RP No.1256 of 2022 in WA No.267 of 2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 24[TH] DAY OF MARCH 2023 / 3RD CHAITHRA, 1945** **RP NO. 1256 OF 2022** **AGAINST THE JUDGMENT DATED 23.08.2022 IN WA 267/2022 OF** ## **HIGH COURT OF KERALA** ## **REVIEW PETITIONERS/RESPONDENTS 1 & 2 IN W.A.:** - **1 POORNIMA C.C. D/O P.P RAMACHANDRAN, ASSISTANT PROFESSOR (NOT APPROVED), DEPARTMENT OF MALAYALAM, COCHIN COLLEGE, COCHIN-682 002.** - **2 DR KAVITHA V RAJAN D/O G, RAJAN, 'ASSISTANT PROFESSOR (NOT APPROVED), DEPARTMENT OF HINDI, COCHIN COLLEGE, COCHIN-682 002.** **BY ADVS.** - **S.PRASANTH (AYYAPPANKAVU) VARSHA BHASKAR THRESSY THOMAS ANUPAMA SIBI** ## **– RESPONDENTS/APPELLANTS & RESPONDENTS 3 5 IN W.A.:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR DIRECTORATE OF COLLEGIATE EDUCATION, VIKAS BHAVAN THIRUVANANTHAPURAM-695 033.** - **3 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION GANDHINAGAR, ERNAKULAM-682 020.** - **4 THE MAHATMA GANDHI UNIVERSITY PRIYADARSINI HILLS. P.O., KOTTAYAM-686 560, REPRESENTED BY ITS REGISTRAR.** R.P.No.1256 of 2022 in W.A.No.267 of 2022 2 **5 THE COCHIN COLLEGE REPRESENTED BY ITS MANAGER, COCHIN, PIN-682 002. 6 THE PRINCIPAL COCHIN COLLEGE, COCHIN, PIN-682 002. BY ADVS SRI.A.J.VARGHESE SR.GP SRI.P.P.JACOB SRI.SURIN IPE** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 24.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.P.No.1256 of 2022 in W.A.No.267 of 2022 3 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** ## **-----------------------------------------------** ## **R.P.No.1256 of 2022** **in** **Writ Appeal No.267 of 2022** **----------------------------------------------Dated this the 24[th] day of March, 2023.** ## **O R D E R** ## **P.B.Suresh Kumar, J.** Respondents 1 and 2 seek in this proceedings, review of the judgment in the writ appeal. 2. As in the case of the writ appeal, parties and documents are referred to in this order, as they appear in the writ petition. 3. The fourth respondent is a private college affiliated to the Mahatma Gandhi University and covered by the Direct Payment Scheme of the State Government. When the workload of the subjects Hindi and Malayalam in the fourth R.P.No.1256 of 2022 in W.A.No.267 of 2022 4 respondent college increased on account of the sanctioning of a few additional courses by the State, the College appointed the petitioners as Assistant Professors in the said subjects on 22.01.2018 and they joined duty on 24.01.2018. The Government sanctioned the posts required to accommodate the petitioners in terms of Section 59(1) of the Mahatma Gandhi University Act, 1985(the Act) only later, with effect from 30.12.2020. Nevertheless, the management of the College submitted a proposal before the University to approve the appointments of the petitioners with effect from 24.01.2018, the date on which they joined duty. The University took the stand that the said proposal cannot be considered since posts have been sanctioned only with effect from 30.12.2020. The said decision of the University was under challenge in the writ petition. The case set out by the petitioners in the writ petition was that inasmuch as there was sufficient workload in the College for sanctioning additional posts when the petitioners R.P.No.1256 of 2022 in W.A.No.267 of 2022 5 joined duty, the University was obliged to approve the appointments with effect from the date on which they joined duty. The learned Single Judge set aside the decision of the University and directed the University to consider the proposals for approval of the appointments of the petitioners afresh, accepting the case of the petitioners. It was aggrieved by the said judgment that the State and its officials preferred the appeal. 4. The right of the petitioners to get their appointments approved with effect from 30.12.2020 was not disputed by the State. The contention of the State, however, was that before the posts required to accommodate the petitioners were sanctioned in terms of Section 59(1) of the Act, the College could not have made regular appointments enabling the appointees to receive salary from the State under the Direct Payment Scheme. It was also the case of the State that where appointments are necessitated on account of R.P.No.1256 of 2022 in W.A.No.267 of 2022 6 sanctioning of new courses, the procedure followed was to permit the College to make appointments in the form of Guest Lecturers until posts are sanctioned by the Government after assessing the workload. 5. This Court accepted the stand of the State that when there is an interdiction in the Act that appointments to posts eligible to receive salary from the Government shall be made only against posts sanctioned by the Government, the appointments of the petitioners are liable to be approved only with effect from the date of sanctioning of the posts and consequently allowed the appeal, reversed the judgment of the learned Single Judge and dismissed the writ petition. It is the said decision of this Court that is sought to be reviewed in this proceedings. 6. Though very many contentions are raised in the review petition, the only contention pressed by the petitioners at the time of hearing is that inasmuch as the State R.P.No.1256 of 2022 in W.A.No.267 of 2022 7 has adopted and implemented the UGC (Minimum Qualifications for Appointment of Teachers and other Academic Staff in the Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations 2010 (the UGC Regulations) at the time when the petitioners were appointed and since the UGC Regulations provided categorically that the teachers should be appointed on contract basis only when it is absolutely necessary and that when student-teacher ratio does not satisfy the laid down norms, this Court ought not have accepted the stand of the Government that the College should have resorted to appointments in the form of Guest Lecturer until posts required to accommodate the petitioners were sanctioned by the Government. According to the learned counsel for the petitioners, inasmuch as the UGC Regulations does not permit appointment on contract basis when the student-teacher ratio is in accordance with the prescribed norms, inasmuch as the UGC Regulations would R.P.No.1256 of 2022 in W.A.No.267 of 2022 8 prevail over the provisions of the Act and inasmuch as there was sufficient workload in the College to accommodate the petitioners when they joined duty pursuant to the appointment, Section 59(1) of the Act should have been interpreted by this Court to the effect that sanctioning of the posts would relate back to the date on which the petitioners joined duty. 7. We have considered the argument advanced by the learned counsel for the petitioners. 8. The contention aforesaid of the petitioners proceeds on the premise that the provision contained in Section 59(1) of the Act that appointments to the posts eligible to receive salary from the Government shall be made only against posts sanctioned by the Government, is repugnant to the provision in the UGC Regulations that teachers should be appointed on contract basis only when it is absolutely necessary and when student-teacher ratio does not satisfy the laid down norms. We are unable to accept the said contention. R.P.No.1256 of 2022 in W.A.No.267 of 2022 9 No doubt, the scheme of the UGC Regulations is that teachers should be appointed on contract basis only when it is absolutely necessary and when student-teacher ratio does not satisfy the laid down norms. But we fail to understand as to how the said scheme would run counter to the provision contained in Section 59(1) of the Act. Section 59(1) deals with appointment of teachers in private colleges covered by the Direct Payment Scheme of the State Government, in terms of which the State Government is obliged to pay salary to the teachers appointed by private bodies. The said provision is a mechanism, in terms of which the Government ensures that appointments to posts eligible to receive salary from the Government are made only when there is sufficient workload in the College. Such a provision, according to us, can never be construed as one in conflict with the scheme of the UGC Regulations, for it is well settled that the principle of federal supremacy laid down in Article 246(1) of the Constitution should normally be resorted to R.P.No.1256 of 2022 in W.A.No.267 of 2022 10 only when the conflict is so patent and irreconcilable that coexistence of two laws is not feasible and that such conflict must be an actual one and not a mere seeming conflict between the Entries in the two Lists [See **Offshore Holdings (P) Ltd. v. Bangalore Development Authority** , (2011) 3 SCC 139]. As a matter of fact, even the scheme of the Act is also that there shall be regular appointments when there is sufficient workload. But that does not mean that until the Government is satisfied that there is sufficient workload in the College on account of sanctioning of additional courses, it cannot devise a mechanism such as appointments in the form of Guest Lecturer for the purpose of protecting the academic interests of students as also the financial interests of the State Government, as it cannot be presumed that there will be sufficient student strength invariably for all new courses sanctioned by the Government. It is all the more so, as observed by this Court in the judgment sought to be reviewed, that sanctioning of R.P.No.1256 of 2022 in W.A.No.267 of 2022 11 additional posts in a College involves financial implications and since a fiduciary duty is cast upon the State to act prudently and wisely while dealing with public money generated at the tax payers' expense, the freedom to decide as to the appropriate time at which additional posts in private colleges involving financial implications are to be sanctioned, shall be conceded to the State. In the said view of the matter, we do not find any merit in the review petition and the same is accordingly, dismissed. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** Sd/- ## **C.S.SUDHA, JUDGE.** YKB R.P.No.1256 of 2022 in W.A.No.267 of 2022 12 ## **APPENDIX OF RP 1256/2022** |**PETITIONER ANNEXURES**|**PETITIONER ANNEXURES**| |---|---| |**Annexure A1**|**TRUE COPY OF THE MINUTES OF THE**| ||**SELECTION COMMITTEE MEETING FOR**| ||**SELECTION TO THE POST OF ASSISTANT**| ||**PROFESSOR IN MALAYALAM.**| |**Annexure A2**|**TRUE COPY OF THE MINUTES OF THE**| ||**SELECTION COMMITTEE MEETING FOR**| ||**SELECTION TO THE POST OF ASSISTANT**| ||**PROFESSOR IN HINDI.**|