State Of Kerala vs State Of Kerala
2021 Latest Caselaw 8998 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

       THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

                                   &

                 THE HONOURABLE MR. JUSTICE GOPINATH P.

    THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942

                           WA.No.331 OF 2020

  AGAINST THE JDUGMENT DTD 2.11.2018 IN WPC41820/2-017 AND ORDER
     DATED 22.1.2020 IN RP 1055/2019 OF HIGH COURT OF KERALA

APPELLANTS/RESPONDENTS 2 TO 4 IN W.P.(C):

       1         STATE OF KERALA
                 REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER
                 EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
                 THIRUVANANTHAPURAM-695001.

       2         DIRECTOR OF COLLEGIATE EDUCATION,
                 VIKAS BHAVAN, THIRUVANANTHAPURAM-695033.

       3         DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
                 KOTTAYAM-686001.

                 SMT. RAJI T BASKAR,BY GOVERNMENT PLEADER

RESPONDENTS/PETITIONERS & 1ST RESPONDENT IN WPC:

       1         ST.GEORGE COLLEGE,ARUVITHURA, REPRESENTED BY ITS
                 MANAGER, ARUVITHURA P.O., KOTTAYAM DISTRICT-686122.

       2         DAWN JOSEPH,ASSISTANT PROFESSOR, DEPARTMENT OF
                 ECONOMICS, ST.GEORGE COLLEGE, ARUVITHURA-686122.

       3         THE MAHATMA GANDHI UNIVERSITY,
                 REPRESENTED BY ITS REGISTRAR, PRIYADHARSHINI HILLS,
                 ATHIRAMPUZHA, KOTTAYAM-686560.

                 R1-2 BY ADV. SRI.BABU VARGHESE (SR.)
                 R1-2 BY ADV. SRI.C.V.ALEXANDER
                 R3 BY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY
OTHER PRESENT:

THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.331/2020                             2




                                 JUDGMENT

A.K. Jayasankaran Nambiar, J

The State, the Director of Collegiate Education and the Deputy Director

of Collegiate Education are in appeal before us being aggrieved by the

judgment dated 2.11.2018 of the learned single Judge in W.P.

(C)No.41820/2017 as maintained in the order dated 22.1.2020 in Review

Petition No.1055/2019 in the said writ petition.

The brief facts necessary for the disposal of the Writ Appeal are as follows:-

2. The petitioners in the writ petition were the St.George College,

Aruvithara (an aided College affiliated to the Mahatma Gandhi University) and

one Dawn Joseph, who had been appointed as Assistant Professor in the

Department of Economics in a vacancy that is stated to have arisen in the said

College. When the proposal for approval of the appointment of the 2 nd

petitioner as Assistant Professor was forwarded to the University it was

rejected by an order dated 17.6.2016 produced as Ext.P7 in the writ petition

on the ground that the workload study conducted earlier showed that only two

faculty members could be accommodated in the Economics Department of the

1st petitioner College and there was no sufficient workload to accommodate the

3rd faculty member in the said College. Thereafter, the Principal of the

College submitted a revised proposal dated 6.9.2016. The petitioners

thereafter approached this Court through the writ petition aforementioned,

wherein the prayer sought was for a declaration that the 2 nd petitioner's

appointment as Assistant Professor in the Department of Economics in the

College with effect from 1.1.2015 was legal and valid and that the proposal

submitted in that behalf by the 1 st petitioner was liable to be approved by the

respondent University. There was also a prayer for an extension of

consequential benefits to the 2nd petitioner.

3. The learned single Judge, who considered the matter, opined that

in as much as there was no staff fixation after 2009 and since there was a

dispute with regard to whether the workload study would reveal the necessity

of the third post of Assistant Professor in the Department of Economics in the

College, it was appropriate to direct the University to take steps to assess the

workload within six weeks from the date of the judgment. The workload study

was directed to be conducted with reference to the date of appointment of the

2nd petitioner and there was a further direction issued that, if based on such

assessment it was found that the appointment of the 2 nd petitioner merits an

approval of his appointment, such approval had to be granted.

