IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 WP(C).No. 17358 of 2008(N) -------------------------- PETITIONER: ---------------- MARYKUTTY JOHN, LECTURER (SELECTION GRADE), DEPARTMENT OF PHYSICS, NEWMAN COLLEGE, TRIVANDRUM. BY ADV. SRI.BABU VARGHESE RESPONDENTS: ------------------ 1. THE CORPORATE MANAGER, CORPORATE EDUCATION AGENCY, DIOCESE OF KOTHAMANGALAM KOTTAYAM. 2. THE MAHATHMA GANDHI UNIVERSITY, REP. BY ITS REGISTRAR, PRIYADARSHINI HILLS.P.O, KOTTAYAM. 3. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, P.M.G. JUNCTION, TRIVANDRUM. 4. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM. BY ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY FOR R2 GOVT.PLEADER SMT.T.B.REMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.17358/08 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE ORDER OF APPROVAL GRANTED BY THE UNIVERSITY INHER INITIAL APPOINTMENT DATED 21.6.1996. EXT.P1(a): TRUE COPY OF THE ORDER OF APPROVAL GRANTED BY THE UNIVERSITY FOR HER CONTINUANCE IN SERVICE, DT 23.9.96. EXT.P1(b): TRUE COPY OF THE ORDER OF APPROVAL GRANTED BY THE UNIVERSITY IN HER SHIFTING TO THE PERMANENT POST, DT 11.12.1996. EXT.P2: TRUE COPY OF THE ORDER OF APPROVAL GRANTED BY THE UNIVERSITY TO THE PROMOTION AS SENIOR GRADE LECTURER, DT 30.11.2001. EXT.P2(a): TRUE COPY OF ORDER OF APPROVAL GRANTED BY THE UNIVERSITY TO THE PROMOTION AS SELECTION GRADE LECTURER DT 8.8.2006. EXT.P3: TRUE COPY OF THE LETTER DT 26.2.2007 SENT BY THE 4TH RESPONDENT TO THE PRINCIPAL REJECTING THE PROPOSAL/SALARY OF THE PETITIONER. EXT.P4: TRUE COPY OF THE REPLY DT 5.12.2007 GIVEN BY THE UNIVERSITY TO THE 4TH RESPONDENT. EXT.P5: TRUE COPY OF THE LETTER DT 5.2.2008 SENT BY THE PRINCIPAL TO THE 4TH RESPONDENT CLAIMING THE SALARY OF THE PETITIONER. EXT.P5(a): TRUE COPY OF THE LETTER DT 7.5.2008 SENT BY THE 4TH RESPONDNET TO THE PRINCIPAL REJECTING THE SALARY CLAIM OF THE PETITIONER. EXT.P6: TRUE COPY OF THE CERTIFICATE DT 3.6.2008 ISSUED BY THE PRINCIPAL, PAVANATMA COLLEGE, IN RESPECT OF SALARY PAYMENT OF SRI.SAJI CHACKO. EXT.P6(a): TRUE COPY OF THE CERTIFICATE DT 2.5.2008 ISSUED BY THE PRINCIPAL, NEW MAN COLLEGE IN RESPECT OF SALARY PAYMENT OF S.SANKARA RAMAN. EXT.P7: TRUE COPY OF THE JUDGMENT IN OP NO.17890/98 DT 25.9.1998. EXT.P7(a): TRUE COPY OF THEORDER IN CMP NO.43075/98 IN OP NO.24481/1998 DT 24.1.2000. WPC NO.17358/08 -2- EXTS. OF R4 EXT.R4(a): A TRUE PHOTOCOPY OF THE CIRCULAR DT 9.2.2004. EXT.R4(b): A COPY OF THE ADALATH REVIEW //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. =============== W.P.(C) NO. 17358 OF 2008 (N) ==================== Dated this the 23rd day of September, 2008 J U D G M E N T The prayer sought in this writ petition is to quash Exts. P3 and P5 (a). Petitioner also seeks a declaration that she is entitled to get salary and other benefits in the promoted post of Selection Grade Lecturer w.e.f. 1/8/04 in the light of Ext.P2(a) and seeks an order requiring release of benefits. 2. Facts are that by Ext.P1 petitioner was initially appointed in a leave vacancy for the period 1/8/94 to 3/6/95. However, without any break, petitioner continued in the post till 01/04/96, when she was shifted to a substantive vacancy that was then available. These appointments were approved by the University as evidenced by Exts. P1(a) and (b). Subsequently, the petitioner was granted Senior scale effective from 1/8/99 and this was also approved by the University as per Ext.P2.Thereafter, Selection grade was conferred on the petitioner effective from 1/8/04 and that again was approved by the University as per Ext.P2(a). 3. By Ext.P3, the Deputy Director raised objection that as there WPC 17358/08 :2 : was no work load, conferment of selection grade on the petitioner needs to be reviewed. It is seen that the matter was taken up with the University and the University stood by its earlier approval by Ext.P4 reply to the Deputy Director. The Principal thereafter again took up the matter with the Deputy Director as per Ext.P5 and the Deputy Director reiterated his stand that as per the existing rules, the promotion of the petitioner in the Selection grade cannot be accepted, as according to him, she was working against an excess post. It is in this background writ petition has been filed. 