Theres Divia Sebastian vs The Manager
2021 Latest Caselaw 3692 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                  THE HONOURABLE MR. JUSTICE AMIT RAWAL

     TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942

                        WP(C).No.28896 OF 2020(J)

PETITIONER/S:

                THERES DIVIA SEBASTIAN
                AGED 33 YEARS
                W/O ANOOP CHACKO, KUZHIVELIL HOUSE, VADUVANCHAL
                P.O.ANDOOR, WAYANAD DISTRICT, PIN-673 581, (WORKING
                AS ASSISTANT PROFESSOR IN ENGLISH IN PAZHASSIRAJA
                COLLEGE, PULPALLY).

                BY ADV. SRI.M.S.RADHAKRISHNAN NAIR

RESPONDENT/S:

      1         THE MANAGER
                PAZHASSI RAJA COLLEGE, PULPALLY, WAYANAD-673 592.

      2         THE PRINCIPAL,
                PAZHASSI RAJA COLLEGE, PULPALLY, WAYANAD-673 592.

      3         THE UNIVERSITY OF CALICUT,
                REPRESENTED BY THE REGISTRAR, THENJIPPALAM, CALICUT
                UNIVERSITY P.O.MALAPPURAM DISTRICT, PIN-673 635.

      4         THE STATE OF KERALA,
                REPRESENTED BY THE PRINCIPAL SECRETARY, HIGHER
                EDUCATION DEPARTMENT, SECRETARIAT,
                THIRUVANANTHAPURAM-695 001.

      5         THE DIRECTOR OF COLLEGIATE EDUCATION,
                VIKAS BHAVAN, THIRUVANANTHAPURAM-695 001.

      6         THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION
                MANANCHIRA, KOZHIKODE-673 001.

                R1-2 BY ADV. SRI.P.CHANDRASEKHAR
                R1-2 BY ADV. SRI.K.K.MOHAMED RAVUF
                R1-2 BY ADV. SHRI.SATHEESH V.T.
                R3 BY SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY

OTHER PRESENT:

                GP SRI B HARISH KUMAR

    THIS   WRIT    PETITION   (CIVIL)   HAVING   BEEN   FINALLY   HEARD   ON
 WP(C).No.28896 OF 2020(J)         2

02.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.28896 OF 2020(J)             3




                             JUDGMENT

Dated this the 2nd day of February 2021

The petitioner, in this writ petition, has laid challenge to Ext.P7

order dated 7.2.2020, whereby the University of Calicut intimated the

1st and 2nd respondents to seek concurrence for the appointment.

2. Vide notification dated 31.10.2018, 1 st respondent invited

application for one post of Assistant Professor in English and one

Assistant Professor in English in an anticipated post since one teacher

was to retire on 31.5.2019. A rank list was prepared and petitioner

obtained rank No.2 in Community quota. On the basis of the rank list,

petitioner, was appointed as per order dated 5.10.2019 in the

retirement vacancy of one Saleel M.M., Associate Professor in

English. His appointment was in the second post owing to Thirty

Seven (37) hours of workload in English Department. The second

respondent forwarded the necessary papers to the third respondent

for approval of appointment as per letter dated 5.1.2020. The third

respondent issued query stating that prior concurrence of the 4 th

respondent is necessary so proposal would be considered only after

furnishing the same to the third respondent.

3. Learned Counsel for the petitioner submitted that since

there are two sanctioned posts of Assistant Professors in the

Department of English, petitioner was appointed in a retirement

vacancy of an existing teacher. As per Section 57 (1) of the Calicut

University Act, the only condition prescribed is that the appointments

shall be made only against a sanctioned post. The aforementioned

position is already clarified by a Division Bench of this Court in writ

appeal No.2164/2018 decided on 16.10.2019. The select list as per

the Calicut University (Conditions of Service of teachers and

members of Non-teaching Staff) First Statute 1979 is only for one

year or till a fresh select list is drawn up. In this case the select list is

prepared on 10.1.2019. It is submitted that the Government issued

order dated 5.11.2020 whereby Clause 4 says the posts to which the

PSC issued advice memo and the appointments approved by the

selection committee which included a government nominee as per the

Government order up to 31.5.2 020 could be approved. In Ext.P8 also

it was specifically directed that the future vacancies shall be filled

from the existing rank list. It is not the case of the University that the

appointment is against the sanctioned post. The petitioner seeks

indulgence of this Court directing the third respondent to grant

approval of appointment on the basis of Ext.P4. Since the third

respondent is not granting approval, the 6 th respondent is not

granting concurrence or disbursing the salary to the petitioner.

4. During the course of argument learned Counsel for the 3 rd

respondent supported the impugned order stating that until and

unless the Government approval is not granted, petitioner would not

be entitled to salary. The concurrence of the 6 th respondent would be

only of consequential effect. But, not averse for issuance of direction

to the Government to grant approval, in accordance with law.

