High Court of KeralaSingle Judge2019-07-11Writ petition allowed; salary payable from 03.0...

Malankara Orthodox Church Colleges represented by the Secretary, Corporate Management, Devalokam, Kottayam v. Mahatma Gandhi University and State of Kerala, Director of Collegiate Education, Deputy Director of Collegiate Education, Kottayam

Case / Petition Number:WP(C).No.34658 of 2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. ASHA
Judgment Date: 2019-07-11
Court Decision / Holding: Writ petition allowed. The court held that once the University approves an appointment, the Government is generally liable to pay salary and cannot raise a barrier on that ground. The respondents were directed to pay salary to the 2nd petitioner from 03.06.2013 onwards within three months, with a rider that they may approach the University or any other forum for disputes regarding workload or approval, to be considered in accordance with law. The court clarified that interim salary already paid under an earlier order stands, and that the University’s eventual 19.06.2017 approval is not negated by government objections, which may be pursued separately.
Final Disposition: Writ petition allowed; salary payable from 03.06.2013 onwards; direction to pay within three months; open to approach the University for workload/approval disputes.

Parties to the Case

Appellants / Petitioners

Malankara Orthodox Church Colleges represented by the Secretary, Corporate Management, Devalokam, Kottayam
Princy Susan Koshy, Assistant Professor, Department of Chemistry, KG College, Pampady

Respondents

Mahatma Gandhi University represented by its Registrar
State of Kerala represented by the Additional Chief Secretary, Higher Education Department
Director of Collegiate Education
Deputy Director of Collegiate Education, Kottayam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Babu Varghese (Sr.)
• Sri. C.V. Alexander
• Sri. V. Narayana Swami

Counsels for Respondents

• Sri. Varghese M. Easo, SC, MG University
• Sri. ASOK M. Cherian, SC, MG University
• Sri. Jestin Mathew, G.P.

Case Synopsis & Summary

This writ petition (WP(C) No.34658 of 2015) was filed by the Malankara Orthodox Church Colleges through its Secretary, Corporate Management, and by an Assistant Professor challenging the University’s denial of approval for the appointment of the second petitioner as Assistant Professor in Chemistry at KG College, Pampady (under the petitioners). The factual matrix centers on government orders sanctioning chemistry posts (GO(MS) No.260/2010, GO(Rt) No.2360/10/H.Edn), workload statements, and a 2010-11 fixation for KG College, including a selection process that culminated in the appointment of the 2nd petitioner on 24 May 2013 to fill a retirement vacancy. The University initially rejected approval (Ext P11) on grounds of workload and nomination concerns, prompting the 2015 writ petition. After protracted proceedings, the University issued a 2017 order approving the appointment with retrospective effect from 03 June 2013. The government counters that the claimed 42-hour workload for Chemistry was not supported by authenticated statements and that the post was not sanctioned for the subject. The Court relied on its previous rulings that government approval is not a bar to University approval and that salary liability arises from University approval, not Government sanction. The petition was ultimately allowed, directing payment of salary from 03.06.2013 within three months, while permitting recourse to the University for any workload disputes.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the 2nd petitioner was appointed to a post in Chemistry against a sanctioned vacancy per Ext P2 and Ext P3 workload statements, relying on government orders that allowed filling of chemistry posts in KG College, Pampady. They argued that university approval was essential for salary liability and that once the University approved the appointment, government objections could not bar payment of salary. They pointed to Ext P8 (appointment) and Ext P11 (university’s initial rejection) and urged that salary arrears from 03.06.2013 should be paid, referencing prior court rulings that support government non-interference post-approval and that remedies for disputes lie with the University rather than the government.

