The Manager vs The State Of Kerala
2021 Latest Caselaw 7385 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

          THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

 WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942

                  WP(C).No.26883 OF 2020(I)


PETITIONER :-

            THE MANAGER,
            ALPHONSA COLLEGE,
            PALA P. O., PIN - 686 576.

            BY ADVS.
            SRI.ROSHEN.D.ALEXANDER
            SRI.THOMAS J.ANAKKALLUNKAL
            SMT.TINA ALEX THOMAS
            SRI.HARIMOHAN

RESPONDENTS :-

      1     THE STATE OF KERALA
            REPRESENTED BY ITS SECRETARY,
            HIGHER EDUCATION DEPARTMENT,
            GOVERNMENT SECRETARIAT, ANNEXE,
            THIRUVANANTHAPURAM - 695 001.

      2     THE DIRECTOR OF COLLEGIATE EDUCATION
            TRIVANDRUM.

      3     MAHATMA GANDHI UNIVERSITY
            (REPRESENTED BY ITS REGISTRAR),
            PRIYADARSHINI HILLS, KOTTAYAM - 686 560.

            BY ADV. SRI.ASOK M.CHERIAN, SC
            BY SMT.NISHA BOSE, SR.GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 24-02-2021,   ALONG WITH WP(C).1289/2021(I), THE COURT ON
03-03-2021 DELIVERED THE FOLLOWING:
 WP(C).Nos.26883/2020 and
1289/2021
                                -: 2 :-

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

             THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

   WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 5TH PHALGUNA, 1942

                       WP(C).No.1289 OF 2021(I)


PETITIONER :-

                THE MANAGER,
                ALPHONSA COLLEGE,
                PALA P.O., PIN - 686 576.

                BY ADVS.
                SRI.ROSHEN.D.ALEXANDER
                SRI.THOMAS J.ANAKKALLUNKAL
                SMT.TINA ALEX THOMAS
                SRI.HARIMOHAN

RESPONDENTS :-

       1        THE STATE OF KERALA,
                REPRESENTED BY ITS SECRETARY,
                HIGHER EDUCATION DEPARTMENT,
                GOVERNMENT SECRETARIAT ANNEX,
                THIRUVANANTHAPURAM - 695 001.

       2        THE DIRECTOR OF COLLEGIATE EDUCATION,
                THIRUVANANTHAPURAM.

       3        MAHATMA GANDHI UNIVERSITY,
                (REPRESENTED BY ITS REGISTRAR),
                PRIYADARSHINI HILLS, KOTTAYAM - 686 560.

                BY SMT.NISHA BOSE, SR.GOVERNMENT PLEADER
                BY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24-02-2021,   ALONG  WITH   WP(C).26883/2020(I), THE   COURT ON
03-03-2021 DELIVERED THE FOLLOWING:
 WP(C).Nos.26883/2020 and
1289/2021
                                 -: 3 :-


                              JUDGMENT

[WP(C).26883/2020 & WP(C).1289/2021]

Dated this the 3rd day of March, 2021

The prayers in these writ petitions were with regard to

sanctioning of posts and the filling up of the resultant vacancies in

the petitioner's college.

2. Heard the learned counsel for the petitioner and the

leaned Government Pleader.

3. It is submitted that by Ext.P1 order dated 12.9.2013, the

Government accorded sanction for commencing an aided course in

M.A. English in the petitioner's college from the year 2013-14.

Affiliation was also granted by the University. By Ext.P5, the

workload was fixed as 176 hours and 11 posts could therefore be

sanctioned. It is stated that the petitioner's college has only five

teachers in English and six more posts are available to be filled up.

4. In the History Department of the college, it is submitted

that there is a workload of 46 hours and only one teacher is

working. Therefore, two more posts are to be filled up. Further, it

is contended that the students strength of the college is above

1000 and therefore, two posts of Physical Education teachers are

available. The petitioner submitted application before the 1 st

respondent requesting to depute a Government nominee for the WP(C).Nos.26883/2020 and 1289/2021

conduct of the selection. By Ext.P10, a Government nominee was

assigned for filling up of one vacancy in History, Zoology and

Physics respectively. The petitioner approached this Court and by

Ext.P11 judgment, the request of the petitioner for Government

nominee for filling up of the posts in English, History and Physical

Education was directed to be considered. By Ext.P12 order dated

5.12.2019, the Government accorded sanction for filling up the

posts and deputed a Government nominee on condition that the

management shall make appointment only to the posts which are

sanctioned by the Government with sufficient workload.

Thereafter, pursuant to the directions from this Court, the

Government passed Ext.P15 order dated 12.5.2020 rejecting the

request for creation of further teaching posts. Thereafter, by

Ext.P17 general order dated 31.12.2020, three posts in English

were sanctioned.