4. Learned Government Pleader on the other hand relies on Ext.R4(a), an order dated 9/2/2004 issued by the Government, in which, it is stated as follows: It is clarified that those who were appointed since 1.4.1990 against Pre-degree vacancies and are continuing without any workload, and those who are newly appointed against the posts required for the new courses that have been started with specific direction that “the expenditure will not exceed the budget allotment” Or “without additional financial commitment”, will not be eligible for placements in the Senior Scale and Selection Grade under the career advancement Scheme. Referring to Ext.R4(b), it is contended that there was excess staff in the WPC 17358/08 :3 : Physics Department and therefore the work load did not justify grant of selection grade to the petitioner. 5. In my view, the petitioner is entitled to succeed. As already noticed, appointment of the petitioner has been approved by the University as per Exts. P1(a) and (b). Senior scale granted to the petitioner was also approved as per Ext.P2. Selection grade was also approved by the University as per Ext.P2(a). It has been held by this court in Cherian Mathew v. Principal S.B.College, Changanassery (1998 (2) KLT 144) and Shalini Rachel v. Manager, Christian College (2007(3) KLT 355) that once the University has approved the appointment of a teacher, the Deputy Director cannot sit in judgment over such approval. It has also been held that once approval has been granted, the petitioner is entitled to salary and other benefits and that in case the Deputy Director has any doubt about the approval granted, it is up to him to take up the issue with the University and thereafter decide the matter in terms of the clarification issued by the University. In this case as is seen from Ext.P4, Deputy Director has taken up the matter with the University and the University has stood by the approval it has granted. If that be so, WPC 17358/08 :4 : in view of the approval granted by the University and Ext.P4 reply given to the Deputy Director, the issue should be concluded in favour of the petitioner. 6. There is yet another reason for me to come to this conclusion. The dispute in this case pertains only to the grant of Selection grade to the petitioner and the Deputy Director has not so far raised any objection regarding the grant of Senior scale to the petitioner. If Senior scale can be granted, I wonder how the Selection grade could be denied to the petitioner. Petitioner also has a case if if due to absence of workload, if any action is to be taken, it can be only against the other lecturers, who are far junior to the petitioner and this contention remains unanswered. Counsel for the petitioner submits that as is evident from Ext.P6(b), there are several other lecturers who are junior to the petitioner. 7. Learned Government Pleader contends that since the reason for the petitioner's ineligibility for selection grade is Ext.R4(a) and as Ext.R4(a) was not considered in the cases of Cherian Mathew and Shalini Rachel, those judgments cannot be of any assistance to the petitioner. I am not in a position to accept this plea. WPC 17358/08 :5 : 8. As already seen, the judgments are categoric that approval is a matter exclusively within the domain of the University and that once approval is granted by the University, Deputy Director is bound by such approval. In this case, approval has been granted and therefore the objection now raised by the Deputy Director and reiterated in Exts. P3 and P5(a) are devoid of any substance. 9. These orders will stand quashed and it is held that the petitioner is entitled to arrears of salary and other benefits as claimed w.e.f. 1/8/04. Necessary orders in this behalf shall be passed and benefits released, as expeditiously as possible, at any rate within 8 weeks of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp