SREEKALA S SHARMA v. MAHATMA GANDHI UNIVERSITY & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 05TH DAY OF DECEMBER 2019 / 14TH AGRAHAYANA, 1941** ## **WP(C).No.39887 OF 2016(I)** ## **PETITIONER:** **SREEKALA S SHARMA AGED 35 YEARS** **TC-36/1424(1), EDAYAVANATHU MADOM, JPN-18A, J.P. NAGAR, WEST FORT, THIRUVANANTHAPURAM.** **BY ADV. SRI.JOBY CYRIAC** ## **RESPONDENTS:** - **1 MAHATMA GANDHI UNIVERSITY KOTTAYAM, PIN-686 560,REP. BY ITS VICE CHANCELLOR.** - **2 CHAIRMAN/VICE CHANCELLOR SYNDICATE SELECTION COMMITTEE FOR APPOINTMENT OF LECTURER, MG UNIVERSITY,KOTTAYAM, PIN-686 560.** - **3 REGISTRAR MG UNIVERSITY,KOTTAYAM, PIN-686 560.** - **4 DIRECTOR COLLEGIATE EDUCATION,VIKAS BHAVAN, THIRUVANANTHAPURAM-39.** - **5 THE STATE OF KERALA DEPARTMENT OF HIGHER EDUCATION,R/BY ITS ADDITIONAL CHIEF SECRETARY,SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **6 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION CENTRAL ZONE, MCRV HOSTEL BUILDING,HOSPITAL ROAD, ERNAKULAM-682001.** - **7 MANAGER** **SREE SANKARA VIDYAPEETOM COLLEGE,VALAYANCHIRANGARA, PERUMBAVOOR,PIN-683 556.** **8 PRINCIPAL SANKARA VIDYAPEETOM COLLEGE,VALAYANCHIRANGARA, PO PERUMBAVOOR,PIN-683 556.** **WP(C).No.39887 OF 2016(I)** **2** **9 THE SECRETARY SREE SANKARA TRUST, ADVAITHA BHAVAN,COLLEGE, VALAYANCHIRANGARA PO,PERUMBAVOOR, PIN-683 556.** **R1 to R3 BY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY R7 & R8 BY BY ADVS. SRI.C.V.ALEXANDER SRI.BABU VARGHESE SR. SMT.TIJIMOL VARGHESE R4 TO R6 BY SRI.N.K.THANKACHAN,SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0412-2019, THE COURT ON 05-12-2019 DELIVERED THE FOLLOWING:** **WP(C).No.39887 OF 2016(I)** **3** ## **JUDGMENT** This writ petition is filed by the petitioner seeking the following reliefs: - i) Issue a writ of mandamus or any other appropriate writ, order or direction calling for the original records leading to Ext.P5 order and quash the same. - ii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing respondents No.1 and 2 to consider the proposal for approval of Ext.P1 appointment order afresh treating the proposal as if there is required workload for appointing the petitioner. iii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 6[th] respondent to disburse monthly salary including its arrears within a time frame, if Ext.P1 is approved by the 2[nd] respondent. - iv) Such other appropriate writ, order or direction, which this Honourable Court may deem fit and necessary in the facts and circumstance of the case and award costs. 2. Brief material facts for the disposal of the writ petition are as follows; according to the petitioner, petitioner was duly selected and appointed in the post of Assistant Professor, Department of Chemistry in Sree Sankara Vidyapeetom **WP(C).No.39887 OF 2016(I)** **4** College, Valayanchirangara, Perumbavoor, evident from Ext.P1. The appointment order dated 1.8.2014, which according to the petitioner, is against a retirement vacancy. It is also pointed out that, the work load is calculated on the basis of the strength of students in the existing course as well as the newly sanctioned course, M.Sc - Chemistry. However, 2[nd] respondent rejected the proposal for approval of Ext.P1 order vide Ext.P5 order dated 3.8.2015 for want of work load. 3. The case projected by the petitioner is that, Ext.P5 is a cryptic order and it is not discernible from the order the exact reason for not considering the additional work load available in the newly sanctioned post for approving her appointment. It is also pointed out that, even after rejection of the appointment, petitioner is being allotted academic works of the University including to conduct University examinations from time to time by appointing her as Additional Examiner, evident from Ext.P7 to P7(h) and that too without paying any salary or remuneration. Other legal contentions are **WP(C).No.39887 OF 2016(I)** **5** also raised by the petitioner. 