State of Kerala and Others v. Bindu John and University of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY, THE 16TH DAY OF OCTOBER 2019 / 24TH ASWINA, 1941** **WA.No.2164 OF 2018** **AGAINST THE ORDER/JUDGMENT IN WP(C) 1788/2018(W) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 5 IN WP(C):** - **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 695 001** - **2 THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001** - **3 THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001** - **4 DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM 695 001** - **5 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM** **BY GOVERNMENT PLEADER SMT. RAJI T. BHASKAR SMT. NISHA BOSE** ## **RESPONDENTS/PETITIONER & RESPONDENTS 6 TO 9 IN WP(C):** **1 BINDU JOHN ASSISTANT PROFESSOR DEPARTMENT OF MALAYALAM CHRISTIAN COLLEGE CHENGANNUR 689 122 RESIDING AT NAVDIL MALAYIL BETHEL VENMONEY PO, CHENGANNUR (VIA) ALAPPUZHA 689 509** WA.No.2164 OF 2018 2 - **2 UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM 695 034** - **3 MANAGER CHRISTIAN COLLEGE, CHENGANNUR 689 122** - **4 PRINCIPAL CHRISTIAN COLLEGE, CHENGANNUR 689 122** - **5 VICE CHANCELLOR, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM 695 034** - **R1 BY ADV. SRI.BABY ISSAC ILLICKAL R1 BY ADV. SRI.ISAAC KURUVILLA ILLIKAL R2, R5 BY SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA** - **R4 BY ADV. SRI.MATHEW SUNNY** ## **OTHER PRESENT:** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.2164 OF 2018 3 ## **JUDGMENT** ## _**Shaffique, J.**_ This appeal is filed against the order dated 23.02.2018 in W.P.(C)No.1788/2018. The State and its authorities have preferred this appeal, inter alia, contending that the learned Single Judge committed serious error in issuing the following directions: “6. In the above view of the matter, the contention raised by the 5[th] respondent that salary can be disbursed only after order of sanction of posts by the Government is forwarded cannot be countenanced. In the result, Ext.P11 and Ext.P12 orders are therefore set aside. There will be a direction to the 6[th] respondent University to take up the proposal for approval of the appointment of the petitioner with effect from 10.12.2014 and to approve the same, if it is otherwise in order. Orders in this regard shall be passed within a period of three months from the date of receipt of a copy of this judgment.” 2. There is no dispute about the facts involved in this case. The 1[st] respondent/petitioner was appointed in a leave vacancy in the College managed by the third respondent herein for a period from 03.12.2008 to 02.12 2012. Later, she was appointed to the post of Assistant Professor in Malayalam on 10.12.2014 as per Ext.P6. Though claims were made for salary, the University by Exts.P11 and 12 had rejected the same, stating that her appointment was not in a sanctioned post in terms of WA.No.2164 OF 2018 4 Section 57 (1) of the Kerala University Act, 1974. 3. It is submitted that as per Ext.P3 dated 20.03.2012, the total teaching hours in Malayalam was considered as 18 and the same was increased to 27 as per the University order dated 09.05.2013 and one more post was added. As per Ext.P9 order dated 27.11.2017, the number of teaching hours in Malayalam was increased to 31. The contention urged by the 1[st] respondent/petitioner is that in so far as the University had approved in Ext.P4 that the permissible number of teachers is two,which is again re-fixed in terms of Ext.P9, her appointment in the additional post created by Exts.P4 and P9 is justifiable. For that reason itself, she is entitled for salary which had been wrongly denied by the University and the Government. 4. The learned Single Judge after placing reliance on a decision of this Court in **State of Kerala and Ors. v. Dr. Sina A.R. and Ors. [2007 (3) KHC 96]** , upheld the contention urged by the petitioner and directed payment of salary quashing Ext.P11 & 12, which is being impugned by the Government. 5. The learned Government Pleader submitted that in terms of Section 57 (1) of the Kerala University Act, 1974, unless WA.No.2164 OF 2018 5 the teaching post is sanctioned by the Government, there is no obligation on the part of the Government to pay salary. 6. On the other hand, the learned counsel for the petitioner/contesting respondent submits that, once the University had approved the number of teaching hours and also the number of posts, the Government is under obligation to ensure payment of salary. 7. We heard the learned Standing Counsel appearing for the University, who supports the view taken in Exts.P11 & 12. 8. Section 57 (1) of the Kerala University Act, 1974, reads as under: “ **Section 57. Appointment of teachers in private colleges.-** (1) Appointments to the posts eligible to receive salary from the Government shall be made only against posts sanctioned by the Government or by such officers as may be authorized by the Government.” 9. A bare perusal of the statutory provision itself indicates that the Government's obligation to pay salary is in respect of posts which are sanctioned by the Government or the competent officer. In the present case, there is no dispute about the fact that the Government had not sanctioned the second post, which was created pursuant to Exts.P4 and P9. However, the contention is that, even if the said post is not sanctioned by WA.No.2164 OF 2018 6 the Government, once the University has approved the working hours as well as the approval of the post, Government is bound to pay salary. Paragraphs 9 to 12 of the decision in **Dr. Sina's case (supra)** reads as under: “9. We are of the view, above mentioned provisions of the University Act, Statutes and Ordinances would clearly indicate that it is for the University to sanction the post as per Clause (3) of Statute 14 of the Kerala University (Conditions of Service of Teachers and Members of Nonteaching Staff) First Statutes, 1979 in the case of private colleges coming under the Direct Payment Scheme, depending upon the workload and staff pattern fixed by the University. Once University accords sanction of a post and grants approval depending upon the workload and staff pattern, the Deputy Director of Collegiate Education shall verify before making direct payment of salaries as to whether the post for which payment is claimed is in accordance with the staff pattern and workload fixed by the University. If the University grants approval noticing that it is in accordance with the staff pattern and workload fixed by it the Director of Collegiate Education or the officers concerned are obliged to make payment of salary as per the direct payment scheme. 10. Scope of Section 57(2) of the Kerala University Act has to be tested in the light of the above mentioned statutory provisions. Power of the University in granting approval as well as sanctioning posts after ascertaining the work load and fixation of staff pattern as per the Statutes has not been taken away by the University Amendment Act 2 of 2005. Clear cut provisions have been made in the University Statutes and Ordinances as to how the workload has to be assessed and staff strength fixed so as to avoid unnecessary appointments. Further the interest of the students is also to be safeguarded by appointing sufficient number of teachers without delay. Power is also conferred on the Deputy Director of Collegiate Education to take up the matter with the University in case there is any doubt with the approval granted. In appropriate cases Government can also examine the action taken by the Deputy Director and address the University through him. 11. We have no reason to think that an august body like Syndicate or the Deputy Director of Collegiate Education WA.No.2164 OF 2018 7 would act arbitrarily or against public interest while exercising powers statutorily conferred on them. Sub-section (1) of S. 57 only says that appointments to the posts eligible to receive salary from the Government shall be made only after getting prior sanction from or from such officers authorised by the Government for filling up the posts sanctioned by the University on the basis of workload or staff pattern, no prior permission of the Government is necessary. Once Syndicate of the University grants approval for filling up the existing vacancies depending upon the workload and staff pattern Government is obliged to pay salary of the teachers appointed by duly constituted Selection Committee. If Government or its officers find that the approval was granted by the University illegally it can always take up the matter before the University or other forums so that public interest will not suffer. S.57 (1) was introduced not to take away the statutory powers already conferred on the Syndicate of the University. Principle laid down in Cherian Mathew's case, supra in our view, still holds good. In view of the above mentioned circumstances, we are inclined to affirm the judgment of the learned single Judge in W.P.C. No. 12109 of 2006 and dismissed W.A. No. 940 of 2007. 12. We allow all the writ petitions and declare that it is obligatory on the part of the Government to release salary due to the teachers whose appointments are approved by the University. Government have however no obligation to disburse salary, if appointments are made by the aided colleges, to a non existent posts, when a new subject is sought to be introduced, or division is sought to be started, for which Government sanction is a pre condition as provided under S.57(1) of the University Act. Universities are also not expected to grant their approval in such a situation. For existing posts on grant of approval from the University on the basis of workload and staff fixation, Government and the officers authorised by the Government, have to honour the Direct Payment agreement and release the salary due to the teachers. In view of the declaration of law made by us, Universities would process the request for approval of appointment and orders be issued accordingly without delay and on that basis, the Deputy Director of Collegiate Education would release the salary of the teachers." (emphasis supplied) 10. Though it is strenuously argued by the learned counsel for the 1[st] respondent/petitioner that Section 57(1) of the Act WA.No.2164 OF 2018 8 had been watered down by the aforesaid judgment, we do not think so. In so far as Section 57(1) remains in the Statute, merely for the reason that the University had approved a post does not enable the management to appoint a person to the college unless sanction is obtained in terms of Section 57 (1). The Division Bench while deciding the aforesaid case has only stated that “sub-section (1) of S. 57 only says that appointments to the posts eligible to receive salary from the Government shall be made only after getting prior sanction from or from such officers authorised by the Government for filling up the posts sanctioned by the University on the basis of workload or staff pattern, no prior permission of the Government is necessary”. It only indicates that prior permission is not required for the University for fixing the workload or staff pattern. But it does not indicate that for making appointment which require payment of salary by the Government, sanction of the Government is not required. In order to direct the Government to pay salary, it should be an existing post. Even according to the petitioner, an additional post was created only by Exts.P4 and P9, when the number of teaching hours get enhanced from 18 to 27 and then to 31. In **Dr. Sina's case (supra)** appointments were made in leave WA.No.2164 OF 2018 9 vacancies and retirement vacancies. If we take a different view, it will violate the Statute. Under such circumstances, we are of the view that, the judgment in **Dr. Sina's case (supra)** cannot be applied to the factual situation that has arisen in this case. For that reason itself, we set aside the judgment of the learned Single Judge and sustain the orders passed by the University. However, it shall be open for the management to approach the Government to seek sanction of the post in the light of the staff fixation orders passed by the University, in which event, the management shall submit a representation to the Government within a period of one month from the date of receipt of a copy of this judgment, which shall be considered within a further period of three months, in accordance with law. Writ Appeal is allowed. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/-** **T.V.ANILKUMAR JUDGE** shg WA.No.2164 OF 2018 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE ORDER NO. AC/F111/2/17482/2015 DATED 06.06.2018 ANNEXURE A2 TRUE COPY OF RELEVANT PAGE OF DIRECT PAYMENT AGREEMENT**