IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 WP(C).No. 592 of 2009(U) ----------------------------------- PETITIONER: ------------------- SALIA REX, LECTURER, DEPARTMENT OF ENGLISH, ST. PAUL'S COLLEGE, KALAMASSERY, ERNAKULAM DISTRICT. BY ADV. MR.A.A. ABUL HASSAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, CENTRAL ZONE, M.C.R.V. HOSTEL BUILDING, HOSPITAL ROAD, ERNAKULAM, KOCHI -11. R1 TO R3 BY GOVERNMENT PLEADER MR. DILIP MOHAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/12/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.592/2009-U: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPOINTMENT ORDER DTD. 08/11/2005 ISSUED TO THE PETITIONER. EXT.P.2: COPY OF THE CERTIFICATE TO THE EFFECT THAT THERE ARE NO SUPERNUMERARY HANDS IN THE DEPARTMENT OF ENGLISH DTD. 29/12/05. EXT.P.2.A: COPY OF THE WORKLOAD STATEMENT ANNEXED TO THE PROPOSAL FOR APPROVAL OF APPOINTMENT. EXT.P.3: COPY OF THE JUDGMENT IN W.P.(C).NO.1714/2008 DTD. 25/01/2008 OF THIS HONOURABLE COURT. EXT.P.4: COPY OF THE UNIVERSITY ORDER DTD. 07/05/2008 APPROVING THE APPOINTMENT. EXT.P.5: COPY OF THE UNIVERSITY LETTER DTD. 13/11/2008 ISSUED TO THE R.3. EXT.P.6: COPY OF THE LETTER NO. AC BII/1640/2009 DTD. 27/03/2009. EXT.P.7: COPY OF THE RELEVANT PAGES OF THE G.O.(MS).NO.134/98 DT. 09/11/1998 RELATING TO M.G. UNIVERSITY AND CALICUT UNIVERSITY ISSUED BY THE GOVT. OF KERALA. EXT.P.8: COPY OF THE MINUTES OF THE SELECTION COMMITTEE, DTD. NIL. EXT.P.9: COPY OF THE COVERING LETTER OF THE PRINCIPAL, DT. 30/01/2006. EXT.P.10: COPY OF THE G.O.(RT).NO.365/2004/H. EDN. DTD. 16/03/2004. EXT.P.11: COPY OF THE RELEVANT PORTION CONCERNING SOME OF THE COLLEGES AFFILIATED TO CALICUT UNIVERSITY IN G.O.(MS).NO.162/99 DTD. 06/12/1999. EXT.P.12: COPY OF THE ORDER DTD. 15/06/2001 OF THE CALICUT UNIVERSITY. EXT.P.13: COPY OF THE ORDER DTD. 23/12/2003 ISSUED BY THE GOVT. OF KERALA. EXT.P.14: COPY OF THE LETTER DTD. 02/04/2009 OF THE PRINCIPAL OF THE ST. PAUL'S COLLEGE, KALAMASSERY. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.592 OF 2009 --------------------------------------- Dated this the 4th day of December, 2009. J U D G M E N T The petitioner herein is working as Lecturer, Department of English in the St.Paul's College, Kalamassery. The main prayer in the writ petition is for a direction to the 3rd respondent to pass verification order in respect of the appointment of the petitioner and disburse her salary from the date of her joining duty on 16.11.2005 in the college. 2. Learned counsel for the petitioner submitted that the legal issue is covered in favour of the petitioner in the light of the order passed by the Division Bench in R.P.Nos.101 and 180 of 2008 and in W.A.No.2529/2005 and connected cases. 3. Exhibit P1 is the copy of the appointment order pursuant to which she joined service. She was appointed against the retirement vacancy of Prof.M.P.Joseph, Head of the Department of English who retired from service on 31.03.2004. Exhibit P2 is the certificate forwarded by the Principal and Exhibit P2(A) is the W.P.(C) No.592/2009 2 statement of workload annexed to it. Exhibit P4 shows that the University approved the appointment as early as on 07.05.2008 with effect from 16.11.2005. The Deputy Director of Collegiate Education again took up the matter before the University and the University, by Exhibit P5 communication dated 13.11.2008 informed the Deputy Director that the Syndicate Standing Committee on Affiliation held on 03.11.2008 resolved to reiterate its earlier decision of approving the appointment of the petitioner. In spite of the same, the Deputy Director did not honour the salary bills which has compelled the petitioner to approach this Court by filing this writ petition. 4. In the counter affidavit filed on behalf of the 3rd respondent, in paragraph 4 it is stated that the Government have sanctioned vocational courses in order to reinstate the teaching staff who became excess in the college due to pre- degree de-linking and 75 hours are allotted for English Department. This workload of the said courses cannot be accounted for making new appointments in the department. It is further mentioned in the said paragraph that these vocational W.P.