W.P.(C) Nos. 19909 of 2007 and 20382 of 2007

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 ## **WP(C).No. 19909 of 2007(T)** ## **PETITIONER:** THE SECRETARY, MAR ATHANASIUS COLLEGE ASSOCIATION AND MANAGER, MAR ATHANASIUS COLLEGE OF ENGINEERING, KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADV. SRI.GEORGE JACOB (JOSE) SMT.RESHMI POULOSE ## **RESPONDENTS:** 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. ## **ADDL. RESPONDENTS IMPLEADED** : 3. MAHATMA GANDHI UNIVERSITY, PRIYADARSINI MILLS, KOTTAYAM, REPRESENTED BY ITS REGISTRAR. 4. PRAVEEN MATHEW, KUNNAPPILLIL HOUSE, KOTHAMANGALAM COLLEGE P.O., KOTHAMANGALAM. 5. ELSON JOHN, MANJUMMEKUDIYIL HOUSE, BHOOTHATHANKETTU P.O., KOTHAMANGALAM. 6. ELDHO VARGHESE, NADUVELIKUDI HOUSE, THALAPUNCHA, VAIKOM P.O. 7. NEENA MANI, PUTHIYAVEETTIL HOUSE, OLIAPURAM P.O., KOOTHATTUKULAM. 8. KAVITHA ISSAC, MALIYIL HOUSE, VENDUVAZHY, KOTHAMANGALAM. 9. JEENA JOY, KAVILE VEETTIL HOUSE, KURUPPAMPADY P.O., ERNAKULAM DISTRICT. - 10.SHEBI A.PALAPPILLIL, PALAPPILLIL HOUSE, KARUKADOM P.O., KOTHAMANGALAM. 11. TITTY P.THOMAS, CHITHRALAYAM, KOTHAMANGALAM, ERNAKULAM DISTRICT. 12. JAYAN K.GEORGE, PUTHUKAYIL HOUSE, PINDIMANA P.O., KOTHAMANGALAM. ADDL.R3 TO R12 ARE IMPLEADED AS PER ORDER DATED 20.8.2007 IN I.A.NO.10974 OF 2007. R3 BY STANDING COUNSEL SRI.T.A. SHAJI R1 AND R2 BY SR.GOVERNMENT PLEADER SRI.K.R.SABU R5 TO R9 BY ADV.SMT.MEREENA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/06/2008, ALONG WITH WP(C) NO. 20382 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX** ## **PETITIONER'S EXHIBITS** : |EXT.P1|TRUE COPY OF THE ORDER OF APPOINTMENT OF SRI.PRAVEEN| |---|---| ||MATHEW| |EXT.P2|TRUE COPY OF THE ORDER OF APPOINTMENT OF| ||SRI.ELSON JOHN.| |EXT.P3|TRUE COPY OF THE ORDER OF APPOINTMENT OF SRI.ELDHO| ||VARGHESE.| |EXT.P4|TRUE COPY OF THE ORDER DATED 1.6.2000 APPOINTING| ||SMT.NEENA MONI.| |EXT.P5|TRUE COPY OF THE APPOINTMENT ORDER OF SMT.KAVITHA| ||ISSAC DATED 7.6.2000.| |EXT.P6|TRUE COPY OF THE APPOINTMENT ORDER OF SMT.JEENA JOY| ||DATED 7.6.2000.| |EXT.P7|TRUE COPY OF THE APPOINTMENT ORDER OF SMT.SHEBI A.| ||PALAPPILLIL DATED 7.6.2000.| |EXT.P8|TRUE COPY OF THE APPOINTMENT ORDER OF SRI.TITTY P.| ||THOMAS DATED 7.6.2000.| |EXT.P9|TRUE COPY OF THE ORDER OF APPOINTMENT DATED 10.8.2000.| |EXT.P10|TRUE COPY OF THE RELEVANT EXTRACT OF THE ORDER DATED| ||15.6.2004 APPROVING APPOINTMENT OF SRI.PRAVEEN MATHEW.| |EXT.P11|TRUE COPY OF THE ORDER DATED 28.12.2005 APPROVING THE| ||APPOINTMENTS OF SRI.ELSON JOHN AND SRI.ELDHO VARGHESE.| |EXT.P12|TRUE COPY OF THE ORDER DATED 15.6.2004 OF THE| ||M.G.UNIVERSITY APPROVING THE APPOINTMENT OF| ||FIVE LECTURERS.| |EXT.P13|TRUE COPY OF THE ORDER DATED 16.6.2004 OF THE| ||M.G.UNITERSITY.| |EXT.P14|TRUE COPY OF THE COMMUNICATION DATED 5.3.2005 OF THE| ||SECOND RESPONDENT.| |EXT.P15|TRUE COPY OF THE COMMUNICATION DATED 10.1.1992.| |EXT.P16|TRUE COPY OF THE CIRCULAR DATED 20.7.2001 OF THE| ||SECOND RESPONDENT.| |EXT.P17|TRUE COPY OF THE ORDER DATEDD 4.12.2006 APPROVING| ||APPOINTMENT OF SRI.REJISLAL BABU| EXT.P18 TRUE COPY OF THE PETITION DATED 14.3.2007 ADDRESSED TO THE FIRST RESPONDENT BY THE PETITIONER. EXT.P19 TRUE COPY OF THE COMMUNICATION DATED 4.9.2007 OF THE FIRST RESPONDENT. ## **RESPONDENTS' EXHIBITS** : NIL //TRUE COPY// AHZ/ **K.T.SANKARAN, J. -------------------------------------------W.P.(C) NO.19909 OF 2007 and W.P.(C) NO.20382 OF 2007 -------------------------------------------Dated this the 13[th] June, 2008 JUDGMENT** Since these Writ Petitions are interconnected, they are being disposed of by this common judgment. ## **W.P.(C) NO.19909 OF 2007** 2. The Writ Petition is filed by the Secretary of the Mar Athanesius College Association, Kothamangalam. He is also the Manager of the Mar Athanasius College of Engineering, Kothamangalam, which affiliated to the Mahatma Gandhi University. 3. In the half pay leave vacancies and leave without allowance vacancies, which arose for the periods from 1.6.2000 to 10.11.2000, various appointments of Lecturers were made by the Management. Respondents 4 to 12 are the Lecturers so appointed. The appointments of respondents 4 to 12 were approved by the Mahatma Gandhi University as per Exts.P10 to P13 orders. It is stated that immediately after the appointments of these nine Lecturers were made, the relevant documents were forwarded to the Joint Director, Regional Directorate of Technical Education, Kothamangalam for approval and for being admitted under the direct payment system. However, it is stated that all the said orders of W.P.