5. The learned counsel for the petitioner, therefore,

contends that the petitioner is liable to be permitted to make

appointments to all the available vacancies of teaching staff in the

college by constituting a Selection Committee with the Government

nominee allotted by Ext.P12. It is submitted that the delay in

constituting the Selection Committee and finalising the WP(C).Nos.26883/2020 and 1289/2021

appointments are creating undue hardship and difficulty to the

petitioner.

6. A statement has been placed on record by the 2 nd

respondent. It is stated at paragraphs 2, 3 and 4 of the statement

as follows :-

"2. According to the workload adalath held before issuance of English G.O.(MS)No.155/2020 dated 01.04.2020, the workload of the English Department was 201 hours. When the weightage allotted for PG Courses was waived as per Government Order (MS) No.155/2020/H.Edn. dated 01.04.2020, the workload was reduced to 176 hours. The College was having 8 post in English. The post can be sanctioned only on the basis of G.O.(MS) No.155/2020/H.Edn. Dated 01.04.2020. Hence, the remaining 3 posts were sanctioned as per G.O.(MS) No.471/2020/H.Edn. Dated 30.12.2020. As per existing workload only 11 posts in English Department can be sanctioned.

3. The estimated workload for History is 46 hours. There is no PG course in History. Hence earlier workload itself exist. But as per G.O.(MS) No.155/2020 dated 01.04.2020, appointments are allowed only for post having workload of 16 hours per week in the teaching post. Hence as per workload of History only two posts can be sanctioned. Hence not eligible for any additional post. Already there is two sanctioned posts in History.

4. Already 2 teaching posts are sanctioned in the Physical Education Department. The College is not eligible for any additional posts, since students strength is 1214. Eligible posts is sanctioned for aided Colleges on the basis of G.O.(MS) No.155/2020/H.Edn. Dated 01.04.2020. True copy of G.O.(MS) No.155/2020 dated 01.04.2020 is produced herewith and marked as Annexure R2(a)."

WP(C).Nos.26883/2020 and 1289/2021

7. An I.A. has been filed by the petitioner as I.A. No.1/2021.

It is stated in the affidavit filed in support of the said application

that since 11 posts in English, two posts in History and two posts in

Physical Education have been sanctioned going by the statement

filed by the 2nd respondent, the petitioner is liable to be permitted

to fill up all the available vacancies in the sanctioned strength

subject to an objection with regard to eligibility for three posts in

History which is to be left open to be decided in appropriate

proceedings. The petitioner, therefore, seeks a direction for

permission to fill up the posts admittedly available in the college by

convening the Selection Committee consisting of the Government

nominee deputed as per Ext.P12 Government Order.

8. The learned Government Pleader would submit that

Ext.P12 Government Order was issued on 5.12.2019 and that it is

only on 30.12.2020 that three additional posts in English had been

sanctioned to the college. It is, therefore, contended that a further

request has to be made by the petitioner before the Government

for deputing a Government nominee for selection to the three

additional posts sanctioned in English by Ext.P17.

9. Having considered the contentions advanced on either

side and having perused the pleadings and documents placed on WP(C).Nos.26883/2020 and 1289/2021

record, I am of the opinion that these writ petitions can be

disposed of with a direction to the respondents to permit the

selection to be conducted for the vacant posts in the sanctioned

strength of teaching staff in the petitioner's college. Since it is

specifically admitted in the statement filed by the 2 nd respondent

that there are 11 posts in English, two posts in History and two in

physical education, the posts in the said sanctioned strength which

are now vacant are liable to be permitted to be filled up.

Therefore, the petitioner is liable to be permitted to make

appointments against the six vacancies of Assistant Professors in

English, one in History and one in Physical Education by

constituting a Selection Committee with the Government nominee

as provided in Ext.P12. The contention that a further request has

to be made for deputing another Government nominee for the three

posts which have been sanctioned by Ext.P17 cannot be accepted

in view of the fact that a Government nominee has already been

deputed for the selection by Ext.P12 and that the selection has not

taken place.

In the above view of the matter, these writ petitions are

disposed of directing the respondents to permit the petitioner to

carry out the selections for the six posts of Assistant Professor in WP(C).Nos.26883/2020 and 1289/2021

English, one post in History and one post in Physical Education

with the Government nominee as provided in Ext.P12 order. This

will be subject to the contentions of the petitioner with regard to

the availability of a third post in History, which is liable to be

considered in appropriate proceedings.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/25.2.2021 WP(C).Nos.26883/2020 and 1289/2021

APPENDIX OF WP(C) 26883/2020 PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE ORDER DATED 12.09.2013 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 19.07.2014 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 06.08.2014 3RD RESPONDENT TO THE PETITIONER.

EXHIBIT P4 A TRUE COPY OF THE WORKLOAD STATEMENT DATED 12.07.2016 SUBMITTED BY THE PETITIONER TO THE DEPUTY DIRECTOR COLLEGIATE EDUCATION KOTTAYAM.

EXHIBIT P5 A TRUE COPY OF THE WORKLOAD STATEMENT OF THE ENGLISH DEPARTMENT AS ON 01.11.2016 OF THE COLLEGE IN THE PETITIONER.

