W.P.(C).No. 25330 of 2016 (M) - Sabu Mathew & Saju Michael v. The Secretary, Regional Transport Authority, Kottayam; Vinod Karunakaran; Mahatma Gandhi University

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 29TH DAY OF JULY 2016/7TH SRAVANA, 1938** ## **WP(C).No. 25330 of 2016 (M)** ## **----------------------------** **PETITIONERS : -----------------------** **1. SABU MATHEW, KALAPURACKAL, POOVARANI.P.O., PAIKA.** **2. SAJU MICHAEL, THOKKANATTU, ELIKULAM.P.O., ELIKULAM.** ## **BY ADV. SRI.K.V.GOPINATHAN NAIR** ## **RESPONDENTS :** **----------------------------** **1. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, KOTTAYAM, PIN-686 001.** **2. VINOD KARUNAKARAN, ARACKALPARAMBIL HOUSE, EDAMATTOM.P.O., PALA-686 006** ## **R1 BY SR GOVERNMENT PLEADER SMT. K.A.SANJEETHA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).NO.25330/2016** ## **APPENDIX** **PETITIONER'S EXHIBITS: P1 COPY OF THE PROCEEDINGS DATED 25/4/2016. P2 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO JUDGE** **sts** ## **A.K.JAYASANKARAN NAMBIAR,J. ============== W.P.(C).No. 25330 of 2016 ==================** Dated this the 21[st] day of June, 2016 ## **JUDGMENT** The writ petitioners are the St.Peters College Trust **,** which is an Educational Agency of the St.Peters College, which is the 2[nd] petitioner in this writ petition. The College in question is affiliated to the Mahatma Gandhi University, which is the 4[th] respondent in this writ petition. The issue in this writ petition revolves on the appointments and approval to the appointment of the teacher as Assistant Professor in the the 2[nd] petitioner College. 2. The facts of the writ petition would indicate that pursuant to a vacancy that arose to the post of Principal in the College in the year 2012, Dr. Thampy Abraham, who was an Associate Professor in Mathematics and the senior most teacher was appointed as Principal in place of the retiring incumbent. Consequent to the appointment of Dr. Thampy Abraham as the Principal, there arose a consequential vacancy in the post of Associate Professor in Mathematics in the College, to which post the 1[st] petitioner proposed the name of Smt.Jaya Paul for appointment. The said person was appointed as Asst.Professor in Maths pursuant to selection process and Ext.P3 is an appointment order issued to the said Smt.Jaya Paul. The appointment of Smt.Jaya Paul was also approved by the 4[th] respondent University **W.P.(C).No. 25330 of 2016** **2** by Ext.P4 order dated 05.08.2014. It would appear that, when the appointment of Smt.Jaya Paul was sent to the 3[rd] respondent for the purpose of concurrence as a pre-condition for the disbursement of salary and other benefits to the said Smt.Jaya Paul, by Ext.P5 communication the petitioners were informed that the concurrence of the Department could be granted, since according to the Department there was a possibility of Dr. Thampy Abraham, who was holding the post of the Principal, being reverted or relinquishing his post, in which event he would be reverted to the post of Asst.Professor in Maths, which he had vacated for the purpose taking up the appointment as Principal of the College. Although the petitioners preferred Ext.P6 representation clarifying the factual basis and pointing out that Dr.Thampy Abraham had been regularly appointed to the permanent vacancy in the post of Principal and therefore, the consequent appointment of Smt.Jaya Paul to the post of Asst.Professor in Mathematics was an order, by Ext.P7 communication the 2[nd] respondent rejected the request of the petitioner and maintained that concurrence could not be granted to the approval to the appointment of Smt.Jaya Paul. Iin the writ petition, the petitioners impugned Ext.P7 order of the 2[nd] respondent and also pray for a direction to the respondents to concur with the proposal forwarded by the petitioner for approval to the appointment of Smt.Jaya Paul as Asst. Professor in the **W.P.(C).No. 25330 of 2016** **3** Department of Mathematics in the College. There is also consequent prayer for the disbursement of salary to Smt.Jaya Paul. 2. A counter affidavit has been filed on behalf of the 3[rd] respondent wherein, reference is made to a direction received from the 2[nd] respondent and it is stated that the consequence of the specific direction received from the 2[nd] respondent that the 3[rd] respondent had taking the stand that concurrence cannot be granted to the appointment of Smt.Jaya Paul. The reasons that way in the 2[nd] respondent for not granting permission for the concurrence is similar to those indicated in Ext.P5 letter issued by the petitioners to the 2[nd] respondent viz., that were the possibility of Principal of the College being reverted to the earlier post held by him viz., Associate Professor in Mathematics. 