(C) No.592/2009 3 courses will be run solely with the existing staff of the college and no financial liability against the Government will be involved. 5. The petitioner has filed an interlocutory application producing a copy of the letter namely, Exhibit P6 dated 27.03.2009 from the Registrar of the University to the Principal Secretary to Government concerning the very same appointment. Therein, the decision regarding approval of the appointment of the petitioner has been reiterated and it is informed that the meeting of the Standing Committee of the Syndicate on Affiliation held on 05.03.2009 vide paper (2), considered the objections of the Government regarding the approval granted to the appointment of the petitioner and resolved not to review the earlier decision of granting approval to her initial appointment with effect from 16.11.2005. 6. The question is whether in the light of these proceedings namely, Exhibits P4, P5 and P6 of the University whereby the University has reiterated the grant of approval in regard to the appointment of the petitioner, the respondents can refuse to pay the salary. The matter is covered by various judgments of this W.P.(C) No.592/2009 4 Court. Specific reference can be made to the decision of the Division Bench in Cherian Mathew vs. Principal S.B. College, Changanassery (1998(2)KLT 144) and later decision of the Division Bench in State of Kerala vs. Dr.Sinha & others (ILR 2007(3)Kerala 122). In State of Kerala vs. Dr.Sinha & others (ILR 2007(3)Kerala 122), the Division Bench after analysing the various aspects held thus: “....Once University accords sanction of a post and grants approval depending upon the workload and staff pattern, the Deputy Director of Collegiate Education shall verify before making direct payment of salaries as to whether the post for which payment is claimed is in accordance with the staff pattern and 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....”. 7. In that view of the matter, going by Exhibits P5 and P6, even after the Deputy Director of Collegiate Education and the Government have taken up the matter before the University, the University has reiterated the grant of approval. Therefore, going W.P.(C) No.592/2009 5 by the dictum laid down in the above two cases, the respondents are obliged to disburse the salary. 8. The respondents have raised another issue that the courses sanctioned by them is with a specific condition that the financial liability cannot be borne by the Government. The said issue is also covered against the respondents in the light of the order passed in R.P.Nos.101 and 180 of 2008 and the revised judgment in W.A.No.2529/2005. In paragraph 22 of the judgment in W.A.No.2529/2005, after considering similar contentions, the Division Bench held thus: “In our view an argument against the above conclusion or 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 matter as provided in the Direct Payment Agreement, fee would not have been W.P.(C) No.592/2009 6 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 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”. 9. Their Lordship further held in paragraph 23 that 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. In that view of the matter, the petitioner is entitled to succeed in the writ petition. Therefore, this writ petition is allowed. Since it is submitted that the bills have been returned, the Principal of the College will have to resubmit the bills to the Deputy Director of Collegiate Education within a period of one month from the date of receipt W.P.(C) No.592/2009 7 of a copy of this judgment. The 3rd respondent will thereafter take action to disburse the salary, including arrears, in terms of the bills thus produced within a further period of two months. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp