PRASANTH S. PAI v. PRINCIPAL, SANATANA DHARMA COLLEGE, SANATANAPURAM P.O., ALAPPUZHA-688 003 & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 8TH DAY OF DECEMBER 2016/17TH AGRAHAYANA, 1938** **WP(C).No. 21720 of 2014 (L)** **----------------------------** **PETITIONER(S): -------------** **PRASANTH S. PAI, AGED 27, S/O.G.SRIKESH PAI, ASSISTANT PROFESSOR, DEPARTMENT OF COMMERCE, SANTANA DHARMA COLLEGE, SANATANAPURAM P.O., ALAPPUZHA-688 003, RESIDING AT 'SRIVILAS', VISHNATHUKAVU NAGAR, KOLLAM-12.** **BY ADV. SRI.S.MUHAMMED HANEEFF** **RESPONDENT(S):** **--------------** **1. PRINCIPAL, SANATANA DHARMA COLLEGE, SANATANAPURAM P.O., ALAPPUZHA-688 003.** **2. MANAGER,** **SANATANA DHARMA COLLEGE, MANAGER'S OFFICE, S.D.V.CENTENARY AUDITORIUM, ALAPPUZHA-688 001.** **3. UNIVERSITY OF KERALA, REP. BY ITS REGISTRAR, UNIVERSITY CAMPUS, THIRUVANANTHAPURAM-695 034.** **4. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM, OFFICE OF THE DDCE, MARKETFED BUILDING, GANDHI NAGAR, KADAVANTHRA, KOCHI-682 020.** **5. DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 001.** **6. STATE OF KERALA, REP.BY ITS SECRETARY TO THE GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **msv/** **-2-** **-2-** **WP(C).No. 21720 of 2014 (L)** **----------------------------** ## *** ADDITIONAL R7 IMPLEADED** **7. PRIYA R. W/O.KRISHNAPRASAD A.PRABHU, KRISHNA VIHAR, AZAD ROAD, KALOOR, KOCHI - 682 017.** *** IS IMPLEADED AS PER ORDER DTD.27.3.2015 IN IA.4755/15** **R1 & R2 BY ADVS. SRI.K.ANAND (SR.) SMT.LATHA KRISHNAN R3 BY ADVS. SRI.BECHU KURIAN THOMAS, SC SRI.THOMAS ABRAHAM, SC** **R4-R6 BY SENIOR GOVERNMENT PLEADER SMT.RAJI T.BHASKER** **R7 BY ADV. SRI.S.SUJIN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-12-2016, ALONG WITH WPC. 31681/2014 & WPC. 17534/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 21720 of 2014 (L) ----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT-P1: A TRUE COPY OF THE NEWS PAPER ADVERTISEMENT PUBLISHED IN MALAYALA MANORAMA DAILY DT.12.09.2012. EXHIBIT-P1(A): A TRUE COPY OF THE NEWS PAPER ADVERTISEMENT PUBLISHED IN NEW INDIAN EXPRESS DAILY DT.13.09.2012. EXHIBIT-P2: A TRUE COPY OF THE MINUTS OF THE MEETING OF THE SELECTION COMMITTEE OF THE 1ST RESPONDENT COLLEGE. EXHIBIT-P3: A TRUE COPY OF THE APPOINTMENT ORDER DT.08.07.2013 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT-P4: A TRUE COPY OF THE ORDER NO.AC.F III/1/42703/2013 DT.31.01.2014 OF THE 3RD RESPONDENT. EXHIBIT-P5: A TRUE COPY OF THE LETTER NO.F4/8337/2013 DT.24.04.2013 ISSUED BY THE 4TH RESPONDENT. EXHIBIT-P6: A TRUE COPY OF THE G.O.[MS] NO.677/2013/H.EDN DT.01.11.2013 ISSUED BY THE 6TH RESPONDENT. EXHIBIT-P7: A TRUE COPY OF THE CERTIFICATE ISSUED BY THE 1ST RESPONDENT EVIDENCING WORKLOAD OF TEACHERS OF COMMERCE DEPARTMENT BEFORE THE 4TH RESPONDENT. EXHIBIT-P8: A TRUE COPY OF THE COMMUNICATION NO.F4/8337/2013 DT.23.05.2013 ISSUED BY THE 4TH RESPONDENT. EXHIBIT-P9: A TRUE COPY OF THE REPLY SUBMITTED BY THE 1ST RESPONDENT AS LETTER NO.E1/ESTT/TS/2014 DT.06.06.2014. EXHIBIT-P10: A TRUE COPY OF THE LETTER NO.170/D2/2012/H.EDN DT.18.01.2012 ISSUED BY THE 6TH RESPONDENT. EXHIBIT-P11: A TRUE COPY OF THE LETTER NO.MO/AP/02/14 DT.30.07.2014 ISSUED BY THE 2ND RESPONDENT. EXHIBIT-P12: A TRUE COPY OF THE LETTER NO.25079/D1/14 H.EDN DT.18.07.2014 ISSUED BY THE 6TH RESPONDENT. msv/** **-2-** **-2-** **WP(C).No. 21720 of 2014 (L)** - **----------------------------** ## **RESPONDENT(S)' EXHIBITS** - **-----------------------** - **EXT.R3(a): TRUE COPY OF REVISED STAFF FIXATION PATTERN FOR THE 2ND RESPONDENT COLLEGE BASED ON POST ADALATH REVIEW.** - **EXT.R3(b): TRUE COPY OF THE LIST OF TEACHERS IN THE DEPARTMENT OF COMMERCE OF THE 2ND RESPONDENT COLLEGE FORWARDED BY THE 1ST RESPONDENT.** - **EXT.R3(c): TRUE COPY OF THE LETTER NO.28409/D1/2013/HEDN, DTD.12.9.2013 ISSUED BY THE 6TH RESPONDENT.** - **EXT.R3(d): TRUE COPY OF THE LETTER NO.F/4/8337/2013 DD.2.7.2014 ISSUED BY THE 6TH RESPONDENT.** - **EXT.R3(e): TRUE COPY OF THE LETTER NO.AC/FIII/42703/2013 DTD.16.10.2014 ISSUED BY THE 3RD RESPONDENT.