K. L. Tessy v. University of Calicut and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 9TH JULY 2008 / 18TH ASHADHA 1930 **WP(C).No. 16667 of 2008(H)** **--------------------------** PETITIONER: - ------------ K.L.TESSY, AGED 39 YEARS, LECTURER IN ZOOLOGY, SACRET HEART COLLEGE CHALAKUDY, THRISSUR BY ADV. SRI.M.B.PRAJITH RESPONDENTS: - ------------- 1. UNIVERSITY OF CALICUT, REP. BY ITS REGISTRAR, CALICUT 2. STATE OF KERALA, REP. BY ITS SECRETARY DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, THRISSUR. 4. FRANCISCAN CLARIST CONGREGATION EDUCATIONAL UNIVERSITY, REP. BY ITS SECRETARY, SACRED HEART CONVENT, CHALAKKUDY. 5. THE PRINCIPAL SACRED HEART COLEGE CHALAKUDY , THRISSUR. BY ADV. SHRI P.C.SASIDHARAN, SC FOR CALICUT UNIVERSITY FOR R1 BY GOVERNMENT PLEADER SHRI T.T.MUHAMOOD FOR R2 & R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX PETITIONER'S EXHIBITS: EXT.P1 A TRUE COPY OF THE APPOINTMENT LETTER ISSUED BY THE COLLEGE EXT.P2 A TRUE COPY OF THE SANCTION ORDER DATED 19.2.2008 ISSUED BY THE FIRST RESPONDENT EXT.P3 A TRUE COPY OF THE ORDER DATED 17.1.2007 IN WP(C) NO.12109/2006 DATED 17.1.2007 EXT.P4 A TRUE COPY OF THE ORDER DATED 21.6.2007 EXT.P5 A TRUE COPY OF THE GO(Ms) NO.77/2004/H.Edn. DATED 8.7.2004 EXT.P6 A TRUE COPY OF THE GO(Ms) No.152/2007/H.Edn. DATED 28.12.2007 //TRUE COPY// ## **K.T. SANKARAN,J.** **-------------------------------------W.P.(C) No.16667 of 2008 H -------------------------------------Dated this the 9[th] day of July, 2008.** ## **J U D G M E N T** The petitioner is working as Lecturer in Zoology in Sacret Heart College, Chalakkudy, Thrissur District. The petitioner was appointed in the retirement vacancy of Smt.Lalitha T.Chandy, who retired from service on 31.3.1998. The University duly approved the appointment of the petitioner as per Ext.P2 order dated 19.2.2008. The grievance of the petitioner is that even after Ext.P2 order of approval passed by the University, her salary is not being paid. The prayer in the Writ Petition is to issue a writ of mandamus directing the third respondent, the Deputy Director of Collegiate Education to counter-sign and pass salary/arrears bill and disburse the salary and other amounts due to the petitioner. There is also a prayer for a declaration that the sanction of approval of the Government is not necessary in the case of appointment of the petitioner since the petitioner is appointed in an existing vacancy. 2. In the counter affidavit filed on behalf of the third respondent, it is stated that on verification of the Service Book of the petitioner, she was 39 years of age at the time of appointment, i.e., on 2.1.2006. It is also **WP(C) No.16667/2008** 2 stated in the counter affidavit that as a counter-signing officer of the salary bill, it is the responsibility of the third respondent to ensure the details regarding qualification of the person concerned before putting counter-signature. 3. The first respondent also has filed a counter affidavit. The relevant provisions of the Calicut University Act and Statutes have been highlighted. The stand of the University is that once the appointment of the petitioner is approved, the third respondent was not justified in denying salary to the petitioner. 4. A reply affidavit is filed by the petitioner in which the petitioner contends that the Government had issued G.O.(Ms) No.77/2004/H.Edn. Dated 8.7.2004, enhancing the upper age limit fixed for the appointment as Lecturer, which is produced as Ext.P5 in this case. As per Ext.P5 Government Order the upper age limit of 35 years fixed for appointment as Lecturer in Arts & Science Colleges and Sanskrit Colleges, prescribed in Rule 4 of the Special Rules for Collegiate Education State Service is enhanced to 40 years, for a period of two years, with retrospective effect from 1.1.2004. In view of Ext.P5 Government Order the objection raised in the counter affidavit that the petitioner was over-aged at the time of appointment, does not appear to be correct. **WP(C) No.16667/2008** 3 5. In **Cherian Mathew v. Principal, S.B.College,** **Changanacherry (1998 (2) KLT 144)** it was held that once the University approves the appointment of Lecturers, the Government is bound to honour the salary bills. That decision was followed in **Shalini Rachel v. Manager, Christian College (2007 (3) KLT 355)** (W.A.No.940/2007 and