Kerala High Court
Poornima C.C vs State Of Kerala on 24 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
RP NO. 1256 OF 2022
AGAINST THE JUDGMENT DATED 23.08.2022 IN WA 267/2022 OF
HIGH COURT OF KERALA
REVIEW PETITIONERS/RESPONDENTS 1 & 2 IN W.A.:
1 POORNIMA C.C.
D/O P.P RAMACHANDRAN, ASSISTANT PROFESSOR (NOT
APPROVED), DEPARTMENT OF MALAYALAM, COCHIN
COLLEGE, COCHIN-682 002.
2 DR KAVITHA V RAJAN
D/O G, RAJAN, 'ASSISTANT PROFESSOR (NOT
APPROVED), DEPARTMENT OF HINDI, COCHIN COLLEGE,
COCHIN-682 002.
BY ADVS.
S.PRASANTH (AYYAPPANKAVU)
VARSHA BHASKAR
THRESSY THOMAS
ANUPAMA SIBI
RESPONDENTS/APPELLANTS & RESPONDENTS 3 - 5 IN W.A.:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
HIGHER EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR
DIRECTORATE OF COLLEGIATE EDUCATION, VIKAS
BHAVAN THIRUVANANTHAPURAM-695 033.
3 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION
GANDHINAGAR, ERNAKULAM-682 020.
4 THE MAHATMA GANDHI UNIVERSITY
PRIYADARSINI HILLS. P.O., KOTTAYAM-686 560,
REPRESENTED BY ITS REGISTRAR.
R.P.No.1256 of 2022
in
W.A.No.267 of 2022 2
5 THE COCHIN COLLEGE
REPRESENTED BY ITS MANAGER, COCHIN, PIN-682 002.
6 THE PRINCIPAL
COCHIN COLLEGE, COCHIN, PIN-682 002.
BY ADVS
SRI.A.J.VARGHESE SR.GP
SRI.P.P.JACOB
SRI.SURIN IPE
THIS REVIEW PETITION HAVING COME UP FOR
ADMISSION ON 24.03.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
R.P.No.1256 of 2022
in
W.A.No.267 of 2022 3
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
-----------------------------------------------
R.P.No.1256 of 2022
in
Writ Appeal No.267 of 2022
-----------------------------------------------
Dated this the 24th day of March, 2023.
ORDER
P.B.Suresh Kumar, J.
Respondents 1 and 2 seek in this proceedings,
review of the judgment in the writ appeal.
2. As in the case of the writ appeal, parties and
documents are referred to in this order, as they appear in the
writ petition.
3. The fourth respondent is a private college
affiliated to the Mahatma Gandhi University and covered by the
Direct Payment Scheme of the State Government. When the
workload of the subjects Hindi and Malayalam in the fourth
R.P.No.1256 of 2022
in
respondent college increased on account of the sanctioning of a
few additional courses by the State, the College appointed the
petitioners as Assistant Professors in the said subjects on
22.01.2018 and they joined duty on 24.01.2018. The
Government sanctioned the posts required to accommodate the
petitioners in terms of Section 59(1) of the Mahatma Gandhi
University Act, 1985(the Act) only later, with effect from
30.12.2020. Nevertheless, the management of the College
submitted a proposal before the University to approve the
appointments of the petitioners with effect from 24.01.2018,
the date on which they joined duty. The University took the
stand that the said proposal cannot be considered since posts
have been sanctioned only with effect from 30.12.2020. The
said decision of the University was under challenge in the writ
petition. The case set out by the petitioners in the writ petition
was that inasmuch as there was sufficient workload in the
College for sanctioning additional posts when the petitioners
R.P.No.1256 of 2022
in
joined duty, the University was obliged to approve the
appointments with effect from the date on which they joined
duty. The learned Single Judge set aside the decision of the
University and directed the University to consider the proposals
for approval of the appointments of the petitioners afresh,
accepting the case of the petitioners. It was aggrieved by the
said judgment that the State and its officials preferred the
appeal.
4. The right of the petitioners to get their
appointments approved with effect from 30.12.2020 was not
disputed by the State. The contention of the State, however,
was that before the posts required to accommodate the
petitioners were sanctioned in terms of Section 59(1) of the Act,
the College could not have made regular appointments
enabling the appointees to receive salary from the State under
the Direct Payment Scheme. It was also the case of the State
that where appointments are necessitated on account of
R.P.No.1256 of 2022
in
sanctioning of new courses, the procedure followed was to
permit the College to make appointments in the form of Guest
Lecturers until posts are sanctioned by the Government after
assessing the workload.
