IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 WP(C).No. 26646 of 2006(V) --------------------------------------- PETITIONER: ------------------- ANITHA THOMAS, 41 YEARS, W/O.T.J.DANIAL, LECTURER SENIOR SCALE, DEPARTMENT OF MATHEMATICS, BHISHOP ABRAHAM - MEMORIAL COLLEGE, THURUTHIKKAD - 689 597. BY ADVS. MR.K.K.CHANDRAN PILLAI, MR.R.V.SATHYAPRIYAN NAIR. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SPECIAL SECRETARY, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM. 4. THE PRINCIPAL, BISHOP ABRAHAM MEMORIAL COLLEGE, THURUTHIKKAD - 689 597. 5. MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, KOTTAYAM. 6. THE SUB TREASURY OFFICER, SUB TREASURY OFFICE, MALLAPPALLY. R1 TO R3 & R6 BY GOVT. PLEADER SMT. T.B.REMANI, R5 BY MR.T.A. SHAJI, SC, M.G.UNIVERSITY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/08/2009, ALONG WITH W.P.(C). NO.34582/2008, THE COURT ON 30/09/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.26646/2006-V: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPOINTMENT ORDER DTD.02/12/1998 OF THE PETITIONER. EXT.P.2: APPOINTMENT OF APPROVAL BY THE MAHATMA GANDHI UNIVERSITY, DTD. 15/11/2000. EXT.P.3: COPY OF THE ORDER DT.20/03/2001 CONCURRING THE APPOINTMENT BY THE GOVERNMENT. EXT.P.4: COPY OF THE M.PHIL DEGREE CERTIFICATE OF THE PETITIONER DTD. 29/09/97. EXT.P.5: COPY OF THE APPROVAL ORDER ISSUED BY THE R.5. DTD. 30/06/2005. EXT.P.6: COPY OF THE APPROVAL ORDER DTD. 23/01/1991 ISSUED BY THE M.G. UNIVERSITY. EXT.P.7: COPY OF THE LETTER DTD. 26/02/1999 ISSUED BY THE M.G. UNIVERSITY TO THE PETITIONER. EXT.P.8: COPY OF THE G.O.(RT).NO.1725/94/H. EDN. DTD. 16/11/1994. EXT.P.9: COPY OF THE LETTER DTD. 14/02/2006 FROM THE R.3. TO THE UNIVERSITY. EXT.P.10: COPY OF THE JUDGMENT DTD. 07/10/2005 IN W.P.(C).21655/04 OF THIS HONOURABLE COURT. EXT.P.11: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DTD. 22/01/2004 IN W.P.(C).17103/03. EXT.P.12: COPY OF THE JUDGMENT DTD. 18/12/1992 IN O.P. NO. 13584/1992 OF THIS HONOURABLE COURT. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 26646 of 2006-V - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of September, 2009. JUDGMENT The petitioner who is working as Lecturer Senior Scale in the Department of Mathematics in 4th respondent's college, is aggrieved by the denial of salary, in spite of the approval granted by the University as per Ext.P5. Reliance is placed on two Division Bench decisions of this court in Cherian Mathew v. Principal, S.B. College, Changanacherry (1998 (2) KLT 144) and Shalini Rachel v. Manager, Christian College (2007 (3) KLT 355) to contend that once the University has granted approval, the Government cannot refuse to pay the salary. 2. The short facts leading to the appointment and promotion of the petitioner are the following: The petitioner was initially appointed as Lecturer in Mathematics in the vacancy which arose consequent on the deputation of another Lecturer, as per the appointment order dated 27.8.1990. The said appointment was approved by the University as per their proceedings dated 23.1.1991 (Order No.UO 234/Ac.B. 111/2/90). She was reappointed by the management as per Ext.P1 order dated 2.12.1998. The said appointment also has been approved as per Ext.P2 which was wpc 26646/2006 2 concurred by the Government as per Ext.P3. She is having M.Phil degree and Ext.P4 is the degree certificate produced in support of the plea. The petitioner was qualified to get placement as Lecturer Senior Scale which was recommended by the 4th respondent. The same has been approved by the University as per Ext.P5 order dated 30.6.2005. As per Ext.P5, the Syndicate Sub-Committee on Affiliation resolved to approve provisionally the promotion of the petitioner as Lecturer Senior Scale with effect from 2.5.2003 and to fix her pay at Rs.10,000/- in the scale of pay of Rs.10,000/- - 325 - 15200 with effect from 2.5.2003. Since respondents 1 to 3 refused to disburse the salary, the petitioner has filed this writ petition seeking for appropriate directions in the matter. 