State of Kerala and The Deputy Director of Collegiate Education v Susan Mathew, St. Thomas College Kozhencherry, Mahatma Gandhi University

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 3RD DAY OF JANUARY 2013/13TH POUSHA 1934** **WP(C).No. 35223 of 2010 (C) ---------------------------** **PETITIONER(S):** **--------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY,HIGHER EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM.** **2. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,KOTTAYAM.** **BY GOVERNMENT PLEADER SMT.ROSE MICHAEL** **RESPONDENT(S):** **--------------** **1. SUSAN MATHEW, LECTURER, DEPARTMENT OF PHYSICS,ST.THOMAS COLLEGE KOZHENCHERRY-689641.** **ST.THOMAS COLLEGE,KOZHENCHERRY-689641.** **3. MAHATMA GANDHI UNIVERSITY, KOTTAYAM,REP.BY ITS REGISTRAR-686560.** **R1 BY ADV. SRI.B.MOHANLAL R1 BY ADV. SMT.P.S.PREETHA R1 BY ADV. SRI.SAIJU S. R1 BY ADV. SRI.C.SINOY R3 BY ADV. SRI.VARUGHESE M.EASO, SC, M.G. UNIVERSITY R3 BY ADV. SRI.VIVEK VARGHESE P.J., SC, M.G. UNIVERSITY R3 BY SRI. T.A. SHAJI, SC, M.G.UNIVERSITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MNS** **WP(C).No. 35223 of 2010 (A)** 2 ## **APPENDIX** ## **PETITIONER(S) EXHIBITS:** **EXHIBIT P1- A TRUE COPY OF THE APPROVAL ORDER NO.AC.B1-3-1051 (VOL.VI/99) DATED 5.1.2000** **EXHIBIT P2- TRUE COPY OF THE GOVERNMENT ORDER G.O.(MS) 76/90/H.EDN.** **EXHIBIT P3- TRUE COPY OF THE G.O.(P) 171.99/H.EDN. DATED 21.12.99 EXHIBIT P4- TRUE COPY OF THE ORDER NO.AC.BV-2(527)/2003 DATED 29.6.2005 EXHIBIT P5- TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.19679/08** **EXHIBIT P6- TRUE COPY OF THE ORDER NO.AC.BV-2(527)/2003 DATED 12.6.2009 ISSUED BY THE UNIVERSITY** **EXHIBIT P7- TRUE COPY OF THE CIRCULAR NO.28796/01/03/H.EDN. DATED 9.2.2004** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R1(a)- THE TRUE COPY OF THE APPOINTMENT ORDER NO.308/BI-3/A CAD./90 DATED 10.01.1991 ISSUED BY THE MAHATMA GANDHI UNIVERSITY** **EXHIBIT R1(b)-THE TRUE COPY OF THE CLARIFICATION ORDER NO.AC.BI/3/1051/VOI.VI/99 DATED 03.01.2001 ISSUED BY THE 3RD RESPONDENT** **EXHIBIT R1(c)- THE TRUE COPY OF THE ORDER NO.AC.BI.3/1050/91 DATED 03.03.1992 ISSUED BY THE MAHATMA GANDHI UNIVERSITY** **EXHIBIT R1(d)- THE TRUE COPY OF THE ORDER NO.AC.B.3/1051/91 DATED 06.12.1993 ISSUED BY THE MAHATMA GANDHI UNIVERSITY** **EXHIBIT R1(e)- THE TRUE COPY OF THE ORDER NO.AC.BI.3/1051(VOI.II)/91 DATED 18.04.1996 ISSUED BY THE MAHATMA GANDHI UNIVERSITY** **EXHIBIT R1(f)- THE TRUE COPY OF THE ORDER NO.AC.BI.3/1051(VOI.II)/91 DATED 20.03.1997 ISSUED BY THE MAHATMA GANDHI UNIVERSITY** **EXHIBIT R1(g)- THE TRUE COPY OF THE ORDER NO.AC.BI.3/305/98 DATED 12.08.1998 ISSUED BY THE MAHATMA GANDHI UNIVERSITY** **EXHIBIT R1(h)- THE TRUE COPY OF THE ORDER NO.AC.BI.3/1051(VOL.VI)/99 DATED 05.01.2000 ISSUED BY THE MAHATMA GANDHI UNIVERSITY** **EXHIBIT R1(I)- THE TRUE COPY OF THE G.O.(MS)NO.209/96/H.EDN. DATED 24.12.1996 ISSUED BY THE GOVERNMENT** **WP(C).No. 35223 of 2010 (A)** 3 **EXHIBIT R1(J)- THE TRUE COPY OF THE ORDER NO.AC.BV.2.527.2003 DATED 22.01.2008 ISSUED BY THE 3RD RESPONDENT UNIVERSITY** **EXHIBIT R1(k)- THE TRUE COPY OF THE PAY FIXATION ORDER DATED 06.02.2010 ISSUED BY THE 2ND PETITIONER** **EXHIBIT R1(L)- THE TRUE COPY OF THE G.O.(MS)NO.125/99/H.EDN. DATED 07.10.1999 ISSUED BY THE 1ST PETITIONER** **EXHIBIT R1(m)- THE TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.16495/2005 DATED 26.09.2005 OF THIS HON'BLE COURT** **EXHIBIT R1(n)- THE TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.17103/2003 DATED 22.01.2004 OF THIS HON'BLE COURT** **EXHIBIT R1(o)- THE TRUE COPY OF THE JUDGMENT IN W.A NO.197/2006 DATED 15.09.2006 OF THIS HON'BLE COURT** **EXHIBIT R1(p)- THE TRUE COPY OF THE ORDER NO.30994/C3/2008/H.EDN.DATED 02.01.2009 ISSUED BY THE 1ST PETITIONER** **EXHIBIT R1(q)- THE TRUE COPY OF THE G.O.(RT) NO.1528/2007/H.EDN.DATED 13.08.2007 ISSUED BY THE 1ST PETITIONER** **EXHIBIT R1(r)- THE TRUE COPY OF THE COMMUNICATION AND THE CERTIFICATE ISSUED BY THE PRINCIPAL, ST.THOMAS COLLEGE, KOZHENCHERRY.** **EXHIBIT R1(s)- THE TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.30579/2009 DATED 19.11.2010 OF THIS HON'BLE COURT** **EXHIBIT R1(t)- THE TRUE COPY OF THE ORDER NO.1417/AC.B.V//2011/ACAD.DATED 14.03.2011 ISSUED BY MAHATMA GANDHI UNIVERSITY** **EXHIBIT R1(u)- THE TRUE COPY OF THE G.O.(RT) NO:1456/12/H.Edn. DATED 13/07/2012 ISSUED BY GOVERNMENT** **//TRUE COPY//** **P.A TO JUDGE** 4 ## **WP(C).No. 35223 of 2010 (A)** **//TRUE COPY//** **P.A TO JUDGE** A.M.SHAFFIQUE, J. ---------------------------------------------------- W.P.(C) No. 35223 of 2010 - C --------------------------------------------------Dated this the 3[rd] January, 2013 **J U D G M E N T** The writ petition is filed by the Government challenging Exts.P4 and P6. Ext.P4 is an order passed by the University approving the provisional promotion of the first respondent herein as Lecturer senior scale with effect from 9.2.1997. When the salary bills of the 1[st] respondent were not counter signed by the Dy.Director of Collegiate Education, the first respondent filed W.P. (C) No. 19679/2008. This Court, in the judgment dated 30.9.2008 observed as follows: “3: In so far as the first objection that the petitioner could have claimed senior scale only subsequent to 01.4.1999 is concerned, I am inclined to agree with the learned Government Pleader. As is evident from Ext.R1(a), UGC benefits are available to those who are appointed on a regular basis against permanent vacancies and it may be possible for the teacher to claim that her prior service should also be reckoned. But such a claim can be made only after regular appointment has been granted and therefore, even if broken period of previous service should also be counted, senior scale can be effective only after regular appointment. W.P.(C) No. 35223 of 2010 - C 2 4. In this case, regular appointment was granted to the petitioner only from 01.4.99. Despite this, reckoning the broken period of service rendered by the petitioner, senior scale has been granted to the petitioner effective from 9.2.97. This has been approved by the University by Ext.P2 and the 1[st] respondent was perfectly justified in raising a querry on this. Therefore, this certainly is a matter for the University to reconsider. 5. In so far as the other plea raised by the respondents that in the absence of sufficient workload, the petitioner cannot claim senior scale, I should confess my inability to accept this contention. This is all the more so for the reason that this issue is covered against the University by several judgments rendered by this Court. Learned counsel for the petitioner has made available before me a copy of the judgment of this Court in W.P.(CP No. 5533/06 where a learned judge has overruled this contention relying on the judgment in W. A.No.2594/05 dated 5.7.2006. If that be so, that objection needs to be overruled and I do so”. **==> picture [86 x 7] intentionally omitted <==** 2. The writ petition was therefore disposed of directing the University to reconsider the effective date of approval and depending upon the clarification to be given by the University, the W.P.(C) No. 35223 of 2010 - C 3 1[st] respondent was directed to counter sign the salary bills of the petitioner and effect payment on that basis. This judgment resulted in the University informing the 2[nd] respondent by Ext.P6 order reiterating their earlier view and observing that the Syndicate Standing Committee on Affiliation, at its meeting held on 8.3.2009 considered the matter again and after assessing relevant aspects, resolved to reiterate the earlier decision of promoting Smt. Susan Mathew as Lecturer Senior Scale with effect from 9.2.1997 FN. 3. The main contention urged by the petitioner is that the first respondent was appointed as Lecturer on a regular basis only from 1.4.1999. She was appointed against the State scale and was continuing in service without sufficient work load. Since her entry on regular service is only with effect from 1.4.1999, University should not have given a placement to the first respondent in senior scale with effect from 9.2.1997, which according to them, is against the existing Government norms. It is also contended that the University cannot grant a benefit which is not adopted by the Government and that in respect of another person, Smt.Rosamma Mathew, the University had held that placement in senior scale can be granted only from the date of entry in regular service against the substantive vacancy. W.P.(C) No. 35223 of 2010 - C 4 4. Counter affidavit is filed by the 1[st] respondent inter alia contending that going by the norms prescribed for promotion as Lecturer Senior Scale, the first respondent's service in the college during the broken period ought to be considered. When the broken period is taken into account, she was entitled to become Lecturer senior scale with effect from 9.2.1997. Ext.R1(a) to R1 (h) would indicate the broken period during which she was working. Still further the first respondent relies upon paragraph 2 of Ext.R1 (i), which reads as under. “Government are now pleased to order that teachers who were appointed on temporary vacancies prior to 13.3.90 and who have been regularised against permanent vacancies thereafter can be considered for U.G.C. benefits and that their previous service including broken service can be counted for calculating qualifying service for placements”. 5. Still further it is contended that this position had already been covered by various judgments of this Court especially in regard to whether workload is available or not, this Court had repeatedly held that workload is not a factor to be considered for giving benefits under UGC scheme approved by the Government. It is also W.P.(C) No. 35223 of 2010 - C 5 contended that in several judgments, this Court had approved the consideration of broken periods as qualifying service for computing the qualifying periods of service. It is also contended that relying upon the decisions in **Cheriyan Mathew** v. **The Principal S.B. College** (1998 (2) KLT 144 (D.B) and **Shalini Rachel** v. **Manager, Christian College** (2007 (3) KLT 355 (D.B), the Government or other officers of the Department cannot sit in appeal over the decision taken by the University regarding the number of teachers appointed as well as the approval granted. The contention therefore raised by the first respondent is that once the University had approved promotion of the 1[st] respondent as Lecturer senior scale with effect from 9.2.1997 is not open for the Department to challenge the same. The 1[st] respondent was thereafter promoted to the post of Lecturer selection grade with effect from 9.2.2011 which is also approved by the University as per Ext.R1(c). 6. Heard learned Government Pleader appearing on behalf of the petitioner as well as the learned counsel appearing for the 1[st] respondent. 7. The first point that requires to be considered is whether the writ petition is maintainable or not. In **Cheriyan Mathew** v. **The Principal S.B. College** (1998 (2) KLT 144 (D.B) and **Shalini Rachel** v. **Manager, Christian College** (2007 (3) KLT 355 (D.B), it 6 W.P.(C) No. 35223 of 2010 - C is held that once the University approves the appointment or promotion of teachers, it is not open for the Government to interdict the same. Government is not the appointing authority. They can only approach the University in the event there is any illegality committed by the University, pointing out the same and it is for the University to correct such illegalities. In the present case, when Ext.P4 was issued by the University it was objected to by the Education Department which resulted in the petitioner filing W.P.(C) No. 19679/2008. 8. After taking into consideration the judgment of this Court at Ext.P5, Ext.P6 came to be passed. In Ext.P6 also the University has come to the very same conclusion. Once such a conclusion is arrived at by the University, going by the judgments referred above, it is not open for the Government or the Department to challenge the same. Learned Government Pleader relies upon Ext.P7 Circular dated 9.2.2004 which indicates that those who were appointed since 1.4.1990 against the Pre-degree vacancies and are continuing without any workload and those who are newly appointed against the posts required for the new courses that have been started with specific direction that “the expenditure will not exceed the budget allotment” or “without additional financial commitment”, will not be eligible for placements in the Senior Scale and Selection grade W.P.(C) No. 35223 of 2010 - C 7 under the career advancement Scheme. 9. This Circular will not affect the interest of the petitioner since the University is the competent authority to approve the promotion of the Lecturers or Teachers as the case may be. If the University had violated any Circulars or proceedings, if at all the same is applicable, as already held by the Division Bench of this Court in the above cases, the Government has the right to approach the University and they cannot challenge the said orders by filing a writ petition before this Court. In that view of the matter, I am of the view that unless there is a patent illegality in the order passed by the University, it is not open for the Government to challenge the promotion effected by the University to the 1[st] respondent. 10. It is also contended that the petitioner was continuing in service without sufficient workload and when the number of teachers required were 10, she was the 17[th] teacher. But this contention is not available to the Government as this Court in Ext.P5 judgment at paragraph 5 concluded the point. 11. Still further the learned counsel for the 1[st] respondent relies upon Ext.R1(u) in which Smt. Subha P. Simon, Lecturer was given senior scale with effect from 16.6.1995 granting previous service in leave vacancy though she was appointed to a substantive vacancy prior to 01.4.1998. Her case was approved by the University W.P.(C) No. 35223 of 2010 - C 8 and despite the Government objecting to the same, the University had reiterated their earlier decision approving the placement of Subha P. Simon with effect from 16.6.1995. In that case, by Ext.R1 (u) Government agreed to take a decision in favour of Subha P.Simon holding the stand taken by the University as a special case. What is the special case is not mentioned in Ext.R1(u) order. The 1[st] respondent also stands in the same position. 12. The only contention of the Government is that 1[st] respondent was not having regular appointment as on 9.2.1997, since she was appointed on a regular basis only on 1.4.1999. Since Subha P.Simon had been given a special treatment, it is not known as to why such benefit should not be extended to the 1[st] respondent also. Even otherwise as already indicated, once the University has taken a decision for the second time, concluding that the 1[st] respondent's promotion can be effective from 9.2.1997, Government cannot interdict the same unless specific illegality is pointed out which is not available in the present case. W.P.(C) No. 35223 of 2010 - C 9 In that view of the matter, I do not think that the petitioner has not made out a case for interference with Ext.P6. Accordingly the writ petition is dismissed. ## **A.M.SHAFFIQUE, JUDGE.** rka