Kerala High Court

Sam Johnson vs State Of Kerala on 29 October, 2021

                        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                         PRESENT
                          THE HONOURABLE MR. JUSTICE AMIT RAWAL
                FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                                 WP(C) NO. 29877 OF 2019

PETITIONER/S:
                SAM JOHNSON
                ASSISTANT PROFESSOR, DEPARTMENT OF ENGLISH, ST.MICHAELS COLLEGE,
                MAYITHARA.P.O., CHERTHALA-688539.
                RESIDING AT POLLAYIL HOUSE, KARINGATTAKUZHY ROAD, PATHIRAPALLY.P.O.,
                ALAPPUZHA-688521.
                BY ADVS.
                BABY ISSAC ILLICKAL
                ISAAC KURUVILLA ILLIKAL


RESPONDENT/S:
      1       STATE OF KERALA,
              REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT
              SECRETARIAT, THIRUVANANTHAPURAM-695001.

      2         PRINCIPAL SECRETARY TO GOVERNMENT,
                HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM-695001.

      3         DIRECTOR OF COLLEGIATE EDUCATION,
                VIKAS BHAVAN, THIRUVANANTHAPURAM-695001.

      4         DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
                MCRV HOSTEL, OLD BUILDING, GENERAL HOSPITAL ROAD, KOCHI-682011.

      5         UNIVERSITY OF KERALA,
                REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM-695034.

      6         VICE CHANCELLOR,
                UNIVERSITY OF KERALA, THIRUVANANTHAPURAM-695003.

      7         PRINCIPAL,
                ST.MICHAELS COLLEGE, MAYITHARA.P.O., CHERTHALA-688539.

      8         MANAGER,
                ST.MICHAELS COLLEGE, MAYITHARA.P.O., CHERTHALA-688539.

                BY ADVS.
                SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA
                SRI.LIJU.V.STEPHEN
                SMT.INDU SUSAN JACOB
                SHRI.VINAY M.E.


OTHER PRESENT:
              GP SRI JIMMY GEORGE


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.10.2021, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 29877 OF 2019
                                          2




                               JUDGMENT

Challenge has been laid to impugned order Ext.P7 dated

30.8.2017 whereby the case of the petitioner for approval of his

appointment as Assistant Professor in English has been declined on

the ground that the post was not sanctioned by the Government.

2. Petitioner on 2.7.2014 was appointed against the

retirement vacancy pursuant to a selection procedure envisaged

under the Kerala University Law consisting of the representative of

the Government and University. Petitioner is an M.A Degree holder

and passed the National Eligibility Test for Lectureship (NET) as

evident from Ext.P1 and P1(a). The petitioner applied to the post of

Assistant Professor in English in the college pursuant to the

notification for filling up vacancies in the English Department by the

8th respondent on 19.12.2013 and was accordingly appointed. The

proposal for approval of appointment was duly forwarded to 5 th

respondent ie., University of Kerala but certain objections were

raised by the 5th respondent as evidenced from Ext.P5. The

petitioner and the other teachers of the college whose approval were

denied approached this Court vide W.P.(C) No.25225/2017 which

was disposed of by directing the 5 th respondent to reconsider the WP(C) NO. 29877 OF 2019

approval of appointment without raising any objections regarding

conformity to the UGC Regulations 2010.

3. Learned counsel appearing for the petitioner submitted

that the respondents have erroneously rejected the case of the

petitioner on the premise that the post against which the petitioner

was appointed; Assistant Professor in English was non sanctioned

whereas one Sri.Titus Augustine, the 1st rank holder in the select list

had been appointed in the first vacancy in the Department of

English. The approval granted Sri.Titus Augustine by the 5 th

respondent was concurred by the 4th respondent on 19.2.2014. The

contention of the respondents that there was no workload or any

post to accommodate the petitioner, Ext.P10 is wholly incorrect as

from the contents of Ext.P11 dated 1.3.1991, Appendix -I, the

Assessment of work load of Degree and Post Graduate subject and

fixation of staff strength under the University Grants Commission

Scheme reveals that there were 28 working hours and the number of

the posts admissible were 3. It is submitted that the introduction of

the B.Sc Physics and B.Com with Computer Application led to an

increase in workload of 22 hours in the English Department. As per

the Post Adalath Review meeting held on 18.12.2002, the statement

for reassessment of workload and the revised fixation of staff WP(C) NO. 29877 OF 2019

strength reveal that the working hours increased to 36 against the

work load assessed as 14 and the number of teachers required were

1+2 ie., 3. Government vide order dated Ext.P15 and P16 dated

20.8.2010 and 11.9.2015 concurred with all the appointments made

by the managements in the conditionally sanctioned courses before

2010. It was submitted that B.A English course was introduced in

the college w.e.f the academic year 2013-14 on the basis of the

Government order, Ext.P17. From the perusal of the statement of

work load for the year 2013-14 and 2014-15 based on the students

strength as on 1st November, in the ST.Michale's College in the

department of English, there were three posts fortified from

Exts.P22 and P23. All these documents have not been looked into by

the respondents in rejecting the approval of the appointment of the

petitioner. In the judgment of the Supreme Court in State of Kerala

and Others v. Arun George and Others (2015 KHC 4067) it was

found that the sanction of new courses led to the increase of work

load and the services of the Assistant Professors were availed.

4. Per contra, Mr. Thomas Abraham learned counsel

appearing for the respondent submitted that the first rank holder,

Sri. Titus Augustine filed the writ petition and as per the judgment

dated 2.7.2018 in W.P.(C) No.14063/2016 the University was WP(C) NO. 29877 OF 2019

directed to proceed as the petitioner, therein, was having all

qualifications and take a decision for the grant of approval within

one month. As per Post Adalath review 2002, there were 14 hours

of workload permitting only one teacher. An additional workload of

22 hours was also mentioned in the Post Adalath. As per the

Government order dated 20.8.2010 in the column for old workload

28 hours has been mentioned whereas no entries have been made in

the columns for new workload, post eligible etc. There was a

clerical error in the order dated 20.8.2010 in not having entered the

number of sanctioned posts or the new workload. The University

granted approval of Sri. Titus Augustine as per judgment dated

2.7.2018 in W.P.(C) No.14063 of 2016 and the Government has

given sanction to fill up one vacancy in English. Even though the

University has assessed 36 hours permitting two teachers for the

year 2013-14, as per the Post Adalath review of 2002, only 14 hours

have been identified permitting only one teacher.

I have heard the learned counsel for the parties and appraised

the paper book and of the view that the respondents have not taken

to consideration the documents referred to during the submissions

on behalf of the petitioner ie., Exts.P12, P13, P14, P15 and P16

sanction of new courses, approval of the courses and statement for WP(C) NO. 29877 OF 2019

re-assessment of work load and Exts.P22 and P23 work load

statements. If at all, had the documents been examined, the

respondents would not have declined the approval of the petitioner

on the sanctioned posts as the work load was there and therefore

the appointment of the petitioner, prima facie cannot be said to be

against the non sanctioned posts. In this view of the matter,

without commenting any further, I set aside the orders Exts.P7 and

Ext.P10 and direct the respondents to revisit the issue by taking

into consideration all the aforementioned documents, after affording

an opportunity of hearing to the petitioner, who shall apprise the

respondents all the documents referred to above and any other

additional documents, he may deem it appropriate and pass

appropriate order, in accordance with law. Let this exercise be

undertaken within a period of two months from the date of receipt of

a certified copy of this judgment.

Sd/-

sab                                             AMIT RAWAL

                                                  JUDGE
 WP(C) NO. 29877 OF 2019



                     APPENDIX OF WP(C) 29877/2019

PETITIONER EXHIBITS

EXHIBIT P1                PHOTOCOPY OF THE CERTIFICATE OF M.A. OF
                          THE PETITIONER.

EXHIBIT P1                PHOTOCOPY OF THE CERTIFICATE OF NET OF THE
                          PETITIONER.

EXHIBIT P2                PHOTOCOPY OF THE NOTIFICATION IN THE
                          MALAYALA MANORAMA NEWSPAPER DATED
                          19.12.2013.

EXHIBIT P3                PHOTOCOPY OF THE MINUTES OF THE SELECTION
                          COMMITTEE DATED 11.2.2014.

EXHIBIT P4                PHOTOCOPY OF THE APPOINTMENT ORDER DATED
                          2.7.2014.

EXHIBIT P5                PHOTOCOPY OF THE OBJECTIONS RAISED BY THE
                          5TH RESPONDENT DATED 31.5.2017.

EXHIBIT P6                PHOTOCOPY OF THE JUDGMENT IN
                          WPC.NO.25225/2017 DATED 31.7.2017.

EXHIBIT P7                PHOTOCOPY OF THE COMMUNICATION DATED

30.8.2017 OF THE 5THRESPONDENT TO THE 7TH RESPONDENT.

EXHIBIT P8 TYPED COPY OF THE ORDER OF THE 5TH RESPONDENT DATED 1.10.2018.

EXHIBIT P9 TYPED COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 13.2.2019.

EXHIBIT P10 PHOTOCOPY OF THE LETTER OF THE 5TH RESPONDENT DATED 5.10.2019.

EXHIBIT P11 PHOTOCOPY OF THE ORDER DATED 1.3.191 OF THE 3RD RESPONDENT.

WP(C) NO. 29877 OF 2019

EXHIBIT P12 PHOTOCOPY OF THE SANCTION ORDER OF THE 1ST RESPONDENT DATED 9.11.1998 FOR B.SC.PHYSICS COURSE.

EXHIBIT P12 PHOTOCOPY OF THE AFFILIATION ORDER OF THE 5TH RESPONDENT FOR B.SC.PHYSICS COURSE.

EXHIBIT P13 PHOTOCOPY OF THE SANCTION ORDER OF THE 1ST RESPONDENT DATED 6.12.1999 (RELEVANT PAGES).

EXHIBIT P13 PHOTOCOPY OF THE APPROVAL ORDER DATED 16.12.1999 OF THE 5TH RESPONDENT FOR B.COM WITH COMPUTER APPLICATION COURSE (RELEVANT PAGES)

EXHIBIT P14 PHOTOCOPY OF THE POST ADALATH REVIEW STATEMENT.

EXHIBIT P15 PHOTOCOPY OF THE G.O. DATED 20.8.2010 (RELEVANT PAGES)