4. It is also pointed out that, during the academic year 2013-2014 there were two retired vacancies i.e., one of C.V.Sankaran and another Suma Alias. Therefore, according to the learned counsel for petitioner, thinking either way, the appointment of the petitioner was made to a sanctioned and approved post and therefore, the stand adopted by the University in Ext.P5 that, there was no sufficient work load to accommodate the petitioner cannot be sustained under law. Other documents are also produced by the petitioner along with the reply affidavit filed viz., Exts.P8 & P9 dated 23.9.2014 & 4.3.2015 respectively from where it is clear and evident that, two Professors of the Chemistry Department have retired from the service of the 7[th] respondent college viz., Suma Alias and C.V.Sankaran on 31.3.2014 respectively. The said aspect is not at all disputed by the University. Therefore, my first endeavour is to find whether there is any adverse consequences in the University granting approval of the appointment against the sanctioned post in the **WP(C).No.39887 OF 2016(I)** **6** retirement vacancy of Smt.Suma Alias. Learned counsel for petitioner in that regard has invited my attention to judgment of a learned Single Judge in W.P.(C) No.3673/2008 dated 3.12.2008 produced along with the counter affidavit filed by respondents 1 to 3. 5. In my considered view, the subject issue considered therein is similar and therefore, the precedent set forth by the learned Single Judge can be followed in this writ petition. In order to ascertain the facts, it is better that the judgment of the learned Single Judge is quoted, which read thus: “ **JUDGMENT** _Ext.P4 is an order issued by the 5[th] respondent appointing the petitioner as Lecturer in Political Science in a retirement vacancy, with effect from 16.2.2004. Approval of the University was sought for and that was rejected by Ext.P6, on the ground that the Government sanction ought to have been obtained in view of the amendment to the provisions contained in Section 59(1) of the M.G.University Act, 1985. It is challenging Ext.P6, the writ petition has been filed._ **WP(C).No.39887 OF 2016(I)** **7** _2. As already noticed, the appointment was in a retirement vacancy, which proves the fact that the post was a sanctioned post. In respect of a vacancy arising in a sanctioned post, the provisions contained in Section 59(1) is inapplicable. It that be so, the rejection in Ext.P6 is unjustified. For that reason, Ext.P6 stands set aside._ _The 4[th] respondent shall reconsider the request of the 5[th] respondent for the approval of the appointment of the petitioner effected as per Ext.P4 order, as expeditiously as possible and at any rate within 2 months from the date of production of a copy of the judgment and with notice to the petitioner and the 5[th] respondent._ _Writ petition is disposed of as above.”_ 6. Even though various other contentions are raised by the learned counsel for petitioner with respect to the additional course started in M.Sc Chemistry and the work load that was secured in order to protect the interest of the petitioner, I am not going into that question. It is true, the University as well as the Manager of the college have filed detailed counter affidavits. The University has supported the stand adopted by it in Ext.P5 order and ## **WP(C).No.39887 OF 2016(I)** ## **8** reiterated the contentions since there was no sufficient work load, the appointment of the petitioner cannot be approved. It is also pointed out that, there is no sanctioned post so far as to accommodate the petitioner. 7. However, fact remains the selection of the petitioner was conducted by a duly constituted Selection Committee in accordance with the provisions of the M.G.University Statutes. So also in view of the additional M.Sc chemistry course started, it is not disputed that, there is no sufficient work load to accommodate the petitioner. In this context judgment of the Apex Court as pointed out by the learned counsel for petitioner in **State of Kerala v. Arun George** [2015(1)KLT 833(SC)]is relevant. There the facts are almost identical and after evaluating the situation, it is held as follows in paragraphs 17 to 19: _“17. Although, initially approval was not granted for the appointments of respondent Nos.1 to 7, the University granted approval to these appointments vide its order No.AC.B1/1/3169/05 dated 29.10.2005. As noticed earlier, sanction of new courses led to the increase of work load and the services of_ **WP(C).No.39887 OF 2016(I)** **9** _respondent nos.1 to 7 were utilised by the 8th respondent - management. The courses are purely aided courses and therefore, the provisions of Direct Payment Agreement are undoutedly applicable. The State administration cannot shirk its responsibility of ensuring proper and quality education in Schools and Colleges on the plea of lack of resources. In the facts and circumstances of the case in hand, we do not deem it necessary to consider this question in further detail._ 18. It is also to be noted that by perusal of the records viz. Annexures R8/14, 15, 16, 17 & 18, it is evident that respondent nos. 1 to 7 were appointed only against sanctioned posts. It is not the case of the Government that 8th respondent - management violated the terms of the Direct Payment Agreement. For many years i.e., from 2002, services of respondent nos.1 to 7 have been utilized for imparting instruction, invigilation and other duties. By perusal of the information obtained under Right to Information Act that the Government has paid salaries and emoluments to some of the lecturers appointed in other private colleges. When the respondent nos.1 to 7 were appointed by the Statutory Selection Committee, it becomes obligatory for the Government to honour these appointments and pay the salary. _19. In our considered view, the learned Single Judge of the High Court and the Division Bench in review petitions rightly held that respondent nos.1 to 7 are entitled to the payment of salary for the relevant period and we find no reason to interfere with the same.”_ 8. I have heard learned counsel for petitioner **WP(C).No.39887 OF 2016(I)** ## **10** Sri.Joby Cyriac, learned Standing Counsel for University Sri.Asok M.Cherian, learned Senior Counsel appearing for the Manager Sri.Babu Varghese, assisted by Sri.C.V.Alexander and perused the pleadings and documents on record. 9. I am of the considered opinion that, it is an admitted fact that there were four posts of Assistant Professors in the Department of Chemistry of the college in question and two Professors were retired during the academic year 2013-2014. It is also an admitted fact that, one M.P.Poornima and petitioner was appointed by the management against the said retirement vacancies. Since the said question is not disputed, I am of the considered opinion, the appointment made by the management is against the two sanctioned posts on the basis of the retirement vacancies arose in the college in question and so also there is no case for the University that there is no workload, consequent to starting of M.Sc Chemistry course. 10. In that view of the matter, the issue is clearly guided and covered by the judgments of the **WP(C).No.39887 OF 2016(I) 11** learned Single Judge as well as the Apex Court referred to above. Therefore, I do not think the stand adopted by the University in Ext.P5 order that, the appointment of the petitioner is not in accordance with work load cannot be sustained under law, being arbitrary and illegal. 11. Therefore, I quash Ext.P5 and consequentially there will be a direction to the 7[th] respondent Manager to re-submit the proposal to the University, within two weeks from the date of receipt of a copy of this judgment, which shall be finalised by the University at the earliest possible time and at any rate within a month thereafter, and forward the approval to the Government in order to enable the Manager as well as petitioner to draw pay and allowances due to the petitioner in accordance with law. Needless to say, since I find that Ext.P5 order passed by the University dated 3.8.2015 is not in accordance with law, there will be a direction to pay all arrears of service benefits to the petitioner on and with effect from the date of appointment of the petitioner as per Ext.P1, at the earliest and at any **WP(C).No.39887 OF 2016(I) 12** rate within two months from the date of receipt of a copy of this judgment. Writ petition is allowed to the above extent. **Sd/-** **SHAJI P.CHALY** Smv 5.12.2019 **JUDGE** **WP(C).No.39887 OF 2016(I)** **13** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 : TRUE COPY OF THE APPOINTMENT ORDER NO.SST/131/2014 DATED 1-8-2014 ISSUED BY THE 7TH RESPONDENT/MANAGER APPOINTING THE PETITIONER AS ASST. PROFESSOR IN THE DEPARTMENT OF CHEMISTRY.