IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 WP(C).No. 36082 of 2008(U) -------------------------- PETITIONERS: --------------- 1. SR.PHILOMINA JOSEPH, (PRINCIPAL (RETIRED MERCY COLLEGE), JAYA MATHA CONVENT, PALAKKAD. 2. MANAGER, MERCEY COLLEGE, JAI CHRISTO CMC, EDUCATIONAL AGENCY, PALAKKAD. BY ADV. SRI.BABU VARGHESE RESPONDENTS: --------------- 1. STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTEMENT OF HIGHER EDUCATION, GOVERNMENT SECRETRIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, PMG JUNCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, THRISSUR. BY GOVERNMENT PLEADER SMT.T.B.REMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36082 of 2008(U) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE G.O DATED 9.11.1998 EXT.P2: COPY OF THE UNIVERSITY ORDER DATED 12.11.1998 EXT.P3: COPY OF THE G.O DATED 17.10.1997 EXT.P3(a): COPY OF THE CIRCULAR DATED 19.1.2000 WITH THE RELEVANT PAGE OF G.O DATED 21.12.1998 EXT.P4: COPY OF THE OBJECTION DATED 24.1.2002 EXT.P4(a): COPY OF THE LETTER DATED 28.1.2002 EXT.P5: COPY OF THE REPLY DATED 1.2.2002 EXT.P6: COPY OF THE LETTER DATED 8.10.2004 EXT.P7: COPY OF THE LETTER DATED 15.11.2004 EXT.P8: COPY OF THE REQUEST DATED 1.12.2004 EXT.P9: COPY OF THE DIRECTION DATED 20.12.2004 EXT.P10:COPY OF THE REPLY DATED 1.1.2005 EXT.P11:COPY OF THE COMMUNICATION DATED 27.11.2002 EXT.P12:COPY OF THE UNIVERSITY LETTER DATED 19.5.2006 EXT.P12(a): COPY OF THE UNIVERSITY ORDER DATED 23.3.2007 EXT.P13:COPY OF THE REPRESENTATION DATED 20.12.2004 EXT.P13(a): COPY OF THE COMPLAINT DATED 11.10.2007 EXT.P14: COPY OF THE G.O DATED 15.1.1999 EXT.P15: COPY OF THE QUESTIONS RAISED BY SABU, MALITHURUTHEL DATED 25.8.2006. EXT.P15(a): COPY OF THE INFORMATION DATED 10.9.2007 EXT.P15(b): COPY OF THE INFORMATION DATED 22.9.2007 EXT.P15(c): COPY OF THE INFORMATION DATED 26.9.2007 EXT.P15(d): COPY OF THE INFORMATION DATED 5.10.2007 EXT.P15(e): COPY OF THE INFORMATION DATED 2.11.2007 EXT.P16: COPY OF THE GOVT. LETTER DATED 20.3.2001 EXT.P16(a): COPY OF THE G.O DATED 16.3.2004 EXT.P16(b): COPY OF THE G.O DATED 23.12.2003 EXT.P17: COPY OF THE REPRESENTATION DATED 15.10.2008. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// PA TO JUDGE P.N.RAVINDRAN, J. ----------------------------- W.P(C) No. 36082 of 2008-U ------------------------------ Dated this the 16th day of March, 2009. J U D G M E N T Heard Sri.Babu Varghese, the learned counsel appearing for the petitioners and Smt.T.B.Remani, the learned Government Pleader appearing for the respondents. 2. The first petitioner was the Principal of Mercy College, Palakkad and the second petitioner is its Manager. The first petitioner retired from service on 31.5.2002 on attaining the age of superannuation. In this writ petition, the petitioners challenge Exts.P4, P4(a), P6, P7 and P9 and seek a writ in the nature of mandamus commanding the respondents to disburse to the first petitioner the DCRG that she is entitled to, together with interest thereon. 3. During the period when the first petitioner was the Principal of Mercy College, Palakkad, the Government by Ext.P1 order dated 9.11.1998 accorded sanction for starting the B.Com degree course in the college subject to the condition that there will be no additional financial commitment on the part of the Government. Thereafter by Ext.P2 order passed on 12.11.1998, the University of Calicut granted provisional affiliation for the said course subject to the condition that there will be no additional financial commitment on the part of the Government. W.P(C) No. 36082 of 2008-U 2 Pursuant to Exts.P1 and P2, the B.Com degree course was started in the academic year 1998-99. During the said academic year and also during the academic year 1999-2000, the management conducted classes utilizing the existing teachers. During the academic year 2000-2001 the management of Mercy College, Palakkad availed the services of three Guest Lecturers. They were paid salary at the rate of Rs.100/- per hour. When the salary bill for the said teachers during the month of December 2001 was forwarded to the Deputy Director of Collegiate Education for approval, he raised the objection which is set out in Ext.P4 letter dated 24.1.2002. By Ext.P4 the Principal was also asked to explain how the inadmissible claim was preferred in the earlier bills. This was followed by Ext.P4(a) letter dated 28.1.2002, wherein in respect of two other colleges namely S.H.College, Chalakudy and M.D.College, Pazhanji also, a similar objection was raised. The petitioner submits that the objection raised in respect of S.H.College, Chalakudy and M.D.College, Pazhanji was later dropped. On receipt of Exts.P4 and P4(a), the petitioners submitted Ext.P5 letter 1.2.2002 pointing out that the salary payable to the Guest Lecturers was claimed in view of the circular dated 19.1.2000 issued by the Government. It appears that after Ext.P1 order was passed, the Government had sent Ext.P11 letter dated 27.11.2002 permitting colleges which have started new courses without financial commitment to W.P(C) No. 36082 of 2008-U 3 the Government, to collect enhanced fee from students. Ext.P5 reply submitted by the petitioners to the Deputy Director of Collegiate Education was not acceptable to him and thereafter he sent Ext.P6 letter dated 8.10.2004 fixing the sum of Rs.2,46,581/- being the salary paid to the Guest Lecturers during the academic year 2000-2001 as the petitioners' liability. In view of Ext.P6, the DCRG that the first petitioner was entitled to receive was not disbursed. 4. Sri.Babu Varghese, the learned counsel appearing for the petitioners contends relying on Ext.P14 Government order dated 15.1.1999 that the stipulation in Ext.P1 that the new courses mentioned therein have been sanctioned without additional financial commitment to the Government stands waived and that in view of Ext.P14, the decision taken by the Deputy Director of Education to fix the salary paid to the Guest Lecturers as the petitioner's liability cannot be sustained. Per contra Smt.T.B.Remani, the learned Government Pleader submits that Ext.P1 Government order does not contemplate the appointment of Guest Lecturers and therefore payment of salary to Guest Lecturers was illegal. Since the dispute centers round Ext.P14 and the stipulations in Ext.P1, I am extracting the relevant portions of Exts.P1 and P14. The relevant portion of Ext.P1 reads as follows: “Sanction is accorded for starting the new courses as mentioned in the appendix during the year 1998-99 in the W.P(C) No. 36082 of 2008-U 4 affiliated Arts and Science Colleges mentioned subject to the condition that there will be no additional financial commitment on the part of Government, on this account” The relevant portion of Ext.P14 reads as follows: “In partial modification of the G.O read above, Govt. order that (1) The amount of Rs.One crore provided in the current year budget for starting new courses, will be utilized to meet expenses towards appointment of Guest Lecturers and (2) M.Sc (Physics) Course will be started in S.N.M. College, Maliankara in the place of M.Sc (Chemistry) Course.” 5. By Ext.P1, the Government accorded sanction to start the B.Com degree course in Mercy College, Palakkad subject to the condition that there will be no additional financial commitment on the part of the Government on this account. Ext.P1 order was passed on 9.11.1998. Ext.P14 specifically refers to Ext.P1 Government order and states that in partial modification of Government order dated 9.11.1998 (Ext.P1) the amount of Rs.One Crore provided in the current year's budget for starting new courses, will be utilized to meet the expenses towards appointment of Guest Lecturers. By Ext.P14, the Government also ordered that instead of M.Sc course in Chemistry, the management of S.N.M College, Maliankara can conduct M.Sc course in Physics. Though the respondents have filed a counter affidavit they have not explained the circumstances in which Ext.P14 order was passed and what was the purpose underlying Ext.P14. Ext.P14 refers to the provision made in the current year’s W.P(C) No. 36082 of 2008-U 5 budget for starting new courses. Ext.P14 is dated 15.1.1999 and therefore the reference is to 1998-1999. By Ext.P14 the Government ordered that the sum of Rs.One crore provided in the budget for the financial year 1998-99 will be utilized to meet the expenses towards appointment of Guest Lecturers. 6. The argument of the learned Government Pleader is that there is no mention regarding appointment of Guest Lecturers in Ext.P1 and that on the terms of G.O(MS) No.146/07/H.Edn. dated 17.10.1997 Guest Lecturers can be appointed only against subsistantive vacancies. The learned Government Pleader further contends that Guest Lecturers appointed to handle classes for the additional courses sanctioned as per Ext.P1 cannot be paid from Government funds. I am afraid, on the terms of Ext.P14, the contentions raised by the learned Government Pleader are plainly untenable. Ext.P14 was issued waiving the stipulation in Ext.P1 and undertaking the liability to pay salary to Guest Lecturers. Ext.P14 specifically refers to appointment of Guest Lecturers. I therefore find no merit in the submission of the learned Government Pleader that appointment of Guest Lecturers is not contemplated by Ext.P1. In any case, Ext.P1 does not state that Guest Lecturers shall not be appointed to teach students admitted to the courses sanctioned therein. Further Ext.P3 Government order permits appointment of Guest Lecturers. The W.P(C) No. 36082 of 2008-U 6 Government cannot contend that even though a new course is sanctioned, there is no sanctioned post. At best they can only contend that by making the appointments to such sanctioned posts, no additional financial commitment shall be imposed on the Government. I am therefore inclined to accept the contention of the petitioners that they were entitled to appoint Guest Lecturers. Ext.P15(b) establishes beyond doubt that the Government was periodically making allowances to meet the expenses incurred for appointment of Guest Lecturers in various colleges. Therefore the stand taken by the Deputy Director of Collegiate Education in Exts.P4 and P4(a) that Guest Lecturers are not entitled to payment of salary by the Government cannot be sustained. In that view of the matter, Ext.P6 order whereby the salary and allowances paid to Guest Lecturers appointed in the Mercy College, Palakkad was fixed as the petitioners' liability cannot be sustained. In the result Ext.P4, P4(a), P6, P7 and P9 are quashed and the respondents are directed to disburse the DCRG that the first petitioner is entitled to. This shall be done within two months from the date on which the petitioners produce a copy of this judgment before the Director of Collegiate Education. The writ petition is allowed as above. Sd/- P.N.RAVINDRAN ab JUDGE //True Copy// W.P(C) No. 36082 of 2008-U 7