(C) NOS.19909 & 20382 OF 2007 :: 2 :: appointment and other relevant documents were returned by the Joint Director. 4. In the case of the appointment of one Rojis Lal Babu made by the petitioner, Ext.P14 order was passed by the Director of Technical Education on 5.3.2005 wherein it was stated, his appointment against the half pay leave vacancy from 13.7.2000 to 13.10.2000 cannot be admitted under the direct payment as per rule. It is stated that Ext.P14 order was challenged in Writ Petition and as per the direction in the Writ Petition, the Government considered the matter and it was disposed of as per Ext.P17 order, by which, the appointment of Rojis Lal Babu was approved by the Government. It is submitted that the position as regards the nine Lecturers, namely, respondents 4 to 12 is also the same as that of Rojis Lal Babu. 5. However, in spite of Ext.P18 representation dated 14.3.2007, submitted by the petitioner, and Ext.P17 order, the first respondent issued Ext.P19 order dated 4.9.2007, declining approval of the appointment of the nine Lecturers. The only reason stated in Ext.P19 for not approving the appointment as requested by the petitioner is as follows: W.P.(C) NOS.19909 & 20382 OF 2007 :: 3 :: “I am to invite your attention to the reference cited and to request you to treat the appointment of nine lecturers in M.A.College of Engineering, Kothamangalam against the leave vacancies as daily wages Teachers and disburse their wages accordingly.” Ext.P19 order is under challenge in this Writ Petition. 6. Learned counsel for the petitioner submitted that once the syndicate of the University approves the appointment, the first respondent is not entitled to reject the same. He relied on the Division Bench decision in **Shalini Rachel** v. **Manager, Christian College** (2007 (3) KLT 355), wherein in paragraph 9 it is stated as follows: “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 Non-teaching Staff) First Statutes, 1979 in the case of private colleges coming under the Direct Payment Scheme, depending upon the work load and staff pattern fixed by the University. Once University accords sanction of a post and grants approval depending upon the work load 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 work load fixed by the University. If the University grants approval noticing that it is in accordance with the staff pattern and work load 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.” 7. In the counter affidavit filed by the second respondent, in paragraph 4 it is stated thus: W.P.(C) NOS.19909 & 20382 OF 2007 :: 4 :: “4. It is submitted that the MA College of Engineering Kothamangalam is a government aided Engineering College under the control of Technical Education Department. Hence every appointment of Teaching staff need be approved and admitted under Direct Payment Scheme. The role of the University in this regard is concerned with the verification of qualification only. The approval of the concerned University is only one of the steps in the process of approval of appointment. The Kerala Technical Education (Private Engineering College/Polytechnic) Service Rules, 1975, Para 4 and 5(7) insist that the appointments are to be approved by the Director of Technical Education. This means that the approval of the concerned government department is the most important final step. While considering cases various important aspects such as nature and regularity of the vacancy along with the equally important financial aspect is to be thoroughly verified. In all the above cases approval was not granted considering this aspect.” 8. Learned counsel for the petitioner submits that the view taken by the government and which is reflected in paragraph 4 of the counter affidavit is quite contrary to Statute 83 in Chapter VI of the Kerala University First Statutes, 1979. Learned counsel submitted that the Mahatma Gandhi University was established in the year 1985. However, the Mahatma Gandhi University First Statute came into existence in the year 1997. Till then the Teachers and staff of the MG University were governed by the Kerala University First Statutes, 1979, by virtue of Section 19(9) of the MG University Act. By Statute 83 of the Kerala University First Statutes, 1979, the Kerala Technical Education (Private Engineering College/Polytechnic) Service Rules, 1975 shall cease to W.P.