IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 WP(C).No. 31530 of 2007(C) --------------------------------------- PETITIONER: ------------------- BEENA GEORGE, LECTURER IN MATHEMATICS, MORNING STAR HOME SCIENCE COLLEGE, ANGAMALY SOUTH P.O. BY ADV. MR.BABU VARGHESE. RESPONDENTS: ------------------------ 1. STATE OF KERALA,REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT , DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, P.M.G.JUNCTION, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM. 4. THE MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS P.O. 5. MANAGER MORNING STAR HOMES SCIENCE COLLEGE, ANGAMALY SOUTH P.O. R1 TO R3 BY SR. GOVERNMENT PLEADER SMT. T.B. REMANI, R4 BY MR. T.A. SHAJI, SC, M.G.UNIVERSITY, R5 BY ADV. MR.V.C.JAMES. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.31530/2007-C: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE UNIVERSITY ORDER GRANTING AFFILIATION TO B.SC. CHEMISTRY (V) POLYMER COURSE DTD. 13/11/1998. EXT.P.2: COPY OF THE UNIVERSITY ORDER GRANTING AFFILIATION TO B.SC. PHYSICS (V) ELECTRONICS DTD. 10/12/1999. EXT.P.3: COPY OF THE G.O.(MS).152/80 H. EDN. DTD. 09/10/1980, BRING THE COLLEGE UNDER DIRECT PAYMENT SCHEME. EXT.P.4: COPY OF THE MINUTES OF THE SELECTION COMMITTEE HELD ON 27/09/1999. EXT.P.5: COPY OF THE APPOINTMENT ORDER ISSUED IN FAVOUR OF THE PETITIONER DTD. 29/09/1999. EXT.P.5.A: COPY OF THE ORDER OR APPROVAL GRANTING APPROVAL TO THE APPOINTMENT OF THE PETITIONER BY THE UNIVERSITY DTD. 05/08/2006. EXT.P.6: COPY OF THE LETTER SENT BY THE R.2. TO THE PRINCIPAL DIRECTING TO OBTAIN GOVERNMENT SANCTION, DTD. 16/06/2006. EXT.P.7: COPY OF THE STAFF FIXATION ORDER ISSUED BY THE R.2. WITH THE COVERING LETTER DTD. 13/02/2004. EXT.P.8: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. EXT.P.8.A: COPY OF THE REPRESENTATION SUBMITTED BY THE R.5. BEFORE THE R.1. EXT.P.9: COPY OF THE G.O.(MS).NO.56/999/H. EDN. DTD. 10/06/1999 LIFTING THE CONDITION OF FINANCIAL COMMITMENT IN THE MATTER OF APPOINTMENT IN K.G. COLLEGE, PAMPADY. EXT.P.9.A: COPY OF THE GOVERNMENT LETTER NO. 23139/D1/99 H. EDN. DTD. 20/03/01 GRANTING CONCURRENCE TO THE APPOINTMENT OF SMT. ANITHA THOMAS, BAM COLLEGE, THURUTHICADU. EXT.P.10: COPY OF THE ORDER DTD. 31/10/2007 IN W.P.(C).NO.28139/2007. EXT.P.10.A: COPY OF THE JUDGMENT DTD. 23/01/2008 IN W.P.28525/04. EXT.P.10.B: COPY OF THE ACQUITTANCE ROLL DISBURSING SALARY TO SHYNY K. & SR. ROSILY. RESPONDENTS' EXHIBITS: EXT.R3.A: LR.NO.F2/286/06 DT. 16/06/2006. EXT.R3.B: LR.NO.AC/B1/05/MSHS DT. 08/08/2006. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.31530 OF 2007 --------------------------------------- Dated this the 16th day of October, 2009. J U D G M E N T The issue raised by the petitioner herein is covered by the order in R.P.No.101/2008 in Writ Appeal No.2529/2005. 2. The petitioner is a Lecturer appointed by the 5th respondent-Manager on the basis of the recommendation made by the Statutory Selection Committee and she is continuing as such with effect from 29.09.1999. 3. Mainly it is pointed out that the 3rd respondent is not disbursing the salary/arrears to the petitioner from 29.09.1999, ignoring the approval granted by the University. The objection raised by the Government and the 3rd respondent is based on the condition stipulated in the second paragraph of Exhibit P1 that sanction has been accorded for affiliation of courses without any additional financial commitment to University/Government. Exhibit P2 is also an order issued by the University granting affiliation to various courses. W.P.(C) No.31530/2007 2 4. It is contended that since the 5th respondent's college is an aided college, the Management applied for affiliation to aided courses and thus the University is bound to grant affiliation only to those courses. The agreement entered into under the Direct Payment System is also relied upon to show that the liability to pay salary cannot be disputed. 5. In R.P.No.101/2008, a similar issue was considered by this Court. In fact, the view taken by the Division Bench in W.A.No.2529/2005 stands reviewed and recalled now. In paragraph 7 of the order passed in the review petition, it was held thus: “Having gone through the statutory provisions, documents produced and the judgments referred to and also the facts brought on record by the affidavits filed in these review petitions, we are inclined to find that the Division Bench did not advert to relevant statutory provisions or the Direct Payment Agreement and facts which are relevant to issue, as a result of which grave injustice has been caused to the review petitioners. Secondly, the documents/ information, obtained by the Review Petitioners are those which were fully in the custody and control of the respondents themselves and respondents also do W.P.(C) No.31530/2007 3 not have a case that the review petitioners were even aware of them. Further the petitioners have pleaded in the affidavits filed that they were unaware of these materials, which stands uncontroverted. Further, the conclusion in the judgment that Direct Payment Agreement do not apply to course subsequently commenced, is directly contrary to Clause 35 of the Agreement, which is not even referred to in the judgment. We are also satisfied that the facts of these cases are incomparable with those dealt with in the judgment in Amina Vs. State of Kerala (2004 (1) KLT 657) and that it was without appreciating this fundamental difference, that the said judgment was overruled by the Division Bench. Therefore in our view, the judgment is vitiated for errors apparent on the face of record calling for exercise of power of review conferred on this Court”. In the light of the above, the petitioner is entitled to succeed in the writ petition. From paragraph (7) of the counter affidavit filed on behalf of the University, it is clear that the appointment of petitioner was approved with effect from 29/09/1999 by considering the work load of Mathematics but without financial commitment. The condition cannot be insisted now. Therefore, this writ petition is allowed. It is declared that W.P.(C) No.31530/2007 4 the petitioner is entitled for payment of salary and arrears from 29.09.1999. If the salary bills have not been forwarded already, there will be a direction to the 5th respondent to see that the salary bills relevant for the periods are forwarded within a period of three weeks from the date of receipt of a copy of this judgment to the 3rd respondent. The 3rd respondent is directed to disburse the salary along with arrears within a period of two months from the date of receipt of a copy of this judgment. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp