IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 RSA.No. 1217 of 2008 ----------------------------------- AS.7/2006 of PRINCIPAL SUB COURT, ALAPPUZHA OS.474/2003 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANTS/RESPONDENT 1 & 2/DEFENDANT 1 & 2: 1. THE PRINCIPAL, ST.ALOYSIUS COLLEGE, EDATHUA.P.O, EDATHUA VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT. 2. THE MANAGER, ST.ALOYSIUS COLLEGE, DO. DO. BY ADV. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY RESPONDENTS/APPELLANT&R3-R5/PLAINTIFF & D3-D5: 1. JOBIN ANNA THOMAS, WIFE OF OOMMEN.M. MATHEW, RESIDING T MAMMOOTTIL HOUSE, THALAVADY.P.O., THALAVADYL VILLAGE, KUTTANADU TALUK, ALAPPUZHA DISTRICT. 2. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, M.L.ROAD, KOTTAYAM.P.O. 3. THE DIRECTOR OF COLLEGIATE EDUCATION, DIRECTORATE OF COLLEGIATE EDUCATION, VIKAS BHAVAN.P.O, THIRUVANANTHAPURAM. 4. KERALA STATE REP. BY CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No.1217 of 2008 -------------------------- JUDGMENT Defendants 1 and 2 in O.S.No.474/03 on the file of the Munsiff's Court, Alappuzha are the appellants and the plaintiff and defendants 3 to 5 are the respondents herein. The first respondent/ plaintiff instituted the suit aforesaid for recovery of arrears of salary, inter alia, on the allegations that she was a Guest Lecturer in St.Aloysius College, Edathua from 4.7.2000 to 31.3.2001; that defendants 1 and 2 are respectively the Principal and Manager of the said College; that defendants 3 and 4 are respectively the Deputy Director and Director of Collegiate Education; that the fifth defendant is State of Kerala; that she was attached to the Botany Department of the College pursuant to her appointment and direction by the first defendant; that she was asked to render her services for 14 hours in a week and she RSA 1217/08 2 was promised a consolidated monthly payment of Rs.5,000/- by way of salary; that when she contacted for the salary, the first defendant repeatedly conveyed the message that her arrears of salary would be paid soon, but, even after 31.3.2001, the first defendant did not take any initiative to pay the arrears of salary; that she was well qualified and during her service in the College, she was being dissuaded from pursuing any other job, promising to pay a consolidated salary of Rs.5,000/- per month; that as it turned out that after exploiting her services she was not being paid arrears of salary, she caused notices to be issued to defendants 1 and 2 on 26.11.2002; that defendants 1 and 2 are jointly and severally liable for providing salary to her; that defendants 1 and 2 sent replies stating that salary bill was submitted with the third defendant on 12.1.2001; that consequent thereon, she issued notice to defendants 3 to 5 on 17.1.2003, but there was no RSA 1217/08 3 reply; that defendants 1 and 2 are liable to pay arrears of salary to her and that in view of the contention of defendants 1 and 2 that defendants 3 to 5 have to pay salary, defendants 3 to 5 are also impleaded in the suit. Thus, she prayed for recovery of arrears of salary to which she is entitled, namely Rs.45,000/- for nine months with 12% interest from the date of suit. 2. Defendants 1 and 2 resisted the suit contending, inter alia, that the suit is not maintainable and is barred by limitation; that a suit of this nature will not be maintainable before the civil court; that they have no contract with the plaintiff for paying salary or any other benefit; that there is no privity of contract between them and the plaintiff for enabling her to claim any amount from them; that the College got sanction to start a new course in Aquaculture as per Government Order dated 9.11.1998; that at the time of sanctioning the course, the College had RSA 1217/08 4 sufficient faculty members in the Botany Department; that the Management is not responsible to pay remuneration to the Guest Lecturer as appointment of two Guest Lecturers in the Botany Department will not in any way violate the Government Order, as it does not cause any additional financial burden on the Government; that one Guest Lecturer can claim a maximum of Rs.5,000/- from the Government as per the Government Order; that there is no provision in the Rules directing the College to pay any amount to the Staff; that during the academic years 1998-99 and 1999-2000 one Guest Lecturer was appointed and that appointment was approved by the Government and they collected salary also; that during 2000-01, the College appointed two Guest Lecturers when there were two vacancies in the permanent teacher post; that the Guest Lecturers thus appointed are the plaintiff and another person, but the Government approved only the appointment of other RSA 1217/08 5 person and not the appointment of the plaintiff; that since the Government have not given approval of appointment of the plaintiff, she is not entitled to any salary; that the Government might not have noticed the retirement of faculty members and the Government might not have calculated the work load correctly; that the Government is liable to pay the amount to the plaintiff, as there is no Rule compelling the Management to make payment; that appointment of the plaintiff was subject to the approval of the Government; that appointment of a Guest Lecturer will only minimise the financial burden of the Government; that the Guest Lecturer is entitled to only Rs.100/- per hour subject to a maximum of Rs.5,000/- per month; that the correct amount shall be calculated after getting the post sanctioned by the Government; that the College has taken the matter before the Government; that if the Government have not approved the appointment, the College cannot be blamed, as all appointments are RSA 1217/08 6 subject to the approval of the Government; that University is also a necessary party to the suit; that the plaintiff has no cause of action; that the suit is bad in view of the provisions of the Specific Relief Act, as alternate remedies are available to the plaintiff and that the suit has to be dismissed. 3. Defendants 3 to 5 filed a joint written statement contending that they have no obligation to pay any amount to the plaintiff as salary, as the appointment of the plaintiff as Guest Lecturer in the College was not approved by them for the reason that sufficient workload to appoint a Guest Lecturer in the Department of Botany was not there during the relevant period; that the proposal for appointment of the plaintiff was rejected after verification and was returned to the Principal as per Letter No.B4/600/1 dated 13.8.2002 and that as the appointment was made by defendants 1 and 2 without their permission, defendants 1 and 2 are RSA 1217/08 7 responsible to pay salary to the plaintiff. On the above contentions defendants 3 to 5 prayed for dismissal of the suit. 4. On the above pleadings, the trial court raised necessary issues for trial and considering the evidence adduced at trial, which consisted of oral evidence of PW1 and DW1 and documentary evidence Exhibits A1 to A18 and B1 to B6, dismissed the suit. On appeal by the plaintiff as A.S.No. 7/06, the first appellate court reversed the findings of the trial court and decreed the suit as against all the defendants, viz., defendants 1 to 5. Defendants 1 and 2 alone have come up in appeal before this Court. 5. The contentions that are canvassed before me by the learned counsel for the appellants are that as no appointment with the consent of the Government can be made in an Aided Private College, the first respondent/plaintiff would be entitled to salary only in the event of her appointment as RSA 1217/08 8 Guest Lecturer being approved by the Government; that in the instant case, as the Government was of the opinion that there is no sufficient workload to appoint two Guest Lecturers, they approved the appointment of only one person and the plaintiff's appointment was not approved and that therefore, the Principal and the Manager, who are defendants 1 and 2, are, however, not liable to make the payment and the payment has to be made by defendants 3 to 5, the College being an Aided Private College. It is also contended by the counsel for the appellant that the father-in-law of the first respondent/ plaintiff was a Professor in the College; that it was on his request and on the specific understanding that salary would be paid to the first respondent/plaintiff only in case her appointment is approved by the Government and that therefore, as the Government have not approved the appointment of the first respondent/plaintiff, she is not entitled to claim any amount by way of RSA 1217/08 9 salary. 6. The second contention that the first respondent/plaintiff was being appointed on the specific understanding that she would be paid salary only in the event of her appointment being approved by the Government and that she was given such an appointment on the request of her father- in-law, who was a Professor in the College, does not find a place in the written statement. The appellants/defendants 1 and 2, who have not set up such a plea, cannot advance such a contention before this Court. 7. The contention, that being an Aided Private College, the salary has to be paid by the Government and if the Government do not recognise the appointment, the Manager or the Principal cannot make payment after appointing the first respondent/plaintiff as Guest Lecturer and having made her to work as such from 4.7.2000 to 31.3.2001, cannot lie in the mouth of the RSA 1217/08 10 Management. There is also no denial of the case of the first respondent/plaintiff that she had been asked to take classes for 14 hours in a week. Thus, even on the admitted case, the Principal and the Manager wanted the first respondent/plaintiff to serve as a Guest Lecturer for the period alleged and she was made to work assigning sufficient workload. The appellants/defendants 1 and 2 have no case that the plaintiff was unauthorisedly taking classes in their College without their permission. If the Management has violated the Rules regarding appointment of the staff, the Government can disown their liability. But, even in that event, the appellants/defendants 1 and 2 are liable to pay remuneration to the first respondent/ plaintiff. If at all the Management convinces the Government and the appropriate authorities that there was sufficient workload in the College which warranted appointment of a Guest Lecturer as well and therefore, the appointment of the first RSA 1217/08 11 respondent/plaintiff was not in violation of the Rules and was in order, they can realise the amount from defendants 3 to 5. However, the liability of the appellants/defendants 1 and 2 is primary liability and they cannot get themselves exonerated from it on any count whatsoever. There is absolutely no merit in this Regular Second Appeal. There is no question of law and much less, any substantial question of law that arises for consideration by this Court in this Regular Second Appeal as is attempted to be canvassed. In the result, I dismiss this Regular Second Appeal. 13th February, 2009 (K.P.Balachandran, Judge) tkv