Latha G. Nair v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932** **WP(C).No. 23269 of 2010(G)** **---------------------------------------** **PETITIONER(S):** - **----------------------** **LATHA G. NAIR, LECTURER IN HISTORY, N.S.S.COLLEGE, NILAMEL, KOLLAM.** **BY ADV. SRI.P.C.SASIDHARAN** **RESPONDENT(S):** - **-------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOLLAM-691 001.** **3. PRINCIPAL, N.S.S.COLLEGE, NILAMEL, KOLLAM-691 001.** **4. N.S.S. COLLEGES' CENTRAL COMMITTEE, CHANGANACHERY - 2, REPRESENTED BY ITS SECRETARY.** **5. THE UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, UNIVERSITY CAMPUS P.O., THIRUVANANTHAPURAM-695 034.** **R1 & R2 BY SR.GOVT. PLEADER MR.T.T. MUHAMOOD. R4 BY ADV. SRI.P.GOPAL,** **SRI.B.MURALEEDHARAN. R5 BY ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 23269 of 2010(G)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE NOTIFICATION.** **EXT.P2: COPY OF THE APPOINTMENT ORDER.** **EXT.P3: COPY OF THE PROCEEDINGS OF THE 5TH RESPONDENT DATED 11/12/2009 APPROVING THE APPOINTMENT OF THE PETITIONER.** **EXT.P4: COPY OF THE COMMUNICATION DATED 25/05/2010 OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION.** **EXT.P5: COPY OF THE G.O.(MS)NO.77/2004/H.EDN. DATED 08/07/2004.** **EXT.P6: COPY OF THE WORK LOAD STATEMENT AS ON 01/11/2008.** **EXT.P7: COPY OF THE WORK LOAD STATEMENT AS ON 01/11/2009.** **EXT.P8: COPY OF THE SENIORITY LIST IN THE DEPARTMENT OF HISTORY.** ## **RESPONDENT'S EXHIBITS:** **EXT.R4(a): COPY OF THE GOVERNMENT ORDER G.O.(MS)NO.63/2008/H DATED 23/06/2008.** **EXT.R4(b): COPY OF THE MINUTES OF THE SELECTION COMMITTEE DATED 06/10/2008.** **EXT.R4(c): COPY OF THE WORKLOAD STATEMENT ISSUED BY HE ADDITIONAL DIRECTOR OF COLLEGIATE EDUCATION DATED 16/10/2003.** **//TRUE COPY//** **P.S. TO JUDGE** **rs** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 23269 of 2010-G** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 9th day of March, 2011.** ## **JUDGMENT** The petitioner is aggrieved by the denial of salary in spite of the fact that the University has approved her appointment. 2. The petitioner is working as Lecturer in History in the college managed by the fourth respondent. The appointment was pursuant to the notification issued as per Ext.P1 and the selection conducted thereafter. The petitioner was rank No.3 in the list published and was appointed in the N.S.S. College, Nilamel. Ext.P2 is the copy of the order of appointment. The appointment was made in the retirement vacancy of one Shri M.K. Saratchandran Nair, Selection Grade Lecturer, who retired on 31.3.2007. Ext.P3 is the order by which the University approved the appointment. Thereafter, the Principal forwarded the salary bills which were returned by the Deputy Director of Collegiate Education by Ext.P4 stating five different objections. 3. The objections include one regarding age limit. Ext.P5 is the order passed by the Government enhancing the age limit of teachers in Arts and Science Colleges, Training Colleges Law Colleges from 35 to 40. It is wpc 23269/2010 2 pointed out that as on the last date for receipt of applications, viz. 20.5.2004, the petitioner was well within the age limit prescribed for the post. The second requirement was regarding the concurrence of the Government for appointment which, according to the petitioner, is not needed in terms of the University Statutes and especially since the appointment is in a retirement vacancy. It is pointed out that as on 1.11.2008 the workload of the college in the department of history is 46 hours and the sanctioned strength is 3. There was only one teacher and two posts were remaining to be filled. Ext.P6 is the copy of the workload statement as on 1.11.2008. Ext.P7 is the copy of the workload statement dated 1.11.2009 which shows 46 hours and the sanctioned strength of teachers is three. It is the contention of the petitioner that since the appointment is in a retirement vacancy and as the same is approved by the University, there cannot be any objection, in disbursing salary. 4. Respondents 2, 4 and 5 have filed separate counter affidavits. 5. First I will refer to the contentions raised by the management with regard to the appointment made. It is pointed out that after the Pre-degree Course (Abolition) Act, 1997 was enacted, there was a ban for appointment of teachers in various subjects in the colleges for a period of three years. This was over by 2.6.2000. Later, the Government as per Circular dated wpc 23269/2010 3 24.4.1997 directed that no new posts of teaching and non teaching staff shall be created in private colleges by the University without the prior approval of the Government. It was also specified that existing vacancies, if any, in the teaching and non teaching categories in private colleges should not be filled up. By a later order dated 26.3.2003 it was held that after the statutory ban created under Section 5 of the Act is over, there is no ban in the eye of law against making fresh appointment to teaching posts or against approving them. It is pointed out that thereafter the workload was fixed and the management issued the notification. Even though a later ban order was issued, that was lifted by G.O.(MS) No.63/2008/H. Edn. dated 23.6.2008 and sanction was accorded to fill up/approve teaching posts in various aided colleges in the State as defined in the Annexure to the Govt. Order. 6. The details with regard to the selection and the publication of the select list have been elaborated in para 7. It is pointed out that in fact, rank No.1 in the open merit list was appointed in NSS College, Cherthala by order dated 10.10.2008 in a retirement vacancy. Rank No.1 in the community merit was appointed in NSS College, Nilamel by order dated 10.10.2008 in the transferred vacancy of Smt. K. Sreelatha. Later, the petitioner was appointed on 23.10.2008 in the retirement vacancy of Shri Saratchandran Nair M.K. which arose on 31.3.2007. It is pointed out that wpc 23269/2010 4 various other appointments were also made and all the appointments were approved by the University by order dated 11.12.2009. Ext.R4(c) is the true copy of the workload statement issued by the Additional Director of Collegiate Education. As per Ext.R4(c) the college is entitled to get three posts of Lecturers in the Department of History and out of the three posts, one post was held by Shri Parameswaran Nair and the remaining two posts were filled up by appointing candidates from Ext.R4(b) list. 7. The University, in the statement filed, submits that the date of birth of the petitioner being 26.8.1964, she has completed 39 years and 4 months as on 1.1.2004 and thereby falls within the eligible age for appointment as Lecturer. It is pointed out that the appointment of the petitioner was done in a retirement vacancy and as third Lecturer in the Department of History, N.S.S. College, Nilamel. The Adalath Statement of Director of Collegiate Education (authorised by the Government) of 2002 shows the total working hours in the Department of History, N.S.S. College, Nilamel as 46 hours and permissible number of teaching post as three. It is pointed out that the courses contributing to the above teaching hours, had been existing in the college since 1969. It is stated that the appointment was done to an already sanctioned post which has been approved by the Government also. 8. In the counter affidavit filed by the second respondent it is wpc 23269/2010 5 mentioned that there are seven colleges under the N.S.S. management within the jurisdiction of the Kerala University area. One college comes under the jurisdiction of the Deputy Director of Collegiate Education, Ernakulam and another college comes under the Deputy Director of Education, Kottayam. Therefore, the second respondent has addressed the Deputy Director of Collegiate Education, Ernakulam and Kottayam respectively to ascertain whether there is any excess staff in the department of history over and above the permissible strength of teaching staff. It is stated that the reply from the Deputy Director of Education, Ernakulam and Kottayam has not been so far received. 9. Heard parties. 10. Evidently, the appointment has been approved by the University. There is no dispute regarding the workload as well as existence of a sanctioned post. The appointment is also in a retirement vacancy. All the appointments have been approved by the University. The objections raised in Ext.P4 also are only with reference to the production of a Govt. Order showing relaxation and certain other details. 11. The legal position with regard to the question whether the Government or the authority under them can deny salary was considered by two Division Benches of this Court in **Cherian Mathew v. Principal, S.B.** wpc 23269/2010 6 **College, Changanassery** (1998 (2) KLT 144) and **Shalini Rachel v. Manager, Christian College** (2007 (3) KLT 355). It has been held therein that after the University has approved the appointment, if there is any objection for the Government or the Deputy Director of Collegiate Education, it will have to be raised before the University. Herein, so far no objection has been raised by the Deputy Director of Collegiate Education or the Government before the University. In **Cherian Mathew's** case(supra) the principle has been laid down thus: “3. Kerala University First Ordinance 1978 inter alia provide for assessment of work load and pattern of teaching staff in Arts and Science Colleges. Chapter XIII of the First Ordinance deals with the said issues. Statute 3 is concerned with the procedure for calculating number of teachers required for a department. In the case of Mahatma Gandhi University, it is conceded before us, no separate Ordinance has been promulgated and the Kerala University First Ordinance govern all similar issues. Likewise the Calicut University First Ordinance controls the procedure for calculating number of teachers required for a department. 4. On the basis of the work load calculated in terms of Ordinance 3 in the Kerala University First Ordinance, teachers are allowed to be appointed in Colleges run by wpc 23269/2010 7 private management. The appointment so made in conformity with the work load assessed by the University are approved by the concerned University. To the teacher whose appointments is so approved, salary should be paid by the Government through Director of Collegiate Education. In other words, when a teacher is appointed by private management in terms of the provisions contained in the Kerala University First Ordinance or the Calicut University First Ordinance as the case may be, his salary has to be disbursed by the Government if that appointment has been approved by the concerned University. In case the Director of Collegiate Education doubts the propriety of the appointment of a teacher in the sense that the work load did not require the appointment of such a teacher, the issue will have to be taken up by him with the University. The University then has to re-examine the entire issue and to take a decision on the issue as to whether the appointment was proper or not. When the University takes a decision on this aspect, that decision will be binding on the Government. 5. No provision of the University Act First Statutes, Ordinance or Regulations in force enables the Government to sit in judgment over the decision arrived at by the University regarding the number of teachers to be appointed in a Department in a college run by a wpc 23269/2010 8 private management. In the absence of such a provision, the Government is not entitled to impose a condition that prior approval from the Director of Collegiate Education is needed for a management to appoint a teacher in its staff.” The said position was reiterated in the later decision in **Shalini's** case (supra) also and in paragraphs 10 and 11 the legal position was reiterated thus: “10. Scope of S.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 case there is any doubt with the approval granted. In appropriate cases, Government can also examine the action taken by the Deputy Director wpc 23269/2010 9 and address the University through him. 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-s.(1) of S.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. S.57(1) was introduced not to take away the statutory powers already conferred on the Syndicate of the University. Principle laid down in _Cheriyan 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 in W.P.(C)No.12109 of 2006 and dismiss wpc 23269/2010 10 ## W.A.No.940 of 2007.” 12. In the light of the above legal position, the petitioner is entitled to succeed in the writ petition. The salary cannot be denied for the reason that the approval has already been granted by the University. 13. There is no case for the University also that there are any existing teachers remaining to be absorbed under the management in any of the colleges. Learned counsel for the Manager and learned counsel for the petitioner submits that all other appointments made have been approved and there has not been any objection regarding the same also. The writ petition is therefore allowed. There will be a direction to the second respondent to countersign the salary bills of the petitioner so as to enable the Principal of the college to draw the salary including arrears and the same will be disbursed within a period of two months from the date of receipt of a copy of this judgment. It is made clear that this will not stand in the way of the second respondent seeking any information from the University at any later point of time. No costs. **T.R. Ramachandran Nair, Judge.)** **kav/**