IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 WP(C).No. 20298 of 2009(F) -------------------------------- PETITIONER: -------------- DR.N.B.SREEKALA, W/O.K.RAJSEKHAR, LECTURER, DEPARTMENT OF CHEMISTRY, S.N.COLLEGE, CHATHANNOOR, KOLLAM, RESIDING AT THE INSTITUTE OF HOTEL MANAGEMENT AND CATERING TECHNOLOGY, G.V.RAJA ROAD, KOVALAM, THIRUVANANTHAPURAM-695 527. BY MR.B.MOHANLAL, ADVOCATE. RESPONDENTS: ------------------ 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOLLAM. 3. THE UNIVERSITY OF KERALA REPRESENTED BY THE REGISTRAR, PALAYAM, THIRUVANANTHAPURAM. BY MS.T.B. REMANI, SR. GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.20298 OF 2009 --------------------------------------- Dated this the 23rd day of October, 2009. J U D G M E N T The petitioner is aggrieved by the objection taken by the 2nd respondent regarding approval of appointment and consequential denial of salary and allowances for the post in question. 2. The petitioner was appointed as Lecturer in S.N.College, Chathannoor as per Exhibit P1 order. Pursuant to Exhibit P1, the petitioner joined service on 03.01.2005. Exhibit P2 is the order passed by the University approving the appointment of the petitioner with effect from 03.01.2005. Thereafter, salary bill was forwarded through the Principal. But, by Exhibit P4, the same was declined. 3. The 2nd respondent therein relied upon the decision of a Division Bench of this Court in Writ Appeal No.2529/2005 and W.P.(C)No.19992/2005 and connected cases. It was pointed out that the petitioner was appointed in a new course for Industrial W.P.(C) No.20298/2009 2 Chemistry sanctioned in the college with a condition that there will be no additional financial commitment on the part of the Government. It is submitted that the appointment was in a transfer vacancy in permanent post. 4. It is submitted that presently the judgment in Writ Appeal No.2529/2005 has been recalled by the order in R.P.Nos.101 and 180 of 2008 produced as Exhibit P6 herein. It is also pointed out that Exhibit R2(c) produced along with the counter affidavit of the 2nd respondent will show that the University has given further clarification in the matter to the Deputy Director of Collegiate Education and therefore, once the approval has been granted by the University, the respondents cannot deny salary to the petitioner. 5. Exhibit P6 order passed by the Division Bench in R.P.Nos.101 and 180 of 2008 shows that the judgment in W.A.No.2529/2005 has been recalled. Going by paragraph 7 of the said order, the Court was of the view that earlier Division Bench did not advert to relevant statutory provisions or the Direct Payment Agreement and facts which are relevant to issue. W.P.(C) No.20298/2009 3 Subsequently, the writ appeal was disposed of by a separate judgment on 07.10.2009. 6. After considering various aspects and by relying upon certain judgments rendered by this Court, it was held thus in paragraph 22: “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 Agreement. Therefore, the Government and the University also had accepted W.P.(C) No.20298/2009 4 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. It was further held that “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.....”. 8. In the light of the above legal position, the objection taken in Exhibit P4 by relying upon the judgment in W.A.No.2529/2005 dated 18.08.2007 cannot be supported. The respondents cannot take up the contention that there will be no additional financial commitment on the part of the Government. Apart from the above, once the University has granted approval and again clarified their stand after the Deputy Director of Collegiate Education raised objection regarding the approval, the salary and allowances cannot be denied. This legal position is well settled by the decisions of this Court in Cherian Mathew vs. Principal S.B.College (ILR 1998(3) Kerala 1) and in W.P.(C) No.20298/2009 5 Shalini Rachel vs. Manager, Christian College (2007(3) KLT 355). On that ground also, the objection raised regarding grant of approval cannot be sustained. Therefore, Exhibit P4 is quashed. There will be a direction to the 2nd respondent to disburse the salary and arrears from 03.01.2005 onwards to the petitioner in terms of the salary bills forwarded by the Principal within a period of six weeks from the date of receipt of a copy of this judgment. This writ petition is allowed as above. T.R. RAMACHANDRAN NAIR JUDGE smp