IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 WA.No. 1020 of 2008() --------------------- AGAINST THE JUDGEMENT IN WPC.12489/2007 Dated 12/02/2008 .................... APPELLANT(S): RESPONDENTS 3, 4 AND 5:- ------------------------- 1. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM. 2. DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. STATE OF KERALA REP.BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT. R.BINDU RESPONDENT(S): PETITIONERS & RESPONDENTS ---------------------------------------- 1. SINDHU.T.S., GUEST LECTURER, DEPARTMENT OF COMMMERCE, N.S.S. COLLEGE, PANDALAM, RESIDING AT SEEMA NIVAS, VAZHAMUTTOM EAST, VAZHAMUTTOM P.O, MALLASSERY, PATHANAMTHITTA. 2. SANDHYA VIJAYAN, GUEST LECTURER, DEPARTMENT OF COMMERCE, N.S.S.COLLEGE, PANDALAM, PAYIKKATTU PUTHENVEEDU, KAIPATTOOR P.O, PATHANAMTHITTA. 3. MANAGER/SECRETARY,N.S.S.COLLEGES CENTRAL COMMITTEE, OFFICE OF THE SECRETARY, CHANGANASSERY-2. 4. UNIVERSITY GRANTS COMMISSION, REP BY ITS CHAIRMAN, BHAHADUR SHA SAFAR MARG, NEW DELHI. 5. UNIVERSITY OF KERALA, REP.BY ITS REGISTRAR, UNIVERSITY CAMPUS, THIRUVANANTHAPURAM. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R4 SRI.P.GOPAL FOR R3 SRI.S.KRISHNAMOORTHY, CGC FOR R4 SRI.S.MUHAMMED HANEEFF FOR R1 & R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2009, THE COURT ON 23/09/2009 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.Q. BARKATH ALI, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= W.A.No. 1020 of 2008 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 23rd September, 2009 JUDGMENT BALAKRISHNAN NAIR,J. Respondents 3 to 5 in the writ petition are the appellants. Respondents 1 and 2 were the writ petitioners. The point that arises for decision in this appeal is whether respondents 1 and 2 are entitled to get salary as Guest Lecturers/Substitute Teachers. 2. The brief facts of the case are as follows:- Two teachers in the Pandalam N.S.S. College, managed by the 3rd respondent, were granted leave for Faculty Improvement Programme. Smt.K.Santhakumari, Selection Grade Lecturer in Commerce was granted leave from 1-6-2005 and Smt.Latha Bai V.G., Selection Grade Lecturer in Commerce was granted leave from 14-6- 2005. The leave was granted for a period of three years. Annexure-R3 (c) Scheme of the University Grants Commission permits appointment of substitute teachers, in the place of teachers sent for Faculty Improvement Programme. If the appointment of such substitutes is approved either by the affiliating University or by the State Government, the U.G.C. will pay salary for such appointees. This stipulation is contained in clause 4.3 of Annexure R3(c). Annexure R3 (d), which is a communication issued by the U.G.C. Nodal Officer to the Principals of all Colleges under the U.G.C., says, inter alia, that WA 1020/ 08 2 the salary of the substitute teacher, appointed by the College, in place of a teacher selected for Faculty Improvement Programme, will be reimbursed by the U.G.C. The pay should be at the minimum of pay scale of a Lecturer. The substitute teacher must be appointed on a full time basis. In view of the U.G.C. Scheme, the 3rd respondent invited applications for substitute teachers and respondents 1 and 2 herein were selected and appointed as substitute teachers in the Commerce Department of Pandalam N.S.S. College, in the place of the aforementioned two Selection Grade Lecturers, who were sent for Faculty Improvement Programme. Exts.P1 and P2 are the appointment orders issued in their favour. The nomenclature of 'Guest Lecturer' used in those appointment orders is not appropriate. In fact, it should have been 'substitute teacher', according to respondents 1 and 2. The University approved the appointment of respondents 1 and 2, as per Ext.P3. But the Deputy Director of Collegiate Education acted as a spoke in the wall by issuing Annexure-R3(f) communication, the relevant portion of which reads as follows:- “Referring to the above letter cited, I am to inform you that any amount claimed from U.G.C. and disbursed as salary for substitute teachers appointed in F.I.P. vacancy where there are excess staff in violation of the direction issued by Govt. or by the Director of Collegiate Education, Trivandrum in that regard will be fixed as the personal liability of the Principal concerned.” 3. According to the appellants, in the Commerce Department of WA 1020/ 08 3 N.S.S. College, Pandalam, there are six surplus teachers on de-linking of Pre-Degree and therefore, the appointment of substitute teachers for Guest Lecturers was unnecessary and impermissible. The vacancies created by leave granted to two teachers can be managed by the excess teachers. Therefore, the Deputy Director of Collegiate Education, Kottayam declined to approve the appointment of respondents 1 and 2/writ petitioners. In the above actual background, the writ petition was filed praying to issue a writ of mandamus to the Deputy Director of Collegiate Education to sanction and disburse the salary due to respondents 1 and 2/writ petitioners from June, 2005 onwards. The learned Single Judge, who heard the writ petition, took the view that since the salary is paid to respondents 1 and 2/writ petitioners by the U.G.C., Government have no business to meddle in it and in that view of the matter, the writ petition was allowed. Aggrieved by the direction of the learned Single Judge, respondents 3 to 5 in the writ petition have preferred this appeal. 4. According to the appellants, in view of the presence of excess teachers, the appointment of substitutes is unnecessary. In the appeal memorandum they have stated as follows:- The 1st petitioner,Smt. Sindhu T.S. was appointed as Guest Lecturer in NSS College, Pandalam against the leave vacancy of Smt. K. Santhakumari, Selection Gr. Lecturer in Commerce, who was deputed for doing Ph.D. Course for the period from 1-6-2005 to 31-3-2007. Similarly, the 2nd petitioner, Smt. Sandhya Vijayan was WA 1020/ 08 4 appointed as Guest Lecturer in Commerce for the period from 1-6-2005 to 30-3-2007 while Latha Bai V.G. Selection Gr. Lecturer in Commerce undergone deputation for Ph.D. course. According to the department there is no need for a substitute Lecturer/Guest Lecturer against the deputation vacancies of Smt. Santhakumari K. and Latha Bai V.G., since there are 7 excess teachers working in the Department of Commerce in the said college. Apart from that Government have repeatedly directed the authorities not to appoint substitute/Guest lecturers if there are excess staff in the concerned subjects.” In answer, the 3rd respondent Manager has in paragraph 11 of his counter affidavit filed in this appeal stated as follows:- “11. 11 Lecturers were working in the Department of Commerce in the college at the time of relieving Smt. K.Santhakumari, Smt. Latha Bai V.G. and Smt. K.P.Geethakumari from the college in the academic year 2005-06. The teaching hours allotted to the three lecturers allotted in a week is 48 hours. If 48 hours is distributed to the remaining 8 teachers in the Department of Commerce, the working hours of a teacher in a week will come to 22 hours. If a teacher is allotted 22 teaching hours in a week, for teaching students for 1st, 2nd and 3rd year B.Com Degree Course and B.Com (Tax Procedure and Practice) Degree Course and for 1st and 2nd year students of M.Com (Banking) it will affect the teaching standard resulting the future of students undergoing the courses in the college. The teachers working in the Department of Commerce cannot be assigned more than 16 hours in a week fixed by the University. Excess teachers are not working in the college to take classes for Commerce in the Department of Commerce in the college. Hence the services of substitute teacher are required for taking classes for teaching the students in the place of teacher fellows who were sent on deputation for undergoing Ph.D. under FIP of UGC X th Plan.” In support of the submission made by the appellants, they relied on Annexure-E staff fixation proposal of the College made by the Director WA 1020/ 08 5 of Collegiate Education. On the contrary, the Manager would rely on Ext.R3(a) statement of re-assessment of workload. As per the said document, at the time of de-linking of Pre-Degree, there were 63 hours for Commerce. But, in view of the additional courses sanctioned, 136 hours have been added. So, the existing staff strength have to be fully utilized for taking classes for 63 hours + 136 hours = 199 hours, it is submitted. 5. It is common case that at the time of de-linking of Pre- Degree, the strength of teachers in the Commerce department was 12. One of them retired and the present strength is 11. It is also common ground, as evident from Annexure-E, that as per G.O.(MS) 162/99/H.Edn. Dated 6-12-1999 the Course B.Com (Tax procedure and practice) has been sanctioned for the College without any additional expenditure exceeding budget allotment. Still later, as per G.O.(MS) No.39/2001/H.Edn. Dated 27-3-2001, M.Com Banking course has also been sanctioned without additional financial commitment. Annexure-E itself would show that newly sanctioned course should be run with the existing staff/staff rendered surplus consequent on the de-linking of Pre-Degree. 6. In view of the above factual position, we are of the view that the contention raised by the appellants that six teachers are in excess relying on Annexure-E cannot be accepted, as the said Annexure itself WA 1020/ 08 6 admits sanctioning of two additional courses for the college. So if the additional periods of teaching generated by two additional courses are also taken into account, the claim of the appellants that there is excess teaching staff cannot be accepted. As per existing norms, a teacher in a subject should teach 16 hours in a week and if the 199 teaching hours are apportioned, there is no excess teachers, as claimed by the appellants. If that be so, the very foundation of the objection of the appellants against the approval of appointment of respondents 1 and 2 collapses. So even assuming that Government have some interest in the matter, even if the payment of salary is made by the U.G.C., we think the objection raised by the appellants is unsupportable in law. In view of the above position, we find no reason to interfere with the judgment of the learned Single Judge. Going by U.G.C. Scheme Annexure R3(c), the approval of the University or that of the Government will be sufficient. It is common ground that University has already approved the appointment of the substitutes. If that be so, the college shall forward the proposal for payment of salary to them with the necessary papers to the U.G.C., in accordance with the Scheme and in the event, the U.G.C. shall disburse the salary, if the claim is otherwise in order. It is clarified that payment shall not be denied on the ground of delay in making the claim, as the delay was not occasioned because of fault of respondents 1 and 2. WA 1020/ 08 7 Upon receipt of the amount from the U.G.C., the college shall remit the amount in the treasury, as per the relevant procedure. Thereupon the 3rd respondent shall forthwith release the salary to respondents 1 and 2. The Manager shall sent the proposal to the U.G.C. within one month from the date of receipt of copy of this judgment and the U.G.C. shall take a decision thereon, as mentioned above, within two months from the date of receipt of the same. With the above clarification the Writ Appeal is dismissed. K.BALAKRISHNAN NAIR, JUDGE P.Q. BARKATH ALI, JUDGE mn