connected cases) by a Division Bench of this Court. The Division Bench, in the above cited decision, held as follows:- “9. We are of the view, above mentioned provisions of the University Act, Statutes and Ordinances would clearly indicate that it is for the University to sanction the post as per clause (3) of Statute 14 of the Kerala University (Conditions of Service of Teachers and Members of Non-teaching Staff) First Statutes, 1979 in the case of private colleges coming under the Direct Payment Scheme, depending upon the work load and staff pattern fixed by the University. Once University accords sanction of a post and grants approval depending upon the work load and staff pattern, the Deputy Director of Collegiate Education shall verify before making direct payment of salaries as to whether the post for which payment is claimed is in accordance with the staff pattern and workload fixed by the University. If the University grants approval noticing that it is in accordance **WP(C) No.16667/2008** 4 with the staff pattern and work load fixed by it the Director of Collegiate Education or the officers concerned are obliged to make payment of salary as per the direct payment scheme. 10. Scope of Section 57(2) of the Kerala University Act has to be tested in the light of the above mentioned statutory provisions. Power of the University in granting approval as well as sanctioning posts after ascertaining the work load and fixation of staff pattern as per the Statutes has not been taken away by the University Amendment Act 2 of 2005. Clear cut provisions have been made in the University Statutes and Ordinances as to how the work load has to be assessed and staff strength fixed so as to avoid unnecessary appointments. Further the interest of the students is also to be safeguarded by appointing sufficient number of teachers without delay. Power is also conferred on the Deputy Director of Collegiate Education to take up the matter with the University in cases there is any doubt with the approval granted. In appropriate cases Government can also examine the action taken by the Deputy Director and address the University through him. **WP(C) No.16667/2008** 5 11. We have no reason to think that an august body like Syndicate or the Deputy Director of Collegiate Education would act arbitrarily or against public interest while exercising powers statutorily conferred on them. Sub-section (1) of Section 57 only says that appointments to the posts eligible to receive salary from the Government shall be made only after getting prior sanction from 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. Once Syndicate of the University grants approval for filling up the existing vacancies depending upon the workload and staff pattern Government is obliged to pay salary of the teachers appointed by duly constituted Selection Committee. If 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. Section 57 (1) was introduced not to take away the statutory powers already conferred on the Syndicate of the University. Principle laid down in Cherian Mathew's case supra in our view, still holds good. In view of the above mentioned circumstances, we are inclined to affirm the judgment of the learned single judge **WP(C) No.16667/2008** 6 in W.P.C.No.12109 of 2006 and dismiss W.A.No.940 of 2007.” In view of the authoritative pronouncements made by this Court, the stand taken by the third respondent in the counter affidavit is unsustainable. The petitioner is entitled to the reliefs prayed for in the Writ Petition and the Writ Petition is accordingly allowed. The third respondent shall counter-sign the salary/arrears bill and take all necessary steps for the disbursement of salary/arrears of salary to the petitioner forthwith. Appropriate orders shall be passed within a period of two weeks from the date of receipt of a copy of the judgment. The learned Government Pleader submitted that the disposal of this Writ Petition should not stand in the way of the Government to exercise the right to address the University in case the appointment was not in conformity with the statutory provisions, as held in Cherian Mathew's case (supra). It is made clear that the disposal of this Writ Petition would not stand in the way of the Government in exercising the right as stated in Cherian Mathew's case. **K.T. SANKARAN, JUDGE.** cks