IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 WP(C).No. 7307 of 2009(G) ------------------------------------- PETITIONER: ------------------- DR.ANILA.L, LECTURER, DEPARTMENT OF BIOCHEMISTRY, N.S.S.COLLEGE, NILAMEL. BY ADV. MR.S.MUHAMMED HANEEFF. RESPONDENTS: ------------------------ 1. UNIVERSITY OF KERALA, REP. BY ITS REGISTRAR, UNIVERSITY CAMPUS, THIRUVANANTHAPURAM. 2. MANAGER/THE SECRETARY, OFFICE OF THE SECRETARY, N.S.S.COLLEGE CENTRAL COMMITTEE, CHENGANASSERY. 3. STATE OF KERALA, REP. BY ITS SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 BY MR.M.RAJAGOPALAN NAIR, S.C, KERALA UTY., R2 BY MR.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE, ADV. MR.P.GOPAL, R3 BY GOVERNMENT PLEADER SMT. M.R. SREELATHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.7307/2009-G: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER DT. 08/12/2005. EXT.P.2: COPY OF THE G.O.(RT).NO.1198/2004/H. EDN. DT. 04/09/2004. EXT.P.3: COPY OF THE LETTER NO. AC.F V.37426/2000 DT. 18/03/2006. EXT.P.4: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE R.3. DT. 31/07/2008. EXT.P.5: COPY OF THE JUDGEMENT DT. 16/09/2008 IN W.P.(C).NO.27312/2008 OF THIS HONOURABLE COURT. EXT.P.6: COPY OF THE ORDER PASSED BY THE G.O.(RT).NO.114/2009/H. EDN. DT. 27/01/2009. EXT.P.7: COPY OF THE G.O.(RT).NO.501/04/H. EDN. DT. 02/04/2004. EXT.P.8: COPY OF THE G.O.(RT).NO.257/08/H. EDN. DT. 12/02/2008. EXT.P.9: COPY OF THE LETTER NO. 8256/D2/04/H. EDN. DT. 16/04/2004. EXT.P.10: COPY OF THE G.O.(MS).NO.21/2008/H. EDN. DT. 15/03/2008. EXT.P.11: COPY OF THE G.O.(MS).NO.6/2008/H. EDN. DT. 21/01/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.7307 of 2009-G - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of October, 2009. JUDGMENT The petitioner herein was appointed as a Lecturer in Biochemistry by the second respondent management as per Ext.P1. When the proposal for approval was submitted before the University, the University requested the Government as per Ext.P3, to communicate the Government sanction for the creation of an additional post of Lecturer in Biochemistry with effect from the academic year 2005-06. The Government by Ext.P6, has taken the view that Biochemistry course sanctioned to the college is on the condition that there will be no additional financial commitment on the part of the Government. Reliance is placed on the judgment in W.A. No.2529/2005 and connected cases and accordingly the request of the University stands rejected by the said order. 2. The third respondent has filed a counter affidavit. It is the contention of the third respondent that Government has created only one post of lecturer in the Department of Biochemistry as per Ext.P2 for accommodating a teacher who was appointed by the management. The further contention taken is that the rejection as per Ext.P6 is based on the wpc 7307/2009 2 judgment in W.A. No.2529/2005 and connected cases. Learned counsel for the petitioner submitted that the judgment of the Division Bench in W.A.No.2529/2005 stands recalled by the order in R.P.Nos.101/2009 and 180/2009 and subsequently the Writ Appeals have been dismissed by judgment dated 7.10.2009. 3. The question that was considered by the Division Bench in W.A. No.2529/2005 is whether the Government can deny the salary and allowances by relying upon the conditions for sanctioning the course. The issue was considered in the light of the Direct Payment Agreement and other relevant aspects. Finally it was held in para 22 thus: “In our view an argument against the above conclusion of ours, cannot even be raised by the Government for the reason that till this issue was raised, the Government and the University conducted themselves on the basis that the courses in question are aided courses. Otherwise, statutory selection committees applicable to aided colleges would not have been constituted with the participation of the representative of the Government and the University for selecting and appointing the lecturers including respondents 1 to 7 and for the courses sanctioned as per Exts.P2 and P2(a), admissions would have been made in the manner as provided in the Direct Payment Agreement, fee would not have been collected at the rate applicable to aided courses, fee would not have been remitted in the Treasury as provided in the Direct wpc 7307/2009 3 Payment Agreement and remittance in the Treasury would not have been accepted but for the fact it was payable under the Direct Payment Agreement. Therefore, the Government and the University also had accepted that the courses in question are aided courses. Having done all these, there is no merit or grace in the offer now made by the learned Government Pleader that they are willing to refund the fee remitted by the Management.” It was also found in para 23 that the University is bound to reckon the additional workload and consider the proposal of the college for approval of the appointments made having regard to the provisions contained in Statute 16 of Chapter 45B of the University Statutes. Accordingly, the judgment of the learned Single Judge was upheld and the objections taken by the Government and the University that for sanction of additional courses, the Government is not bound to pay salary, was overruled. The petitioner herein is also therefore entitled for the benefit of the said judgment. 4. Therefore, Ext.P6 is quashed. Appropriate follow up action will be taken by the University with regard to the approval of appointment of the petitioner. Orders will be passed within a period of two months from the date of receipt of a copy of this judgment and on such approval, the third respondent will have to take steps to disburse salary to the petitioner depending upon the orders of approval passed by the University, within a wpc 7307/2009 4 further period of three months. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/