IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 WP(C).No. 10867 of 2008(R) -------------------------- PETITIONER(S): --------------- 1. DR.ROY GEORGE, LECTURER IN ZOOLOGY, ST.THOMAS COLLEGE, KOZHENCHERRY. 2. DR.LATHAKUMARY.P.C., LECTURER IN SANSKRIT, ST.THOMAS COLLEGE, KOZHENCHERRY. 3. SARAMMA VARGHESE, LECTURER IN MALAYALAM, ST.THOMAS COLLEGE, KOZHENCHERRY. 4. TOM THOMAS, LECTURER IN ENGLISH, ST.THOMAS COLLEGE, KOZHENCHERRY. 5. SNEHA MATHEW, LECTURER IN MALAYALAM, ST.THOMAS COLLEGE, KOZHENCHERRY. 6. NINU THOMAS, LECTURER IN ZOOLOGY, ST.THOMAS COLLEGE, KOZHENCHERRY. BY ADV. SRI.BABU VARGHESE RESPONDENTS: --------------- 1. THE MANAGER, ST.THOMAS COLLEGE, KOZHENCHERRY. 2. THE MAHATMA UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI P.O., KOTTAYAM. ...2 WP(C).No. 10867 of 2008(R) : 2 : 3. THE STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM. 5. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM. ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY FOR R2 BY GOVERNMENT PLEADER SRI.T.T.MUHAMOOD FOR R3 TO R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 10867 of 2008(R) APPENDIX PETITIONER'S EXHIBITS : EXT.P1 : COPY OF ORDER OF APPROVAL DATED 14.12.2007 EXT.P2 : COPY OF THE JUDGMENT IN W.P.(C) NO.18426 OF 2006 DATED 16.7.2007 EXT.P2(a) : COPY OF THE JUDGMENT IN W.P.(C) NO.33573 OF 2006 DATED 7.3.2008 EXT.P3 : COPY OF THE FIRST SALARY BILL DATED 16.1.2008 EXT.P4 : COPY OF THE LETTER DATED 28.2.2008 EXT.P5 : COPY OF THE ORDER PASSED IN O.P.NO.16572/1995 DATED 26.10.1995 EXT.P5(a) : COPY OF THE ORDER PASSED IN O.P.NO.24481/98 DATED 24.1.2000. EXT.P6 : COPY OF THE APPOINTMENT ORDER DATED 25.1.2005 EXT.P7 : COPY OF THE STAFF FIXATION ORDER DATED 11.10.1990 EXT.P8 : COPY OF THE MINUTES OF THE SELECTION COMMITTEE HELD ON 24.1.2005 EXT.P9 : COPY OF THE JUDGMENT DATED 5.7.2006 IN W.A.No.2594 OF 2005 EXT.P10: COPY OF THE ORDER DATED 19.3.1998 EXT.P10(a): COPY OF THE ORDER DATED 20.11.1996 //TRUE COPY// PA TO JUDGE P.N.RAVINDRAN, J. -------------------------------- W.P(C) No.10867 of 2008-R --------------------------------- Dated this the 13th day of March, 2009. J U D G M E N T The petitioners are Lecturers in various subjects, appointed by the first respondent. Though their appointments were approved by the University by Exhibit P1 order passed on 14.12.2007, they have not been paid salary and allowances on account of various objections put forward by respondents 3 to 5. This writ petition was thereupon filed seeking reliefs regarding payment of salary and allowances. After the writ petition was filed, the Government conceded the claims of petitioners 1 and 3 to 6. Therefore, the dispute is now confined to the claim of the second petitioner for payment of salary. 2. The second petitioner was appointed as lecturer in Sanskrit by Exhibit P6 appointment order dated 25.1.2005 in the retirement vacancy of Sri.K.Thulasidharan Nair, Selection Grade Lecturer who retired from service on 31.5.2003. Sri.K.Thusasidharan Nair was the only teacher in the Department of Sanskrit in St. Thomas College, Kozhencherry. When the vacancy of W.P(C) No.10867 of 2008-R 2 lecturer in Sankrit arose on his retirement, the management took steps to notify the vacancy as per the provisions contained in the Mahatma Gandhi University Statutes, 1997. The second petitioner applied, was interviewed, selected and appointed by Exhibit P6 order dated 25.1.2005. The University also approved her appointment by Exhibit P1 order passed on 14.12.2007. The only objection put forward by the respondents in their counter affidavit for payment of salary and allowances to the second petitioner is that the post of Lecturer in Sanskrit can be sanctioned only if there is work for 16 hours a week. The first respondent also contends that the petitioner is handling classes for only 6 hours a week and therefore the post of Lecturer of Sanskrit cannot be sanctioned in the college. 3. The respondents do not dispute the fact that Sri.K.Thulasidharan Nair was working against a sanctioned post, that he was placed in the Selection Grade on the implementation of the UGC Scheme and that he was the only teacher in the Department of Sanskrit in St.Thomas College, Kozhencherry. The very same issue was considered by this Court in W.P.