IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 WP(C).No. 5311 of 2009(H) ------------------------------------- PETITIONER(S): ---------------------- 1. DR.A. MARIA STARVIN, LECTURER, DEPARTMENT OF CHEMISTRY, CHRISTIAN COLLEGE, KATTAKADA, THIRUVANANTHAPURAM. 2. SMT.R.S. SREEPRIYA, LECUTRER, DEPARTMENT OF CHEMISTRY CHRISTIAN COLLEGE, KATTAKADA, THIRUVANANTHAPURAM. 3. DR.B. JOSEWIN, LECTURER, DEPARTMENT OF CHEMISTRY, CHRISTIAN COLLEGE, KATTAKADA, THIRUVANANTHAPURAM BY ADV. MR.BABU VARGHESE RESPONDENT(S): ------------------------ 1. THE MANAGER, CHRISTIAN COLLEGE, KATTAKADA,THIRUVANANTHAPURAM. 2. THE UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, UNIVERSITY BUILDINGS, PALAYAM, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, TRIVANDRUM. 4. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, P.M.G. JUNCTION, TRIVANDRUM. 5. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOLLAM. R3 TO R5 BY GOVERNMENT PLEADER SMT.M.R. SREELATHA. R2 BY ADV. MR.M.RAJAGOPALAN NAIR, SC, KERALA UTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5311 of 2009(H) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CALL LETTER DATED 03/01/2008 ISSUED TO THE 1ST PETITIONER. EXT.P2: COPY OF THE MINUTES OF THE SELECTION COMMITTEE HELD ON 18/01/2008. EXT.P2(a): COPY OF THE CONSOLIDATED STATEMENT OF INTERVIEW. EXT.P2(b): COPY OF THE SELECT LIST/RANK LIST. EXT.P3: COPY OF THE RESIGNATION LETTER DATED 24/01/2008 SUBMITTED BY THE 1ST PETITIONER. EXT.P3(a): COPY OF THE RELIEVING ORDER DATED 31/02/2008 ISSUED BY THE N.S.S. H.S.S, PALKULANGARA IN FAVOUR OF THE 2ND PETITIONER. EXT.P3(b): COPY OF THE RELIEVING ORDER DATED 31/01/2008 ISSUED BY THE CHIEF CHEMICAL EXAMINER TO GOVERNMENT CHEMICAL EXAMINERS LABORATORY, THIRUVANANTHAPURAM FAVOUR OF THE 3RD PETITIONER. EXT.P4: COPY OF THE ORDER OF APPROVAL DATED 17/09/2008 GRANTED BY THE UNIVERSITY IN FAVOUR OF THE PETITIONERS. EXT.P5: COPY OF THE REVISED STAFF FIXATION ORDER DATED 16/10/2003 ISSUED BY THE 4TH RESPONDENT AFTER POST ADALATH REVIEW. EXT.P6: COPY OF THE COVERING LETTER OF THE SUPPLEMENTARY SALARY BILL DATED 14/11/2008 SUBMITTED BY THE PRINCIPAL FOR THE PERIOD FROM 2/08 TO 10/08. EXT.P7: COPY OF THE ORDER PASSED IN O.P. NO. 16572/95 DATED 26/10/1995. EXT.P7(a): COPY OF THE ORDER PASSED IN O.P. NO. 24481/98 DATED 24/01/2000. EXT.P8: COPY OF THE G.O. DATED 27/03/2001 WITH RELEVANT PORTION OF THE APPENDIX. EXT.P9: COPY OF THE REPLY SENT BY THE UNIVERSITY DATED 13/03/2009. EXT.P10: COPY OF THE REPLY DATED 05/05/2009 RECEIVED BY THE 3RD PETITIONER UNDER “RIGHT TO INFORMATION ACT”. EXT.P11: COPY OF THE JUDGMENT IN WP(C) NO. 23377 OF 2007 DATED 20/08/2007. RESPONDENT'S EXHIBITS& ANNEXURES: ANNEXURE A: COPY OF THE REVIEW STATEMENT OF THE POST ADALATH. (p.t.o.) WP(C).No. 5311 of 2009(H) ANNEXURE B: COPY OF THE LETTER NO.B4/10921/08 DATED 19/02/2009 OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOLLAM. EXT.R5(a): COPY OF THE POST ADALATH. EXT.R5(b): COPY OF THE G.O.(MS)NO.78/2001/H.EDN. DATED 11/07/2001. EXT.R1(a): COPY OF THE GOVERNMENT ORDER DATED 09/11/1998. EXT.R1(b): COPY OF THE GOVERNMENT ORDER DATED 06/12/1999. EXT.R1(c): COPY OF THE GOVERNMENT ORDER DATED 27/03/2001. EXT.R1(d): COPY OF THE RESOLUTION OF THE SENATE HELD ON 2ND AND 3RD AUGUST 2002. EXT.R1(e): COPY OF THE MINUTES OF THE MEETING HELD ON 28/02/2006 WITH THE PRIVATE COLLEGE MANAGERS ASSOCIATION IN THE CHAMBER OF CHIEF MINISTER. EXT.R1(f): COPY OF THE NOTE TO THE COUNCIL OF MINISTERS. EXT.R1(g): COPY OF THE CABINET NOTE RECEIVED FROM THE INFORMATION OFFICER OF THE HIGHER EDUCATION DEPARTMENT. EXT.R1(h): COPY OF THE QUESTIONS DATED 25/08/2007. EXT.R1(i): COPY OF THE ANSWER FURNISHED BY THE INFORMATION OFFICER DATED 10/09/2007. EXT.R1(j): COPY OF THE ANSWER FURNISHED BY THE INFORMATION OFFICER DATED 22/09/2007. EXT.R1(k): COPY OF THE ANSWER FURNISHED BY THE INFORMATION OFFICER DATED 26/09/2007. EXT.R1(l): COPY OF THE ANSWER FURNISHED BY THE INFORMATION OFFICER DATED 05/10/2007. EXT.R1(m): COPY OF THE ANSWER FURNISHED BY THE INFORMATION OFFICER DATED 02/11/2007. EXT.R1(n): COPY OF THE GOVERNMENT LETTER DATED 20/03/2001. EXT.R1(o): COPY OF THE ORDER OF APPROVAL GRANTED