University of Kerala v. Reshma Salim & Ors.; Geethu R. Prasad v. University of Kerala & Ors.; State of Kerala v. S.N. College & Ors. (Writ Appeals)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **MONDAY, THE 6[TH] DAY OF SEPTEMBER 2021 / 15TH BHADRA, 1943** **WA NO. 1564 OF 2020** **AGAINST THE JUDGMENT DATED 26.08.2020 IN WP(C) 6213/2019 OF HIGH COURT OF KERALA** ## **APPELLANT/3RD RESPONDENT:** **UNIVERSITY OF KERALA REPRESENTED BY ITS REGISTRAR, UNIVERSITY CAMPUS, THIRUVANANTHAPURAM - 695 034.** **BY ADV SRI.THOMAS ABRAHAM, SC SRI.ASWIN P.JOHN** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1, 2 AND 4 TO 6:** - **1 RESHMA SALIM, AGED 27 YEARS D/O.ARUN RAJ, PLAVILA PUTHEN VEEDU, EDAKKIDOM P.O., EZHUKON, KOLLAM, WORKING AS ASSISTANT PROFESSOR OF ENGLISH IN S.N.COLLEGE, CHATHANNUR - 691 505.** - **2 THE MANAGER, S.N.COLLEGE KOLLAM - 691 001.** - **3 THE PRINCIPAL, S.N.COLLEGE CHATHANNUR - 691 572.** - **4 THE STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **5 THE DIRECTOR OF COLLEGIATE EDUCATION VIKAS BHAVAN, THIRUVANANTHAPURAM - 695 023.** - **6 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION** :2: W.A.No.1564 of 2020 W.A.No.537of 2021 & W.A.No.525 of 2021 ## **KOLLAM – 691001.** **BY ADVS. SRI.M.S.RADHAKRISHNAN NAIR SRI.A.N.RAJAN BABU GOVERNMENT PLEADER SRI.PREMCHAND R NAIR,SR** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.09.2021, ALONG WITH WA.537/2021, 525/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** :3: W.A.No.1564 of 2020 W.A.No.537of 2021 & W.A.No.525 of 2021 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **MONDAY, THE 6[TH] DAY OF SEPTEMBER 2021 / 15TH BHADRA, 1943** **WA NO. 537 OF 2021** **AGAINST THE JUDGMENT DATED 26.08.2020 IN WP(C) 8785/2019 OF HIGH COURT OF KERALA** ## **APPELLANTS/ RESPONDENTS 4 TO 6 IN WP(C):** - **1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF COLLEGIATE EDUCATION VIKAS BHAVAN, THIRUVANANTHAPURAM-695 023.** - **3 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION KOLLAM-691 001.** **BY ADV GOVERNMENT PLEADER SRI.PREMCHAND R NAIR,SR** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3 IN WP(C):** - **1 GEETHU R.PRASAD D/O. RAJENDRA PRASAD, REGENT GARDENS, NEAR KALYAN SILKS, HOSPITAL RAD, KOCHI-682 011. (WORKING AS ASSISTANT PROFESSOR OF ENGLISH IN S.N. COLLEGE).** :4: W.A.No.1564 of 2020 W.A.No.537of 2021 & W.A.No.525 of 2021 - **2 THE MANAGER S.N.COLLEGE, KOLLAM-691 001.** - **3 THE PRINCIPAL S.N.COLLEGE, KOLLAM-691 001.** - **4 THE UNIVERSITY OF KERALA REPRESENTED BY REGISTRAR, UNIVERSITY CAMPUS, THIRUVANANTHAPURAM-695 001.** **BY ADVS.** **SRI.THOMAS ABRAHAM, SC SRI.ASWIN P.JOHN** **SRI.M.S.RADHAKRISHNAN NAIR SRI.A.N.RAJAN BABU** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.09.2021, ALONG WITH WA.1564/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** :5: W.A.No.1564 of 2020 W.A.No.537of 2021 & W.A.No.525 of 2021 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **MONDAY, THE 6[TH] DAY OF SEPTEMBER 2021 / 15TH BHADRA, 1943** **WA NO. 525 OF 2021** **AGAINST THE JUDGMENT DATED 26.08.2020 IN WP(C) 6213/2019 OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 4 TO 6 IN WP(C):** - **1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE DIRECTOR OF COLLEGIATE EDUCATION VIKAS BHAVAN, THIRUVANANTHAPURAM.** - **3 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION KOLLAM - 691 001.** **BY ADV GOVERNMENT PLEADER SRI.PREMCHAND R NAIR,SR** ## **RESPONDENTS/PETITIONER/RESPONDENTS 1 TO 3 IN WP(C):** - **1 SMT.RESHMA SALIM D/O.ARUN RAJ, PLALVILA PUTHEN VEEDU, EDAKKIDOM P.O., EZHUKONE, KOLLAM, WORKING AS ASSISTANT PROFESSOR OF ENGLISH IN S.N.COLLEGE, CHATHANOOR - 691 505.** :6: W.A.No.1564 of 2020 W.A.No.537of 2021 & W.A.No.525 of 2021 - **2 THE MANAGER, S.N.COLLEGE KOLLAM - 691 001.** - **3 THE PRINCIPAL, S.N.COLLEGE CHATGHANOOR - 691 572.** - **4 THE UNIVERSITY OF KERALA REPRESENTED BY REGISTRAR, UNIVERSITY CAMPUS, THIRUVANANTHAPURAM - 695 001.** **BY ADVS. SRI.M.S.RADHAKRISHNAN NAIR SRI.A.N.RAJAN BABU, SC, S.N. COLLEGE SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA SRI.ASWIN P.JOHN,** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.09.2021, ALONG WITH WA.1564/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** :7: W.A.No.1564 of 2020 W.A.No.537of 2021 & W.A.No.525 of 2021 ## **JUDGMENT** ## **A.K.Jayasankaran Nambiar, J.** As all these Writ Appeals raise a common issue, they are taken up together for consideration and disposed by this common judgment. 2. The Writ Appeals aforementioned are filed by the State of Kerala (W.A.No.525 of 2021 & W.A.No.537 of 2021) and by the Kerala University (W.A.No.1564 of 2020), aggrieved by the judgment of the learned Single Judge in W.P(C).No.6213 of 2019 preferred by Smt.Reshma Salim and W.P(C).No.8785 of 2019 preferred by Smt.Geetu R.Prasad. It would appear that the educational agency of the various colleges established by the Sree Narayana Trust had initiated a selection process for selection of Assistant Professors to various departments, including the Department of English, in the colleges managed by it. Smt.Reshma Salim and Smt.Geetu R.Prasad, the petitioners in the Writ Petitions aforementioned had applied for the posts of Assistant Professor (English), and pursuant to the selection process, were ranked in a rank list prepared by the educational agency :8: W.A.No.1564 of 2020 W.A.No.537of 2021 & W.A.No.525 of 2021 for appointment to sanctioned posts in the various colleges. Inasmuch as Smt.Reshma Salim was ranked above Smt.Geetu R.Prasad in the rank list prepared pursuant to the selection process she was offered appointment as Assistant Professor (English) at the S.N.College, Chathannur by an appointment order dated 21.01.2016 (Ext.P1 in W.P(C).No.6213 of 2019). Smt.Geetu R.Prasad was also offered appointment as Assistant Professor (English) at the S.N.College, Kollam by an appointment order of the same date i.e 21.01.2016. When the appointment orders were forwarded to the Kerala University for approval, the University, placing reliance on a letter dated 03.06.2017 of the Deputy Director of Collegiate Education, instructed the educational agency to issue fresh appointment orders to both Smt.Reshma Salim as well as Smt.Geetu R.Prasad, so as to make their appointments effective from 02.06.2016 (erroneously mentioned as 02.06.2017 in that communication) in the respective colleges. This was because the University found that there was only one sanctioned post of Assistant Professor (English) at the S.N.College, Chathannur, pursuant to the workload study conducted by the University in 2012, and a vacancy to the said post arose only with effect from 02.06.2016. In the case of Smt.Geetu R.Prasad, while she was appointed in a vacancy that arose in a sanctioned post that existed in S.N.College, Kollam with :9: W.A.No.1564 of 2020 W.A.No.537of 2021 & W.A.No.525 of 2021 effect from 21.01.2016 itself, the University opined that inasmuch as she was ranked below Smt.Reshma Salim in the rank list drawn up pursuant to the selection process, she could not claim a right to appointment to the vacant post till 02.06.2016, the date on which Smt.Reshma Salim was subsequently appointed as Assistant Professor (English) in the S.N.College, Chathannur. Acting on the directions of the University, fresh appointment orders were issued to Smt.Reshma Salim and Smt.Geetu R.Prasad changing their dates of appointment as 02.06.2016 at the respective colleges. It is not in dispute that the said appointments with effect from 02.06.2016 were duly approved by the University. 3. In the Writ Petitions preferred before this Court, it was the contention of Smt.Reshma Salim in W.P(C).No.6213 of 2019 that the workload study conducted by the University in the year 2012 clearly indicated that there was a need for two sanctioned posts of Assistant Professor (English) at the S.N.College, Chathannur, and hence, she ought to have been appointed to the vacancy in the second sanctioned post of Assistant Professor (English) with effect from 21.01.2016 when she was initially appointed as such. To buttress her contention on merits, she relied on Ext.P8 judgment of this Court, which considered :10: W.A.No.1564 of 2020 W.A.No.537of 2021 & W.A.No.525 of 2021 the case for approval of appointment of another teacher (Smt.Reshma R.), who had been working as a second Assistant Professor (English) at the S.N.College, Chathannur, but had not received salary from the Government despite putting in years of service in the said college. The Government had, in that case, by Ext.P11 order dated 30.12.2015 directed the University to consider the case of the said Smt.Reshma R., for approval of her appointment, and payment of salary based on the said approval. Smt.Reshma Salim sought to get the benefit of approval of her appointment with effect from 21.01.2016 at S.N.College, Chathannur, on the basis of the directions issued in respect of Smt.Reshma R., through the Government Order dated 30.12.2015. It might be relevant to point out at this juncture that in the Writ Petition filed by her, Smt.Reshma Salim does not impugn the subsequent appointment order that was issued to her appointing her as Assistant Professor (English) in S.N.College, Chathannur with effect from 02.06.2016, or the order dated 04.09.2018 of the University approving the said appointment. 4. As regards Smt.Geetu R.Prasad, who was the writ petitioner in W.P(C).No.8785 of 2019, who was ranked below Smt.Reshma Salim in the rank list prepared pursuant to the selection process conducted by :11: W.A.No.1564 of 2020 W.A.No.537of 2021 & W.A.No.525 of 2021 the educational agency, although she too was appointed as Assistant Professor (English) in S.N.College, Kollam with effect from 21.01.2016, a subsequent appointment order was issued to her, based on the directions issued by the Deputy Director of Collegiate Education and the University, appointing her as Assistant Professor (English) at S.N.College, Kollam with effect from 02.06.2016. It is not in dispute that the said appointment order was subsequently approved by the University. Although it was never in doubt that there was a sanctioned post of Assistant Professor (English) in the said college even with effect from 21.01.2016, the date of her initial appointment as such, the University approved only her subsequent appointment with effect from 02.06.2016 taking note of the fact that the appointment of Smt.Reshma Salim, who was ranked higher in the rank list, could be granted only with effect from that date. She therefore sought a direction to the University to approve her appointment with effect from 21.01.2016. 5. The learned Single Judge, who considered both the Writ Petitions separately, found in the judgment in W.P(C).No.6213 of 2019 preferred by Smt.Reshma Salim that in a workload study that was conducted by the University in 2012, the University had determined a workload of 32 hours in the English Department at S.N.College, :12: W.A.No.1564 of 2020 W.A.No.537of 2021 & W.A.No.525 of 2021 Chathannur and also recognised the need for sanctioning two posts to satisfy the instructional needs of that department. The learned Judge, however, erroneously assumed that the projected need of two posts was in fact a sanctioning of two posts by the University. Proceeding on the said erroneous assumption, the learned Judge found that the stand taken by the University, in not approving the appointment of Smt.Reshma Salim with effect from 21.01.2016, the date of her initial appointment, was erroneous in law. The Writ Petition of Smt.Reshma Salim was accordingly allowed by directing the University to issue fresh orders approving her appointment with effect from 21.01.2016 and to disburse consequential benefits to her on that basis. By a separate judgment dated 26.08.2020 in W.P(C).No.8785 of 2019 preferred by Smt.Geetu R.Prasad, the Writ Petition was allowed following the judgment in the case of Smt.Reshma Salim and directing the University to issue fresh orders revising the order of approval to the appointment of Smt.Geetu R.Prasad with effect from 21.01.2016 itself. There was a further direction to extend the consequential benefits to her. 6. In the Appeals before us, the contentions of Sri.Thomas Abraham and Sri.Aswin P.John, the learned counsel appearing for the University, and the learned Government Pleader Sri.Premchand R.Nair :13: W.A.No.1564 of 2020 W.A.No.537of 2021 & W.A.No.525 of 2021 appearing on behalf of the State Government, are essentially that the learned Single Judge erred in assuming that a second post of Assistant Professor (English) had in fact been sanctioned by the University at the S.N.College, Chathannur. It is in particular pointed out that, while the workload study conducted by the University as early as in 2012 had admittedly recognised the need for 32 hours of instructions and consequently, two posts of Assistant Professor (English), to discharge the pedagogic obligation in the English Department of that college, the Government sanction for the second post had not been obtained in terms of Section 57(1) of the Kerala University Act read with the applicable First Statutes, and therefore, there was no sanctioned post to accommodate Smt.Reshma Salim on 21.01.2016, the date on which she was first appointed as Assistant Professor (English) in the college. It is contended that it was only with effect from 02.06.2016, when a vacancy arose to the only sanctioned post of Assistant Professor (English) in that college, that she could have been accommodated, and it was accordingly that a revised appointment order was insisted in her case, which when issued was subsequently approved by the University. In the case of Smt.Geetu R.Prasad, it is not in dispute that as on 21.01.2016, she was appointed to a sanctioned post of Assistant Professor (English) at the S.N.College, Kollam. It is stated, however, :14: W.A.No.1564 of 2020 W.A.No.537of 2021 & W.A.No.525 of 2021 that inasmuch as she was ranked below Smt.Reshma Salim in the rank list prepared pursuant to the selection process conducted by the educational agency, her appointment could not be approved with effect from a date prior to the approval accorded to the appointment of Smt.Reshma Salim and it was under those circumstances that her appointment was approved with effect from 02.06.2016, as in the case of Smt.Reshma Salim. Our Attention is drawn by the learned counsel to the judgment of this Court in **Cherian Mathew v. Principal, S.B.College, Changanassery [1998 (2) KLT 144 (DB)], Shalini Rachel v. Manager, Christian College [2007 (3) KLT 355 (DB)], State of Kerala and Others v. Dr.Sina A.R and Others [2007 (3) KHC 96], State of Kerala and Others v. Malankara Orthodox Church Colleges and Others [judgment dated 25.01.2021 in W.A.No.1240 of 2020] and State of Kerala and Others v. St.George College, Aruvithura and Others [judgment dated 18.03.2021 in W.A.No.331 of 2020** ] to contend that it is now well settled that appointments by educational agencies/managements of private aided colleges can only be to posts sanctioned by the University, and where the payment of salary etc., is to be met by the Government, then pursuant to a sanction obtained from the Government as well. :15: W.A.No.1564 of 2020 W.A.No.537of 2021 & W.A.No.525 of 2021 7. We have considered the rival submissions and perused the material on record. We find from a perusal of the material before us that, while there was a workload study conducted by the University in 2012 that clearly indicated a workload and the necessity for two posts of Assistant Professor (English) at S.N.College, Chathannur for meeting the pedagogic requirement in the English Department of that college, only one post of Assistant Professor (English) was in fact sanctioned by the University and the Government. The reliance by the writ petitioners on the Government Order dated 20.12.2015 issued in connection with the approval of appointment of Smt.Reshma R., an earlier incumbent to the post, does not in our opinion advance the case of the petitioners since, admittedly, there was no sanctioned post of Assistant Professor (English) in S.N.College, Chathannur and the direction to disburse salary to the said Smt.Reshma R., in Ext.P8 judgment of this Court appears to have been issued in the peculiar factual circumstances that arose in that case. The legal consequence of there being no sanctioned post of Assistant Professor (English) in S.N.College, Chathannur as on 21.01.2016, would be that Smt.Reshma Salim's initial appointment as such could not have been approved by the University. In that sense, we find no legal infirmity in the subsequent orders passed by the University approving the appointment of :16: W.A.No.1564 of 2020 W.A.No.537of 2021 & W.A.No.525 of 2021 Smt.Reshma Salim with effect from 02.06.2016. Her earlier appointment with effect from 21.01.2016 could not have been approved by the University. We might re-iterate at this stage that in the Writ Petition filed by Smt.Reshma Salim, the subsequent orders of appointment with effect from 02.06.2016 and approval of the same by the University were not impugned by her. 8. In the case of Smt.Geetu R.Prasad, we find that as on 21.01.2016 when she was appointed as Assistant Professor (English) in S.N.College, Kollam