** **EXHIBIT P2 : TRUE COPY OF THE GO NO.615/13 HED DATED 12-9-2013 SANCTIONING ADDITIONAL GRADUATION/PG COURSES IN THE VARIOUS COLLEGES IN THE STATE OF KERALA.** **EXHIBIT P2(A) : TRUE COPY OF THE RELEVANT PAGE OF SCHEDULE ATTACHED WITH EXHIBIT P2. EXHIBIT P3 : TRUE COPY OF THE CIRCULAR NO.E/1/102013/13/CED DATED 9-10-2013 ISSUED BY THE 4TH RESPONDENT/DIRECTOR COLLEGIATE EDUCATION. EXHIBIT P4 : TRUE COPY OF THE STATEMENT OF WORKLOAD IN THE DEPARTMENT OF CHEMISTRY AS ON 1-11-2014 BASED ON STUDENTS STRENGTH SUBMITTED BY THE 7TH AND 8TH RESPONDENTS ALONG WITH EXHIBIT P1. EXHIBIT P4(A) : TRUE COPY OF THE STATEMENT OF WORKLOAD AND ITS DISTRIBUTION IN THE DEPARTMENT OF CHEMISTRY AS ON 1-11-2014 SUBMITTED BY THE 7TH AND 8TH RESPONDENTS ALONG WITH EXHIBIT P1. EXHIBIT P5 : TRUE COPY OF THE ORDER/COMMUNICATION NO.ACBI/2/2005/2014 DATED 3-8-2015 ISSUED BY THE 3RD RESPONDENT TO THE 7TH RESPONDENT. EXHIBIT P6 : TRUE COPY OF THE ORDER NO.GO(MS)162/99/H.EDN DATED 6-12-99 ISSUED BY THE GOVERNMENT OF KERALA. EXHIBIT P6(A) : TRUE COPY OF THE STATEMENT OF WORKLOAD IN THE COLLEGE OF SREE SANKARA VIDYAPEETOM AS ON 1-11-2004. EXHIBIT P6(B) : TRUE COPY OF THE ORDER NO.GO(MS) NO.260/2010/H.EDN DATED 20-8-2010 ISSUED BY THE GOVERNMENT OF KERALA.** **WP(C).No.39887 OF 2016(I)** **14** **EXHIBIT P7 : TRUE COPY OF THE APPOINTMENT ORDER DATED 7- 11-16 ISSUED BY THE CONTROLLER OF EXAMINATION, MG UNIVERSITY APPOINTING THE PETITIONER AS ADDITIONAL EXAMINER.** **EXHIBIT P7(A) : TRUE COPY OF THE APPOINTMENT ORDER DATED 5-11-16 ISSUED BY THE CONTROLLER OF EXAMINATION, MG UNIVERSITY APPOINTING THE PETITIONER AS ADDITIONAL EXAMINER.** - **EXHIBIT P7(B) : TRUE COPY OF THE APPOINTMENT ORDER DATED 4- 6-16 ISSUED BY THE CONTROLLER OF EXAMINATION, MG UNIVERSITY APPOINTING THE PETITIONER AS ADDITIONAL EXAMINER.** - **EXHIBIT P7(C) : TRUE COPY OF THE APPOINTMENT ORDER DATED 11-4-16 ISSUED BY THE CONTROLLER OF EXAMINATION, MG UNIVERSITY APPOINTING THE PETITIONER AS ADDITIONAL EXAMINER.** - **EXHIBIT P7(D) : TRUE COPY OF THE APPOINTMENT ORDER DATED 27-1-16 ISSUED BY THE CONTROLLER OF EXAMINATION, MG UNIVERSITY APPOINTING THE PETITIONER AS ADDITIONAL EXAMINER.** - **EXHIBIT P7(E) : TRUE COPY OF THE APPOINTMENT ORDER DATED 20-11-15 ISSUED BY THE CONTROLLER OF EXAMINATION, MG UNIVERSITY APPOINTING THE PETITIONER AS ADDITIONAL EXAMINER.** - **EXHIBIT P7(F) : TRUE COPY OF THE APPOINTMENT ORDER DATED 20-3-15 ISSUED BY THE CONTROLLER OF EXAMINATION, MG UNIVERSITY APPOINTING THE PETITIONER AS ADDITIONAL EXAMINER.** - **EXHIBIT P7(G) : TRUE COPY OF THE APPOINTMENT ORDER DATED 30-1-15 ISSUED BY THE CONTROLLER OF EXAMINATION, MG UNIVERSITY APPOINTING THE PETITIONER AS ADDITIONAL EXAMINER.** - **EXHIBIT P7(H) : TRUE COPY OF THE APPOINTMENT ORDER DATED 11-11-15 ISSUED BY THE CONTROLLER OF EXAMINATION, MG UNIVERSITY APPOINTING THE PETITIONER AS ADDITIONAL EXAMINER.** - **EXHIBIT P8 TRUE COPY OF THE COMMUNICATION NO.S81418/2014 DATED 23/9/2014 OF THE PRINCIPAL/8TH RESPONDENT ISSUED TO THE 3RD RESPONDENT REGISTRAR.** - **EXHIBIT P9 TRUE COPY OF THE APPOINTMENT ORDER UO.NO.1163/B1/ACAD/2015 DATED 4/3/2015 OF SMT. POORNIMA M.P.** **WP(C).No.39887 OF 2016(I)** **15** **EXHIBIT p10 TRUE COPY OF THE JUDGMENT DATED 22/01/2018 IN WPC NO.33527/2016** **EXHIBIT P11** **EXHIBIT P11 TRUE COPY OF THE ORDER NO.G.O.NO.177/2019/HED DATED 21/6/2019 RESPONDENT'S EXHIBITS EXHIBIT R7(a) TRUE COPY OF NOTIFICATION DATED 30.5.2013 EXHIBIT R7(b) TRUE COPY OF GOVT.LETTER DATED 13.9.2013 EXHIBIT R7(c) TRUE COPY OF SELECTION COMMITTEE MINUTES DATED 26.10.13 EXHIBIT R7(d) TRUE COPY OF WORK LOAD STATEMENT**