EXHIBIT P6 TRUE COPY OF THE WORKLOAD STATEMENT OF THE HISTORY DEPARTMENT IN THE COLLEGE OF THE PETITIONER AS ON 01.11.2016.

EXHIBIT P7 TRUE COPY OF THE LIST OF TEACHING STAFF IN THE HISTORY DEPARTMENT IN THE COLLEGE OF THE PETITIONER AS ON 30.06.2017.

EXHIBIT P8 TRUE COPY OF THE LIST OF TEACHING STAFF IN THE PHYSICAL EDUCATION DEPARTMENT IN THE COLLEGE OF THE PETITIONER AS ON 30.06.2017.

EXHIBIT P9 TRUE COPY OF THE WORKLOAD STATEMENT OF THE PHYSICAL EDUCATION DEPARTMENT IN THE COLLEGE OF THE PETITIONER AS ON 01.11.2016.

EXHIBIT P10 TRUE COPY OF THE ORDER DATED 01.02.2018 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 05.12.2018 IN WPC 15159/2018.

EXHIBIT P12 TRUE COPY OF THE ORDER DATED 05.12.2019 PASSED BY THE 1ST RESPONDENT.

EXHIBIT P13 TRUE COPY OF THE ORDER DATED 12.02.2020 ISSUED BY THE 3RD RESPONDENT.

WP(C).Nos.26883/2020 and 1289/2021

EXHIBIT P14 TRUE COPY OF THE ORDER PASSED BY THIS HON'BLE COURT DATED 12.12.2019 IN CCC NO.2357/2019.

EXHIBIT P15 TRUE COPY OF THE ORDER DATED 12.05.2020 PASSED BY THE 1ST RESPONDENT.

EXHIBIT P16 TRUE COPY OF AN ORDER ON 19.01.2020 PASSED BY THE FIRST RESPONDENT.

EXHIBIT P17 A TRUE COPY OF THE ORDER DATED 30.12.2020 ISSUED BY THE 1ST RESPONDENT.

WP(C).Nos.26883/2020 and 1289/2021

APPENDIX OF WP(C) 1289/2021 PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE ORDER DATED 12/09/2013 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 19/07/2014 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 06/08/2014 3RD RESPONDENT TO THE PETITIONER.

EXHIBIT P4 A TRUE COPY OF THE WORKLOAD STATEMENT DATED 12/07/2016 SUBMITTED BY THE PETITIONER TO THE DEPUTY DIRECTOR COLLEGIATE EDUCATION, KOTTAYAM.

EXHIBIT P5 TRUE COPY OF THE WORK LOAD STATEMENT OF THE ENGLISH DEPARTMENT AS ON 01/11/2016 OF THE COLLEGE IN THE PETITIONER.

EXHIBIT P6 TRUE COPY OF THE WORK LOAD STATEMENT OF THE HISTORY DEPARTMENT IN THE COLLEGE OF THE PETITIONER AS ON 01/11/2016.

EXHIBIT P7 TRUE COPY OF THE LIST OF TEACHING STAFF IN THE HISTORY DEPARTMENT IN THE COLLEGE OF THE PETITIONER AS ON 30/06/2017.

EXHIBIT P8 TRUE COPY OF THE LIST OF TEACHING STAFF IN THE PHYSICAL EDUCATION DEPARTMENT IN THE COLLEGE OF THE PETITIONER AS ON 30/06/2017.

EXHIBIT P9 TRUE COPY OF THE WORKLOAD STATEMENT OF THE PHYSICAL EDUCATION DEPARTMENT IN THE COLLEGE TO THE PETITIONER AS ON 01/11/2016.

EXHIBIT P10 TRUE COPY OF THE ORDER DATED 01/02/2018 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 05/12/2018 IN WPC 15159/2018.

EXHIBIT P12 TRUE COPY OF THE ORDER DATED 05/12/2019 PASSED BY THE 1ST RESPONDENT.

EXHIBIT P13 TRUE COPY OF THE ORDER DATED 12/02/2020 ISSUED BY THE 3RD RESPONDENT.

WP(C).Nos.26883/2020 and 1289/2021

EXHIBIT P14 TRUE COPY OF THE ORDER PASSED BY THIS HON'BLE COURT DATED 12/012/2019 IN CCC NO.2357/19.

EXHIBIT P15 TRUE COPY OF THE ORDER DATED 12/05/2020 PASSED BY THE 1ST RESPONDENT.

EXHIBIT P16 TRUE COPY OF AN ORDER ON 19/01/2020 PASSED BY THE FIRST RESPONDENT.

EXHIBIT P17 TRUE COPY OF THE ORDER DATED 30/12/2020 PASSED BY THE FIRST RESPONDENT.

RESPONDENTS' EXHIBITS:

ANNEXURE R2(a) : G.O.(MS)No.155/2020/H.EDN. DATED 01.04.2020.

//TRUE COPY//

P.A. TO JUDGE