5. I have heard learned Counsel for the parties and appraised

the paper books.

6. Clause 4 of Ext.P9, order reads thus:

" The new posts for college professors should be created on the basis of minimum working hours should be 16 hours per week and the same came into effect on 1.6.2020. The Higher Education Department should amend the rules and regulations for the same within one month. The posts to which the PSC has issued Aqdvise memo and the appointments approved by the selection committee which included a Government nominee as per the Government order upto 31.5.2020 can be approved."

The posts of college professors should be created on the basis of

minimum working hours of Sixteen(16) hours per week and the same

came into effect on 1.6.2020. Higher Education Department is

mandatorily required to amend the rules and regulations for the same

within a period of one month and the appointments approved by the

selection committee which included a Government nominee as per the

Government order up to 31.5.2020 can be approved. The petitioner in

this case was appointed on 5.10.2019 against the future vacancy, as

the future vacancy could be filled up in view of the contents of Ext.P8

dated 27.6.2014, which read thus:

"As per the Government Order read as first paper above Government have issued clarification regarding the validity of rank list for the selection of teaching and non-teaching staff in aided colleges and mode of recruitment from rank list. Later, as per the Government Order read as second paper above, the Government Order was cancelled.

Government also order that selection can be made from the existing list for arising future vacancies also.

The Government Order read as second paper above stands modified to the above extent."

7. Even the Division Bench of this Court in the writ appeal

cited (supra) directed the management to approach the Government

to seek sanction of the post in the light of the staff fixation orders

passed by the University. This is also the case where the management

had though requested the University to accord the approval, but the

University vide impugned decision, Ext.P7, dated 7.2.02020 did not

adhere till its approval from the Government, under the impression

that the appointment of the petitioner was not in the sanctioned post.

There is no doubt that there were two sanctioned posts of Assistant

Professor in the Department of English and the appointment of the

petitioner was in the second post, against the sanctioned post.

Petitioner has been made a shuttle cock between the two

Departments, ie. University of Calicut and the Government, ie. the

Department of Collegiate Education. In such circumstances, iam of

the considered view agony faced should be put to rest by disposing off

writ petition with the following directions:

1) The Management and the University would make a concerted

effort to submit to the Government the actual and factual

aspects, keeping in view the directions of this Court in writ

appeal as well as Exts.P8 and P9 orders, so that approval can be

granted, as prima facie the appointment of the petitioner is

against the sanctioned post. Let this exercise be undertaken

immediately as the petitioner is without salary since October

2009 and decide within a period of one month thereafter.

2) As an interim measure, the salary of the petitioner shall be paid

for a period of four months in order to sustain and make both

ends meet. Thereafter full salary on formal approval shall be

released to the petitioner.

3) Any documents required to be submitted by the petitioner can

be collected by the Management or University through special

messenger in order to prevent any wastage of time as it is a

matter of record that the petitioner has to attend the classes.

Sd/-

AMIT RAWAL

JUDGE

Jm/

APPENDIX OF WP(C) 28896/2020 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE NEWS PAPER ADVERTISEMENT IN THE DALY NEW INDIAN EXPRESS DATED 31.10.2018

EXHIBIT P2 TRUE COPY OF LETTER NO D1/160/2018/HEDN DATED 16.10.2018 NOMINATING GOVERNMENT NOMINEE TO ATTEND THE SELECTION COMMITTEE

EXHIBIT P3 TRUE COPY OF THE MINUTES OF THE SELECTION COMMITTEE HELD ON 10.1.2019

EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER NO G1-

124/19 DATED 5.10.2019 ISSUED TO THE PETITIONER BY FIRST RESPONDENT

EXHIBIT P5 TRUE COPY OF THE STATEMENT SHOWING THE ALLOTMENT OF WORKLOAD AMONG THE TEACHING STAFF FOR THE YEAR 2019-20

EXHIBIT P6 TRUE COPY OF THE COVERING LETTER FORWARDING PROPOSAL FOR APPROVAL OF APPOINTMENT OF PETITIONER DATED 5.1.2020

EXHIBIT P7 TRUE COPY OF THE LETTER NO 39570/GA-11-

H1/2019/ADMN DATED 7.2.2020 ISSUED BY THE THIRD RESPONDENT TO PRODUCE THE ORDER OF PRIOR CONCURRENCE FROM GOVERNMENT FOR APPROVING THE APPOINTMENT

EXHIBIT P8 TRUE COPY OF THE GO (RT) NO 1396/2014/HEDN DATED 27.6.2014 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P9 TRUE COPY OF RELEVANT PORTION OF GO (MS) NO 152/2020/FIN DATED 5.11.2020