there was in fact a sanctioned post to which a candidate could be accommodated. We find however, that based on their inter se ranking, Smt.Reshma Salim, was the one who had to be appointed to the vacancy that arose earlier in point of time in the post of Assistant Professor (English), and accordingly, she ought to have been appointed as Assistant Professor (English) at S.N.College, Kollam where the said vacancy arose. This would mean that the appointment of Smt.Geetu R.Prasad could be reckoned only with effect from 02.06.2016 when the next vacancy arose to the post of Assistant Professor (English) at S.N.College, Chathannur where, as a matter of fact, Smt.Reshma Salim was appointed and the said appointment approved. The appointment of the Writ Petitioners ought to have been :17: W.A.No.1564 of 2020 W.A.No.537of 2021 & W.A.No.525 of 2021 guided by the fact that the first vacancy to the post of Assistant Professor (English) under the Educational Agency arose with effect from 21.01.2016 at S.N.College, Kollam and the next vacancy arose with effect from 02.06.2016 at S.N.College, Chathannur. Based on their inter-se position in the rank list, Smt.Reshma Salim ought to have been accommodated against the first vacancy and Smt.Geetu R.Prasad to the next arising one. These aspects were not noticed by the learned Single Judge. As stated earlier, the learned Single Judge erroneously held that there were two sanctioned posts, when as a mater of fact there was only one. This factual mistake led to the wrong conclusion and hence the judgment under appeal needs to be reversed. 9. Accordingly, we set aside the judgment of the learned Single Judge in WP(C).No.6213 of 2019 and allow W.A.No.1564 of 2020 & W.A.No.525 of 2021 by dismissing W.P(C).No.6213 of 2019 and upholding the order of the University that approves the appointment of Smt.Reshma Salim as Assistant Professor (English) in S.N.College, Chathannur only with effect from 02.06.2016. We also set aside the judgment of the learned Single Judge in W.P(C).No.8785 of 2019 and allow W.A.No.537 of 2021 preferred by the State. W.P(C).No.8785 of 2019 is accordingly dismissed and the University order approving the :18: W.A.No.1564 of 2020 W.A.No.537of 2021 & W.A.No.525 of 2021 appointment of Smt.Geetu R.Prasad as Assistant Professor (English) with effect from 02.06.2016 is upheld. 10. While disposing the Writ Appeals as above, we feel it necessary in the interests of justice to also rectify an apparent irregularity that has crept in while approving the appointments of the teachers aforementioned. As already noticed, the two vacancies to which the writ petitioners could have been accommodated arose in the post of Assistant Professor (English) at S.N.Kollege, Kollam on 21.01.2016 and at S.N.College,Chathannur with effect from 02.06.2016. While it was Smt.Geetu R.Prasad, who was appointed in S.N.College, Kollam and Smt.Reshma Salim appointed in S.N.College, Chathannur, inasmuch as Smt.Reshma Salim was ranked higher than Smt.Geetu R. Prasad in the rank list prepared pursuant to the selection process, we deem it necessary to re-fix their dates of appointment so that Smt.Reshma Salim is seen as appointed to the first arising vacancy of Assistant Professor (English) in S.N.College, Kollam with effect from 21.01.2016 and Smt.Geetu R.Prasad as appointed to the next arising vacancy of Assistant Professor (English) in S.N.College, Chathannur with effect from 02.06.2016. The educational Agency concerned shall issue fresh appointment orders as above to the Writ Petitioners and, on :19: W.A.No.1564 of 2020 W.A.No.537of 2021 & W.A.No.525 of 2021 the said appointment orders being forwarded to the University, the University shall promptly grant approval to the said appointments. By way of abundant caution, we also direct that inasmuch as the refixation of appointments of the writ petitioners with effect from the dates mentioned above is admittedly to sanctioned posts that existed in the colleges concerned, the Government shall also promptly disburse the differential salary and other consequential benefits to the petitioners once their revised appointments are approved by the University as directed in this judgment. These Writ Appeals are allowed as above. Sd/- ## **A.K.JAYASANKARAN NAMBIAR JUDGE** Sd/- **MOHAMMED NIAS C.P. JUDGE** mns