Manju K.S. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **TUESDAY, THE 11TH JANUARY 2011 / 21ST POUSHA 1932** **WP(C).No. 12418 of 2010(B)** **---------------------------------------** **PETITIONER:** **-------------------** **DR.MANJU K.S., W/O.JAYAN,** **LECTURER SENIOR SCALE, DEPARTMENT OF MALAYALAM, SREE NARAYANA COLLEGE, KOLLAM, RESIDING AT 'UJAYINI', T.C.24/781(1), METTUKKADA, THYCAUD, THIRUVANANTHAPURAM.** **BY ADV. SRI.B.MOHANLAL.** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, SHINAS COMPLEX, HOSPITAL ROAD, KOLLAM.** **3. THE UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, PALAYAM, THIRUVANANTHAPURAM.** **R1 & R2 BY GOVT. PLEADER SMT. N. SUDHA DEVI, R3 BY ADV. SRI.M.RAJAGOPALAN NAIR, S.C, KERALA UTY.,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.12418/2010-B:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE APPROVAL ORDER NO:AC.F.III-1.2732/97 DTD. 26/08/2000 ISSUED BY THE R.3. TO THE PETITIONER.** **EXT.P.2: COPY OF THE ORDER NO:AC.F.III/2732/05 DTD. 30/06/2005 ISSUED BY THE R.3. TO THE PETITIONER.** **EXT.P.3: COPY OF THE NO.AC.F.III/1/021948/07 DTD. 02/04/2008 ISSUED BY THE R.3. TO THE PETITIONER.** **EXT.P.4: COPY OF THE COMMUNICATION NO.B1/9496/08 DTD. 30/10/2008 ISSUED BY THE PRINCIPAL, S.N. COLLEGE, KOLLAM.** **EXT.P.5: COPY OF THE REPRESENTATION DTD. 12/11/2009 FILED BY THE PETITIONER BEFORE THE R.2.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **T.R.RAMACHANDRAN NAIR,J.** ## **------------------------------------W.P.(C)No.12418 Of 2010** ## **----------------------------------------------------DATED THIS THE 10[th] DAY OF JANUARY, 2011** **J U D G M E N T** The grievance raised by the petitioner is that in spite of the approval granted by the University for placement in the Senior Scale, the second respondent is not disbursing the salary to her. 2. The petitioner was appointed as Lecturer in Malayalam in a leave vacancy in S.N.College, Cherthala with effect from 29.8.1999. The same was approved as per Exhibit P1 order. Thereafter, she was shifted in a substantive vacancy in S.N.College, Kollam with effect from 12.6.1998. The approval of appointment is from 29.8.1997. 3. The shifting is also approved as per Exhibit P2 order by the University. The University by Exhibit P3 order granted approval for the placement in Senior Scale with effect from 29.8.2001. It is thereafter that the petitioner moved the Deputy director of Education by Exhibits P4 and P5. 4. In the statement filed on behalf of the University, it is averred that in terms of G.O.(P)No.171/99/H.Edn. dated 21.12.1999 (Clause 6.25), a Lecturer will be eligible for W.P.(C)No.12418/10 -2- placement in a senior scale through a procedure of selection if she/he has: (i) completed 6 years of service after regular appointment with relaxation of one year and two years, respectively for those with M.Phil and Ph.D. (ii) Participated in one orientation course and and refresher course of approved duration, or engaged in other appropriate continuing education programmes of comparable quality as may be specified or approved by the University Grants Commission.(Those with Ph.D.Degree would be exempted from one refresher course.) (iii) Consistently satisfactory performance appraisal reports. It is pointed out that as per Clause 6.16 'four and two' advance increments will be admissible to those who hold Ph.D. and M.Phil.Degrees, respectively at the time of recruitment as Lecturers. 5. In the counter affidavit filed by the 2[nd] respondent, it is pointed out in paragraph No.3 that on verification of the Senior Scale placement, 17 teachers are working in the Malayalam Department, including the petitioner. There are only 12 teaching W.P.(C)No.12418/10 -3- posts in the Department of Malayalam as per the Adalath review workload. The matter was reported to the Director and in the light of the reply given by the Director as per letter dated 12.2.2009, the University was addressed to revise the placement. They have replied that the approval of placement to grant senior scale to the petitioner is in order as per letter No.ACF.III/I/15233/09 dt.23.4.2009. What is mentioned is that in an identical issue a Special Leave Petition is pending before the Hon'ble Supreme Court against the judgment in Writ Appeal No.2529/05. As rightly pointed out by the learned counsel for the petitioner, the judgment in Writ Appeal No.2529/05 is on a different issue. 6. The factual scenario therefore shows that with regard to the approval granted by the University, the Deputy Director again objected, but overruling it, the University confirmed their earlier stand. 7. The learned counsel for the petitioner relied on the decisions of this Court in **Cherian** v. **Principal, S.B.College, Changanassery (1998(2) KLT 144)** and **Shalini Rachel** v. **Manager, Christian College (2007(3) KLT 355)** to contend W.P.(C)No.12418/10 -4- for the position that the Government or other Officers of the Department cannot sit in appeal over the decision taken by the University, once approval is granted. In **Cherian's** case(supra), Their Lordships held as follows in paragraphs 3 to 5. “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 private management. The appointment so made in confirmity 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 W.P.(C)No.12418/10 -5- 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 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** W.P.(C)No.12418/10 -6- case 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 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 W.P.(C)No.12418/10 -7- 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 W.A.No.940 of 2007.” Going by the dictum laid down in the above decisions, the Deputy Director was having the right to take up the matter with the University and after the University reiterates the position, the W.P.(C)No.12418/10 -8- Department cannot raise any further objections in the matter. In the light of the above legal position, as the University has again reiterated their stand as evident from the counter affidavit filed by the Deputy Director, the petitioner is entitled to succeed in the Writ Petition. Therefore the Writ Petition is allowed. There will be a direction to the Deputy Director to disburse the salary on production of the bills by the Principal, if not already produced, within a period of two months. No costs. Sd/-( T.R.RAMACHANDRAN NAIR, JUDGE) dsn