IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 WP(C).No. 27508 of 2007(Y) -------------------------- PETITIONER(S): --------------- REENA NAIR, LECTURER IN DEPARTMENT OF ENGLISH, NEHRU ARTS AND SCIENCE COLLEGE, KANHANGAD, KASARAGOD. BY ADV. SRI.P.C.SASIDHARAN SRI.E.S.ASHRAF RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOZHIKODE. 3. THE KANNUR UNIVERSITY REPRESENTED BY ITS REGISTRAR, MANGATTUPARAMBA, KANNUR. 4. THE PRINCIPAL, NEHRU ARTS AND SCIENCE COLLEGE, KANHANGAD, KASARAGOD. R1 & R2 BY GOVT. PLEADER MR.DILIP MOHAN R3 BY ADV. MR.M.SASEENDRAN,SC,KANNUR UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/11/2009, ALONG WITH WPC NO. 27653 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 27508/2007-Y & 27653/2007-P - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of November, 2009. JUDGMENT The petitioners herein are working as Lecturers in the Department of English in Nehru Arts and Science College, Kanhangad. Since the issue raised in both these writ petitions are similar, they are disposed of by a common judgment. 2. The grievances raised by the petitioners is regarding the refusal by respondents 1 and 2 to pay salary to them in spite of the appointments having been approved by the University. 3. The management of the college invited applications for appointment to the post of Lecturers in various departments including the department of English on 12.5.2004. The petitioner in W.P.(C) No.27653/2007 stood as rank No.1 and the petitioner in the other writ petition was appointed in the vacancy which arose consequent on the resignation of rank No.1. 4. The petitioner in W.P.(C) No.27508/2007 was granted approval of appointment by the University as per Ext.P2 produced therein and the wpc 27508/07 & 27653/07 2 petitioner in W.P.(C) N.27653/2007 was granted approval as per Ext.P7 produced therein. 5. Even though the salary bills were forwarded by the Principal, the Deputy Director returned the same with a note for want of clarification from the Director of Collegiate Education. The sanction of the Deputy Director of Collegiate Education is under challenge in these writ petitions. 6. The respondents have filed separate counter affidavits. In the counter affidavit filed by the second respondent, it is averred that at the time of appointment of the petitioners there were four teachers working in the English Department against the workload of 51 hours. As per the Adalath of the Director of Collegiate Education, Thiruvananthapuram the workload assessed in English Department was 51 hours and the eligible teaching post is 3 + 1 Principal. In the proceedings order of the Director of Collegiate Education, it was mentioned that four teachers are excess in the department of English. The workload assessed by the Principal in English Department is 126 hours. It includes the workload of conditional courses of M.A. English, B.Sc. Plant Science and B.Sc. Polymer Chemistry. These conditional courses were approved by the Government subject to the condition that the expenditure will not exceed the budget allotment for the wpc 27508/07 & 27653/07 3 purpose on any account and that there will be no additional financial commitment on the part of the Government on this account. Therefore, the contention raised is that the conditional courses sanctioned above are to be excluded from the workload assessment. It is also mentioned that the University was asked to clarify the position as per Ext.R2(a) and Ext. R2(b) is the reply. 7. In the counter affidavit filed on behalf of the University, it is pointed out that when the total number of teaching is 126 hours, there could be 8 lecturers in English as per the Ordinance. Since there were only 6 permanent teachers, the college could appoint two more lecturers and the selection process was initiated for filling up those two vacancies. Ext.R3(b) is the order granting provisional approval and Ext.R3(c) is the order passed by the University pursuant to the decision of the Syndicate and accordingly the approval was made absolute. Ext.R3(d) is the communication sent by the Registrar of the University to the Deputy Director of Collegiate Education. In the additional counter affidavit filed on behalf of the second respondent, the contention taken is that the workload will be only 37 hours. 8. The substantial contention raised by the respondents, therefore, is that the workload as per the conditional courses sanctioned by the wpc 27508/07 & 27653/07 4 Government cannot be reckoned. Reliance is placed on the decision of a Division Bench of this Court in W.A. No.2529/2005. 9. The judgment rendered by the Division Bench referred to above, was recalled in R.P. Nos.101/2009 and 180/2009, by order dated 7.10.2009. Thereafter, the Writ Appeals were again heard and disposed of by separate judgment dated 7.10.2009. The question whether the Government can wriggle out of the liability to pay salary was considered in paragraph 22 and it was held thus: “In our view an argument against the above conclusion of ours, cannot even be raised by the Government for the reason that till this issue was raised, the Government and the University conducted themselves on the basis that the courses in question are aided courses. Otherwise, statutory selection committees applicable to aided colleges would not have been constituted with the participation of the representative of the Government and the University for selecting and appointing the lecturers including respondents 1 to 7 and for the courses sanctioned as per Exts.P2 and P2(a), admissions would have been made in the manner as provided in the Direct Payment Agreement, fee would not have been collected at the rate applicable to aided courses, fee would not have been remitted in the Treasury as provided in the Direct Payment Agreement and remittance in the Treasury would not have been accepted but for the fact it was payable under the Direct Payment wpc 27508/07 & 27653/07 5 Agreement. Therefore, the Government and the University also had accepted that the courses in question are aided courses. Having done all these, there is no merit or grace in the offer now made by the learned Government Pleader that they are willing to refund the fee remitted by the Management.” In para 23 it was held thus: “If this be the position, the University is bound to reckon the additional workload and consider the proposal of the college for approval of the appointments made having regard to the provisions contained in Statute 16 of Chapter 45B of the University Statutes. Therefore, we cannot find fault with the conclusion of the learned judge that the Government was not justified in incorporating unilateral conditions in the order sanctioning the course, in breach of the statutory Direct Payment Agreement and the provisions of the University Act and the Rules.” 10. The contention that the courses which were started subsequent to the signing of the Direct Payment Agreement are not covered by the terms of the agreement, was also rejected in para 25 of the judgment. Therefore, the view taken is that the conditions relied on by the Government are in violation of the provisions contained in the Direct Payment Agreement and University Statutes and therefore ultra vires and illegal. 11. In the light of the above, the sole objection that the workload wpc 27508/07 & 27653/07 6 cannot be fixed after reckoning the workload in respect of the conditional courses, cannot be accepted. It is also clear from the decision of a Division Bench of this Court in Cherian Mathew v. Principal, S.B. College, Changanassery (1998 (2) KLT 144) that once the University has granted approval of the appointment, the Government and its authorities cannot sit in appeal over the same. In the light of the said legal position also, the liability to pay salary cannot be disputed. Therefore, the writ petitions are allowed. There will be a direction to the Deputy Director of Collegiate Education to countersign the salary bills of the petitioners and to see that the salary including all the arrears are disbursed within a period of three months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/