Rejee Ittiyera v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941** ## **WP(C).No.30153 OF 2014(T)** ## **PETITIONER/S:** **REJEE ITTIYERA, AGED 31 YEARS, DAUGHTER OF K.K. ITTIYERA, ASSISTANT PROFESSOR IN MATHEMATICS, SNM COLLEGE, MALIANKARA, MOOTHAKUNNAM-683 516, ERNAKULAM DISTRICT.** **BY ADVS. SRI.V.A.MUHAMMED SRI.M.SAJJAD** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** |**2**|**THE DIRECTOR OF COLLEGIATE EDUCATION,**| |---|---| ||**VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033.**| |**3**|**THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,**| ||**MARKET FED BUILDINGS, GANDHI NAGAR, KADAVANTHARA,**| ||**KOCHI-682 020, ERNAKULAM DISTRICT.**| |**4**|**THE MAHATMA UNIVERSITY**| ||**REPRESENTED BY ITS REGISTRAR, PRIYADARSINI HILLS,**| ||**ATHIRAMPUZHA, KOTTAYAM-686 562.**| |**5**|**THE MANAGER**| ||**S N M COLLEGE, MALIANKARA, MOOTHAKUNNAM-683 516,**| ||**ERNAKULAM DISTRICT.**| **W.P.(C) Nos.30153/14 & 24954/16** **2** **6 THE PRINCIPAL S N M COLLEGE, MALIANKARA, MOOTHAKUNNAM-683 516, ERNAKULAM DISTRICT.** **BY ADVS. R1 TO R3 - SMT. MARY BEENA JOSEPH, SENIOR GOVERNMENT PLEADER R4 - SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY R5 & R6 - SRI.BABU KARUKAPADATH SRI.KANDAMPULLY RAHUL SRI.MITHUN BABY JOHN SRI.K.A.NOUSHAD SRI.J.RAMKUMAR SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-10-2019, ALONG WITH W.P.(C)NO.24954/16, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C) Nos.30153/14 & 24954/16** **3** ## **JUDGMENT** The captioned writ petitions are materially connected in respect of non-disbursement of salary to the petitioners by the Government, though the Mahatma Gandhi University has granted approval to their appointment, and the question emerges for consideration is, whether once approval is granted by the University, whether the State Government is vested with powers to detain salary. Therefore, I heard them together and propose to deliver this common judgment. 2. Petitioner in W.P.(C) No.30153 of 2014 was appointed by the Corporate Manger of S.N.M College, Maliankara, Ernakulam District, which is an aided College coming under the direct payment system, as Assistant Professor in Mathematics in a retirement vacancy. The selection was conducted by the Select Committee with a Government nominee. The appointment of the petitioner was approved by the University as per Ext.P3. From Ext.P3, it is evident that petitioner was appointed in a substantive vacancy due to the retirement of one P. Salimkumar on 31.03.2011 on and with effect from 10.09.2012. However, the Deputy Director of Collegiate Education, Ernakulam i.e., the 3[rd] respondent declined recognition of the approval. **W.P.(C) Nos.30153/14 & 24954/16** **4** Petitioner has produced Ext.P5 list of teachers in Mathematics in the College and Ext.P5(a) allocation of teaching work of the teachers in Mathematics. The workload details in the Mathematics Department is produced as Ext.P5(b) and other details are also produced by the petitioner. 3. According to the petitioner, Exts.P5 to P5(c) would show that there is sufficient workload for accommodation of the petitioner since his appointment. The said documents were produced before the 3[rd] respondent, however, the 3[rd] respondent addressed the 2[nd] respondent, i.e., the Director of Collegiate Education, Thiruvananthapuram seeking clarification, evident from Ext.P6. The 6[th] respondent Management has also approached the 2[nd] respondent for approval of appointment, evident from Ext.P8. However, no action was initiated by the respondents to grant recognition and then to disburse the salary to the petitioner. 4. Petitioner in W.P.(C) No.24954 of 2016 is an Assistant Professor duly selected and appointed by the St. Albert's College, Ernakulam, on the basis of a statutorily constituted Staff Selection Committee consisting of Government nominee and University Subject Expert. According to the petitioner, as per the **W.P.(C) Nos.30153/14 & 24954/16** **5** workload fixed by the College for the academic year 2014-15 in accordance with the provisions of the Mahatma Gandhi University Ordinances, based on the student strength as on 01.11.2013, it is 137 hours and the number of permissible staff is 9, against which, only 7 persons were working, thus leaving two vacancies, evident from Ext.P3. 5. As per Exts.P3(a) and P3(b) workload statements for the academic years 2015-2016 and 20162017, it is clear that the workload and permissible number of teachers continues to be so. It was accordingly that notifications were issued to fill up the vacant teaching posts including two posts of Assistant Professors, evident from Exts.P4 and P4(a). Thereafter, selection was conducted evident from Ext.P6 dated 11.10.2014, and it was accordingly that the petitioner was appointed as Associate Professor in Mathematics in the retirement vacancy of one Dr. Souriar Sebastian on 31.05.2013, on and with effect from 17.10.2014, evident from Ext.P8. Thereafter, the appointment of the petitioner was approved by the University as per Ext.P9 order dated 18.12.2015. However, in spite of submission of proposal for disbursement of salary to the 5[th] respondent, i.e., the **W.P.(C) Nos.30153/14 & 24954/16** **6** Deputy Director of Collegiate Education, Ernakulam, no action was initiated, which compelled the petitioner to approach this Court by filing this writ petition. 6. A detailed statement/counter affidavit is filed for and on behalf of the Deputy Director of Collegiate Education, Ernakulam, separately in the writ petitions, refuting the allegations and claims and demands raised by the petitioners, but the contentions are of typical nature. Among other contentions, it is submitted that, on receipt of proposal for the concurrence, it was found that University has granted approval of appointment to the petitioners without adverting to the relevant provisions of the University Statutes and the relevant Government Orders on the subject. Disputes are also raised with respect to the workload statements produced by the petitioners. The Deputy Director of Education has also disputed the number of hours of workload, and further submits that, in accordance with the workload actually found, there are no permissible posts available in the respective Colleges for appointment of the petitioners. However, it is pointed out that, in spite of the direction issued by the Deputy Director of Education, the College authorities have not furnished any reply or produced **W.P.(C) Nos.30153/14 & 24954/16** **7** the workload statement in respect of each subjects, i.e., Mathematics, Statistics and Economics, and in order to verify the same, on getting a reply from the Management, it will be furnished to the 1[st] and 2[nd] respondents, who in turn will intimate the University the details of the workload etc. 7. The University has also filed a counter affidavit in W.P.(C) No.30153 of 2014, explaining the circumstances under which the petitioners were appointed, and the approval of appointment made by the University and the workload statement submitted by the College are all admitted by the University. However, it is submitted that, the Deputy Director of Education is the authority concerned for disbursement of the salary, and therefore, the University has no manner of role in the same. 8. Anyhow, along with the reply affidavit filed by the petitioner in W.P.(C) No.24954 of 2016, it is evident that the M.G. University has addressed the Deputy Director of Education, clarifying the position as is sought for by the Deputy Director. It is also evident that petitioner in the said writ petition was promoted as per Ext.P16 order dated 01.06.2019. The Government have also issued an order dated 09.05.2018 **W.P.(C) Nos.30153/14 & 24954/16** **8** in respect of workload stipulating that the teaching hours of Assistant Professor/Associate Professor shall be 16 hours per week, as ordered in the Government Order dated 03.01.2001, and that, one more post will also be eligible when the remaining workload in a particular subject is 9 hours and above. 9. I have heard learned Senior Counsel, and counsel appearing for the petitioners, learned Government Pleader, learned counsel appearing for the Management and also the learned Standing Counsel for the University, and perused the pleadings and the documents on record. 10. The paramount contention advanced by learned counsel for the petitioners is relying upon the Division Bench judgments of this Court in ' _**Cherian Mathew v. Principal, S.B. College, Changanassery**_ ' [1998 (2) KLT 144] and ' _**Shalini Rachel v. Manager, Christian**_ _**College**_ ' [2007 (3) KLT 355], wherein it was held that, 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. After elaborate consideration of the University First Statutes, Ordinances and Regulations, it is held as follows in the judgment in **W.P.