** **//TRUE COPY//** **P.S.TO JUDGE** **msv/** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).Nos. 21720 and 31681 of 2014 & W.P(C).No.17534 of 2015 ----------------------------------------------Dated this the 8[th] December, 2016** ## **JUDGMENT** The dispute raised for consideration in these writ petitions is with regard to the approval of appointment of the petitioners as Assistant Professor in Commerce in the Sanatana Dharma College. It is submitted that two vacancies of Assistant Professors arose in the College, one on account of promotion and another on account of a retirement. The petitioners in these writ petitions were appointed against those vacancies following the procedure prescribed in the Kerala University Act and the Statutes and after appearing for interview before a duly constituted selection committee. The petitioner in W.P(C).No.21720 of 2014 was appointed on 8.7.2013 against the promotion vacancy and the petitioner in W.P(C).No.31681 of 2014 was appointed on 2.9.2013 against the retirement vacancy. 2. The appointment of the petitioner in W.P(C).No.21720 of 2014 was approved by the University by Exhibit P4 order. However, thereafter, the Government passed Exhibit P12 order _**WP(C).21720/14 & connected cases**_ 2 dated 18.7.2014 stating that there is no sufficient workload to approve the appointment of the petitioner and therefore the Manager was directed to retrench the service of the petitioner. Pursuant thereto, Exhibit P11 order of retrenchment was issued by the Manager, which is under challenge in the writ petition. It is stated that pursuant to the interim order issued by this Court, the petitioner is being paid salary. W.P(C).No. 17534 of 2015 is filed seeking a direction to quash Exhibit P6 and also for a direction to the 3[rd] respondent to permit the petitioner to continue his orientation course/refresher course as envisaged by the UGC and grant all available benefits attached to such participation to the petitioner. The appointment of the petitioner in W.P(C).No.31681 of 2014 against the retirement vacancy on 2.9.2013 was refused to be approved by Exhibit P5 by the University stating that the post against which the incumbent has been appointed is not sanctioned by the Government and there is only a balance of four hours as per the Post Adalath Review, 2002. 3. Heard the learned Senior Counsel appearing for the petitioner in W.P(C).No. 31681 of 2014, learned counsel appearing for the petitioners in W.P(C).Nos.21720 of 2014 and _**WP(C).21720/14 & connected cases**_ 3 17534 of 2015, learned counsel appearing for the management, learned counsel for the University and the learned Government Pleader. 4. The learned counsel for the petitioners argued that once the Syndicate of the University permits the filling up the existing vacancies depending upon the workload and staff pattern, the Government has no further discretion in the matter. It is, therefore, contended that the orders impugned in these writ petitions are unsustainable. 5. It is submitted by the learned Government Pleader that the number of periods in Commerce Department in the College is 201 hours and on examination of the workload, 16 hours work is given to each Assistant Professor and five hours per week to the Principal and only 12 posts are sanctioned and therefore it is not possible to approve the appointment of the petitioner in W.P(C). No.31681 of 2014. In the case of the petitioner in W.P(C). No.21720 of 2014, it is stated that at the time of the appointment of the petitioner, 12 teachers, including the Principal were working in the department and a vacancy arose when one P.M.Thomas retired on 31.3.2013. It is stated that there is no _**WP(C).21720/14 & connected cases**_ 4 workload to accommodate a 13[th] teacher and therefore, the petitioner's appointment cannot be approved. 