State of Kerala v. Subair P., Haskerali E.C., Shamla K.M., Pocker Sahib Memorial Orphanage College, Tirurangady, Malappuram & The University of Calicut

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932** ## **WP(C).No. 23249 of 2010(E)** ## **----------------------** **PETITIONER(S):** **-----------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM.** **3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOZHIKODE.** **BY GOVERNMENT PLEADER SRI. SANDESH RAJA** ## **RESPONDENT(S):** **-------------------------** **1. SUBAIR P., LECTURER IN ARABIC, POCKER SAHIB MEMORIAL ORPHANAGE COLLEGE, TIRURANGADY, MALAPPURAM.** **2. HASKERALI E.C., LECTURER IN MALAYALAM, POCKER SAHIB MEMORIAL ORPHANAGE COLLEGE, TIRURANGADY, MALAPPURAM.** **3. SHAMLA K.M., LECTURER IN ENGLISH, POCKER SAHIB MEMORIAL ORPHANAGE COLLEGE, TIRURANGADY, MALAPPURAM.** **4. POCKER SAHIB MEMORIAL ORPHANAGE COLLEGE, TIRURANGADY, MALAPPURAM DISTRICT REPRESENTED BY ITS MANAGER.** **5. THE UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., PIN 673 635 REPRESENTED BY ITS REGISTRAR.** **R1 TO R3 BY ADV. SRI.ASISH K.JOHN R4 BY ADV. SRI.V.M.KURIAN** **R5 BY ADV. SRI.P.C.SASIDHARAN, SC, CALICUT UTY.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** **WP(C).No. 23249 of 2010(E)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1 : COPY OF THE APPOINTMENT ORDER OF THE 1S RESPONDENT.** - **EXT.P2 : COPY OF THE APPOINTMENT ORDER OF THE 2ND RESPONDENT.** - **EXT.P3 : COPY OF THE APPOINTMENT ORDER OF THE 3RD RESPONDENT.** - **EXT.P4 : COPY OF G.O.(MS)NO.5/2001 DATED 3.1.2001.** - **EXT.P5 : COPY OF THE LETTER NO. U.G.C CELL IV/35999/2002 DATED 16.10.2002.** - **EXT.P6 : COPY OF THE JUDGMENT IN WA NO. 2154/2008.** - **EXT.P7 : COPY OF THE ORDER DATED 9.6.2009.** - **EXT.P8 : COPY OF THE ORDER DATED 8.1.2009.** - **EXT.P9 : COPY OF THE JUDGMENT IN WRIT PETITION 34037/2007.** ## **RESPONDENT'S EXHIBITS:** - **EXT.R4(a) : COPY OF THE INTERIM ORDER DATED 18.1.2008 IN WP(C) NO. 34037/2007 PASSED BY THIS HON'BLE COURT.** - **EXT.R4(b) : COPY OF LETTER DATED 6.4.2009 ALONG WITH THE STATEMENT OF WORKLOAD SUBMITTED BY 4TH RESPONDENT TO THE UNIVERSITY.** - **EXT.R4(c) : COPY OF LETTER DATED 9.4.2009 ISSUED BY THE 3RD PETITIONER TO PRINCIPAL.** - **EXT.R4(d) : COPY OF THE LETTER DATED 6.5.2010 ISSUED BY 5TH RESPONDENT TO 3RD PETITIONER.** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - ## W.P.(C) No. 23249 of 2010-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of January, 2011. ## JUDGMENT This writ petition is filed by the State challenging the proceedings of the University approving the appointment of respondents 1 to 3 in the fourth respondent College. The respective respondents were appointed as per Exts.P1 to P3 orders dated 13.1.2009, 5.1.2009 and 21.7.2008 respectively in the department of Arabic, Malayalam and English. 2. Heard learned Govt. Pleader appearing for the petitioners, learned counsel appearing for the fourth respondent and learned Standing Counsel appearing for the University. 3. Learned Govt. Pleader contended that in the light of the Post Adalath Review conducted by the Additional Director of Collegiate Education, pursuant to Ext.P4 and in the light of the workload assessed by the Government as per Ext.P4, approval could not have been granted. It is pointed out that in the department of Arabic, the total number of hours is 23 and in the department of Malayalam it is only 14. Accordingly, it is pointed out that the University has approved the appointments against the terms of the Post Adalath Review as evidenced by Ext.P5. Similar contentions have wpc 23249/2010 2 been raised in respect of the post of Lecturer in English also. 4. The only question therefore to be considered is whether the proceedings of the University should be in terms of Ext.P4 Govt. Order and Ext.P5. Apart from that, along with a memo dated 13.1.2011 learned Govt. Pleader produced a copy of Govt. Order dated 17.6.2002 which contains the norms for calculation of workload and determining surplus teachers. 5. The University has filed a detailed counter affidavit. The details of the workload in respect of the departments concerned are explained in paragraphs 4 to 11. It is pointed out that the workload assessed by the University is in terms of the University First Statutes which was approved by the Syndicate. It is stated in para 13 that as per the Calicut University First Statutes, 1979 Chapter 2 Statute 14(1) approval of every appointment of the teaching post shall be made by the Syndicate subject to the condition that the appointment is in accordance with the staff pattern fixed by the University. It is further revealed from para 18 of the counter affidavit that letters dated 11.10.2010, 5.2.2010 and 19.3.2010 were received from the Director of Collegiate Education objecting Ext.P8 approval order. The request of the Director was placed before the Syndicate Committee of the Syndicate on Staff of Affiliated Colleges held on 20.4.2010 and after wpc 23249/2010 3 considering all aspects of the matter, it was resolved to reconsider the provisional appointment of the third respondent and Smt. Razeena P.R. as approval was granted on the basis of the workload submitted by the Principal which is sufficient to accommodate 9 Lecturers and Principal. It is further pointed out that in para 19 that the resolution was intimated to the Deputy Director of Collegiate Education as per letter dated 6.5.2010 and no intimation objecting Ext.P7 approval has been forwarded by the Deputy Director. 6. Therefore, mainly it is contended that the approval granted by the University is in terms of the workload fixed by the Statutes and in terms of the power conferred therein. It is pointed out that the belated attempt of the Government to unsettle the grant of approval and the consequential service benefits of the incumbents is absolutely without any justification. 7. Learned counsel appearing for the fourth respondent Manager also reiterated the contention that the fixation of staff and workload is fixed by the University in terms of the Calicut University Act, 1975 and the First Ordinances 1978. Chapter XIII of the First Ordinances 1978 provides for the workload and pattern of teaching staff in Arts and Science Colleges. Therefore the contention is that the provisions of the said Statutes governs wpc 23249/2010 4 the matter and Exts.P4 and P5 cannot override the express provisions of the Statute. The Government or Director of Collegiate Education or the officers authorized by them are not empowered to fix the staff pattern. 8. The learned counsel appearing for respondents 1 to 4 relied on the decisions of this Court in **Cherian** v. **Principal, S.B.College, Changanassery (1998(2) KLT 144)** and **Shalini Rachel** v. **Manager, Christian College (2007(3) KLT 355)** to contend for the position that the Government or other Officers of the Department cannot sit in appeal over the decision taken by the University, once approval is granted. In **Cherian's** case(supra), Their Lordships held as follows in paragraphs 3 to 5. “3. Kerala University First Ordinance 1978 inter alia provide for assessment of work load and pattern of teaching staff in Arts and Science Colleges. Chapter XIII of the First Ordinance deals with the said issues. Statute 3 is concerned with the procedure for calculating number of teachers required for a department. In the case of Mahatma Gandhi University, it is conceded before us, no separate Ordinance has been promulgated and the Kerala University First Ordinance govern all similar issues. Likewise the Calicut University First Ordinance controls the procedure for calculating number wpc 23249/2010 5 of teachers required for a department. 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 appointment 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. wpc 23249/2010 6 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.” The said position was reiterated in the later decision in **Shalini's** case also and in paragraphs 10 and 11 the legal position was reiterated thus: “10. Scope of S.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 work load 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 wpc 23249/2010 7 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 would act arbitrarily or against public interest while exercising powers statutorily conferred on them. Sub-s.(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 work load 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 wpc 23249/2010 8 not to take away the statutory powers already conferred on the Syndicate of the University. Principle laid down in _Cheriyan 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 dismiss W.A.No.940 of 2007.” Paragraph 10 of **Shalini's case (2007(3) KLT 355)** is a complete answer to the issues raised herein. Their Lordships held 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 fixed so as to avoid unnecessary appointments. It is also stated that the power is 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. It is also held in the above decision that once the approval is granted by the University, the Government is obliged to pay salary of the teachers appointed by duly constituted selection committee. 9. Therefore, the legal position admits of no doubt. The approval, as explained by the University, is in terms of the workload fixed under the wpc 23249/2010 9 provisions of the Statute. Therefore, the contention raised by the learned Govt. Pleader that Exts.P4 and P5 will govern the matter, cannot be accepted. Apart from that, even though petitioners 2 and 3 raised further objections in the matter before the University against the proceedings, the University has reiterated their stand as evidenced from the counter affidavit. For all these reasons, the writ petition fails and the same is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/