Contentions of Respondents

The respondents argued that there was insufficient authenticated workload for the Chemistry post; Ext P2’s sanction was not accompanied by a sanctioned workload for Chemistry and there was no government nomination for the post. They asserted the teacher who retired was in a supernumerary post and that the university’s 2013 appointment could not be treated as salary payable by the government. They contended that the University’s approval was not properly grounded due to lack of workload and post-sanction, and that any dispute should be resolved with the University.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Cherian Mathew v. SB College, Changanacherry	1998(2) KLT 144	Positive	Cited to support the proposition that government’s prior permission is not necessary for posts sanctioned by the University and that salary liability follows University approval.
Shalini Rachel v. Manager, Christian College	2007 (3) KLT 355	Positive	Cited alongside Cherian Mathew to reinforce that remedies for any objections to University approval lie with the University; once University approval is given, government interference is limited.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 11TH DAY OF JULY 2019 / 20TH ASHADHA, 1941** ## **WP(C).No.34658 of 2015** ## **PETITIONERS:** **1 THE MALANKARA ORTHODOX CHURCH COLLEGES REPRESENTED BY THE SECRETARY, CORPORATE MANAGEMENT, DEVALOKAM, KOTTAYAM 686038** **2 PRINCY SUSAN KOSHY ASSISTANT PROFESSOR, DEPARTMENT OF CHEMISTRY, KG COLLEGE, PAMPADY, 686502** **BY ADVS.** **SRI.BABU VARGHESE (SR.) SRI.C.V.ALEXANDER SRI.V.NARAYANA SWAMI** ## **RESPONDENTS:** **1 THE MAHATMA GANDHI UNIVERSITY REPRESENTED BY ITS REGISTRAR, PRIYADARSINI HILLS, ATHIRAMPUZHA, KOTTAYAM 686560 2 STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001 3 DIRECTOR OF COLLEGIATE EDUCATION VIKAS BHAVAN, THIRUVANANTHAPURAM 695033** - **4 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION KOTTAYAM 686001** **BY ADVS.** **SRI.VARGHESE M.EASO, SC, M.G.UNIVERSITY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY SRI. JESTIN MATHEW, G.P.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.34658 of 2015 2 ## **JUDGMENT** An educational agency along with an Assistant Professor has filed this Writ Petition aggrieved by the denial of approval to the appointment of the 2[nd] petitioner as Assistant Professor. 2. The 2[nd] petitioner was appointed as Assistant Professor in Chemistry as per Ext.P8 order on 24.05.2013 with effect from 03.06.2013 in KG College, Pampady which is under the 1[st] petitioner. It is stated that conditional courses were sanctioned in the College as per the Government order issued on 20.08.2010 during the period from 1998-2001. It is also stated that as per G.O(Rt) No.2360/10/H.Edn dated 14.12.2010 the 1[st] petitioner was allowed to fill up altogether 32 posts of teachers in the three colleges under it. The petitioners have produced the staff fixation statement with respect to the KG College, Pampadi for the year 2010-11 along with work load statement- Ext.P3(a) in order to substantiate the contention that there was a post available for appointment of the 2[nd] petitioner in accordance with the workload fixed for the College. By Ext.P2 order dated 14.12.2010 Government sanctioned two posts in Chemistry in KG College, Pampady under the[st] petitioner and granted permission to fill up those vacancies. Ext.P3 workload is stated to be prepared in accordance with GO(Ms) No.260/2010/H.Edn. dated 20.08.2010. The workload for WP(C).No.34658 of 2015 3 Chemistry is stated to be 42 hours and the permissible staff strength was three. The petitioners have produced Ext.P3(a) workload which is stated to be on re-assessment based on the post adalat review in the meeting held on 18.12.2002, in which the workload for chemistry was stated as 39 and posts admissible was found to be 2. 3. It is stated that a notifications was issued by 1[st] petitioner in Ext P4 series of newspaper dailies inviting applications for appointment to various teaching posts including Chemistry. It is stated that the selection committee was constituted as per Ext.P5 order dated 15.05.2012 and after conducting an interview on 11.08.2012, the selection committee as per Ext P6 minutes prepared separate panel of selected candidates under open merit and community merit and that the 2[nd] petitioner who was ranked 2 in community merit quota was appointed as per Ext P8 order on 24.05.2013 with effect from 03.06.2013 against the retirement vacancy of Smt.Mariamma George V. It is stated that even though the proposal for approval of the appointment was forwarded to the University, on 05.07.2013, the University in Ext P11 letter informed that there was no workload for the 3[rd] post in the college and that there was no nomination by Government for selection to the post. The writ petition was filed in the year 2015 challenging Ext P11 order of the university denying approval and WP(C).No.34658 of 2015 4 seeking a direction to the university to approve the appointment and to the 4[th] respondent to pay salary to 2[nd] petitioner. 4. Subsequent to the filing of the Writ Petition, the University issued order dated 19.06.2017 approving the appointment of the 2[nd] petitioner with effect from 03.06.2013. On the basis of this order, this Court passed an interim order on 20.03.2018 directing the respondents to pay current salary of the petitioner and the petitioner is getting salary only from April, 2018. Arrears from 03.06.2013 is due. 5. The Government have filed a counter affidavit and additional counter affidavit. In the additional counter affidavit it is stated that there was no sufficient workload to appoint the 2[nd] petitioner. Producing Ext.R4(b) statement for reassessment of workload based on the meeting held on 18.12.2002 and revised fixation of staff strength it is stated that the workload assessed for Chemistry is only 38 and as against two admissible posts three teachers are working. It was stated that the appointment of petitioner from 03.06.2013 is not against a post sancioned by government. It was stated that the teacher who retired was continuing in a supernumerary post against which no appointment can be made. It is stated that in Ext P2 order, workload was not sanctioned by Government against subsidiary Chemistry of B.Sc Zoology. It is stated that on the basis WP(C).No.34658 of 2015 5 of Ext.P2 order sanctioning the posts in K.G. College, Pampady, government had not enhanced the workload in Chemistry; workload was enhanced only in the subjects Commerce, English and Zoology. According to the 4[th] respondent the work load for the Chemistry Department is not 42 hours as claimed by the petitioner and it is only 38 hours. It is stated that Ext P3 workload statement claiming 42 hours of workload is not one authenticated. 6. I have heard learned senior counsel, Sri.Babu Varghese for the petitioner, learned Government Pleader for respondents 2 to 4 and Learned standing counsel for the 1[st] respondent University. 7. Though the university had rejected approval to 2[nd] petitioner's appointment as per Ext P11 order, approval was granted on 19.06.2017 with effect from 03.06.2013. On a perusal of Ext P2 order, as available on record it is seen that sanction was accorded by government for filling up vacancies in Chemistry in the KG College, Pambadi. The respondent have not produced any workload statement for the period after 2002. 8. At any rate the issue regarding the liability of government towards payment of salary to teachers once the approval is granted by the University is already considered by this Court in a number of cases and it is well settled that once the University approves the appointment, the WP(C).No.34658 of 2015 6 Government does not have a say in order to object the same and to deny payment of salary. In the light of the judgments of this court in Cherian Mathew V SB College, Changanacherry: 1998(2) KLT 144, **Shalini Rachel v. Manager, Christian College:** 2007 (3) KLT 355 the only remedy available for the respondents 2 to 4 in case there is any objection against the approval granted by the University, is to take up the matter with the university or any other forum. It is held that prior permission of government is not necessary for filling up the posts sanctioned by the University. 9. The pleadings in this case do not show that the respondents 2 to 4 have resorted to any such remedies, though approval was granted in 2017, provisionally and subject to the result of the writ petition. 10. Therefore, in view of the aforesaid judgments of this Court it can only be held that the respondents 2 to 4 are liable to make payment of salary to the petitioner on the basis of the approval granted by the University, with effect from 03.06.2013. However as held in the judgment in Shalini Rachel's case the respondents 2 to 4 would be free to take up the matter with the University, in case there is any dispute with respect to the workload in Chemistry in the college and the approval granted by the University. As the respondents have not taken any such action, it is declared WP(C).No.34658 of 2015 7 that petitioner is entitled to get salary with effect from 03.06.2013 onwards. It is stated that petitioner is being paid salary based on interim order passed on 11.01.2018. The Writ Petition is accordingly allowed with a direction to respondents 2 to 4 to see that salary due to the 2[nd] petitioner for the period from 03.06.2013 onwards is paid to her within a period of three months from the date of receipt of a copy of this judgment. It is made clear that it would be open to the respondents 2 to 4 to approach the University or any other forum if they are having any dispute with respect to the work load or the approval, which shall be considered in accordance with law. **Sd/P.V.ASHA JUDGE** rkc/SCS WP(C).No.34658 of 2015 8 ## **APPENDIX OF WP(C) 34658/2015** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE GO(MS) NO.260/2010/H.EDN. DATD 20.08.2010 EXHIBIT P2 TRUE COPY OF THE GO(RT) NO.2360/10/H.EDN. DATED 14.12.2010** **EXHIBIT P3 TRUE COPY OF THE STAFF FIXATION STATEMENT, FOR THE YEAR 2010-2011** **EXHIBIT P3(a) TRUE COPY OF THE STATEMENT FOR THE RE ASSESSMENT OF WORKLOAD, REVISED FIXATION OF STAFF STRENGTH AND IDENTIFICATION OF SURPLUS STAFF IN RESPECT OF THE COLLEGE PREPARED BY THE 3RD RESPONDENT EXHIBIT P4 TRUE COPY OF THE NOTIFICATION PUBLISHED IN THE NEW INDIAN EXPRESS EXHIBIT P4(a) TRUE COPY OF THE NOTIFICATION PUBLISHED IN THE MALAYALA MANORAMA EXHIBIT P4(b) TRUE COPY OF THE NOTIFICATION PUBLISHED IN THE MATHRUBHUMI DAILY EXHIBIT P4(c) TRUE COPY OF THE NOTIFICATION PUBLISHED IN THE UNIVERSITY NEWS, APRIL 23-29/2012 EXHIBIT P5 TRUE COPY OF THE LETTER NO. MOCC/R(T) 2639/2012 DATED 15.05.2012 SENT BY THE 1ST PETITIONER TO THE 2ND RESPONDENT EXHIBIT P5(a) A:TRUE COPY OF THE LETTER NO.22276/D2/12/H.EDN.DATED 10.07.2012 FROM THE 2ND RESPONDENT TO THE 3RD RESPONDENT EXHIBIT P6 TRUE COPY OF THE MINUTES OF THE MEETING OF THE SELECTION COMMITTEE HELD ON 11TH AUGUST 2012 FOR APPOINTMENT TO THE POST OF ASSISTANT PROFESSOR IN CHEMISTRY EXHIBIT P7 TRUE COPY OF THE MSC DEGREE CERTIFICATGE ISSUED BY THE 1ST RESPONDENT UNIVERSITY TO THE 2ND PETITIONER** WP(C).No.34658 of 2015 9 **EXHIBIT P7(a) TRUE COPY OF THE LETTER NO. 19-06/2011(i) EU-IV DATED 13.10.2013 ISSUED BY THE CSIR REGARDING NER** **EXHIBIT P8 TRUE COPY OF THE APPOINTMENT ORDER NO. AP(T)/3332/2013 DATED 24.05.2013 ISSUED BY THE 1ST PETITIONER TO THE 2ND PETITIONER** **EXHIBIT P8(a) TRUE COPY OF THE JOINING CERTIFICATE DATED 03.06.2013 ISSUED BY THE PRINCIPAL OF THE COLLEGE** - **EXHIBIT P9 TRUE COPY OF THE LETTER NO.MOCC/TS/APPR/3416/2013 DATED 05.07.2013 SENT BY THE 1ST PETITIONER TO THE 1ST RESPONDENT** - **EXHIBIT P10 TRUE COPY OF THE REQUEST DATED 02.12.2014 SUBMITTED BY THE 2ND PETITIONER TO THE 1ST RESPONDENT** - **EXHIBIT P11 TRUE COPY OF THE LETTER NO.AC.B1/1/6367/14 DATED 29.01.2015 SENT BY THE 1ST RESPONDENT TO THE 1ST PETITIONER** - **EXHIBIT P11(a) TRUE COPY OF THE LETTER NO.MOCC/TS/APPR/4431/2015 DATED 13.02.2015 SENT BY THE 1ST PETITIONER TO THE 1ST RESPONDENT.