IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 WP(C).No. 2359 of 2008(E) ---------------------------------- PETITIONER(S): ------------------------ DR. R.SUNILKUMAR, LECTURER, DEPARTMENT OF ZOOLOGY, CATHOLICATE COLLEGE, PATHANAMTHITTA. BY ADV. SRI.BABU VARGHESE RESPONDENT(S): -------------------------- 1. THE MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS P.O., KOTTAYAM. 2. THE STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, P.M.J.JUNCTION, THIRUVANANTHAPURAM. 4. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM. 5. THE MANAGER, CORPORATE MANAGEMENT OF MALANKARA ORTHODOX COLLEGES, DEVALOKAM, KOTTAYAM. R1 BY ADV. MR. T.A. SHAJI, SC, M.G.UNIVERSITY R2 TO R4 BY GOVT. PLEADER SMT.M.R.SREELATHA R5 BY ADV. MR.V.C.JAMES THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.2359/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE UNIVERSITY ORDER GRANTING APPROVAL TO THE INITIAL APPOINTMENT DTD. 14.5.97. P1(a):- COPY OF THE UNIVERSITY ORDER OF APPROVAL TO THE SHIFTING OF THE PETITIONER DTD. 19.5.99. P1(b):- COPY OF THE UNIVERSITY ORDER OF APPROVAL ON REAPPOINTMENT, DTD. 27.10.97. P1(c):- COPY OF THE UNIVERSITY ORDER OF APPROVAL GRANTED TO THE PETITIONER DTD. 24.12.05. P1(d):- COPY OF THE CONTINUATION ORDER ISSUED TO THE PETITIONER BY THE MANAGER DTD. 7.12.2000. P1(e):- COPY OF THE GOVERNMENT LETTER DTD. 15.9.2000 CONVEYING CONCURRENCE FOR SANCTIONING EXTENSION OF LEAVE FROM 1.6.2000 TO 31.5.01 TO SMT. ELIZABETH IDICULLA. P2:- COPY OF THE RE-APPOINTMENT ORDER ISSUED BY THE MANAGER IN FAVOUR OF THE PETITIONER DTD. 20.5.03. P3:- COPY OF THE JUDGMENT IN OP. 21268/02 DTD. 26.3.03. P4:- COPY OF THE STATEMENT OF WORKLOAD SUBMITTED IN RESPECT OF K.G. COLLEGE, PAMPADY FOR THE EYAR 2003-04, WITH STAFF LIST. P4(a):- COPY OF THE STATEMENT OF WORKLOAD SUBMITTED IN RESPECT OF CATHOLICATE COLLEGE, PATHANAMTHITTA FOR THE YEAR 2003-04 WITH STAFF LIST. P4(b):- COPY OF THE STATEMENT OF WORKLOAD SUBMITTED IN RESPECT OF BASELIUS COLLEGE, KOTTAYAM FOR THE YEAR 2003-04, WITH STAFF LIST. P5:- COPY OF THE ORDER OF TRANSFER ISSUED TO THE PETITIONR DTD. 17.5.05. P6:- COPY OF THE PROPOSAL SUBMITTED BY THE MANAGER REGARDING RE- APPOINTMENT OF THE PETITIONER TO THE UNIVERSITY DTD. 27.6.03. P6(a):- COPY OF THE REPLY GIVEN BY THE UNIVERSITY DTD. 27.6.06. P7:- COPY OF THE ACT 2 OF 2005 PUBLISHED IN THE GAZETTE DTD. 9.3.05. P8:- COPY OF THE ORDER OF APPROVAL GRANTED BY THE UNIVERSITY TO CERTAIN TEACHERS, DTD. 29.10.05. W.P.(C) NO.2359/2008 P9:- COPY OF THE GOVERNMENT LETTER DTD. 20.3.01 ACCORDING GOVT. CONCURRENCE FOR THE CREATION OF ONE POST OF LECTURER IN B.A.M. COLLEGE, THURUTHICADU. P9(a):- COPY OF THE UNIVERSITY ORDER DTD. 15.11.2000 GRANTING APPROVAL TO THE REAPPOINTMENT OF SMT. ANITHA THOMAS AS LECTURER IN B.A.M., COLLEGE, THURUTHICADU CONSEUENT TO THE STARTING OF B.SC. PHYSICS (V) COURSE IN 1998-99. P10:- COPY OF THE LETTER ISSUED TO THE PETITIONER APPOINTING HIM AS EXAMINER DT. 26.3.05. P10(a):- COPY OF THE LETTER ISSUED TO THE PETITIONER APPOINTING HIM AS EXAMINER DTD. 13.3.06. P10(b):- COPY OF THE LETTER ISSUED TO THE PETITIONER APPOINTING HIM AS EXAMINER DT. 2.1.07. P10(c):- COPY OF THE LETTER ISSUED TO THE PETITIONER APPOINTING HIM AS EXAMINER DTD. 21.3.07. P11:- COPY OF THE LETTER SENT BY THE PRINCIPAL TO THE GOVT. SECRETARY DTD. 11.1.05. P12:- COPY OF THE REPRESENTATION SUBMITTED BY THE PRINCIPAL DTD. 21.8.06. P13:- COPY OF THE JUDGMENT IN WPC. 17153/07 DTD. 9.8.07. P14:- COPY OF THE LETTER ISSUED TO THE SECRETARY M.O.C. COLLEGES BY THE REGISTRAR DTD. 22.10.07. P14(a):- COPY OF THE INFORMATION SOUGHT BY THE PETITIONER BEFORE THE PUBLIC INFORMATION OFFICER OF THE UNIVERSITY DTD. 23.11.07. P14(b):- COPY OF THE REPLY DTD. 5.12.07 GIVEN BY THE PUBLIC INFORMATION OFFICER. P15:- COPY OF THE ORDER OF AFFILIATION GRANTED BY THE UNIVERSITY FOR STARTING NEW B.SC. ZOOLOGY DURING 2001-02, DTD. 23.8.01. P15(a):- COPY OF THE G.O.(MS) NO.134/98/H.EDN. DTD. 9.11.98 . P15(b):- COPY OF THE G.O.(MS) 162/99/H.EDN. DTD. 6.12.99 ISSUED BY THE GOVERNMENT. P16:- COPY OF THE G.O.(MS) 39/2001/H.EDN. DTD. 27.3.01. P16(a):- COPY OF THE GO(MS) 78/01/H.EDN. DTD. 11.7.01 ISSUED BY THE GOVERNMENT. W.P.(C) NO.2359/2008 P17:- COPY OF THE CABINET NOTE RECEIVED FROM THE INFORMATION OFFICER. P18:- COPY OF THE QUESTIONS RAISED BY MR.SABU MALITHURUTHEL DTD. 25.8.07. P18(a):- COPY OF THE ANSWERS FURNISHED BY THE ADDL. CHIEF SECRETARY TO GOVERNMENT DTD. 10.9.07. P18(b):- COPY OF THE INFORMATION FURNISHED BY THE SECRETARY TO GOVERNMENT H.EDN. DEPT. DTD. 22.9.07. P18(c):- COPY OF THE INFORMATION FURNISHED BY THE SECRETARY TO GOVERNMENT H.EDN. DEPT DTD. 26.9.07. P18(d):- COPY OF THE INFORMATION FURNISHED BY THE COLLEGIATE EDUCATION DIRECTOR DTD. 5.10.07. P18(e):- COPY OF THE INFORMATION FURNISHED BY THE SECRETARY TO GOVERNMENT H.EDN. DEPT. DTD. 2.11.07. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.2359 of 2008-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of October, 2009. JUDGMENT The petitioner who is working as Lecturer in the Department of Zoology in Catholicate College, Pathanamthitta, is aggrieved by the non- approval of his appointment and denial of salary. Exts.P6(a) and P14 are the orders under challenge. The legal issue is covered in his favour by the order in R.P.Nos.101/2008 and 180/2008 in W.A. No.2529/2005 and connected cases. 2. The petitioner herein was selected and appointed after a due process of selection by a statutory selection committee, from 20.12.1995 and continued upto 31.5.2001. It is contended that even though the appointment was in different leave vacancies, the same has been approved. Thereafter, he was reappointed from 2.6.2003 onwards in K.G. College, Pampady and is continuing as such. Ext.P2 is the order of appointment. The matter was under correspondence between the University and the college and finally the petitioner had to approach this court by filing W.P. (C) No.17153/2007 and this court directed the University to take a decision. Accordingly, the University informed the College that the proposal for re- wpc 2359/2008 2 appointment is rejected as per Ext.P14. The ground on which it was rejected, is that B.Sc. Zoology course was sanctioned in K.G. College, Pambady during 2001-2002 with a condition that there shall be no financial commitment to Government and no posts shall be created or guest lecturers engaged at Government expenses for these courses at any point of time. 3. It is contended that since the fifth respondent's college is an aided college and as the management sought for affiliation to various courses, the University is bound to grant affiliation to various courses. Thus, it is contended that the salary cannot be denied. 4. In fact, in the judgment in W.A. No.2529/2005, the Division Bench had taken the view that when the Government has passed orders making it conditional, they have no liability to pay salary. R.P.Nos.101 and 180 of 2008 filed against the same , have been allowed as per order dated 7.10.2009. The relevant findings are contained in para 22 of the judgment. After relying upon the decisions of this Court in State of Kerala v. Devassy Manjooran (1977 KLT 110) and in Fr. Mathew Meleparambil v. State of Kerala (2008 (4) KLT 643), it was held thus in para 22: “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 wpc 2359/2008 3 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 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. 5. The said dictum squarely applies to the facts of this case also. In that view of the matter, the University has to pass fresh orders and hence, wpc 2359/2008 4 Exts.P6(a) and P14 are quashed. Therefore, the work load of the new course, viz. B.Sc. Zoology sanctioned as per Ext.P15 has also to be taken into account for the calculation of workload and fixation of staff strength, as per the terms of the Direct Payment Agreement and Ordinances relating to work load and pattern of teaching staff in Arts and Science Colleges. 6. Accordingly, there will be a direction to the first respondent to issue the Staff Fixation Order for all these years, especially for the year 2003-2004 in accordance with the directions contained in the judgment in R.P.Nos.101 and 180 of 2008 in W.A. No.2529/2005 and to pass orders on the grant of approval of appointment of the petitioner with effect from 1.6.1999 to 31.5.2000 and 1.6.2000 to 31.5.2001 and with effect from 2.6.2003 onwards, within six weeks of the date of receipt of a copy of this judgment. On such approval, respondents 3 and 4 will disburse the salary along with admissible arrears, within a further period of two months from the date of receipt of the proceedings granting approval. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) wpc 2359/2008 5 kav/