3. The third and fifth respondents have filed counter affidavits in the matter. In the counter affidavit filed by the third respondent, it is mainly contended that the broken period of service from 27.8.1990 to 26.3.1001 cannot help the petitioner and the same cannot be reckoned. The petitioner acquired M.Phil only in 1994 and has not so far acquired NET qualification. Exemption from NET is available only for persons who have acquired M.Phil degree by 31.12.1993. Since the petitioner was reappointed on 2.12.1998, she has to pass the NET. The approval granted by the University is in contravention of the UGC Regulations and therefore, wpc 26646/2006 3 the M.G. University was addressed as per letter dated 13.1.2006 to clarify as to whether the promotion approval was in tune with UGC/Government stipulations/rules regarding qualification. In reply, the University, as per their letter dated 14.2.2006 informed that the Syndicate Sub-Committee held on 25.8.2004 had resolved that those teachers who are appointed till 14.5.1992 and reappointed thereafter are exempted from NET and other academic qualifications. It is contended that the University is incompetent to take such a decision. 4. In the counter affidavit filed by the University, it is averred that the promotions have been approved by the University and the objection raised by the Deputy Director of Collegiate Education in his letter dated 13.1.2006 had been clarified. The University had clarified the position that “the UGC regulations of 1991 are not applicable in such cases where selection was done by duly constituted selection committee for making appointments to the teaching posts prior to the enforcement of these regulations. The Syndicate Sub Committee in its meeting held on 25.8.2004, has resolved that those teachers who are appointed till 14.5.1992 and reappointed thereafter are exempted from NET and other academic qualifications.” 5. In the reply affidavit filed by the petitioner to the counter affidavit wpc 26646/2006 4 of the third respondent, Exts.P6 to P12 have been produced. It is explained that the qualification of the petitioner was the subject matter of dispute in O.P.No.2498/1998 by another candidate and as per the directions issued by this court, the University heard the parties and by Ext.P7, the appointment of the petitioner has been upheld. Ext.P9 is the letter addressed by the University to the third respondent in answer to their objection dated 13.1.2006. The decision of the Syndicate dated 25.8.2004 that teachers appointed or reappointed before 14.5.1992 are exempted from passing NET and other academic qualifications, is also relied upon. The details of teachers who have been appointed on similar basis and are placed in Senior Scale without NET qualification and in whose cases the Deputy Director has been disbursing the salary, have been mentioned in para 10 of the reply affidavit. The contention that broken period cannot be reckoned, is also explained, by relying upon Exts.P10 and P11 judgments of this court, wherein this court held that the said period can be counted. Reliance is also placed on Statute 24 of the Mahatma Gandhi University Statutes. 6. The question, therefore, is whether as the University has finally overruled the objection raised by the Government and the Deputy Director of Collegiate Education, can they refuse to pay salary? In Cherian Mathew's case (1998 (2) KLT 144), the Division Bench held that “no wpc 26646/2006 5 provision of the University Act, First Statutes, Ordinance or Regulations in force enables the Government to sit in judgment over the decision arrived at by the University regarding the number of teachers to be appointed in a Department in a college run by a private management.” It was held further that “in other words, when a teacher is appointed by private management in terms of the provisions contained in the Kerala University First Ordinance or the Calicut University First Ordinance as the case may be, his salary has to be disbursed by the Government if that appointment has been approved by the concerned University. In case the Director of Collegiate Education doubts the propriety of the appointment of a teacher in the sense that the work load did not require the appointment of such a teacher, the issue will have to be taken up by him with the University. The University then has to re-examine the entire issue and to take a decision on the issue as to whether the appointment was proper or not. When the University takes a decision on this aspect, that decision will be binding on the Government.” The above dictum was followed in Shalini Rachel's case (2007 (3) 355) by another Division Bench of this court. The said legal position was reiterated by the Division Bench. Therefore, the primacy is vested on the University itself as regards the grant of approval and once the University communicates their decision even after an objection is raised by the Director of Collegiate wpc 26646/2006 6 Education or Deputy Director as the case may be or by the Government, they cannot refuse to pay salary. 7. Learned counsel for the petitioner relied upon the judgment rendered by this court in a batch of cases, in W.P.(C) No.21748/2003, etc. wherein it was held that once the concerned University approves the appointment, the concerned Deputy Director is bound to release the salary due to the incumbents in the light of the approval orders. Accordingly, directions have been issued to pay salary to the teachers involved therein. Another judgment relied upon by the learned counsel for the petitioner is the one which is rendered in O.P. No.31349/2002 and connected cases, wherein also similar directions have been issued. Reliance is also placed on the judgment in W.P.(C) No.37526/2007 which was disposed of in the light of the judgments of the Division Bench in Cherian Mathew's case (1998 (2) KLT 144) and Shalini Rachel's case (2007 (3) KLT 355). 8. Learned counsel for the petitioner also relied upon the decision of a Division Bench of this court in S.N. College v. N. Raveendran (2001 (3) KLT 938), to contend that unless and until amendments are effected in the University Statutes, the provisions relating to qualifications of the U.G.C. Scheme would not be applicable to the private colleges. Herein, the first issue is whether the approval granted can be objected by the Deputy wpc 26646/2006 7 Director of Education. In the light of the decision of the Division Bench in the above cases, it is clear that the approval granted, cannot be set at naught by the Deputy Director of Education or the Government, as the case may be. They cannot sit in appeal over the approval granted. Ext.P9 dated 14.2.2006 clearly answers the clarification sought in letter No.F2-7818/05 dated 13.1.2006, mentioned in the counter affidavit filed by the third respondent. It is clear from the said clarification that the Syndicate Sub Committee has resolved on 25.8.2004 that those teachers who are appointed till 14.5.1992 and reappointed thereafter are exempted from NET and other academic qualifications. It is on that basis the University approved the Senior Scale promotion of the petitioner. Therefore, the petitioner is entitled for the said benefit and the absence of NET cannot be taken as a ground to object the Senior Scale placement. Regarding the broken period of spell also the issue is covered in favour of the petitioner by Exts.P10 and P11 judgments. In Ext.P10 judgment, reliance is placed on Ext.P11 judgment in W.P.(C) No.17103/2003. That was also a case concerning the grant of Senior Scale placement. The objection raised by the official respondents was that the petitioner did not complete the requisite period of service, as the broken period of service cannot be counted. After relying upon Ext.P11 judgment, it was held that the broken period of service wpc 26646/2006 8 of the petitioner is reckonable for placement as Lecturer Senior Scale. Therefore, herein also, as the position is the same, the objection that the broken period of spell cannot be counted for placement, cannot be sustained and the same is overruled. It is clear from the averments in the reply affidavit also that similarly placed teachers are being granted Senior Scale by the official respondents and the benefits were being disbursed from time to time. 9. Therefore, the writ petitioner is entitled to succeed in this writ petition and the same is allowed. It is declared that the petitioner is entitled for grant of benefits of placement in the Senior Scale along with arrears, on the basis of Ext.P5. The third respondent is directed to countersign the salary bills of the petitioner including arrears with effect from the date of placement, i.e. 2.5.2003 and the consequent monetary benefits will be disbursed within a period of two months from the date of production of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/