W.P.(C).Nos.19082, 30784 & 34194 of 2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE K.T.SANKARAN** **FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932** **WP(C).No. 19082 of 2010(I)** **--------------------------** **PETITIONERS:** - **-------------------** **1. DR.JINSU VARGHESE, LECTURER, DEPARTMENT OF ZOOLOGY, ST.THOMAS COLLEGE, KOZHENCHERRY.** **2. SHINIMOL A.K., LECTURER, DEPARTMENT OF ZOOLOGY, ST.THOMAS COLLEGE, KOZHENCHERRY.** **BY ADVS. SRI.BABU VARGHESE, SENIOR ADVOCATE SRI.KAPPILLIL ANIL KUMAR** **RESPONDENTS:** - **----------------------** **1. THE MANAGER, ST.THOMAS COLLEGE, KOZHENCHERRY.** **2. THE MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS P.O., KOTTAYAM.** **3. THE STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVT., DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **4. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, PMG JUNCTION, THIRUVANANTHAPURAM.** **5. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM.** **BY ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY BY GOVERNMENT PLEADER, SRI.NISHA BOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/12/2010, ALONG WITH WP © NO.30784/2010 & WP (C) NO. 34194/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VK** ## **WP(C).No. 19082 of 2010(I)** ## **---------------------------------------** ## **APPENDIX** ## **----------------** ## **PETITIONERS' EXHIBITS** ## **-----------------------------------** **EXT.P1. COPY OF THE MINUTES OF THE MEETING OF SELECTION COMMITTEE HELD ON 11TH DECEMBER 2007 FOR THE SUBJECT ZOOLOGY.** **EXT.P2. COPY OF THE APPOINTMENT ORDER DATED 13.12.2007 ISSUED IN FAVOUR OF THE 1ST PETITIONER.** **EXT.P2(A). COPY OF THE APPOINTMENT ORDER DATED 7.7.2008 ISSUED IN FAVOUR OF THE 1ST PETITIONER.** **EXT.P3. COPY OF THE U.O. NO.759/B1/200B/ACAD DATED 20.2.2009 GRANTING APPROVAL TO THE APPOINTMENT OF 1ST PETITIONER.** **EXT.P3(A). COPY OF THE U.O. NO.3442/B1/09/ACAD DATED 7.8.2009 GRANTING APPROVAL TO THE APPOINTMENT OF 2ND PETITIONER.** **EXT.P4. COPY OF THE WORKLOAD STATEMENT AS ON 1.11.2006 SUBMITTED BY THE PRINCIPAL TO THE UNIVERSITY.** **EXT.P5. COPY OF THE STAFF FIXATION ORDER DATED 10.9.2007 ISSUED BY THE UNIVERSITY FOR THE YEAR 2006-07.** **EXT.P5(a). COPY OF THE STAFF FIXATION ORDER DATED 4.8.2008 ISSUED BY THE UNIVERSITY FOR THE YEAR 2007-08** **EXT.P5(b). COPY OF THE STAFF FIXATION ORDER DATED 29.6.2009 ISSUED BY THE UNIVERSITY FOR THE YEAR 2008-09** **EXT.P5 © COPY OF THE STATEMENT OF STAFF FIXATION DATED 16.10.2003 ISSUED BY THE 4TH RESPONDENT BASED ON ADALATH REVIEW.** **EXT.P6. COPY OF THE OBJECTION DATED 18.11.2009 RAISED BY THE 5TH RESPONDENT IN RESPECT of the APPOINTMENT OF THE 1ST PETITIONER.** **EXT.P6(a). COPY OF THE OBJECTION DATED 19.12.2009 RAISED BY THE 5TH RESPONDENT IN RESPECT OF THE APPOINTMENT OF THE 1ST PETITIONER.** **EXT.P6(b). COPY OF THE OBJECTION DATED 3.3.2010 RAISED BY THE 5TH RESPONDENT IN RESPECT OF THE APPOINTMENT OF THE 1ST PETITIONER.** ## **WP(C).No. 19082 of 2010(I)** **----------------------------------------** **EXT.P7. COPY OF THE OBJECTION DATED 18.11.2009 IN RESPECT OF THE 2ND PETITIONER.** **EXT.P7(a). COPY OF THE OBJECTION DATED 19.12.2009 IN RESPECT OF THE 2ND PETITIONER.** **EXT.P7 (b). COPY OF THE OBJECTION DATED 20.02.2010 IN RESPECT OF THE 2ND PETITIONER** **EXT.P8. COPY OF THE REPLY DATED 21.11.2009 GIVEN BY THE PRINCIPAL TO THE OBJECTION RAISED IN RESPECT OF THE 1ST PETITIONER.** **EXT.P8(a). COPY OF THE REPLY DATED 5.1.2010 GIVEN BY THE PRINCIPAL TO THE OBJECTION RAISED IN RESPECT OF THE 1ST PETITIONER.** **EXT.P8(b). COPY OF THE REPLY DATED 31.05.2010 GIVEN BY THE PRINCIPAL TO THE OBJECTION RAISED IN RESPECT OF THE 1ST PETITIONER** **EXT.P9. COPY OF THE REPLY DATED 21.11.2009 GIVEN BY THE PRINCIPAL WITH REGARD TO THE APPOINTMENT OF THE 2ND PETITIONER.** **EXT.P9(9a). COPY OF THE REPLY DATED 31.12.2009 GIVEN BY THE PRINCIPAL WITH REGARD TO THE APPOINTMENT OF THE 2ND PETITIONER** **EXT.P9(b). COPY OF THE REPLY DATED 5.1.2010 GVIEN BY THE PRINCIPAL WITH REGARD TO THE APPOINTMENT OF THE 2ND PETITIONER.