BY THE M.G. UNIVERSITY IN THIS REGARD DATED 15/11/2000. EXT.R1(p): COPY OF THE JUDGMENT IN WP(C) NO. 28525 OF 2004 DATED 23/01/2008. EXT.R1(q): COPY OF THE ACQUITTANCE ROLL FOR THE MONTH OF APRIL 2008. EXT.R1(r): COPY OF THE APPLICATION DATED 28/01/1999. (p.t.o.) WP(C).No. 5311 of 2009(H) EXT.R1(s): COPY OF THE PAY IN SLIP NO.631 & 632 DATED 27/01/1999. EXT.R1(t): COPY OF THE PAY IN SLIP DATED 12/05/2000. EXT.R1(u): COPY OF THE TUTION FEE AND SPECIAL FEE REMITTANCE. EXT.R1(v): COPY OF THE RECEIPT ISSUED IN RESPECT OF REGISTRATION FEE FOR FIRST M.SC. EXT.R1(w): COPY OF THE FEE RECEIPT ISSUED FOR TUTION FEE ETC. FOR 1ST M.SC. EXT.R1(x): COPY OF THE FEE RECEIPT ISSUED FOR TUTION FEE ETC. FOR IIND M.SC. EXT.R1(y): COPY OF THE UNIVERSITY ORDER NO.763/B1/2008/ACAD DATED 23/02/2008. EXT.R1(z): COPY OF THE G.O. DATED 16/03/2004 SANCTIONING ADDITIONAL TEACHING POSTS IN EMEA COLLEGE, KONDOTTY. EXT.R1(za): COPY OF THE U.O.NO.GA1/D3/3407/99 (VOL.II)(i) DATED 20/10/2001. EXT.R1(zb): COPY OF THE G.O. (RT)NO.1834/3004/H.EDN. DATED 23/12/2003. EXT.R1(zc): COPY OF THE ORDER DATED 12/11/1998, ISSUED BY THE UNIVERSITY OF CALICUT. EXT.R1(zd): COPY OF THE ORDER DATED 13/12/1999 ISSUED BY THE UNIVERSITY OF CALICUT. EXT.R1(ze): COPY OF THE UNIVERSITY ORDER DATED 23/03/2007. //TRUE COPY// P.A. TO JUDGE rs. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.5311/2009-H ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 28th day of October, 2009 J U D G M E N T The petitioners herein are aggrieved by the refusal to pay salary inspite of grant of approval of their appointments by the University as per Ext.P4. 2. A reading of Ext.P4 shows that the petitioners have been granted approval with effect from 01/02/2008 in three retirement vacancies. 3. Ext.P8 is the copy of the Government Order by which the courses were sanctioned and the respondents are relying upon the same to contend that there is no liability for the Government to pay salary in the light of the conditions imposed therein. 4. In the additional counter affidavit filed on behalf of the fifth respondent, reliance is placed on the decision of the Division Bench of this Court in W.A.No.2529/2005. In the counter affidavit filed on behalf of the first respondent also the said stand is repeated. It is explained in the additional counter affidavit that the course M.Sc Chemistry was sanctioned during the year 2001-02 on condition that there will be no financial commitment on the part of the Government. W.P.(C). No.5311/2009 -:2:- 5. Therefore, it is a case where respondents are relying upon the conditions of the said Government Order to deny salary to the petitioners. The legal issue is now covered by the order of the Division Bench in R.P.Nos.101/2008 and 180/2008 in W.A. No.2529/2005 and connected cases. The judgment rendered by this Court earlier, in W.A.No.2529/2005, has been recalled in R.P.No.101/2008 and 180/2008. W.A.No.2529/2005 was re-heard and stands dismissed. 6. The Division Bench considered various aspects and finally held in paragraph (22), 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 W.P.(C). No.5311/2009 -:3:- 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 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.” 7. Accordingly, it was directed 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. W.P.(C). No.5311/2009 -:4:- 8. In that view of the matter, as the only objection raised by the respondents is based on the earlier judgment of the Division Bench in W.A.No.2529/2005 which has been recalled and as the matter is now covered by the judgment dated 07/10/2009 in W.A.No.2529/2005, the stand taken in the counter affidavits cannot be sustained. 9. Therefore, there will be a declaration that the petitioners are entitled to be paid salary and other benefits with arrears in their respective posts with effect from 01/02/2008 on the strength of Ext.P4. The fifth respondent is hereby directed to honour Ext.P4 and disburse salary and other benefits with arrears with effect from 01/02/2008 on production of the salary bills by the Principal within two months. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms