for the petitioner submitted that in view of the Division Bench decisions in **Cherian Mathew** v. **Principal, S.B.College** (ILR 1998 (3) Kerala 1) and in **Shalini Rachel** v. **Manager, Christian Colleges** (2007 (3) KLT 355), the defence taken by the second respondent is quite unsustainable. 5. In _**Cherian Mathew's case**_ , the Division Bench held thus: “6. When a teacher is appointed in accordance with the workload assessed in the above terms, the said appointment has to be honoured by the Director of Collegiate Education and salary disbursed, if the said appointment is approved by the University. In case the Director doubts the correctness of that appointment, he ## W.P.(C) NO.10607 OF 2010 :: 5 :: will be at liberty to take up the matter with the University. When such a step is resorted to by the Director, the University has to examine the issue afresh and take a decision thereon. The decision so taken by the University as seen from the provisions of the Ordinances, Statutes and Act, is binding on the Director. In such a situation, the Director will have no other course than to disburse the salary to the teacher whose appointment is approved by the University.” In _**Shalini Rachel's case** ,_ the Division Bench approved and followed the decision in _**Cherian Mathew's case.**_ 6. The learned counsel for the petitioner submitted that no workload assessment would be necessary in the case of a retirement vacancy, unless there is proof of any change of circumstance. There is no case that there was any case of change of circumstance and, therefore, there was no justification for not disbursing salary to the petitioner, particularly when the University, which is the proper authority for approving the appointment of teachers, has approved the appointment of the petitioner, taking into account all the relevant facts. W.P.(C) NO.10607 OF 2010 :: 6 :: 7. I am of the view that the contentions put forward in the counter affidavit are contrary to the view taken by the Division Bench in the aforesaid decisions. As held in _**Cherian Mathew's case**_ , if the Government is aggrieved, they could address the University for appropriate information and adequate steps can be taken thereafter. That is not a ground for denying salary to a teacher who was appointed by the management and whose appointment was approved by the University and who has worked during the relevant period. For the aforesaid reasons, the Writ Petition is allowed. Respondent No.2 shall disburse the salary due to the petitioner forthwith. The arrears of salary shall be paid to the petitioner within a period of three months. The right of the respondents to approach the University as mentioned in _**Cherian Mathew's case**_ is left open. **(K.T.SANKARAN) Judge** ahz/