IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 WP(C).No. 18437 of 2009(Y) -------------------------- PETITIONER(S): --------------- 1. SHREE VIDYADHIRAJA VIDYA SAMAJAM, "ASWATHY",HINDU MISSION ROAD,THIRUVANANTHAPURAM-I, REP.BY ITS SECRETARY,DR.R.AJAY KUMAR,"MAIDAN VILLA HINDU MISSION ROAD,THIRUVANANTHAPURAM-I. 2. SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE,NEMOM,THIRUVANANTHAPURAM-20,REP.BY THE EX-OFFICIO MANAGER,THE IST PETITIONER HEREIN, DR.R.AJAY KUMAR. BY ADV. SRI.SANTHAN V.NAIR RESPONDENT(S): --------------- 1. STATE OF KERALA,REP.BY THE SECRETARY TO GOVERNMENT (HEALTH & FAMILY WELFARE),GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-I. 2. THE PRINCIPAL & CONTROLLING OFFICER, GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE, IRANIMUTTOM,THIRUVANANTHAPURAM-9. 3. SMT.SHYLAJA K.NAIR, DEPARTMENT OF CASE-TAKING & REPERTORISATION, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM,THIRUVANANTHAPURAM-20. ADV. SRI.S.KRISHNAMOORTHY FOR R3 (B/O) MR.K.S.MOHAMMED HASHIM, GOVERNMENT PLEADER FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.18437/2009 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF BYELAWS OF THE 1ST PETITIONER SAMAJAM. P2 : COPY OF AGREEMENT DATED 21/06/2003. P3 : COPY OF LETTER DATED 30/03/2009 NO.PRO/PIO/RTI/1065/2009. P4 : COPY OF APPOINTMENT LETTER DATED 17/01/2009. P5 : COPY OF GO(Rt) NO.1627/2009/H&FWD DATED 12/06/2009. P6 : COPY OF LETTER DATED 1165/CI/09/GHMCT DATED 23/06/2009. P7 : COPY OF LETTER DATED 17/06/2009 NO.141/SVVS/2009. P8 : COPY OF STATEMENT FILED BY P.N.KRISHNA PILLAI IN FAO 100/2008 DATED 02/10/2008. P9 : COPY OF JUDGMENT IN FAO 100/2008 DATED 03/10/2008. P10 : COPY OF JUDGMENT AND DECREE DATED 04/11/2008 IN OS NO.754/2007 OF PRI.SUB COURT, THIRUVANANTHAPURAM. P11 : COPY OF LETTER SENT BY P.N.KRISHNA PILLAI IN THE FORGED LETTER PAD OF THE 1ST PETITIONER DATED 08/03/2009. P12 : COPY OF INTERIM INJUNCTION DATED 07/04/2009 IN OS NO.477/2009 OF PRI.SUB COURT, THIRUVANANTHAPURAM. P13 : COPY OF CERTIFICATE DATED 03/02/2009 ISSUED BY R2. P14 : COPY OF INTERIM ORDER DATED 20/03/2009 IN WPC NO.5766/2009. P15 : COPY OF INTERIM ORDER IN WP(C) NO.7143/2009 DATED 26/03/2009. P16 : COPY OF JUDGMENT IN W.A.NO.766/2009 DATED 30/03/2009. P17 : COPY OF G.O.(Rt.)NO.2850/2008/H&FWD DATED 22/08/2008. RESPONDENT'S EXHIBITS R2(a) : COPY OF LETTER DATED 17/01/2009. R2(b) : COPY OF LETTER DATED 20/05/2008. R3(c) : COPY OF LETTER DATED 31/03/2009. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.18437 of 2009 --------------------------------- Dated, this the 19th day of August, 2009 J U D G M E N T In this writ petition the main prayer sought for is to set aside Exts.P5 & P6. This prayer is made on the basis that Ext.P5 order issued by the 1st respondent is against the provisions contained in Clauses 74 & 77 of the Kerala University (Conditions of Service of Teachers and Members of Non-Teaching Staff) First Statute, 1979. 2. The first petitioner claims to be an Educational Agency, and the second petitioner, a Homoeopathic Medical College established by the first petitioner, which is covered by Ext.P2 Direct Payment Agreement. The case pleaded by the petitioners is that by Ext.P4 order dated 17/01/2009 issued by the Secretary of the 1st petitioner, Dr.P.Rema Devi was put in additional charge of the post of Principal of the College with immediate effect. It is stated that since then Dr.P.Rema Devi is discharging additional charge of the post of Principal, and that while so, without any rhyme or reason, the Government of Kerala issued Ext.P5 order dated 12/06/2009 WP(C) No.18437/2009 -2- appointing the 3rd respondent as the Drawing and Disbursing Officer of the 2nd petitioner College. 3. It is stated that subsequently, the 2nd respondent issued Ext.P6 requiring the Principal of the College to handover all the bills countersigned by the Controlling Officer with necessary related documents and registers to the 3rd respondent for drawing and disbursing, stipend and salaries to internees and employees of the College. On receipt of Exts.P5 & P6, the petitioners objected to the appointment of the 3rd respondent by filing Ext.P7, and thereafter filed this writ petition. At the stage of admission, this Court passed order dated 06/07/2009 staying Exts.P5 & P6 for two months. The 2nd respondent has filed a counter affidavit, and also an application for vacating the interim order. Disputing the averments in the counter affidavit, the petitioners have also filed a reply affidavit. 4. The contention raised in the counter affidavit filed by the 2nd respondent is that at present there is no approved Principal in the 2nd petitioner College. It is stated that in terms of the provisions of the University Act and the University Statutes, the Principal of a College should be an approved appointee to discharge the duties WP(C) No.18437/2009 -3- attached to that post including that of a Drawing and Disbursing Officer. It is stated that since the person allegedly appointed as per Ext.P4, is not an approved Principal, the salary and stipend bills of the employees and internees of the College have been returned by the Treasury. Thereupon, the Government ascertained the willingness of the 2nd respondent to discharge the duties of Drawing and Disbursing Officer of the College, which was declined by the 2nd respondent due to official preoccupations. 