(C) Nos.30153/14 & 24954/16** **9** ' _**Cherian Mathew'**_ ( _supra_ ) in paragraphs 4 to 8: “ **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 appointments 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 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._ _**6** . Procedure for calculating number of teachers required for a department as per Third Ordinance in Chapter XIII of the Kerala University First Ordinance, prior to its amendment on 13.9.93 is in the following terms :-_ _(i) The total number of lecture hours per week in the case of Art Subjects and the total number of lecture hours and supervision periods of_ **W.P.(C) Nos.30153/14 & 24954/16** **10** _practical classes in the case of Science subjects shall be calculated first on the basis of the hours prescribed for the concerned subject in the Syllabus for the respective courses and the strength of students._ _(ii) From the total hours calculated above, the work load of (be Head of the Department and if he happens to be also the Principal, that of the Principal, shall be deducted._ _(iii) The balance hours so arrived at shall be divided by X-l and where ‘X’ stands for the normal hours of lecture work prescribed for a lecturer in the case of_ _**Arts** subjects, namely 14 and the normal hours of lecture work and supervision of practical classes prescribed for a lecturer in the case of science subjects, namely 15._ _(iv) After the division as prescribed at (iii) above, if there is any balance of hours, one more hour of work a week shall be assigned to each teacher including the Professor. If there is still any balance of hours left, a proposal for the creation of an additional post may be made and on the appointment of a teacher in the additional post sanctioned by the University the work shall be distributed among all the teachers of the Department._ ## _**Note:-**_ _(1) In exceptional cases where the minimum work load of 13 hours in the case of Arts subjects and 14 in the case of Science subjects cannot be maintained, exemption from the minimum work load may be granted, if the work load cannot otherwise be adjusted._ _(2) In the case of subjects like Syrian, Arabic, Latin, Law or B.Com., etc. where the total work-load is below the minimum, only a part-time teacher shall be appointed._ _When a teacher is appointed in accordance with the work load assessed in the above terms, the said appointment has to be honoured by the Director of Collegiate Education and salary disbursed, if the said appointment is approved by the University._ **W.P.(C) Nos.30153/14 & 24954/16** **11** _In case the Director doubts the correctness of that appointment, he will be at liberty to take up the matter with the University. When such a step is resorted to by the Director, the University has to examine the issue afresh and take a decision thereon. The decision so taken by the University as seen from the provisions of the Ordinance, Statute and Act is binding on the Director. In such a situation, the Director will have no other course than to disburse the salary of the teacher whose appointment is approved by the University._ _**7** . As stated earlier, Chapter XIII of the Ordinance underwent major amendment with effect from 13.9.93. Procedure for calculating the number of teachers required for a department as per the amended provision is:-_ _i) Total hours of teaching work per week (Lecture/Practical) shall be 25. Apart from the above there shall be provision for tutorials. Tests, Exams, Field work and extra curriculaactivities._ _The total number of lecture hours per week and supervision periods of practical classes for science subjects shall be calculated first on the basis of hours prescribed for the concerned subject in the syllabus and strength of students._ _From the total hours so calculated the work load of Principal (if the Principal belongs to that Department) and the Head of the Department shall be deducted. The balance hours so arrived at shall be divided by the maximum work load of a teacher after deduction as prescribed above. If there is balance of hours exceeding six hours a proposal for the creation of an additional post may be made and with the sanction of the University an additional post can be created. The work load shall be distributed equally among all the teachers._ _Provided that in the case of Law or B.Com. where the total work load is less than 7 hours only a part-time teacher shall be appointed as if it is not covered under the U.G.C. Scheme._ _(ii) Additional Post will be sanctioned only if there are periods above six. In solitary cases_ **W.P.(C) Nos.30153/14 & 24954/16** **12** _where a teacher will be burdened with 19 periods or above a part-time post will be sanctioned. The remuneration for the part-time post in Colleges will be as in the case of part-time law teachers appointed on contract basis._ _Since this amendment was brought into force with effect from 13.9.93, appointments of teachers in Colleges belonging to private management should conform to the above conditions. Only if the appointments satisfy the above conditions, can the appointment be approved by the University and salary disbursed by the Director of Collegiate Education. In the case of such appointments also, if the Director entertains any doubt regarding the compliance with the requirements, matter can be referred back to the University. University will have to examine the issue in detail and to give reply to the Director of Collegiate Education. The decision taken by the University will be binding on the Director. Depending on the decision, the salary of the teacher will have to be disbursed._ _**8** . In the light of the above statutory provisions, we direct the concerned Deputy Director of Collegiate Education/Director of Collegiate Education to take up the issue regarding the appointment of the petitioners with the concerned Universities and to act in terms of their decisions. In case the appointment of these petitioners herein happened to be prior to 13.9.93 and was in conformity with the Ordinance 3 in Chapter XIII of the Kerala University First Ordinance, 1978, teacher should be paid salary as per law. If the appointment happens to be subsequent to 13.9.93, the teacher will be entitled to salary if it is in conformity with Regulations 6 of Chapter XIII which was amended with effect from that date”._ 11. The judgment in ' _**Cherian Mathew'**_ ( _supra_ ) was followed by this Court in the judgment in ' _**Shalini**_ _**Rachel'**_ ( _supra_ ) and held that, for filling up the posts sanctioned by the University on the basis of workload or staff pattern, no prior permission of Government is **W.P.(C) Nos.30153/14 & 24954/16** **13** necessary, and every appointment made to the teaching staff should get the approval of the University. 12. On the other hand, learned Government Pleader submitted that, the workload produced by the petitioners was not sufficient enough to show that appointments were required in the College. However, it is evident from the provisions of the Mahatma Gandhi University Act and Ordinances that clear cut provisions have been made in the University Statutes and Ordinances as to how the workload has to be assessed and staff strength to be fixed so as to avoid unnecessary appointments. 13. In fact, the selection of the petitioners were done by a duly constituted Select Committee consisting of the representatives of the Government, University, and the Corporate Management. Selection was also conducted by issuing public notice and at the time of selection, the workload statement, the staff fixation order etc. were available before the Select Committee, and it was accordingly that the petitioners were appointed. Once the University has approved the appointment taking into account all the relevant aspects as per the provisions of the University Act, Statutes and Ordinances, it is not appropriate, legal **W.P.(C) Nos.30153/14 & 24954/16** **14** and fair on the part of the State Government and its authorities to detain the salary to the petitioners. There is also no case for the State Government and its officers that there is any _malafide_ action on the part of the Corporate Management or the University in appointing the petitioners. It is also pertinent to note that, the University before granting approval has taken into account all the attendant circumstances, the workload as well as the staff strength fixed in accordance with the staff fixation order, and after verifying the entire details as is required under law alone, approval was granted to the petitioners. 14. It is also equally important to note that, when the approval is made by the Syndicate, it can only be presumed legally that the appointments were done and the approvals were made in accordance with law. On appreciation of the counter affidavit placed before this Court by the Deputy Director of Collegiate Education, I do not think the said authority has placed any established circumstances to show that the appointments and the approval made by the University were arbitrary, illegal or bad in any manner. In that view of the matter, it can only be said that the approach of the State Government and its officers **W.P.(C) Nos.30153/14 & 24954/16** **15** against the appointment of the petitioners cannot be sustained under law. 15. It is also important to note that, in Ext.P12 judgment dated 10.12.2010, produced in W.P.(C) No.24954 of 2016, rendered by this Court in W.P.(C) No.19082 of 2010 and other connected cases, a similar question was considered and held that, in spite of quashment of the Government Orders by this Court in the judgment in ' _**Manager, Pazhassiraja College v. University of Calicut**_ ' [2007 (3) KLT 776], the Government and the officials are not following the same and they are bent upon taking the very same contentions in all the cases and denying salary to the teachers who are legitimately entitled to receive salary for the work done by them, and therefore, the stand adopted by the respondents is absolutely illegal and it amounts to manifestation of scant respect to the judgments and orders passed by the High Court. Taking into account all the above aspects, I am of the considered opinion that, petitioners are entitled to succeed in the writ petitions. 16. When W.P.(C) No.30153 of 2014 was admitted to the files of this Court, an interim order was passed on 11.02.2015, directing the respondents to disburse the salary due to the petitioner from the current month **W.P.(C) Nos.30153/14 & 24954/16** **16** onwards, which would be subject to further orders from this Court. So also in W.P.(C) No.24954 of 2016, on 02.09.2016, an interim order was passed, directing to provisionally disburse the salary arrears and other service benefits to the petitioner with effect from 17.10.2014 onwards, pending disposal of the writ petition, making it clear that the same shall be done within a period of two months from the said date. Therefore, the writ petitions are allowed, and there will be a direction to the competent among the respondents to grant recognition to the approval made by the University in the matter of appointment of the petitioners, and regularize all the service conditions in accordance with law. It is also made clear, if any arrears of salary is due to the petitioners, the same shall also be released without any delay, and at any rate, within two months from the date of receipt of a copy of this judgment. ## **Sd/-** ## **SHAJI P.CHALY** ## **JUDGE** **St/-24.10.2019** **W.P.(C) Nos.30153/14 & 24954/16** **17** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LETTER NO. 23989/D2/12/H.EDN. DTD 17/7/2012 OF THE GOVERNMENT.** **EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 1/9/2012. EXHIBIT P3 TRUE COPY OF THE ORDER OF THE UNIVERSITY DATED 24/7/2013. EXHIBIT P4 TRUE COPY OF THE LETTER OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION DATED 11/12/2013. EXHIBIT P4(A) TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P4. EXHIBIT P5 TRUE COPY OF THE STATEMENT SHOWING THE LIST OF TEACHERS DATED 29.4.2014. EXHIBIT P5(A) TRUE COPY OF THE ALLOCATION OF TEACHING WORK AS ON 1/11/2012 DATED 16/5/2014. EXHIBIT P5(B) TRUE COPY OF THE WORKLOAD FOR THE YEAR 2012-2013. EXHIBIT P5(C) TRUE COPY OF THE WORKLOAD FOR THE YEAR 2011-12 OF THE COLLEGE. EXHIBIT P6 TRUE COPY OF THE LETTER OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION DATED 13/3/2014. EXHIBIT P6(A) TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P6 DATED 13.03.2014. EXHIBIT P7 TRUE COPY OF THE LETTER OF THE DIRECTOR OF COLLEGIATE EDUCATION DATED 24/4/2014. EXHIBIT P7(A) TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P7. EXHIBIT P8 TRUE COPY OF THE LETTER OF THE PRINCIPAL OF THE COLLEGE DATED 29/4/2014. EXHIBIT P8(A) TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P8.** **W.P.(C) Nos.30153/14 & 24954/16 18** **EXHIBIT P9 TRUE COPY OF THE STATEMENT OF WORKLOAD FOR THE YEAR 2011-2012 DATED 16/6/2014. EXHIBIT P10 TRUE COPY OF THE DECISION REPORTED IN 2007(3) KLT 355 DATED 21/6/2007. EXHIBIT P11 TRUE COPY OF THE JUDGMENT IN WPC NO. 27316/2012-L DATED 18/3/2014. EXHIBIT P12 TRUE COPY OF THE INTERIM ORDER IN W.P. (C)NO.31583 OF 2014-W DATED 15.01.2014. EXHIBIT P13 TRUE COPY OF THE JUDGMENT IN W.P. (C)NO.31583 OF 2014-W DATED 31.03.2015. RESPONDENTS' EXHIBITS/ANNEXURES: ANNEXURE-R3(A) PHOTOCOPY OF THE LETTER NO.AC B2/1/9865/2013 DATED 19.02.2014. ANNEXURE-R3(B) PHOTOCOPY OF THE TRANSLATED COPY OF THE LETTER NO.AC B2/1/9865/2013 DATED 19.02.2014. EXHIBIT R4(A) TRUE COPY OF LETTER NO.AF-1/6527/2011 DATED 26.12.2011 ISSUED BY THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM.**