(C) No.26360 of 2007 W.P(C) No.10867 of 2008-R 3 wherein also the department raised the contention that as the teacher works only for 6 hours per week, a post of Lecturer in Sanskrit cannot be sanctioned in the college. Repelling the said contention, a learned Singe Judge of this Court held as follows: “8. A Department in a college should have a Head of Department with whose supervision only the Department can efficiently function. In order that the Head of Department should devote himself for the betterment of the Department and students it is essential that, he works full time in the Department. In view of the very nature of the duties alloted to a part time lecturer, he cannot function with the efficiency required of the situation. Therefore, it is imperative that a Department should be under the control of a full time lecturer in the interest of the student and their education. In a newly created Department there may not always the minimum workload fixed for a lecturer. Therefore, in the interest of the students, education and the college, it is necessary that a solitary teaching faculty in a Department should be a full time faculty. In other words, there should at least one full time teaching faculty in every Department in a college. I am of opinion that the statutory provisions in the Mahatma Gandhi University Ordinances Regarding Work Load and Staff Pattern of Teaching Staff also support my above view. Ordinances 4 and 5 read as under: “4. Staff Pattern for the Colleges: (a) College having Post-graduate courses (i) Principal (ii) Head of the Department (Post-Graduate)- if available, the seniormost Reader shall be the Head of a Post-Graduate department. W.P(C) No.10867 of 2008-R 4 (iii) Reader/Lecturer (Selection grade) (iv) Lecturer (Senior Grade). (b) Colleges having Degree Courses: (i) Principal (ii) Head of the Department (iii) Reader/Lecturer (Selection Grade) (iv) Lecturer (Senior Grade) (v) Lecturer. (c) Junior Colleges (i) Principal (ii) Lecturer (Selection Grade), Lecturer (Senior Grade) Lecturer. 5. The number of post(s) for each category of teachers in a College (Degree and Post-Graduate) (i) Principal One (ii) Head of the Department - (a) One for each department. (b) One for English in a fulfledged college, viz., College having 1st, IInd & IIIrd year class without English Main. (c) For Language Department in a fulfledged College. W.P(C) No.10867 of 2008-R 5 (iii) Reader/ Lecturer (Selection Grade) /Lecturer (Senior Grade)/ Lecturer Total number of posts permissible shall be according to the workload and staff pattern under the U.G.C. guidelines. Physical Education (iv) Reader/ Lecturer (Selection Grade) /Lecturer (Senior Grade)/ Lecturer (a) One where the number of students does not exceed 1000. (b) Two where the number of students exceeds 1000. Provided that where the number of lady students exceed 400 in a mixed college, a lady teacher in Physical Education shall be appointed. This will not however affect the existing staff.” These Ordinances specify that each department shall have a Head of the Department. If there is only one teaching faculty, then only that teaching faculty can be the Head of the Department. A part time lecturer cannot be Head of the Department by the very nature of the duties and responsibilities. Ordinance 6 of the Mahatma Gandhi University Ordinances reads thus: “6. Procedure for calculating the number of teachers required for a Department. (i) Total hours of teaching work per week (Lecture/Practical) shall be 25. Apart from the above there shall be provision for tutorials, Tests, Exams, Field work and extra circular activities. The total number of lecture hours per week and supervision periods of practical classes for science subjects shall be calculated first on the basis of hours prescribed for the concerned subject in the syllabus for the respective hours and strength of students. From the total hours so calculated the workload of Principal (if W.P(C) No.10867 of 2008-R 6 the Principal belong to that Department) and the Head of the Department shall be deducted. The balance hours so arrived at shall be divided by the maximum workload of a teacher after deduction as prescribed above. If there is balance of hours exceeding six hours a proposal for the creation of an additional post may be made and with the sanction of the University an additional post can be created. The workload shall be distributed equally among all teachers. Provided that in the case of Law for B.Com. where the total