2. W.P.(C)No.2445 of 2023 is filed by the 1st respondent
iv. Issue writ of Mandamus directing 1st respondent to sanction
one post of Commerce available under the 5 th respondent with
effect from 15.02.2019 on the basis of Exts.P5 and P7;
v. Issue Writ of Mandamus directing 4th respondent to approve
the approval of the petitioner as Assistant Professor in Commerce
under 5th respondent with effect from 15.02.2019;
vi. Issue Writ of Mandamus directing the respondents 1 to 3 to
disburse salary and other benefits to the petitioner for the period
from 15.02.2019 to 30.12.2020."
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3. The 1st respondent applied for the post of Assistant
Professor in Commerce under MES Keveeyam College,
Valanchery, the post for which applications were invited by virtue
of Ext.P1 advertisement published in the Hindu Daily on
05.04.2017. In the selection process, the 1st respondent has
secured seventh rank in the general merit. According to the 1 st
respondent, as per Ext.P3 allotment of workload among the
teaching staff in the Department of Commerce, there are 61 hours
of work for regular post of teachers and a part-time teacher for
law. Out of 4 regular teachers, 1st, 2nd and 3rd had retired in the
years 2017, 2014 and 2016, respectively. The 1st respondent
contends that the corporate management of MES Keveeyam
College appointed her as per Ext.P4 appointment order dated
15.02.2019, in the retirement vacancy of one
Dr.C.H.Moideenkutty, who retired on 30.04.2014. As per Ext.P5
order fixing the workload in aided colleges bearing
G.O.(MS)No.93/2018/H.Edn dated 09.05.2018 issued by the
Government, one more post will also be eligible when the
remaining workload in a particular subject is 9 hours and above.
So, according to the 1st respondent, out of the 61 hours of work,
reckoning 48 hours for 3 teachers, for the remaining 13 hours,
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after deducting 4 hours for the part-time post of law, 9 hours left,
and so, a full-time post has to be permitted. By Ext.P6 letter dated
17.07.2019, the University of Calicut informed the college that
Government concurrence is mandatory for the appointment of
teachers and in the case of absence of Government concurrence,
it should be brought to the notice of the Government and
therefore, requested the college to furnish the Government letter
granting concurrence for the appointment of the 1st respondent at
the earliest for further necessary action. The 1st respondent
further contends that the Director of Collegiate Education, by
Ext.P7 letter dated 19.11.2018 had recommended for concurrence
of the Government for the workload of 9 hours since in 2002 Post
Adalath, out of sanctioned post of 3 teachers + Principal + part
time lecturer, Principal hailing from Commerce Department had
retired in 2005 and only two permanent lecturers are working as
on that date. But instead of permitting the 4th vacancy
recommended in Ext.P7, the Government by Ext.P8 letter dated
05.12.2019 addressed to the University of Calicut noted that the
Government granted permission to fill up one vacancy in MES
Keveeyam College, Valanchery, and that on Ext.P7, Government
has taken steps to create the post, but it is not disposed of yet
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and that proposal for appointment of the 1st respondent is kept
pending until further orders. But without taking any final decision,
the Government, as per Ext.P9 letter dated 22.02.2021,
addressed to the Director of Collegiate Education, granted
permission to accommodate the 1st respondent to one of the 7
teaching posts created vide G.O.(MS)No.471/2020/H.Edn dated
30.12.2020 with effect from 30.12.2020. Consequently, the
University of Calicut, by Ext.P10 order dated 26.05.2021,
approved appointment of the 1st respondent with effect from
30.12.2020. So, the Corporate management of MES issued
Ext.P11 appointment order dated 30.12.2020 to the 1st
respondent. By Ext.P12 order dated 11.09.2020 of the
Government, the effect of the order dated 01.04.2020 is limited
from 01.06.2020. Contending that the 1st respondent's initial
appointment with effect from 15.02.2019 under Ext.P4 is in the
retirement vacancy that arose on 30.04.2014, the 1st respondent
filed the writ petition.
