IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 WP(C).No. 16995 of 2005(W) PETITIONER(S): 1. THE MANAGER, ST.PIUS X COLLEGE, RAJAPURAM, KASARAGODE, CORPORATE EDUCATIONAL AGENCY OF COLLEGES, MALABAR REGION, DIOCESE OF KOTTAYAM. 2. BIJU JOSEPH, LECTURER IN MANAGEMENT STUDIES, DEPARTMENT OF BUSINESS ADMINISTRATION, ST.PIUS X COLLEGE, RAJAPURAM, KASARAGODE. 3. SANTHOSH.C., LECTURER IN COMMERCE, DO. DO. 4. PRASAD P.J., LECTURER IN COMMERCE, DO. DO. 5. SHYMA.S.G. , LECTURER IN STATISTICS, DO. DO. BY ADV. SRI.N.SUGATHAN SRI.A.V.RAMAKRISHNA PANICKER SMT.R.SEEMA SMT.VARSHA BHASKAR RESPONDENT(S): 1. THE STATE OF KERALA, REPRESENTED BY THE SPECIAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, NORTH ZONE, CALICUT. 4. THE KANNUR UNIVERSITY, REPRESENTED BY ITS REGISTRAR, KANNUR. ADV. SRI.MOHAMMED MUSTAQUE, STANDING COUNSEL, KANNUR UTY. GOVT. PLEADER SRI.ARAVIND KUMAR BABU FOR R1 TO R3 SRI. K.JAJU BABU, SC, KANNUR UNIVERSITY FOR R4 M.SASEENDRAN,STANDING COUNSEL,KANNUR UNIVERSITY- R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.NO.16995 OF 2005 APPENDIX PETITIONERS' EXHIBITS: Ext.P1: True copy of G.O.(MS) No.162/99/H.Edn. dated 6.12.1999 with extract of the Appendix. Ext.P2: True copy of the order dated 1.2.2000 appointing Sri.Benny. T.U. Ext.P3: True copy of the order dated 1.2.2000 appointing Sri.K.T.Joseph. Ext.P4: True copy of the order dated 3.2.2000 appointing Shinto Kuriakose. Ext.P5: True copy of the Letter dated 29.10.2001 of the 3rd respondent. Ext.P6: True copy of the order dated 22.6.2000 appointing Sri.Benny. T.U. Ext.P7: True copy of the order dated 22.6.2000 appointing Sri.Joseph M.T. Ext.P8: True copy of the order dated 4.9.2000 appointing Smt.Shiba Samuel. Ext.P9: True copy of the Letter dated 8.11.2001 of the 3rd respondent. Ext.P10: True copy of the Letter dated 30.9.2002 of the 3rd respondent. Ext.P11: True copy of the order dated 21.6.2002 appointing the 2nd petitioner. Ext.P12: True copy of the Letter dated 29.3.2004 of the 3rd respondent. Ext.P13: True copy of the order dated 9.6.2003 appointing the 2nd petitioner. Ext.P14: True copy of the Letter dated 14.10.2004 of the 3rd respondent. Ext.P15: True copy of letter dated 5.9.2001 of Registrar, Kannur University. W.P.C.NO.16995 OF 2005 Ext.P16: True copy of the Letter dated 27.9.2001 of the 1st respondent. Ext.P17: True copy of judgment dated 3.3.2004 in W.P.C.No.7368/04. Ext.P18: True copy of the Letter dated 19.3.2004 of the 1st respondent. Ext.P19: True copy of the order dated 1.6.2004 appointing the 2nd petitioner. Ext.P20: True copy of the order dated 1.6.2004 appointing the 3rd petitioner. Ext.P21: True copy of the order dated 1.6.2004 appointing the 4th petitioner. Ext.P22: True copy of the order dated 12.7.2004 appointing the 5th petitioner. Ext.P23: True copy of the Letter dated 29.10.2004 of the 4th respondent. Ext.P24: True copy of representation dated 9.11.2004 to the 1st respondent. Ext.P25: True copy of representation dated 23.12.2004 to the 1st respondent. Ext.P26: True copy of the Letter dated 3.1.2005 of the 1st respondent. Ext.P27: True copy Application dated 25.8.2007 submitted by Sri.Sabu Malithuruthil. Ext.P28: True copy of Letter dated 22.9.2007 of the Secretary to Govt. Ext.P29: True copy of Letter dated 26.9.2007 of the Secretary to Govt. Ext.P30: True copy of Letter dated 2.11.2007 of the Secretary to Govt. Ext.P31: True copy of Order No.Acad B2/4525/05(I) dt. 7.1.08 of Kannur University. Ext.P32: True copy of Order No.Acad B2/4525/05(II) dt. 7.1.08 of W.P.C.NO.16995 OF 2005 Kannur University. Ext.P33: True copy of Letter dated 24.4.2008 of the 3rd respondent to the Principal, St.Pius X College. Ext.P34: True copy of Judgment dated 21.2.2008 in W.P.C No.29454/2007. RESPONDENTS' EXHIBITS: NIL C.T. RAVIKUMAR, J. --------------------------------------------- W.P.(C) NO. 16995 OF 2005 --------------------------------------------- Dated this the 20th day of October, 2009 JUDGMENT The grievance of the petitioners is regarding the non-disbursement of salary to the petitioners 2 to 5 in spite of approval of their appointment by the University. 2. Certain courses were sanctioned by the Government as per Ext.P1 G.O dated 6.12.99. It is a conditional order that the expenditure should not exceed the budget allotment for the purpose on any account. As per Ext.P1, new courses were sanctioned during the year 1999-2000 to St. Pius X College, Rajapuram, Kasaragod District, of which the first petitioner is the manager. Pursuant to Ext.P1, the first respondent had effected certain appointments as per Exts.P2 to P4 against the substantive vacancies, as Guest Lecturers. Admittedly, third respondent had countersigned the bills and directed to honour the bills in respect of the said appointees. The Syndicate had, later, resolved to make a request to the Government for its prior concurrence for the creation of teaching posts in respect of five affiliated colleges, including St.Pius X College, Rajapuram, Kasaragod and pursuant to the same the University had W.P.(C) NO.16995 of 2005 2 forwarded all the required details to the Government and requested for favourable consideration of the matter, as per Ext.P15. The Appendix to Ext.P15 reads as follows: APPENDIX ------------------------------------------------------------------------------------------- Subject Workload per week No. of Existing Additional staff Requirement -------------------------------------------------------------------------------------------- Commerce 47 hours Nil 3 Statistics 8 hours Nil 1 -------------------------------------------------------------------------------------------- 3. Ext.P16 is the reply of the Government to Ext.P15. As per that, the University was requested to defer the proposal for better demands in view of the economy orders. Aggrieved by the same, Writ Petition No.7368/04 was filed by the Manager of the said college and the same was closed as per Ext.P17 recording the submission of the learned Government Pleader that appropriate follow up order would be passed on Ext.P3 therein. In terms of the said submission recorded in Ext.P17, the matter was considered and Government have issued Ext.P18. