K. Indira v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 20TH DAY OF JANUARY 2012/30TH POUSHA 1933 WPC.No.30333 of 2010 (N) ------------------------------ PETITIONER: --------------- K.INDIRA,RETIRED JR.SUPDT. SRI.VYASA NSS COLLEGE VADACHERICHERRY,RESIDING AT KARUNYAM,SABHAYIL PARAMBU,KARAKKAD SCHOOL ROAD GURUVAYOOR - 680 101,THRISSUR. BY ADVS.SRI.T.P.DEYANANTHAN SRI.JOHN K.JOSEPH(SAJAN) SMT.R.SEEMA RESPONDENTS: ------------------ 1. STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT,HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001. 2. DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN,THIRUVANANTHAPURAM - 695 033. 3. THE SECRETARY (MANAGER) N.S.S.COLLEGES, - CENTRAL COMMITTEE, CHANGANACHERRY - 686 101, KOTTAYAM. R3 BY SRI.P.GOPAL R3 BY SRI.B.MURALEEDHARAN R1 & R2 BY SMT.LOWSY A., GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.30333/2010 A P P E N D I X ## PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ORDER No.ESTT E4-41895/86/COLL. EDN. DTD. 16.7.86. EXT. P2 : COPY OF CIRCULAR No.ESTT-E1-56284/01/COLL.EDN. DTD. 5.12.01. EXT. P3 : COPY OF G.O.(MS) 119/04/H.EDN DTD. 17.9.04. EXT. P4 : COPY OF G.O.(MS) 145/04/H.EDN DTD. 3.11.04. EXT. P5 : COPY OF JUDGMENT DTD. 3.4.06 IN WP(C) 28955/04(V). EXT. P6 : COPY OF OFFICE ORDER DTD. 30.8.03 OF PRINCIPAL. EXT. P7 : COPY OF PROFORMA-II OF 1.11.04. EXT. P8 : COPY OF STAFF FIXATION ORDER E4-44886/05/COLL.EDN DTD. 16.12.05. EXT. P9 : COPY OF ORDER No.H.4098/05 DTD. 1.6.05. EXT. P10 : COPY OF GOVT. ORDER No.116/05/H.EDN DTD. 4.7.05. EXT. P11 : COPY OF LETTER E4-37381/06/COLL.EDN. DTD. 11.9.06. EXT. P12 : COPY OF ORDER No.H.6263/06 DTD. 23.9.06. EXT. P13 : COPY OF GOVT. LETTER No.13858/D3/09/H.EDN DTD. 11.5.09. ## RESPONDENT'S EXHIBITS: EXT. R3(a) : COPY OF GOVT. ORDER DTD. 20.8.10. // True Copy // P.A. to Judge. smp ## **T.R. RAMACHANDRAN NAIR, J.** **---------------------------------------** **W.P.(C) No.30333 OF 2010 --------------------------------------Dated this the 20[th] day of January, 2012.** ## **J U D G M E N T** The petitioner is aggrieved by the denial of approval of appointment as Senior Superintendent of the College under the management of the 3[rd] respondent as per Ext.P11 order. By Ext.P9 order, the petitioner was promoted as Senior Superintendent in the vacancy of Smt.K.Meenakshi. The bare facts for the disposal of the writ petition are the following: 2. The petitioner retired from Sri.Vyasa NSS College as Junior Superintendent on 30.11.2006. The said college is a unitary Management institution. The Government had passed an order Ext.P2 banning promotion and appointments of non teaching staff of the private colleges from 01.12.2001. Ext.P3 is the revised staff pattern of non teaching staff in Private Arts & Science Colleges, Training Colleges and Arabic Colleges. Ext.P3 is dated 17.09.2004. 3. Going by the revised staff pattern, the colleges were **W.P.(C) No.30333/2010** **2** graded into A to E according to course strength and students strength. The pre revised staff pattern allowed reckoning of students strength alone. Ext.P3 order was later modified by Ext.P4 order whereby in respect of 'C' Grade colleges, the criteria for grading is 10 courses with student strength of 750 or more. In fact, as per the Pre Degree Abolition Act, the ban on appointment was for three years which ceased to be in force from June 2000. Ext.P5 is a judgment of this Court whereby the ban order issued as per the executive order was quashed. Therefore, during the period from 05.12.2001 to 17.09.2004, the grant of promotion is permissible for a person like the petitioner, in the light of Ext.P5 judgment, which is the contention raised by the petitioner in the writ petition. 4. According to the petitioner, she was given charge as Senior Superintendent as per office order dated 30.08.2003 produced as Ext.P6 since Smt.K.Meenakshi, Senior Superintendent entered on leave preparatory to retirement from 01.09.2003. It is also the case of the petitioner that the college had 10 courses under the Direct Payment Scheme with 1023 **W.P.(C) No.30333/2010** **3** students and the students strength of the college is supported by Ext.P7. 5. Ext.P8 is an order by which the staff fixation of the college was revised. This was based on the actual students strength as on 1[st] November, 2003. Therein, the post of Senior Superintendent has not been sanctioned. The said post which was available earlier has been declared as supernumerary. 6. The reason stated in Ext.P11 for rejection of approval is that in the revised staff pattern, the post is treated as supernumerary from 17.09.2004. The petitioner points out that in the case of one Sri.Sadasivan Pillai, Head Accountant of N.S.S College, Ottappalam, similar promotion was granted which was approved by the Government as per Ext.P10 order. The petitioner's promotion as Junior Superintendent with effect from 17.09.2004 as per Ext.P12 was approved. Finally, the request of the petitioner for promotion as Senior Superintendent was rejected by the Government as per Ext.P13. The orders rejecting approval of promotion of the petitioner as Senior Superintendent are under challenge in this writ petition. **W.P.(C) No.30333/2010** **4** 7. The petitioner's contentions are mainly that a vacancy arose in the year 2003 and therefore, under the pre revised staff pattern, the post was available as the revised staff pattern is only effected from 17.09.2004. It is also pointed out that the additional courses have not been reckoned by the Director of Collegiate Education for sanctioning of posts, which is not justified in the light of a decision of a Division Bench of this Court in _**State of Kerala** vs._ _**Arun George**_ (2009 (4) KLT 972). It is thus pointed out that as on the date of occurrence of a vacancy of Senior Superintendent, the petitioner was rightly promoted by the Management. 