3. In a counter affidavit filed on behalf of respondent University, it is stated that the appointment of Dr.Thampy Abraham as Principal as also the consequential appointment of Smt.Jaya Paul as Asst.Professor in Mathematics were approved by the 4[th] respondent University, after finding that the work load in the College was sufficient to appoint one more person in addition to the seven teachers, who were already teaching in the Department of Mathematics in the 2[nd] petitioner College. It is stated that since the **4** ## **W.P.(C).No. 25330 of 2016** respondent University had already approved the appointment in question, there was no justification for the 2[nd] and 3[rd] respondents to withhold the concurrence to the appointments that stood approved by the respondent University. 4. I have heard the learned Senior Counsel Smt.Sumathy Dandapani appearing for the petitioner, the learned Government Pleader appearing for respondents 1 and 3 and Sr.Varghese M Easo, the learned Standing Counsel for the 4[th] respondent University. 5. On a consideration of facts and circumstances as also the submissions made across the bar, I find that consequent to the appointment of Dr.Thampy Abraham as Principal of the College in 2012, there arose resulted vacancy in the post of the Associate Professor in Maths in the Department of Mathematics in the said College. Other than the said vacancy, there were seven other teachers working in the Department and after giving credit for 16 hours for each of the said teachers and additional 5 hours of teaching to the Principal viz., Dr.Thampy Abraham, who was also from the same Department, they are still remain 10 hours of teaching as per the work load study conducted in the petitioner College. As per Ext.P9 Government Order dated 12.03.2012, the **W.P.(C).No. 25330 of 2016** **5** remaining hours (10 hours) justified the sanctioning of an additional post in the Department and it was to this post that Smt.Jaya Paul was appointed. The approval granted by the 4[th] respondent University to the appointment of Dr.Thampy Abraham as Principal and Smt.Jaya Paul as Asst.Professor in Mathematics, cannot therefore be faulted in as much as they have been done in accordance with the provisions of the University Acts and Rules. If that be the case, I do not find any justification for stand taken by the 2[nd] and 3[rd] respondents in denying concurrence to the appointment of Smt.Jaya Paul, which appointment has been approved by the 4[th] respondent University. The decision of the Division Bench of this Court in **Shalini Rachel v. Manager, Christian College (2007(3)KLT 355),** would come to the aid of the petitioner to contend that once the Syndicate of the University grants approval for filling up existing vacancy depending upon the work load and staff pattern, Government is obliged to pay salary of the teachers who has been duly appointed by the constituted Selection Committee. No doubt, it is open to the Government or its Officers to find that the approval granted by the University was illegal and if it entertain any such doubt, It was further Government to take up the matter with the University and seek a clarification decided. **W.P.(C).No. 25330 of 2016** **6** In as much as the instant case, there is no such step result in that regard and they have only being issuing communication to the petitioner stating whether the concurrence has not been granted. I am of the view that such course of action by the respondent University cannot be sustained. I allow this writ petition by quashing Ext.P7 and directing the respondents 2 and 3 to concur with the proposal forwarded by the petitioner as per Ext.P6 for appointment of appointed by as Asst.Professor in the Department of Mathematics of the College, with effect from 12.12.2013. The 1[st] respondent is also directed to disburse the salary of appointed by after granting the concurrence as directed above. The 2[nd] and 3[rd] respondents shall do the needful within an outer limit of three months from the date of receipt of a copy of this judgment. This writ petition is disposed of accordingly. ## **Sd/-A.K.JAYASANKARAN NAMBIAR, Judge.** lsn