6. The learned counsel appearing for the Manager would submit that the workload required for sanction of posts is governed by the University Regulations. It is stated that the University of Kerala had issued guidelines and procedure for selection of teachers in private colleges. It is stated that these guidelines have been followed for making appointment of the teachers in question. The appointment of the petitioner in W.P(C). No.21720 of 2014 was also duly approved. It is stated that going by the UGC norms, the number of works required for fixation of teaching staff of aided colleges is as follows: _“Assistant Professor 16 hrs (Under graduate level)_ _Associate Professor & Professor 14 hrs (Under graduate level)_ _(One hour of PG teaching would be treated as equivalent to 1.5hrs of UG Teaching)_ _Maximum number of period for direct teaching for Principal of PG/UG College. 3 to 5 hrs per week”_ The management has also issued Exhibit P10 communication in W.P(C).No.31681 of 2014 to the Registrar of the University clarifying that if the guidelines are followed, there will be sufficient number of hours to accommodate both the petitioners _**WP(C).21720/14 & connected cases**_ 5 in both these writ petitions. It is stated that the approval of appointment of the petitioner in W.P(C).No.21720 of 2014 was therefore well in order and the petitioner in W.P(C).No.31681 of 2014 is also entitled to approval of her appointment. 7. It is clear from a reading of the counter affidavit filed by the Government in W.P(C).No.21720 of 2014 that the stand taken by the Government as well as the Director of Collegiate Education is that there are 201 periods of work in the subject in the College. The Government has taken the workload for sanction of each post as 16 and has come to the conclusion that there is no sufficient workload to sanction the 13[th] post. This justification is used to deny approval and salary in both the cases. It is clear that two vacancies had arisen in the College, one by promotion and another by retirement. Therefore, with a total workload of 201 hours, applying the principle for fixing the workload as available in Exhibit R1(c) UGC norms, it is clear that even after sanctioning one post of Principal and 13 posts of Associate Professor and Assistant Professors, there are excess periods. In the above view of the matter, I am of the opinion that the orders passed by the Government in the writ petitions are unsustainable. _**WP(C).21720/14 & connected cases**_ 6 8. It is clear that the petitioner in W.P(C).No.21720 of 2014 was appointed against an available vacancy on 8.7.2013. Even going by the counter affidavit filed by the Government and the Director of Collegiate Education, there is sufficient workload to accommodate one Principal and 12 other teachers in the Department. In the above view of the matter, Exhibit P4 order of approval was granted by the University. In the above circumstances, going by the decision in _**State of Kerala v. Dr.Sina A.R**_ [2007(3) KHC 96], I am of the opinion that Exhibit P4 is sustainable. Exhibits P11 and P12 are set aside. It is directed that the petitioner in W.P(C).No.21720 of 2014 shall be paid all arrears of salary taking note of his appointment with effect from 8.7.2013 and the approval granted by Exhibit P4. 9. Consequently, Exhibit P6 order of the Deputy Director of Collegiate Education in W.P(C).No.17534 of 2015 is also quashed. It is declared that the petitioner in the said writ petition is entitled to all benefits in view of the disposal of W.P(C).No.21720 of 2014. 10. As regards W.P(C).No.31681 of 2014, Exhibit P5 order is set aside. The 3[rd] respondent is directed to consider the request made by the petitioner for approval of the appointment with _**WP(C).21720/14 & connected cases**_ 7 effect from 2.9.2013 in the light of Exhibit P10 request made by the Management within a period of two months from the date of receipt of a copy of this judgment. The workload shall be calculated in terms of Exhibit R1(c) guidelines issued by the UGC. Once orders approving such appointment are passed, consequential benefits shall also be granted to the petitioner. The writ petitions are disposed of as above. **ANU SIVARAMAN JUDGE** _vgs13/12_