** - **EXHIBIT P12 TRUE COPY OF THE LIST OF TEACHERS IN THE DEPARTMENT OF CHEMISTRY IN THE COLLEGE AS ON 03.06.2013** - **EXHIBIT P12(a) TRUE COPY OF LIST OF TEACHERS IN THE ORDER OF SENIORITY AS ON 03.06.2013 IN THE DEPARTMENT OF CHEMISTRY IN MOC COLLEGES UNDER MG UNIVERSITY** - **EXHIBIT P12(b) TRUE COPY OF THE SALARY ACQUITTANCE FOR THE MONTH OF JANUARY, 2013** - **EXHIBIT P12(c) TRUE COPY OF THE UNIVERSITY OF ORDER NO.4258/B1/2012/ACAD, DATED 30.07.2012 ISSUED BY THE 1ST RESPONDENT** WP(C).No.34658 of 2015 10 |**EXHIBIT P12(d)**|**TRUE COPY OF THE ACQUITTANCE OF THE LAST**| |---|---| ||**PAY OF SMT. MARIAMMA GEORGE V, RETIRED**| ||**ASSOCIATE PROFESSOR**| |**EXHIBIT P12(e)**|**TRUE COPY OF THE STATEMENT OF WORKLOAD IN**| ||**THE DEPARTMENT OF CHEMISTRY FOR THE YEAR**| ||**2013-14**| |**EXHIBIT P12(f)**|**TRUE COPY OF THE APPLICATION SUBMITTED BY**| ||**THE 2ND PETITIONER UNDER THE RIGHT TO**| ||**INFORMATION ACT**| |**EXHIBIT P12(g)**|**TRUE COPY OF THE REPLY DATED 21.10.2014**| ||**ISSUED BY THE PUBLIC INFORMATION OFFICER,**| ||**1ST RESPONDENT UNIVERSITY.**| |**EXHIBIT P13**|**TRUE COPY OF THE LETTER NO. EB**| ||**III/3/212/2015 DATED 03.06.2015 ISSUED BY**| ||**THE CONTROLLER OF EXAMINATIONS, MG**| ||**UNIVERSITY, ISSUED TO THE 2ND PETITIONER**| |**EXHIBIT P13(a)**|**TRUE COPY OF THE LETTER NO.EB**| ||**III/3/208/2015 DATED 20.3.2015 ISSUED BY**| ||**THE CONTROLLER OF EXAMINATIONS, MG**| ||**UNIVERSITY, ISSUED TO THE 2ND PETITIONER**| |**EXHIBIT P13(b)**|**TRUE COPY OF THE LETTER NO.EB**| ||**III/3/207/2015 DATED 28.03.2015 ISSUED BY**| ||**THE CONTROLLER OF EXAMINATIONS, MG**| ||**UNIVERSITY, ISSUED TO THE 2ND PETITIONER**| |**EXHIBIT P13(c)**|**TRUE COPY OF THE CERTIFICATE DATED**| ||**29.10.2015 ISSUED BY THE PRINCIPAL OF THE**| ||**COLLEGE**| |**EXHIBIT P13(d)**|**TRUE COPY OF THE CERTIFICATE DATED**| ||**01.06.2014 ISSUED BY THE PRINCIPAL OF THE**| ||**COLLEGE**| |**EXHIBIT P13(e)**|**TRUE COPY OF THE DUTY CERTIFICATE DATED**| ||**24.07.2015 ISSUED BY THE PRINCIPAL**| |**EXHIBIT P13(f)**|**TRUE COPY OF THE APPOINTMENT ORDER ISSUED**| ||**BY THE DISTRICT ELECTION OFFICER APPOINTING**| ||**THE 2ND PETITIONER AS PRESIDING OFFICER FOR**| ||**THE LSG ELECTION**| WP(C).No.34658 of 2015 11 **EXHIBIT P13(g) TRUE COPY OF THE CERTIFICATE NO.RT/RES/2015 DATED 06 NOVEMBER, 2015 ISSUED BY THE DIRECTOR OF RESEARCH, RUBBER RESEARCH INSTITUTE OF INDIA EXHIBIT P13(h) TRUE COPY OF THE GRANT-IN-AID BILL DATED 17.04.2013 IN RESPECT OF THE 2ND PETITIONER EXHIBIT P14 TRUE COPY OF THE G.O.(Rt) No.1396/2014/H.Edn.DATED 27.06.2014 EXHIBIT P15 TRUE COPY OF THE RELEVANT PORTION OF THE ACQUITTANCE ROLL FOR THE MONTH OF FEBRUARY 2009.** **EXHIBIT P16 TRUE COPY OF THE U.O.No.4258/B1/2012/Acad. DATED 30.07.2012. EXHIBIT P16(a) TRUE COPY OF THE ORDER NO.C2/7043/12 DATED 09.11.2012 EXHIBIT P17 TRUE COPY OF THE ACQUITTANCE ROLL FOR THE MONTH OF FEBRUARY, 2013 EXHIBIT P17(a) TRUE COPY OF THE LAST PAY SALARY BILL OF MARIAMMA GEORGE V. EXHIBIT P18 TRUE COPY OF THE UNIVERSITY ORDER NO.5663/B1/2014/Acad. DATED 11.11.2014 TRUE COPY OF THE LETTER NO.C2-11009/2014 EXHIBIT P18(a) DATED 04.03.2015 RESPONDENTS' EXHIBITS: EXHIBIT R4(A). A TRUE COPY OF THE GOVERNMENT LETTER NO.170/D2/2012/H.EDN. DATED 18.01.2012. EXHIBIT R4(B). A TRUE COPY OF THE POST ADALATH REVIEW REPORT.** //TRUE COPY// PA TO JUDGE