Kerala High Court
The Chief Secretary To Government vs The Chief Secretary To Government on 1 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942
WA.No.143 OF 2020
AGAINST THE JUDGMENT DATED 21.1.2019 IN WP(C) 2061/2018(G) OF
HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS IN WPC:
1 THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
KOZHIKODE 673001
BY SRI. A.J. VARGHESE, SR.GP
RESPONDENT/PETITIONER IN WPC:
VINIL VARGHESE
S/O. LATE K. M. VARGHESE, MANAGER, SES COLLEGE,
SREEKANDAPURAM, KANNUR DISTRICT - 670 631.
BY ADV. SRI.GEORGE MECHERIL
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19-01-2021,
THE COURT ON 01-02-2021 DELIVERED THE FOLLOWING:
WA No.143/2020
-:2:-
JUDGMENT
Dated this the 1st day of February, 2021
Shaffique, J.
The State and its officers have preferred this appeal
challenging judgment dated 21/1/2019 in WP(C) No.2061/2018.
By the impugned judgment, the learned Single Judge held that
the Government is bound to honour the direct payment
agreement and therefore, direction had been issued to the
Government to sanction the post of Assistant Professor in S.E.S.
College, Sreekandapuram (Kannur district).
2. The short facts of the case would disclose that the
Government sanctioned one Post Graduate Course (M.C.J) and
one U.G.Course (BCA) as per Government Order dated 12/9/2013
during the academic year 2013-14. Provisional affiliation was
granted by Kannur University. Later, Government permitted the
Principal to start a new aided course of B.Com (Co-operation)
with 40 seats in lieu of the sanctioned BCA from the academic
year 2014-15 and the University had granted provisional
affiliation as well. The Director of Collegiate Education directed
WA No.143/2020
all the Deputy Directors to submit proposal for creation of posts
pursuant to which the Principal of the College requested the
Government to sanction 5 posts of Assistant Professor for M.C.J.,
2 posts in B.Com, 2 additional posts in English and one post in
Electronics. The proposal was countersigned by the Deputy
Director and forwarded to the Government as per Exts.P7 and
P7(a). Since the application of the petitioner was not being
considered, he filed WP(C) No. 12297/2017 and sought for a
direction to consider Ext.P7 and the said writ petition was
disposed of directing the Government to consider Ext.P7.
However, since there was non compliance of the directions,
contempt case was filed in which a counter affidavit was filed
stating that the State was facing severe financial crisis and
therefore new posts cannot be created for the time being.
Government finally issued Ext.P19 Government Order declining
creation of posts on account of financial crisis.
3. Stating that the petitioner is unable to manage and
administer the college without proper teachers, this writ petition
had been filed inter alia seeking for a direction challenging
Ext.P19 and also to create various posts as demanded. Though a
WA No.143/2020
statement has been filed on behalf of the 1st respondent inter alia
stating that State is unable to sanction posts on account of
financial crunch, learned Single Judge based on judgment of the
Apex Court in State of Kerala v. Arun George (2015 (1) KLT
833 (SC) directed sanctioning of the post. Learned Government
Pleader submits that the direction issued by the learned Single
Judge was not taking into account the factual scenario involved in
the matter. It is open for the colleges in which posts have been
sanctioned to conduct the courses through Guest Lecturers and
remuneration is being disbursed. The Government has not
sanctioned the post on account of severe financial strain and
therefore the colleges will have to function with Guest Lecturers.
It is also pointed out that judgment in Arun's case (supra) has
no application to the facts set out in the above case.
4. On the other hand, learned counsel appearing for the
writ petitioner, who is the Manager of the College, has placed
reliance on the judgment of the Apex Court in Arun's case
(supra) as well as the Division Bench judgment of this Court in
State of Kerala v. Arun George (2009 (4) KLT 972) and
contended that when new courses are sanctioned by the
WA No.143/2020
Government under the direct payment scheme, they are also
bound to sanction new posts and becomes liable to pay salary to
the teachers under the direct payment system. They cannot
depart from the obligation which rests upon them.