5. This Court accepted the stand of the State
that when there is an interdiction in the Act that appointments
to posts eligible to receive salary from the Government shall be
made only against posts sanctioned by the Government, the
appointments of the petitioners are liable to be approved only
with effect from the date of sanctioning of the posts and
consequently allowed the appeal, reversed the judgment of the
learned Single Judge and dismissed the writ petition. It is the
said decision of this Court that is sought to be reviewed in this
proceedings.
6. Though very many contentions are raised in
the review petition, the only contention pressed by the
petitioners at the time of hearing is that inasmuch as the State
R.P.No.1256 of 2022
in
has adopted and implemented the UGC (Minimum
Qualifications for Appointment of Teachers and other Academic
Staff in the Universities and Colleges and other Measures for
the Maintenance of Standards in Higher Education) Regulations
2010 (the UGC Regulations) at the time when the petitioners
were appointed and since the UGC Regulations provided
categorically that the teachers should be appointed on contract
basis only when it is absolutely necessary and that when
student-teacher ratio does not satisfy the laid down norms, this
Court ought not have accepted the stand of the Government
that the College should have resorted to appointments in the
form of Guest Lecturer until posts required to accommodate the
petitioners were sanctioned by the Government. According to
the learned counsel for the petitioners, inasmuch as the UGC
Regulations does not permit appointment on contract basis
when the student-teacher ratio is in accordance with the
prescribed norms, inasmuch as the UGC Regulations would
R.P.No.1256 of 2022
in
prevail over the provisions of the Act and inasmuch as there
was sufficient workload in the College to accommodate the
petitioners when they joined duty pursuant to the appointment,
Section 59(1) of the Act should have been interpreted by this
Court to the effect that sanctioning of the posts would relate
back to the date on which the petitioners joined duty.
7. We have considered the argument advanced
by the learned counsel for the petitioners.
8. The contention aforesaid of the petitioners
proceeds on the premise that the provision contained in Section
59(1) of the Act that appointments to the posts eligible to
receive salary from the Government shall be made only against
posts sanctioned by the Government, is repugnant to the
provision in the UGC Regulations that teachers should be
appointed on contract basis only when it is absolutely
necessary and when student-teacher ratio does not satisfy the
laid down norms. We are unable to accept the said contention.
R.P.No.1256 of 2022
in
No doubt, the scheme of the UGC Regulations is that teachers
should be appointed on contract basis only when it is absolutely
necessary and when student-teacher ratio does not satisfy the
laid down norms. But we fail to understand as to how the said
scheme would run counter to the provision contained in Section
59(1) of the Act. Section 59(1) deals with appointment of
teachers in private colleges covered by the Direct Payment
Scheme of the State Government, in terms of which the State
Government is obliged to pay salary to the teachers appointed
by private bodies. The said provision is a mechanism, in terms
of which the Government ensures that appointments to posts
eligible to receive salary from the Government are made only
when there is sufficient workload in the College. Such a
provision, according to us, can never be construed as one in
conflict with the scheme of the UGC Regulations, for it is well
settled that the principle of federal supremacy laid down in
Article 246(1) of the Constitution should normally be resorted to
R.P.No.1256 of 2022
in
only when the conflict is so patent and irreconcilable that co-
existence of two laws is not feasible and that such conflict must
be an actual one and not a mere seeming conflict between the
Entries in the two Lists [See Offshore Holdings (P) Ltd. v.
Bangalore Development Authority, (2011) 3 SCC 139]. As a
matter of fact, even the scheme of the Act is also that there
shall be regular appointments when there is sufficient workload.
But that does not mean that until the Government is satisfied
that there is sufficient workload in the College on account of
sanctioning of additional courses, it cannot devise a mechanism
such as appointments in the form of Guest Lecturer for the
purpose of protecting the academic interests of students as
also the financial interests of the State Government, as it
cannot be presumed that there will be sufficient student
strength invariably for all new courses sanctioned by the
Government. It is all the more so, as observed by this Court in
the judgment sought to be reviewed, that sanctioning of
R.P.No.1256 of 2022
in
additional posts in a College involves financial implications and
since a fiduciary duty is cast upon the State to act prudently
and wisely while dealing with public money generated at the
tax payers' expense, the freedom to decide as to the
appropriate time at which additional posts in private colleges
involving financial implications are to be sanctioned, shall be
conceded to the State.
In the said view of the matter, we do not find any
merit in the review petition and the same is accordingly,
dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.S.SUDHA, JUDGE.
YKB
R.P.No.1256 of 2022
in
APPENDIX OF RP 1256/2022
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE MINUTES OF THE
SELECTION COMMITTEE MEETING FOR
SELECTION TO THE POST OF ASSISTANT
PROFESSOR IN MALAYALAM.
Annexure A2 TRUE COPY OF THE MINUTES OF THE
SELECTION COMMITTEE MEETING FOR
SELECTION TO THE POST OF ASSISTANT
PROFESSOR IN HINDI.
