IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
THURSDAY, THE 5TH DAY OF JANUARY 2012/15TH POUSHA 1933
WPC.No. 24544 of 2006 (V) =========================
PETITIONER ========
P.HARIKUMARAN NAIR, SENIOR SUPERINTENDENT PRNSS COLLEGE MATTANNUR KANNUR. BY ADV.SRI.T.P.DEYANANTHAN
RESPONDENT(S) =============
1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT HIGHER EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM.
2 DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM.
3 THE SECRETARY, REPRESENTING N.S.S. COLLEGES CENTRAL COMMITTEE PERUNNA CHANGANACHERRY.
BY GOVERNMENT PLEADER SHRI P.V.ELIAS FOR R1 TO R3 BY ADV. SRI.P.GOPAL FOR R4
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **APPENDIX IN W.P.(C)No.24544/06**
## **PETITIONER'S EXTS:**
- EXT.P1: COPY OF ORDER NO.ESTT.E3-23637/84/L.DIS. DT.27.7.84 ISSUED BY THE 2ND RESPONDENT.
- EXT.P2: COPY OF PRE-DEGREE ABOLITION ACT BY NOTIFICATION NO.20341/LEG./UNI.3/97/LAW DT.9.1.98(ACT 3 OF 1998).
- EXT.P3: COPY OF BAN ON APPOINTMENT AND PROMOTION IN E456284/01.COLL.EDN. DT.5.12.01.
- EXT.P4: COPY OF NEW STAFF PATTERN IN GO(MS)NO .119/04/H.EDN. DT.17.9.04 ISSUED BY EXECUTIVE ORDER WITHOUT CONSULTING THE UNIVERSITY.
- EXT.P5: COPY OF PROMOTION OF PETITIONER AS SENIOR SUPERINTENDENT AS PER ORDER 3466/05 DT.26.5.05 OF THE 3RD RESPONDENT.
- EXT.P5(A): COPY OF LETTER NO.G1/ESTT.562/05 DT.4.7.05 OF THE PRL.PRNSS COLLEGE, MATTANNUR SENDING PROPOSAL FOR THE APPROVAL OF PROMOTION OF THE PETITIONER.
- EXT.P6: COPY OF COLLEGE CALENDER FOR 2004-05 SHOWING NUMBER OF COURSES AND STUDENTS STRENGTH.
- EXT.P7: COPY OF COLLEGE CALENDER FOR 2005-06.
- EXT.P8: COPY OF REVISED STAFF FIXATION ORDER OF 2ND RESPONDENT IN E4-46937/05/COLL.EDN. DT.28.12.05.
- EXT.P9: COPY OF CIRCULAR E1-40525/04/COLL.EDN. DT.29.4.06 FOR MAKING PROMOTION.
- EXT.P10: DIRECTOR IN EX.E4-31529/05/COL.EDN. DT.25.7.06 STATING THAT TRANSFER AND POSTINGS MADE SHALL BE REVIEWED BY THE MANAGEMENT.
- EXT.P11: COPY OF REVERSION OF THE PETITIONER AS JUNIOR SUPREINTENDENT AS PER ORDER H.5529/05 DT.24.8.06 OF THE MANAGER.
- EXT.P12: COPY OF GOVERNMENT ORDER, GO(MS)NO.95/06/H.EDN. DT.10.8.06.
- EXT.P13; COPY OF GO(MS)NO 145/04/H.EDN. DT.3.11.04.
- EXT.P14: COPY OF ORDER GO(MS)NO 134/98/H.EDN. DT.9.11.98.
- EXT.P14(A): COPY OF ORDER GO(MS)NO 162/99/H.EDN. DT.6.12.99.
- EXT.P15: COPY OF ORDER GO(MS)NO.260/2010/H.EDN. DT.20.8.10.
RESPONDENTS' EXTS: NIL
TRUE COPY
P.A.TO JUDGE
dsn
## **T.R.RAMACHANDRAN NAIR, J.**
**-------------------------------------------------W.P.(C)No.24544 of 2006 -------------------------------------------------DATED THIS THE 5[th] DAY OF JANUARY, 2012**
## **JUDGMENT**
The petitioner is aggrieved by the denial of approval of his appointment as Senior Superintendent of the College managed by the 3[rd] respondent at Mattannur. He was promoted in the retirement vacancy of one Shri K.M.Padmanabhan Nair from 3.6.2005.
2. The problem faced by the petitioner is that because of the revised staff pattern of non-teaching staff, sanctioned by the Director of Collegiate Education as evident from Exhibit P8, the post of Senior Superintendent is treated as supernumerary.