5. In Arun George's case {2015 (1) KLT 833 (SC)}, the
Apex Court had occasion to consider the question whether the
Government has obligation to pay salary and other allowances to
teachers appointed to the new courses by the management. In
that case, the State took up a contention that while sanctioning
new courses, when a condition is imposed stating that the new
appointments should be made without any financial commitment
to the State, the Government will have no obligation to pay their
salary. The Apex Court held that if the teachers were appointed
against sanctioned posts and if they were appointed by the
statutory Selection Committee, payment of salary cannot be
denied.
6. In Shalini Rachel v. Manager, Christian College
(2007 (3) KLT 355), a Division Bench of this Court had occasion to
consider the scope and effect of S.57(1) of the Kerala University
Act, 1974, which is same as that of S.62(1) of the Kannur
WA No.143/2020
University Act, 1996. The Division Bench held that, once the
University has approved the staff pattern based on the workload,
it is incumbent on the part of the Government to pay salary.
Further, in Shalini Rachel (supra) itself, this court held as under:
"xxxGovernment have however no obligation to disburse
salary, if appointments are made by the aided colleges, to a
non existent post, when a new subject is sought to be
introduced, or division is sought to be started, for which
Government sanction is a precondition as provided under
Section 57(1) of the University Act.xxxx"
7. Apparently a situation warranting sanctioning of posts
has arisen in the case, when new courses were sanctioned. As
per the law laid down in Shalini Rachel (supra), it is rather clear
that if a new subject is sought to be introduced or a division is
sought to be started, Government sanction is a precondition and
Universities are not expected to grant their approval in such a
situation.
8. In the case on hand, there is no dispute about the
necessity for creation of posts. But, the Government has taken a
contention that posts cannot be created on account of severe
financial crunch and that the teachers who have been appointed
for conducting the sanctioned courses were to remain as Guest
WA No.143/2020
Lecturers and even if the posts are not sanctioned for regular
appointment, teachers who were appointed as guest lecturers
were being paid remuneration by the Government.
9. This is a peculiar situation where the Government
having sanctioned the courses had permitted the courses to be
conducted through Guest Lecturers. The post of regular lecturers
had not been sanctioned on account of financial strain. In the
case of Arun George (supra), the Apex Court took the view that
once the posts are sanctioned under the direct payment system,
Government is bound to sanction the post. That was a case in
which Government accorded sanction on 9/11/1998 to private
educational institutions and managements for starting new
courses subject to the condition that there should not be any
additional financial commitment on the part of the State. The
University granted permission to start new courses during the
academic session 1998-1999. The Government issued an order
dated 6/12/1999 according sanction to start new courses subject
to the condition that the expenditure shall not exceed the budget
allotment for the purpose on any account. The management
appointed seven teachers to the various new courses and sent a
WA No.143/2020
proposal for approval of their appointment by the University
which came to be rejected. This came to be challenged before the
High Court. Though the learned Single Judge allowed the writ
petition and held that the Government is liable to pay the salary
and other allowances, the Division Bench allowed the appeal filed
by the State. It was held that the condition imposed by the
Government was perfectly legal. Subsequently review petition
was filed. The Division Bench allowed the review petition holding
that the stand taken by the Government was contrary to Clause
35 of Direct Payment Agreement. But it is relevant to note that
Section 62(1) of the Kannur University Act, 1996 came to be
incorporated as per Act 2 of 2005 which clearly indicated that
appointment to the posts eligible to receive salary from the
Government shall be made only against posts sanctioned by the
Government or by such officers as may be authorized by the
Government. Therefore, until sanctioning of such posts, teachers
who are engaged to man the said post, according to the
Government, are being paid salary of Guest Lecturers, which is on
account of the financial crunch of the Government. But it is
relevant to note that in the case on hand, courses were
WA No.143/2020
sanctioned as per Government Orders dated 12/9/2013 and
3/7/2014. We are told that some of the teachers who were
appointed during the academic year 2013-14 and 2014-15 were
not paid even the salary of guest lecturers whereas salaries were
paid to those teachers from 2015-2016 onwards. Learned
Government Pleader has also placed before us a letter dated
18/5/2016 issued by the Principal secretary to Government to the
Director of Collegiate Education which reads as under:-
"xxThe Principal, St.Pius X College, Rajapuram and a few
other colleges requested Government to permit to engage
guest lecturers against the workload of newly sanctioned
courses vide GO(Ms) No.615/13/HEdn dated 12.9.2013 till
posts for the same will be created.
Government have consider the matter and permitted
to engage guest lecturers against the workload of newly
sanctioned courses vide GO(MS) No.615/13/HEdn dated
12.09.2013 subject to the condition that workload of the
new courses has been verified by the Director of Collegiate
Education/Deputy Director of Collegiate Education
concerned and the number of Guest Lecturers thus engaged
shall not be exceeded maximum number of posts eligible for
that workload."
From the aforesaid letter, it is rather clear that the Government
had permitted engagement of guest lecturers against the
workload of newly sanctioned courses as per GO(MS)
WA No.143/2020
No.615/2013/H.Edn dated 12/9/2013 (Ext.P1) subject to certain
conditions.
10. But still, courses conducted in aided sector through
guest lecturers for a considerably long period will not be
advantageous to the teachers as well as the students. Guest
lecturers can be appointed for a short period alone and should
not be a permanent affair. In fact, the Government ought to have
verified its financial ability to pay the salary to the teachers on
creation of posts even before sanctioning of courses in the aided
sector. If the Government does not have the financial ability to
sanction posts for conducting various courses in the aided sector,
the same should be left to the concerned colleges to start courses
in the unaided sector. In the instant case, when courses are
allowed in the years 2013 and 2014, at least the posts should be
sanctioned within a reasonable time or else, the Government
should not have sanctioned such courses at all in the aided
sector. These cases further reflect the fact that the teachers are
being paid salary as Guest Lecturers since 2015 onwards and it
cannot be conceived that those teachers would remain as Guest
Lecturers only for a considerably long period. Therefore, while
WA No.143/2020
sanctioning courses, Government is bound to create sufficient
posts as well within a reasonable time. In the case on and, there
had been substantial delay on the part of the Government to do
so and therefore we are of the view that the learned Single Judge
was justified in issuing the aforesaid direction, but the requisite
posts may be created from the academic year 2019-20. For the
period during which the teachers have already worked, they shall
be paid the salary of guest lecturers and they shall be placed at
the appropriate scale of pay from 2019-20 itself. Necessary
orders in this regard shall be passed within a period of three
months from the date of receipt of the judgment.
Writ appeal is disposed of modifying the judgment of the
learned Single Judge to the above extent.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
GOPINATH P.
Rp True copy JUDGE
P.S. To Judge
WA No.143/2020
APPENDIX
APPELLANTS' EXHIBITS
ANNEXURE R1(a) TRUE COPY OF AFFIDAVIT AND THE
EXTENSION PETITION FILED ON 27.9.2019
IN WPC 2061/2018.
ANNEXURE R1(b) TRUE COPY OF AFFIDAVIT AND PETITION FOR
EXTENSION OF TIME FILED ON 25/10/2019
ANNEXURE R1(c) TRUE COPY OF ORDER DATED 26/11/2019 IN
IA 3/2019 IN WPC 2061/2019
ANNEXURE R1(d) TRUE COPY OF GO(Rt)NO.947/2019/H.EDN
DATED 13.6.2019
ANNEXURE R1(e) TRUE COPY OF THE GOVT.ORDER G.O.
(Rt).NO.41/2020 DATED 19.1.2020
ANNEXURE (f) TRUE COPY OF THE GO(MS)
NO.471/2010/H.EDN DATED 30/12/2020
True Copy
PS to Judge