4. In the writ petition, on behalf of the University of
Calicut, a counter affidavit dated 01.03.2023 was filed opposing
the reliefs sought therein. Paragraphs 7 to 9 of that counter
affidavit read thus;
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"7. As per the Workload statement, the total workload assessed
in the Department of Commerce at that time was 61 Hours with 3
posts + Principal + PTL. But there were only 3 permanent teachers
in the Department of Commerce and the workload allotted to the
Part time law was also being handled by the Commerce faculties.
Therefore, she has claimed that, at the time of her joining, she
had a total of 13 hours of Workload, which is sufficient for the
appointment as per G.O.(MS) No.93/2018/H.Edn dated
09/05/2018. Hence, she had filed a writ petition (No.2445/2023)
against the denial of her appointment at MES Keveeyam College,
Valanchery w.e.f. 15/02/2019 F.N. by the State of Kerala.
8. As.per the post Adalath statement 2002, the total workload
assessed in the Department of Commerce was 61 Hours/week.
This workload can accommodate 3 Teachers + Principal + Part
Time law Lecturer of 4 hours workload. But the petitioner,
Smt.Sinija A.S. had been appointed as the 4th teacher In the
Department of Commerce against a non sanctioned post. On
verification of the documents submitted along with the proposals,
it is found that, Government Nominee had not been provided for
the selection of Smt. Sinija A.S. Hence the Manager had been
requested to furnish the Government concurrence vide letter
dated 17/07/2019.
9. As per Letter No.02/188/2018/H.Edn dated 22/02/2021,
permission had been granted to accommodate Smt. Sinija A.S. to
one of the seven teaching posts created as per the G.O.(MS)
No.471/2020/H.Edn. dated 30/12/2020 w.e.f. 30/12/2020, if she
is fully qualified and eligible for the post. Accordingly the Standing
Committee of the Syndicate on Staff of Affiliated Colleges held on
29.04.2021 considered the matter and resolved to approve the
appointment of Smt. Sinija AS. w.e.f. 30/12/2020. As per the
orders of the Vice Chancellor, the resolution of the SC on SAC had
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been implemented vide U.O. No.5595/2021/Admn dated
26/05/2021."
5. The Principal of MES Keveeyam College filed a counter
affidavit dated 08.11.2023 in the writ petition, producing
therewith Exts.R5(a) and R5(b) documents. Paragraphs 3 to 7 of
that counter affidavit read thus;
"3. At the time of appointment of Writ Petitioner, there was
vacancy. However, Government has refused to grant its
concurrence with respect to the appointment of Writ Petitioner
stating that there was no sanctioned post to accommodate Writ
Petitioner at the time when she was appointed to the post of
Assistant Professor as stated above.
4. The observation of Government in Ext.P8 is not correct. There
was already a vacancy pursuant to retirement of
Dr.C.H.Moideenkutty. C.H. Moideenkutty was not the Principal.
The observation of the Government in Ext.P8 is that the Manager,
MES Colleges knows clearly that there is no post to accommodate
Smt. Sinija.A.S. and further that Manager violated statutory
provisions by filling up the vacancies and tried to mislead
Government and University, are not correct. Government while
passing Ext.P8 overlooked the fact that Smt. Sinija is appointed
to vacancy arousing out of retirement as stated above. True copy
of the pay and allowance statement issued by Government of
Kerala with respect to 5th respondent college is produced herewith
and marked as Exhibit R5(a). On perusal of Ext.R5(a) it can be
seen that there were enough posts in commerce Department and
it is in the retirement vacancy created pursuant to retirement of
Sri. Moideenkutty C.H., Writ Petitioner was appointed.
5. There was enough work load in the Commerce Department in
order to appoint Writ Petitioner. True copy of the attendance
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register for the month of March, 2014 with respect to Department
of Commerce is produced herewith and marked as Exhibit R5(b).
On perusal of Ext.R5(b), it could be discerned that there is four
posts for the commerce department and it is pursuant to the
retirement of Sri. Moideenkutty C.H. Writ Petitioner is appointed.
6. On perusal of records, it is understood that Moideenkutty C.H.
against whose retirement vacancy Writ Petitioner was appointed
was not Principal of the College. It is without proper appreciation
Government has issued Ext.P8.
7. It is submitted that, neither the Management nor the Principal
of 5th respondent College had mislead the Government in any
manner by appointing Writ Petitioner. Writ Petitioner is appointed
to vacancy arising not of retirement and not in newly created post.
The observation of the Government in Ext.P8 is without proper
understanding of the actual state of affairs. The same requires
reconsideration."
6. On behalf of the Deputy Director of Collegiate
Education, a counter affidavit dated 17.11.2023 was filed in the
writ petition producing therewith Exts.R3(a) to R3(d) documents.
Paragraphs 3 to 8 of that counter affidavit read thus;
"3. It is submitted that there was only 3 sanctioned posts in
commerce and 3 permanent teachers were working in these posts
for the period from 15.02.2019 to 29.12.2020 hence there was no
sanctioned post vacant to accommodate the petitioner during that
period and the appointment of the petitioner was approved with
effect from 30.12.2020 i.e., the date of sanctioning of 7 posts in
commerce vide GO (MS) No. 471/2020/H.Edn dated 30.12.2020.
True copy of the GO (MS) No.471/2020/H.Edn dated 30.12.2020
is produced herewith and marked as Exhibit R3 (a).
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4. It is submitted that as per letter no. D2/188/2018/H.Edn dated
05.01.2019 Government has granted permission to fill up 4
vacancies in commerce including one in MES Keveeyam College
Valanchery. True copy of the letter No.D2/188/2018/H.Edn dated
05.01.2019 is produced herewith and marked as Exhibit R3 (b).
And the same was filled with appointment of Smt. Divya M, the 3 rd
rank holder vide order No. MES/AC/E-1396/23/2016 dated
07.01.2019. True copy of the order by No.MES/AC/E-
1396/23/2016 dated 07.01.2019 is produced herewith and marked
as Exhibit R3(c) And there was no vacancy to accommodate the
petitioner. It is submitted that there was no sanctioned post to
accommodate the petitioner.
5. It is submitted that as per letter No.D6/34781/2018/Coll. Edn.
Dated 19.11.2018. The director of collegiate education had
reported one vacancy and 9 hrs of excess workload in commerce
at MES Keveeyam College Valanchery. True copy of the letter No.
D6/34781/2018/Coll. Edn. Dated 19.11.2018 is produced herewith
and marked as Exhibit R3(d).
6. It is submitted that no appointments should be done against
non sanctioned post even though there was 9 hours of workload.
As per Sec 59(1) of the University Law (Amendment) Act 2005 (Act
2 of 2005) it clearly says that "(1) Appointments to the posts
eligible to receive salary form the Government shall be made only
against posts sanctioned by the Government or by such officers as
may be authorised by the Government". The above contention was
also confirmed by the Division Bench of this Honorable Court in WA
267 of 2022 dated 23.02.2022.
7. Therefore it is submitted that the appointment of the petitioner
with effect from 15.02.2019 by the college management against
non sanctioned post without any concurrence from government is
totally illegal and a clear violation of Government orders.
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8. It is also submitted that even though the appointment of the
petitioner was in a non sanctioned post, Government has granted
permission to accommodate the petitioner on the order date of
creation and sanction of new post itself. Hence the petition is
devoid of any merit and are liable to be rejected."
7. To the counter affidavit filed by the Deputy Director of
Collegiate Education, the 1st respondent - writ petitioner filed a
reply affidavit dated 07.12.2023, producing therewith Exts.P13 to
16 documents.
8. After hearing both sides and on appreciation of the
materials on record, the learned Single Judge, by the impugned
judgment dated 16.01.2024, allowed the writ petition and
quashed Ext.P9 letter dated 22.02.2021 issued by the
Government so far it refuses approval of appointment of the 1st
respondent with effect from 15.02.2019. The learned Single Judge
further directed the Government to approve the appointment of
the 1st respondent with effect from 15.02.2019, in view of Exts.P5
and P7. It was further directed to give the consequential benefits
to the 1st respondent from 15.02.2019 to 30.12.2020. Being
aggrieved, the Government, the Director of Collegiate Education
and the Deputy Director of Collegiate Education are now before
this Court with the present writ appeal.
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9. Heard the learned Senior Government Pleader for the
appellants, the learned counsel for the 1st respondent and the
learned Standing Counsel for the University.
10. The learned Senior Government Pleader would argue
that there were only three sanctioned posts in the Commerce
Department in MES Keveeyam College, Valanchery, and during
the period from 15.12.2019 to 29.12.2020, three permanent
teachers were working in those posts. There was no sanctioned
post vacant to accommodate the 1st respondent during that
period. Later, 7 posts in the Commerce Department were
sanctioned by Ext.R3(a) order dated 30.12.2020. Permission was
granted for the appointment of the 1st respondent with effect from
30.12.2020, i.e., the date of sanctioning of the additional post by
Ext.P9 order dated 22.02.2021. As per Ext.P8 order dated
05.12.2019, permission was granted to fill up vacancies in the
Commerce Department from the existing rank list, including one
in MES Keveeyam College, Valanchery, and the same was filled up
by appointing Smt.Divya M., and there was no vacancy to
accommodate the 1st respondent. As per Ext.P7 letter dated
19.11.2018, the 2nd appellant had reported a vacancy and 9 hours
of excess workload in Commerce at MES Keveeyam College,
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Valanchery. But there was no sanctioned post to accommodate
the 1st respondent, and the Manager cannot make an appointment
on the basis of workload only.
11. On the other hand, the learned counsel for the 1st
respondent would argue that, as per the workload study, apart
from 3 teachers, there is 13 hours remaining, and after deducting
4 hours for part-time post of law, 9 hours were left, and therefore
a full-time post was admissible. From Ext.P15 judgment of a
learned Single Judge of this Court dated 17.07.2017 in
W.P.(C)No.23650 of 2015, it is clear that, as per the provisions
contained in the University Ordinance, there can be an additional
post in case the left-over post has the teaching hours of 9 hours
or more. In that event, the appointment of the 1 st respondent
would be against that admissible post. By pointing out Ext.P14
Attendance Register, the learned counsel argued that there were
4 permanent teachers in the Commerce Department, and the 1 st
respondent was appointed in the retirement vacancy of
Sri.Moideen Kutty, who retired on 30.04.2014.
12. To this argument, the learned Senior Government
Pleader replied that there is no dispute with regard to the total
working hours available in the Commerce Department. The
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dispute is with respect to 9 hours. In Ext.P7 it is stated that the
total workload is 61 hours in MES Keveeyam College, Valanchery,
and the permanent posts allotted were 3 and one part-time post
and the post of Principal. The vacancy noted in Ext.P7 was one.
As per 2002 Post Adalath, the College has 3 regular + Principal +
PTL Posts. Since the Principal had retired, 9 hours were available
in the College at that time. The learned Senior Government
Pleader further submitted that, the vacancy available was one
permanent post + 9 hours of the Principal post. Therefore, the
only vacancy was one in which another person was appointed, as
stated in the counter affidavit of the respondents in the writ
petition. The 9-hour workload available in addition to the one
vacancy could not be counted as a sanctioned post since it was
the post of Principal. In such circumstances, the appointment of
the 1st respondent by the corporate management in a non-
sanctioned post cannot be accepted.
