IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 WP(C).No. 21209 of 2010(A) -------------------------- PETITIONER(S): ----------------------- SAKKEENA M.K.,AGED 33, W/O.ABDUL RAHAMAN ALAKKTHODUVIL HOUSE, IRUVETTY P.O, AREACODE (VIA) MALAPPURAM (LECTURER IN ARABIC, M.E.S MAMPAD COLLEGE, MAMPAD, MALAPPURAM. BY ADVS. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SMT.K.M.RAMYA SRI.P.K.RAKESH KUMAR RESPONDENT(S): ------------------------- 1. STATE OF KERALA TO BE REP. BY SECRETAY, HIGHER EDUCATION DEPARTMENT GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. DIRECTOR OF COLLEGIATE EDUCATION GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, REGIONAL OFFICE, KOZHIKODE. 4. PRINCIPAL, M.E.S , MAMPAD COLLEGE, MALAPPURAM. 5. REGISTRAR, UNIVERSITY OF CALICUT, THENJIPALAM. ADV. SRI.P.C.SASIDHARAN, SC, CALICUT UTY GOVERNMENT PLEADER MR.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 21209 of 2010 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the order bearing No.GAII/A3/100/2006 dated 28.7.08. Ext.P2 :- Copy of th order bearing No.GAII/A3/100/2006 dated 31.3.2009. Ext.P3 :- Copy of the statement for reassessment of work load on the basis of meeting on 18.12.02. Ext.P4 :- Copy of the proforma-1 statement of workload for the year 2008-09. Ext.P5 :- Copy of the letter bearing No.D1-7901/09 of Deputy Director of Collegiate Edn., Kozhikode. Ext.P6 :- Copy of the proforma-1 statement of workload for the year 2009-10. Ext.P7 :- Copy of the proforma-II-statement showing the allotment of work load for the year 2009-10. Respondent's Exhibits :- NIL //True Copy// P.A. to Judge K.T.SANKARAN, J. ------------------------------ W.P.(C).No.21209 OF 2010 ------------------------------ Dated this the 28th day of September, 2010 JUDGMENT The petitioner was appointed as Lecturer in Arabic in M.E.S Mampad College by the order dated 30.6.2005 with effect from 1.7.2005 in the leave vacancy of Smt.C.Habeeba. When a retirement vacancy arose on 30.6.2008, the petitioner's appointment was shifted to that retirement vacancy of P.P.Abdul Salam as Arabic Lecturer with effect from 1.8.2008. It is stated that both these spells of appointments were approved by the University. 2. The grievance of the petitioner is that though the University approved the appointment of the petitioner, she was not paid salary. The salary bill for the month of September, 2009, when submitted for counter signature of the Deputy Director of Collegiate Education, he retained the same without countersigning. W.P.(C).No.21209 OF 2010 2 3. The reliefs prayed for in the Writ Petition are the following: “i. Call for records connecting Exts.P-1 to P-7 from the respondents concerned. ii. Issue Writ of Mandamus directing 3rd respondent to countersign the salary bills of the petitioner for the month September, 2009 and other bills as and when presented; iii. Such other reliefs as this Hon'ble Court may deems fit and proper; iv. Award cost to the petitioner.” 4. It is well settled that when the University approves the appointment of a teacher, the Government cannot deny salary to the teacher vide Shalini Rachel v. Manager, Christian College (2007 (3) KLT 355) and Cherian Mathew v. Principal S.B.College, Changanassery (1998 (2) KLT 144). 5. The learned Government Pleader submitted that permission of the Government was not obtained before making the appointment. In Cherian Mathew's case such a contention was also considered and it was held thus: W.P.(C).No.21209 OF 2010 3 “ No provision of the University Act, First Statutes, Ordinances or Regulations in force enables the Government to sit in judgment over the decision arrived at by the University regarding the number of teachers to be appointed in a Department in a college run by a private management. In the absence of such a provision, the Government is not entitled to impose a condition that prior approval from the Director of Collegiate Education is needed for a management to appoint a teacher in its staff”. 6. The learned Government Pleader submitted that there is dispute with regard to the work load and this may enable the Government to contend that the petitioner should not have been appointed. The learned counsel for the petitioner submitted that the petitioner was appointed at first in a leave vacancy and thereafter in a retirement vacancy and therefore, the contention put forward by the learned Government Pleader may not be sustainable. The counsel also pointed out that such a contention was also considered in Shalini Rachel's case and dealt with as follows: “9. We are of the view, above mentioned provisions of the University Act, Statues and Ordinances would clearly indicate that it is for the University to sanction the post as per clause (3) of Statue 14 of the Kerala University (Conditions of Service of W.P.(C).No.21209 OF 2010 4 Teachers and Members of Non-teaching Staff) First Statues, 1979 in the case of private colleges coming under the Direct Payment Scheme, depending upon the work load and staff pattern fixed by the University. Once University accords sanction of a post and grants approval depending upon the work load 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 work load 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. xxxxx xxxxx xxxxxx 11. We have no reason to think that an august body like Syndicate or the Deputy Director of Collegiate Education would act arbitrarily or against public interest while exercising powers statutorily conferred on them. Sub-s.(1) of S.57 only says that appointments to the posts eligible to receive salary from the Government shall be made only after getting prior sanction from or from such officers authorized by the Government. For filling up the posts sanctioned by the University on the basis of work load or staff pattern, no prior permission of the Government is necessary. Once Syndicate of the University grants approval for filling up the existing vacancies depending upon the workload and staff pattern Government is obliged to pay salary of the teachers appointed by duly constituted Selection Committee. If Government or its officers find that the approval was granted by the University illegally it can always take up the matter before the University or other forums so that public interest will not suffer. S.57 (1) was introduced not to take away the statutory powers already conferred on the W.P.(C).No.21209 OF 2010 5 Syndicate of the University. Principle laid down in Cherian Mathew's case, supra in our view, still holds good. In view of the above mentioned circumstances, we are inclined to affirm the judgment of the learned single Judge in W.P.C.No.12109 of 2006 and dismiss W.A.No.940 of 2007.” 7. Reserving the right of the Head of the Department to move the University as held in Shalini Rachel's case, the Writ Petition is allowed. There will be a direction to the third respondent to countersign the salary bills of the petitioner for the month September, 2009 and for the subsequent periods. K.T.SANKARAN, JUDGE. cms