SUFAIRA SHAMSUDEEN and BHAVYA KAMAL K.MENON v STATE OF KERALA and OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 11TH DAY OF SEPTEMBER 2020 / 20TH BHADRA, 1942** ## **WP(C).No.14868 OF 2020(G)** ## **PETITIONERS:** **1 SUFAIRA SHAMSUDEEN, AGED 37 YEARS WIFE OF ABDULLA BABU, ASSISTANT PROFESSOR (COMPUTER SCIENCE), MES COLLEGE, MARAMPALLY, ALUVA, ERNAKULAM DISTRICT-683007.** - **2 BHAVYA KAMAL K.MENON, AGED 36 YEARS WIFE OF PRADEEP, ASSISTANT PROFESSOR (ELECTRONICS), MES COLLEGE, MARAMPALLY, ALUVA, ERNAKULAM DISTRICT-683007.** **BY ADVS. SRI.V.A.MUHAMMED SMT.P.A.JENZIA** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT , SECRETARIAT ANNEXE-II, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM-695033.** - **3 THE MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR AT PRIYA DARSHINI HILLS, KOTTAYAM DISTRICT-686582.** - **4 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM-682011.** - **5 THE CORRESPONDENT AND CHAIRMAN, MUSLIM EDUCATIONAL SOCIETY, KOZHIKODE-673001.** - **6 THE PRINCIPAL, MES COLLEGE, MARAMPALLY, ALUVA, ERNAKULAM DISTRICT-683007.** - **R3 BY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY SMT. NISHA BOSE SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 14868/20 2 ## **JUDGMENT** The petitioners say that they were appointed to substantive vacancies in the post of Assistant Professor (Computer Science) and Assistant Professor (Electronics) respectively by the 6th respondent-Principal of the MES College, Aluva. 2. According to the petitioners, even though they were appointed to sanctioned posts available in the college, their salary has been withheld by the Educational Authorities unfairly, thus constraining them to approach this Court by filing WP(C)No.6857/2016, which culminated in Ext.P4 judgment. They say that, as is evidenced from Ext.P4 judgment, the University was directed to conduct a workload assessment within the time frame fixed therein and to then take a WPC 14868/20 3 decision as regards the approval of their appointment with effect from the Academic Year 2015-'16. They assert that the University has now completed this exercise and has approved their appointment, but that in spite of this, the Educational Authorities are still refusing to disburse them their eligible salary. They, thus pray that this Court declare that they are are entitled to obtain salary with effect from 01.06.2015 and 02.11.2015, being the dates of their respective approvals, and to direct the official respondents to grant them salary from the said dates. 3. Smt.Vaheeda Babu, learned Standing Counsel appearing for the 5th and 6th respondents, affirms that the petitioners were appointed by the 6th respondent to substantive vacancies, which is manifest from WPC 14868/20 4 the fact that both the petitioners were appointed to retirement vacancies. She says that therefore, there is no question of the posts to which they have now been appointed to be sanctioned again, since their predecessors in service had already been approved and their salary paid by the official Authorities; obviously because, the posts had already been sanctioned. She submits that therefore, her clients have preferred Exts.P7, P7(a), P8 and P8(a) proposals before the official respondents seeking that the salary of the petitioners be paid at the earliest. 4. Smt.Nisha Bose, learned Senior Government Pleader, began her submissions by saying that even though the University may have approved the appointment of the petitioners, it would be of no avail to them WPC 14868/20 5 since the posts which they are now occupying are not sanctioned by the Government. She says that the Government Orders that have been placed on record by the petitioners in this Writ Petition would not show that the posts to which they are appointed were sanctioned, but only that certain other posts had been sanctioned. She says, therefore, that going by the law declared by this Court in the judgment in WP(C)No.585/2020 i.e., **State of Kerala & Others v. Anty T.J. &** **Others** , it is only if the posts are sanctioned, can the petitioners seek payment of salary even though their appointments may have been approved by the University. 5. Sri.M.Sajjad, learned counsel appearing for the petitioners, refuted the afore submissions of the learned Senior Government Pleader by saying that the WPC 14868/20 6 |University was directed by this Court through| |---| |Ext.P4 judgment to verify the workload and to| |then take a decision on the approval of their| |appointment. He submits that, as is evident| |from the directions in Ext.P4, there was no| |case that these posts had not been sanctioned| |– the petitioners having been appointed to| |retirement vacancies - and therefore, that| |since the State was also a party to this| |judgment, they cannot now resile and say| |that the approval granted by the University| |is not binding on them. He vehemently| |submitted that since the University has now| |approved the appointment of the petitioners| |pursuant to Ext.P4 judgment, the State is now| |bound to pay salary to them forthwith. He,| |thus prays that this Writ Petition be| |allowed.| |6.<br>Sri.Asok<br>M.<br>Cherian,<br>learned| WPC 14868/20 7 Standing Counsel for the University, affirms the submissions made on behalf of the petitioners and of the Management that the posts to which the petitioners had been appointed have been approved. He submitted that the workload was assessed in terms of the directions in Ext.P4 judgment and that the University, therefore, had granted approval to both the petitioners. To a pointed question from this Court, Sri.Asok M. Cherian submitted that it is the stand of the University that since the posts have been approved, the State must pay eligible salary to the petitioners. 7. When I assess the afore submissions and the available pleadings on record, it is indubitable that the petitioners and the Management assert strongly that the posts to which the former were appointed, were WPC 14868/20 8 sanctioned and were, in fact, retirement vacancies. Smt.Vaheeda Babu submits, as I have already noted above, that these posts were occupied by the predecessors in service of the petitioners, who have been paid salary by the Government; and that it was consequent to their retirement that the petitioners were appointed. 8. Obviously, if the above are the true facts, then there is no question of sanctioning of the posts since these posts have already been sanctioned by the Government long ago. That apart, going by Ext.P4 judgment, the attention of this Court had not been invalid to the issue as to whether the posts had been sanctioned, but it appears to have been presumed to be so; which indicates that it is, therefore, that the workload was directed to be assessed and the WPC 14868/20 9 grant of approval was directed to be considered. The State of Kerala and its Authorities are parties to Ext.P4 judgment and am not sure how they can now resile and then take a contention that even though this Court directed the assessment of workload and grant of approval to the petitioners, the Government will not pay the salary until the posts are again sanctioned. 9. I am afraid that these contentions do not appear to be, _prima facie,_ tenable, but I choose not to say anything further, since am of the view that Exts.P7, P7(a), P8 and P8(a) representations and proposals given by the Management should engage the attention of the competent Authority immediately, so that the question of payment of salary to the petitioners can be decided one way or the other without any avoidable delay. WPC 14868/20 10 10. In the afore circumstances, I direct the competent Secretary of the 1st respondent to immediately hear the petitioners, as also respondents 5 and 6 - either physically or through video conferencing - and take a decision as to the payment of salary to the petitioners at the earliest, but not later than one month from the date of receipt of a copy of this judgment. 11. I am fixing the time short since this Court has already directed the University in Ext.P4 judgment, which was delivered as early as on 02.11.2018, to consider the approval of petitioners; and normally in such circumstances, the payment of salary would have been only an adjunct consequence. However, since the State now maintains that the posts are not sanctioned, it must now decide on that issue at the WPC 14868/20 11 earliest and not later than the time that I have already granted herein. This writ petition is thus ordered clarifying that in the event Exts.P7, P7(a), P8 and P8(a) are disposed in favour of the petitioners, then their salary shall be disbursed without any avoidable delay, but not later than two months there from. **Sd/-** **DEVAN RAMACHANDRAN** RR **JUDGE** WPC 14868/20 12 ## APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER DATED 12.3.2015. EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 12.3.2015. EXHIBIT P3 TRUE COPY OF THE ORDER NO.AC.BII/I/5365/2015 DATED 3.2.2016. EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN W.P. (C) NO.6857/2016 DATED 2.11.2018. EXHIBIT P5 TRUE COPY OF THE ORDER NO.4148/ACB2/2019/MGU DATED 30.8.2019 ISSUED BY 3RD RESPONDENT. EXHIBIT P6 TRUE COPY OF THE ORDER NO.4149/ACB2/2019/MGU DATED 30.8.2019 ISSUED BY 3RD RESPONDENT. EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 4TH RESPONDENT VIDE NO.MES/MC-1/142/2015 DATED 3.10.2019. EXHIBIT P7(A) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 4TH RESPONDENT VIDE NO.MES/MC-1/143/2015 DATED 3.10.2019. EXHIBIT P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 4TH RESPONDENT VIDE NO.MES/MC-1/143/2015 DATED WPC 14868/20 13 25.5.2020. EXHIBIT P8(A) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 4TH RESPONDENT VIDE NO.MES/MC-1/143/2015 DATED 25.5.2020.