workload is less than 7 hours only a part-time teacher shall be appointed as it is not covered under the U.G.C. Scheme. (underlining supplied) The above Ordinance does not specifically envisage a situation wherein a Department the workload available is six or less. The prescription that creation of post shall be only if the workload exceeds six hours, is applicable only to additional posts. Therefore, according to me, going by the Ordinances themselves, in case where a particular Department consists of a solitary teaching faculty, in order to appoint a full time faculty to that post it is not necessary that the workload should exceed six hours. This is clear from the proviso to the Ordinance which specifically states that in the case of Law for B.Com. Degree where the total work load is less than seven hours, only a part time teacher shall be appointed as it is not covered under the UGC scheme. That would indirectly mean that in the case of a post covered under the UGC scheme, when the total workload of the Department is less than 7 hours also, a full time lecturer shall be appointed. This position has been accepted by both the Government and the University also as is clear from the fact that as evidenced by Exts.P3(c), P3(d) and P5 in other colleges in Departments where the total workload is less than 7 hours a full time faculty has been approved and salary disbursed. This is further clear from Ext.P8 judgment where also an instance of a part time lecturer by name, Smt.Iysha, an Arabic Lecturer in Edathala College has been promoted as Lecturer (Senior Scale) and approved by the University. In fact in W.P(C) No.10867 of 2008-R 7 O.P.No.29193/2002 also, the situation was identical. Sri.T.V.Zacharia, the petitioner in that case, was a solitary faculty in the Department of Political Science of E.M.E.A. College of Arts and Science Kondotty. Pursuant to the judgment in that O.P. confirmed in Ext.P10 judgment, the Government itself, has by Ext.P11 order, accepted him as full time lecturer. Taking a different view in the case of the petitioner would amount to discrimination and violative of the fundamental rights of the petitioner, also. In such situation I have no doubt in my mind that whenever a new Department is started in a college, when the Department is manned by a solitary teaching faculty, even if the workload is less than 7 hours, then that teaching faculty shall be a full time lecturer. The petitioner in this case being a solitary teaching faculty in the Sanskrit Department in the 1st respondent's college, she is also entitled to be approved as a full time teaching faculty.” 4. The learned single Judge held that even if the work load is less than seven hours, where the Department is manned by a single teacher, then that teaching faculty shall be a full time Lecturer and that the sole teacher in that department is entitled to be approved as full time teaching faculty. The decision of the learned Single Judge was challenged by respondents 3 to 5 herein in W.A.No.1666 of 2008. By judgment delivered on 30.10.2008, the said writ appeal was dismissed. On going through the pleadings and the materials placed before me, I am of the opinion that the issue raised in this case is covered by the decision in W.P.(C) No. W.P(C) No.10867 of 2008-R 8 26360 of 2007. In the light of the fact that the second petitioner is the only teaching faculty in the Department of Sanskrit in St.Thomas College, Kozhencherry and that she was appointed in the retirement vacancy of Sri.K.Thulaseedharan Nair who had also worked for less than 16 hours per week, the stand taken by respondents 3 to 5 cannot be sustained. In the light of the decision of this Court in W.P.(C) No.26360 of 2007 as affirmed by the Division Bench in W.A.No. 1666 of 2008, I hold that the petitioner is entitled to payment of salary and allowances at the applicable rates. I accordingly allow this writ petition and direct the respondents to fix and pay salary and allowances to the petitioner in the scale of pay of full time Lecturer in Sanskrit with effect from 27.1.2005. Necessary orders in that regard shall be issued within two months from the date of receipt of a certified copy of this judgment. Payment of arrears of salary and allowances shall be made immediately on receipt of the arrear bill from the Principal of the college. Sd/- P.N.RAVINDRAN ab JUDGE //True Copy//