8. The counter affidavit filed by the Management shows that the college is imparting eight Degree courses and two Post Graduate Degree Courses. B.A. (English) and B.A. (History) Degree Courses and M.Sc (Physics) Post Graduate Degree Course were sanctioned by the Government during the academic year 1998-2001 on condition that there will not be any additional financial commitments to the Government. The workload of these courses was not reckoned for sanctioning teaching and **W.P.(C) No.30333/2010** **5** non-teaching posts. The Government by Ext.R3(a) order ordered that the workload for the conditional courses sanctioned by the Government during the academic year 1998-2001 will be reckoned for sanctioning the courses and that the Government will disburse the salary to the teachers from the date of the order of the Government. Therefore, the stand taken by the Management is that in the light of Ext.R3(a) order of the Government, all the Degree and Post Graduate Courses in the college and the number of students studying for the said courses are to be reckoned for the fixation of staff pattern of non teaching staff in the college and the Director of Collegiate Education is bound to classify the college as 'C' grade college. 9. With regard to the occurrence of vacancy in the post of Senior Superintendent, it is pointed out that the post of Senior Superintendent existed in the College at the time when PreDegree courses were imparted in the college. Smt.K.Meenakshi was holding the said post. She availed leave preparatory to retirement from 01.09.2003 till her retirement from service on attaining the age of superannuation on 20.08.2004. By Ext.P9 **W.P.(C) No.30333/2010** **6** order, the petitioner was thus promoted in the vacancy which arose from 28.02.2004. 10. The stand taken by the 2[nd] respondent in the counter affidavit is that in the case of non teaching staff of private colleges, Government issued orders revising the staff pattern as per Ext.P3 on 17.09.2004 and the statistics as on 01.11.2003 had been called for from each colleges based on which the staff pattern in respect of the 3[rd] respondent's college was fixed. It is pointed out that the post of Senior Superintendent is abolished and remained supernumerary. 11. The specific condition provided in Ext.P8 order show that the same is “excluding the courses sanctioned from the year 1998-99 and after with the condition of no financial commitment/no additional financial commitment/expenditure not to exceed budget provision etc”. The question whether the same is justified or not is covered by the decision of the Division Bench of this Court in _**State of Kerala** vs._ _**Arun George**_ (2009 (4) KLT 972). In paragraphs 18 and 22 of the said judgment, the legal position was explained thus: **W.P.(C) No.30333/2010** **7** “It should be stated that the genuineness of the documents relied on by the petitioner or the facts stated therein are not disputed by the Government or the University. No affidavit also has been filed, contradicting the averments in the affidavits referred to above. In such circumstances and in the light of the materials available, we have no reason to conclude that the courses in question are not aided courses. If the courses are aided courses, and as admittedly, the colleges in question are governed by Direct Payment Agreement, necessarily the Government is bound to honour the Direct Payment Agreement and by imposing unilateral conditions the Government cannot absolve itself of the liabilities arising under such a statutory contract. In our view an argument against the above conclusion of ours, cannot even be raised by the Government for the reason that till this issue was raised, the Government and the University conducted themselves on the basis that the courses in question are aided courses. Otherwise statutory Selection Committees applicable to aided colleges would not have been constituted with the participation of the representative of the Government and the University for selecting and appointing the lecturers including Respondents 1 to 7, and for the courses sanctioned as per Exts.P2 and P2(a), admissions would have been made in the manner as provided in the Direct Payment **W.P.(C) No.30333/2010** **8** Agreement, fee would not have been collected at the rate applicable to aided courses, fee would not have been remitted in the Treasury as provided in the Direct Payment Agreement and remittance in the Treasury would not have been accepted but for the fact it was payable under the Direct Payment Agreement. Therefore, the Government and the University also had accepted that the courses in question are aided courses”. 12. Ext.R3(a) order shows that in respect of teaching posts, the Government has accepted the principle. It is submitted by the learned counsel for the petitioner that going by Section 63 of the Calicut University Act, as far as non teaching staff are concerned also, the same condition of service of teaching staff is squarely applicable and therefore, Ext.R3(a) should have automatically made applicable for sanction of required posts of non teaching staff. According to the petitioner, the principles laid down by this court in _Arun George's_ case (supra) will squarely apply to the facts of this case. In that view of the matter, the issue will have to be reconsidered by the Director of Collegiate Education. Therefore, Exts.P11 and P13 orders will stand quashed. The Director of **W.P.(C) No.30333/2010** **9** Collegiate Education will pass appropriate orders in the light of the principles reiterated by this Court in _Arun George's_ case (supra)after considering the plea of the petitioner for sanction of post of Senior Superintendent, after hearing the petitioner and the Management, within a period of three months from the date of receipt of a copy of this judgment. Depending upon the orders, the eligibility of the petitioner for promotion as Senior Superintendent will be considered and revised orders will be passed accordingly. This writ petition is allowed to the above extent. No costs. ## **T.R. RAMACHANDRAN NAIR JUDGE** smp