5. It is stated that thereupon, to give an end to the stalemate that was prevailing, a panel of teachers of the 2nd petitioner college was called for from the 2nd respondent, and that from out of the panel given, by Ext.P5 order, they appointed the 3rd respondent, being the senior most, as the Drawing and Disbursing Officer for the time being as a termporary measure pending appointment of Principal in terms of the University Act and the Statutes. It is also stated that the interest of the Government is only to ensure that the technical objection raised for not passing salary and other bills be removed, so that salary and stipend could be paid to the staff and internees of the College. WP(C) No.18437/2009 -4- 6. In the counter affidavit, although, a dispute has been raised about the competency of the person who has filed this writ petition as the Secretary of the 1st petitioner, that issue was not addressed by the parties during the course of arguments. Therefore, I do not think it necessary to deal with the said contention. 7. Since the only issue is regarding the validity of Exts.P5 & P6, I shall refer to the contentions raised by both sides. The learned counsel for the petitioners relied on Section 57 of the Kerala University Act, which provides that it is for the Educational Agency to appoint a Principal. He also made reference to Clauses 74 & 77 of the Kerala University (Conditions of Service of Teachers and Members of Non-Teaching Staff) First Statute, 1979 and contended that only the Principal could be a Drawing and Disbursing Officer. However, it is to be noticed that these provisions itself show that the Principal to be a Drawing and Disbursing Officer has to be a person, whose appointment has been duly approved. The petitioners have no case that the appointment made as per Ext.P4 has been approved by any of the authorities. On the other hand, the answer WP(C) No.18437/2009 -5- to this contention of the learned Government Pleader that the alleged appointment as per Ext.P4 has not been reported or approved, is that even the earlier appointments to the post of Principal of the College were not approved. Even if it is so, so long as the Statute requires that the Principal should be a person whose appointment is approved, unless the appointment is approved, this Court will not be justified in compelling the Government or the University to accept an unapproved principal to be a Drawing and Disbursing Officer. It is on account of this reason that according to the learned Government Pleader, the Treasury have returned the salary bills of the employees. In fact, the petitioners in WP(C) Nos.20509 & 20539 of 2009, who are teaching and non-teaching staff in the College, had to approach this Court complaining of non- payment of salary. It is in this background that this Court should appreciate the validity of Ext.P5 order passed by the Government, which is also the pay master. It must be remembered that the remedy under Article 226 of the Constitution of India, is a discretionary one. The Court is not bound to interfere even on the establishing of an irregularity or illegality. The Court must further WP(C) No.18437/2009 -6- be satisfied that such interference is called for to meet, or to further, the orders of justice. (See Sangram Singh v. Election Tribunal, Kotah (AIR 1955 SC 425) and Venkateseara Rao v. Government of Andhra Pradesh (AIR 1966 SC 828). Again, it has been held in Roshan Deen v. Preeti Lal (AIR 2002 SC 33) that the look out of the High Court is not merely to pick out any error of law through an academic angle, but to see whether injustice has been resulted on account of any erroneous interpretation of law. These judgments have been followed by this Court in Rameshan v. Jayavally (2007(2) KLT 325). 8. A reading of Ext.P5 shows that the person appointed as Drawing and Disbursing Officer is the senior most lecturer, who has been chosen from a panel forwarded by the 2nd respondent. It is also evident that the arrangement is a temporary one which was necessitated due to the objections regarding the present Principal in charge being the Drawing and Disbursing Officer. Irrespective of all controversies, what is reflected in Ext.P5 is the endeavor of the Government, the pay master, to find an answer to the present uncertainty prevailing in the College resulting in the non-payment WP(C) No.18437/2009 -7- of salary to the teaching and non-teaching staff as also stipend payable to the internees. In such situation, I do not think that this Court should interfere with such an order exercising its powers under Article 226 of the Constitution of India, especially when the appointment of the Principal in charge is not an approved one. The writ petition fails, and is accordingly dismissed. (ANTONY DOMINIC, JUDGE) jg