3. The learned counsel for the petitioner submitted that the post of Senior Superintendent has been sanctioned going by the staff fixation order issued as per Exhibit P1. It is pointed out that pre-degree was abolished as per the Pre-degree Abolition Act. The provisions under the Act also provided for a ban of appointment of non-teaching staff for a period of three years. The ban period ceased to have effect from 2.6.2000.
W.P.(C)No.24544/06
-2-
4. After studying various aspects, the Government adopted revised norms for fixing the staff pattern as per Exhibit P4 order dated 17.9.2004. It is the case of the petitioner that by Exhibit P5 order, the petitioner was promoted and the proposal for approval of the promotion of the petitioner, as per Exhibit P5 (a) was forwarded by the Principal.
5. The case of the petitioner is that from 2004-05 academic year onwards there are 10 courses of study in the 3[rd] respondent college, and the student strength is 1200. In support of the plea, the calendar showing the number of courses of study has been produced as Exhibit P6. This was for the year 2004-05 and the calendar for the year 2005-06 has been produced as Exhibit P7.
6. With regard to the staff fixation order produced as Exhibit P8, the learned counsel for the petitioner submitted that relevant aspects have not been considered. It is pointed out that Exhibit P8 order will reveal going by the footnote in page 1 of the order that it is issued by “excluding the courses sanctioned from the year 1998-99 and after with the condition of no financial commitment/no additional financial commitment/expenditure not
W.P.(C)No.24544/06
-3-
to exceed the budget provision. The contention raised is that such exclusion is not correct.
7. Along with additional counter affidavit, the petitioner has produced Exhibit P15, a Government order dated 20.8.2010 creating teaching posts for the courses sanctioned from 19982001 as far as Arts and Science Colleges are concerned in the private and aided sector.
8. The learned counsel for the petitioner submitted that a reading of paragraph No.4 of the order will show that conditionally sanctioned courses have been assessed in terms of the UGC and Government norms adopted for calculation of staff strength. Therefore, technically, the same yardstick should have been applied to the sanction of non-teaching staff for creation of posts especially under Section 17 of the Kannur University Act.
9. Heard the learned counsel for the management, who submitted that the question whether the additional courses could be recognised or not is covered in favour of the management in the light of the decision of the Division Bench of this Court in **State of Kerala** v. **Arun George (2009(4) KLT 972)** . Therefore, even if the courses have been sanctioned with a
W.P.(C)No.24544/06
-4-
condition that there will not be any financial commitment, in the light of the legal position declared by this Court in the said judgment, the matter requires reconsideration and the staff strength will have to be revised.
10. Heard the learned Government Pleader for respondents 1 and 2.
11. In paragraph No.6 of the counter affidavit filed by the 2[nd] respondent it is stated that out of the 10 courses offered by PRNSS College, Mattannur, B.A.(English) course sanctioned by Government to the college from the year 1998-99 was with certain restrictions that there will be no additional financial commitment to the Government. The course of M.Com. which was sanctioned from the year 2000-01 was with the restriction that the expenditure will not exceed the budget provisions. It is evident from the said paragraph that these two courses were excluded from the number of courses for the purpose of grading of the college for fixation of staff strength based on the revised staff pattern. It is also evident from the said paragraph that in the pre-revised pattern, only the total strength of students had been taken into account for staff fixation. But in the revised staff
W.P.(C)No.24544/06
-5-
pattern both the number of students and the number of courses offered by the college have been taken into account.
12. The Division Bench while considering the same question laid down in **Arun George** 's case(supra) that the Government will have to honour direct payment agreement and unilateral conditions cannot be fixed absolving it from financial liabilities. Headnote of the said judgment reads as follows:
“ 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
W.P.(C)No.24544/06
-6-
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 matter as provided in the Direct Payment 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.”
In the light of the above, the matter requires
reconsideration by the Director of Collegiate Education. It is submitted that the petitioner, even though was promoted, did not get approval only because of the absence of sanction of a post of Senior Superintendent. It is also submitted that the college was eligible for the post. It is stated that the petitioner retired from service on 31.3.2011. Appropriate orders will be passed by the 2[nd] respondent, after hearing the management and the question regarding approval of appointment of the petitioner will be taken up along with the plea for sanction of post of Senior Superintendent in the light of the principle stated by the Division
W.P.(C)No.24544/06
-7-
Bench in **State of Kerala** v. **Arun George (2009(4) KLT 972)** , within a period of three months from the date of receipt of a copy of this judgment. The impugned orders are quashed accordingly. The Writ Petition is allowed to the above extent. No costs.
Sd/-( **T.R.RAMACHANDRAN NAIR** , **JUDGE)**
dsn