** **EXT.P9(c). COPY OF THE REPLY DATED 31.5.2010 GIVEN BY THE PRINCIPAL WITH REGARD TO THE APPOINTMENT OF THE 2ND PETITIONER.** **EXT.P10. COPY OF THE UNIVERSITY LETTER DATED 17.3.2010.** **EXT.P11. COPY OF THE ORDER PASSED IN O.P. NO.16572/95** **EXT.P11 (a). COPY OF THE ORDER PASSED IN O.P.NO.24481/98.** **RESPONDENTS EXHIBITS : NIL** **--------------------------------------** **/ TRUE COPY /** **P.A. TO JUDGE** **VK** ## **`K.T.SANKARAN, J`** `.` ``` ----------------------------------------- W.P.(C).Nos.19082, 30784 & 34194 OF 2010 ----------------------------------------- Dated this the 10th day of December, 2010 ``` ## **`JUDGMENT`** ``` Common questions arise in these Writ Petitions and therefore, they are heard and disposed of by the common judgment. ``` ``` 2. The petitioners in WP(C) No.19082 of 2010 ``` ``` were appointed as Lecturers in St.Thomas College, Kozhencherry. They were selected and appointed on the basis of the recommendation made by the statutory Selection Committee consisting of the Government nominee as well. It is stated that the ``` ``` petitioners were appointed in retirement vacancies, afterinvitingapplicationsbyissuing ``` ``` Notification. The Mahatma Gandhi University approved the appointment of the petitioners. ``` ``` 3. The first petitioner in WP(C) No.34194 of 2010 is the Manager of Christian College, ``` ``` W.P.(C).Nos.19082, 30784 & 34194 OF 20102 ``` ``` Chengannur, which is affiliated to the University of Kerala. Petitioners 2 and 3 therein were duly appointed as Lecturers in the College and their appointments were approved by the University. ``` ``` 4. The petitioner in WP(C) No.30784 of 2010 was appointed as Lecturer in Chemistry in N.S.S. College, Manjeri. He was selected and appointed on ``` ``` the basis of the recommendation made by the statutory Selection Committee consisting of the Government nominee as well, after following a due selection process. The University of Calicut approved the appointment of the petitioner. ``` ``` 5. The grievance of the petitioners is that though their salary bills were presented, objections were raised by the Deputy Director of Collegiate Education concerned. The salary bills were returned to the Principal. Though explanation was submitted by the Principal, it was not apparently accepted by the Deputy Director of Collegiate Education. The result is that salary is ``` ``` W.P.(C).Nos.19082, 30784 & 34194 OF 20103 ``` ``` not paid to the teachers. In WP(C) No.19082 of ``` ``` 2010, a counter affidavit is filed by the 5th respondent, the Deputy Director of Collegiate Education. The objection in the matter of appointment of the petitioners seems to be that prior concurrence of the Government was not obtained. It is stated that on that ground the proposal was returned to the Principal to resubmit the same after getting concurrence from the Government to fill up the vacancies. Though the Principal resubmitted the proposal, the concurrence from the Government was not attached to the same. ``` ``` 6. In paragraph 4 of the counter affidavit it ``` ``` is stated as follows: ``` ``` “The Government have made it crystal clear vide Government orders G.O.(MS) No.95/2006/H.Edn. dated 10.8.2006 and G.O. (MS) No.63/2008/H.Edn. dated 23.6.2008 that the managements will have to engage Guest Lecturers till formal orders are issued allowing them to fill up specified vacancies. True copy of the above Government orders are produced herewith and marked as Ext.R5(c) & Ext.R5(d). The academic interests of the student's community will in no way be hampered if the managements resort to appoint Guest Lecturers as specified by the Government. The Managements are led by vested interests and as such resort to make regular appointment without waiting for ``` ``` W.P.(C).Nos.19082, 30784 & 34194 OF 20104 ``` ``` Government orders, identifying specific vacancies/posts.” ``` ## `7. The learned counsel for the petitioners` ``` invited attention to the following averments in paragraph 7 in WP(C) No.19082 of 2010: ``` ``` “ It is submitted that the entire action of the 5[th] respondent amounts to Contempt of Court, since this Honourable Court in “Pazhassiraja College's Case (2007(3)KLT 776)” categorically held that G.O.(MS) No.95/2006/H.Edn. dated 10.8.2006 cannot be sustained and accordingly was pleased to quash the same.” ``` ## `8. The learned counsel for the petitioners` ``` submitted that the questions involved in the cases are covered by the Division Bench decisions of this ``` ``` court in Cherian Mathew v. Principal, S.B.College, Changanassery (1998(2) KLT 144) and Shalini Rachel ``` ``` v. Manager, Christian College (2007(3) KLT 355). ``` `9. In Cherian Mathew's case, it was held thus:` ``` “A teacher whose appointment is approved by the University, should be paid the salary by the Government. It was also held that in case the Director of Collegiate Education doubts the propriety of the appointment of a ``` ``` W.P.(C).Nos.19082, 30784 & 34194 OF 2010 ``` ``` 5 ``` ``` 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 has to re-examine the entire issue and to take a decision on the issue as to whether the appointment was proper or not. It was also held that when the University takes a decision on that aspect, that decision will be binding on the Government”. ``` ## `10. In paragraph 10 and 11 in Shalini Rachel's` ``` case, it was held 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 Statues has not been taken away by the University Amendment Act 2 of 2005. Clear cut provisions have been made in the University Statues 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 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 ``` ``` W.P.(C).Nos.19082, 30784 & 34194 OF 2010 ``` ``` 6 ``` ``` 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 work load 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 not to take away the statutory powers already conferred on the Syndicate of the University. Principle laid down in Cherian 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.” ``` ``` 11. The contention raised in paragraph 4 in the counter affidavit in WP(C) No.19082 of 2010 is not sustainable in view of the Division Bench decision in Manager, Pazhassiraja College v. University of Calicut, (2007(3) KLT 776). ``` ``` 12. For the aforesaid reasons, I find no merit at all in the contentions put forward by the Government and the Deputy Director of Collegiate ``` ``` W.P.(C).Nos.19082, 30784 & 34194 OF 20107 ``` ``` Education. In spite of binding decisions rendered by the jurisdictional High Court, the Government and the Officials are not following the same and they are bent upon taking the very same contentions in all the cases and denying salary to the teachers who are legitimately entitled to receive salary for the work done by them. I am of the view that this stand taken by the respondents is absolutely illegal and it amounts to manifestation of scant respect to the judgments and orders passed by the High Court. I hope similar untenable stand would not be taken by the respondents. I am of the view that it is the duty of the Government Pleaders to advise the persons concerned not to venture to do so. The duty of the Government Pleaders is not to state everything what the officers say. The Government Pleaders have a duty to advise the officers and to see that correct contentions are taken in the counter affidavits. Government orders which were quashed should not be allowed to be projected again and again in the counter affidavits in similar cases which arise in future. ``` ``` W.P.(C).Nos.19082, 30784 & 34194 OF 20108 ``` ``` For the aforesaid reasons, the Writ Petitions are allowed as prayed for. The salary and arrears of salary shall be paid to the respective teachers without any delay, and at any rate, within a period of six weeks from the date of receipt of a copy of ``` ``` the judgment. ``` ``` The Registry will send a copy of the judgment to the Chief Secretary to the Government for appropriate action. ``` ``` K.T.SANKARAN, JUDGE. ``` ``` cms ```