13. There is no dispute with regard to the total workload
available during the period in dispute in MES Keveeyam College,
Valanchery. It is evident from Ext.P7 letter dated 19.11.2018
issued by the Director of Collegiate Education to the Government
that the total sanctioned posts in the College during that period
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were three permanent posts + a part-time post of law, and the
Principal post. When 16-hours minimum workload for permanent
posts was calculated, the 3 permanent teachers will be having 48-
hours workload and 4 hours for the part-time post of law, and the
remaining is 9 hours. It is true that, as per the provisions of the
University Ordinance, there can be an additional post in the case
of a leftover period of 9 hours or more. But in the present case,
the leftover period of 9 hours is for the post of Principal. Though
the 1st respondent relied on Ext.P14 Attendance Register to show
that there were 4 permanent teachers working in the post, in
which the 1st respondent was appointed to the retirement vacancy
of C.H.Moideen Kutty, the said document alone cannot be taken
as an evidence to accept that there were 4 permanent posts
available in the College during the relevant period, when it is clear
that there was no 4th sanctioned post in the college at that time.
If any appointments were made by the College over and above
the available vacancies against the sanctioned post, the 1 st
respondent cannot claim the benefit of the same. Admittedly, the
1st respondent has been appointed as the 4th teacher in the
Department of Commerce. At this juncture, it is relevant to extract
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the finding of this Court in State of Kerala v. Anas N. [2025
(5) KLT 206]. Paragraph 17 of that judgment reads thus;
"17. From the foregoing discussion, we deduce the law relating
to sanction and approval of posts as follows:
i. We affirm the proposition of law laid down in Poornima
(supra), subject to the rider that no sanction of the Government
is required if the post does not exceed the strength of posts
already created in the College as on the date of the 2005
amendment. However, if the post sought to be approved would
result in an excess over the posts sanctioned as of 2005, the
University cannot approve unless new posts are created by the
Government.
ii. Upon workload assessment, the University is duty - bound to
examine whether the post for which approval is sought, either on
account of the introduction of a new course or otherwise, would
fall within or exceed the strength of posts already created in the
college as on the date of the 2005 amendment. The University
shall not grant approval if, in its opinion, the appointment would
exceed the number of posts created as of that date.
iii. In respect of posts that do not exceed the strength of created
posts, the University is competent to approve appointments
without any further sanction from the Government, provided it is
satisfied, on workload assessment, that the appointment is
justified.
iv. Workload assessment is mandatory for both creation of posts
and approval of appointments, and such assessment shall be
carried out strictly in accordance with the UGC Regulations.
v. Based on workload assessment before 2005, if any post stood
reduced, such post shall nevertheless be deemed to continue in
existence unless it has been expressly abolished by the approving
authority. For future approval, no sanction of the Government is
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required in respect of such posts, provided they have not been
abolished by the approving authority, and the workload
assessment justifies approval of appointments to them.
vi. Based on workload assessment, if a new post is required to
be created, the University shall forward the proposal to the
Government and shall permit colleges to engage teachers on a
daily or contract basis till a decision is taken by the Government
on the creation of posts. The Government shall take a decision
on the proposal within a reasonable time without delay in the
light of the UGC regulation that discourages employing teachers
on a contract basis."
14. In the instant case, though the University has
forwarded a proposal on the basis of the request of the
management, to sanction the additional 4th post, in which the 1st
respondent was appointed, the Government has not sanctioned
the same. The said aspect is also evident from Ext.P6
communication dated 17.07.2019 issued by the University to the
Principal of MES Keveeyam College. Later, the additional posts
were sanctioned in the College only by Ext.R3(a) order dated
30.12.2020. Therefore, permission was granted for the
appointment of the 1st respondent with effect from 30.12.2020.
While considering these aspects, we find that the 1st respondent
cannot claim the relief for the period from 15.02.2019 till
30.12.2020, during the period in which she was working in a non-
sanctioned post. The learned Single Judge failed to consider these
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aspects while passing the impugned judgment. Therefore, we find
that the impugned judgment is liable to be set aside.
In the result, the writ appeal is allowed by setting aside the
impugned judgment dated 16.01.2024, passed in W.P.(C)No.2445
of 2023, and the writ petition stands dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
DSV/-