4. The appellants herein preferred a review petition before the

learned single Judge seeking a review of the judgment aforementioned inter

alia on the contention that the 3rd post of Assistant Professor in the College in

question was not sanctioned by the Government and hence the remedy of the

petitioners in the writ petition was essentially to approach the Government for

the creation of the posts and thereafter for the 2 nd petitioner to seek

appointment to the said post. The review petition was dismissed, on

22.1.2020, finding no ground made out for a review of the judgment in

WP(C) 41820/2017.

5. Before us, it is the submission of the learned Government Pleader

placing reliance on Division Bench judgment of this Court in

W.A.No.2164/2018 (produced as Annexure-A1 along with the writ appeal) that

the provisions of the Statute clearly indicate that before making appointment

which requires payment of salary by the Government, the sanction of

Government is required. The above judgment is relied upon to distinguish the

line of judgments including the judgments of the Division Bench in Shalini

Rachel v. Manager, Christian College [2007 (3) KLT 355] and State of

Kerala and others v. Dr. Sina A.R. and others [2007 (3) KHC 96 ], wherein

Division Benches of this Court have consistently held the view that the

provisions of the University Act, Statutes and Ordinances clearly indicate that

it is for the University to sanction the post of teachers in the case of private

Colleges coming under the Direct Payment Scheme depending upon the

workload and staff pattern fixed by the University. The said decisions hold

that once the University accords sanction for a post and grants approval

depending upon the workload and staff pattern, the Deputy Director of

Collegiate Education need only verify as to whether the post for which the

payment is claimed is in accordance with the staff pattern and the workload

fixed by the University. If the University grants approval, noticing that it is in

accordance with the staff pattern and workload fixed by it, the Director of

Collegiate Education or the Officers concerned are obliged to make payment of

salary as per the Direct Payment Scheme. If the Government feels that the

University has wrongly granted approval, it is open to the Government to take

up the matter with the University.

6. The learned Government Pleader would however refer to

paragraph 10 of Annexure-A1 judgment where the Division Bench had laid

emphasis on the following observations in the judgment in Dr. Sina's case

(supra), namely, "Government have, however, no obligation to disburse

salary, if appointments are made by the aided Colleges, to non-existent posts,

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" to contend that in the instant case also the

direction of the learned single Judge which suggests that the Government

would be obliged to make payments in respect of newly sanctioned posts

would be against the mandate of Annexure-A1 judgment.

7. On a consideration of the said submission of the learned

Government Pleader, we find ourselves unable to read Annexure-A1 judgment

as making a departure from the well-settled principles laid down in the earlier

judgments of Division Bench of this Court including the judgments in Shalini

Rachel (supra) and Dr. Sina (supra). It needs to be emphasised that the

exception carved out in Dr. Sina's case is "only in cases where appointments

were made by aided colleges to non-existent posts or when a new subject is

sought to be introduced or a division sought to be started." On the facts of

the instant case, it is apparent that the appointment of the 2 nd petitioner is

stated to be against a retirement vacancy. The learned single Judge has taken

care to safeguard the interest of the Government by directing that a work-

study be conducted to determine whether the post to which the 2nd petitioner

was appointed was to be approved or not. We are now informed that the work-

study as directed by the learned single Judge has since been conducted and

based on the findings of the said study, the University has, by an order dated

26.8.2019, approved the appointment of the 2 nd petitioner to the third post of

Assistant Professor in the Department of Economics with effect from 1.1.2015.

We see no reason to interfere with the judgment of the learned single

Judge, and therefore, dismiss the writ appeal by observing that, if the

Government has any doubts with regard to the correctness of the work-study

conducted by the University, leading to the order dated 26.8.2019 referred

above, then it is for them to take up the matter with the University, within one

month from the date of receipt of a copy of this judgment. If no such objection

is raised within the time aforementioned, the salary and other benefits due to

the 2nd respondent (2nd petitioner in the Writ Petition) shall be released to

him without any further delay, taking into account the proceedings of the

University dated 26.8.2019, to which reference is made above. No costs.

A.K.JAYASANKARAN NAMBIAR JUDGE

GOPINATH P.

JUDGE acd