(C) NOS.19909 & 20382 OF 2007 :: 5 :: apply in respect of private engineering colleges from the date of commencement of the Kerala University First Statute 1979. In view of Statute 83 as aforesaid, the contention put forward by the second respondent in the counter affidavit is unsustainable. That is the only reason stated for denying the approval of appointment of respondents 4 to 12. Since the only reason being unsustainable, there is no justification for denying the relief to the petitioner. Ext.P19 order passed by the first respondent is, therefore, liable to be quashed and it is accordingly quashed. Consequently, I hold that the petitioner is entitled to get a direction to respondents 1 and 2 to admit the appointment of respondents 4 to 12 under the Direct Payment Scheme pursuant to the orders of approval issued by the University. Respondents 1 and 2 shall pass appropriate orders in this regard within a period of three months from the date of receipt of a copy of the judgment. ## **W.P.(C) NO.20382 OF 2007** 9. The petitioner was initially appointed as Instructor Grade II in the Department of Electronics and Communication Engineering in M.A.College of Engineering, Kothamangalam for the period from 10.8.2000 to 10.11.2000 and was given re-appointment from 20.6.2002 to 24.1.2003. The M.G.University approved the appointment of the petitioner for the above period as per Ext.P1 order dated 11.7.2006. It is W.P.(C) NOS.19909 & 20382 OF 2007 :: 6 :: stated that the petitioner was again appointed for the period from 2.8.2004 to 26.7.2006. At the time of filing of the Writ Petition, that was pending approval with the University. Learned counsel for the petitioner states that subsequent to the filing of the Writ Petition, the University has approved appointment of the petitioner for this period as well. 10. The salary due to the petitioner was not disbursed. The petitioner submitted a representation to the third respondent. He did not dispose of the same. W.P.(C) No.13487 of 2007 was filed by the petitioner complaining about the same. As per Ext.P2 judgment dated 20.4.2007, this Court directed the third respondent to dispose of the representation. Ext.P3 order was passed by the third respondent stating that the initial appointment of the petitioner during 10.3.2000 to 8.11.2000 cannot be approved as per the existing rules and that a final decision in that regard will be taken on receipt of clarification from the Director of Technical Education. Pursuant to the direction in the judgment in W.P.(C) No.13487 of 2007, the Regional Director of Technical Education passed Ext.P4 order dated 20.6.2007, stating thus: “Sri.Aji Varghese was appointed in both the above spells against the vacancy of Sri.Jayan K.George, Instructor Grade I who was appointed as Lecturer in Electronics and Communication.” It was also stated that the appointment of Jayan K.George was not W.P.(C) NOS.19909 & 20382 OF 2007 :: 7 :: approved. Sri.Jayan K.George is respondent No.12 in W.P.(C) No.19909 of 2007. 11. As I have allowed W.P.(C) No.19909 of 2007 and the appointment of Sri.Jayan K.George is admitted as approved by the University, the only impediment in the matter of approval of the appointment of Sri.Aji Varghese, the petitioner in W.P.(C) No.20382 of 2007, vanishes. Therefore, Ext.P4 order to the extent to which it does not approve the appointment of the petitioner, Aji Varghese, shall stand quashed. For the same reason, Ext.P3 also shall stand quashed. The University having approved the appointment of the petitioner, Sri.Aji Varghese, the petitioner is entitled to get his salary disbursed. Accordingly, there will be a direction to respondents 2 and 3 to disburse the salary due to the petitioner within a period of two months for the period covered by Ext.P1 order of approval dated 11.7.2006, passed by the University. Both the Writ Petitions are allowed as above. **(K.T.SANKARAN) Judge** ahz/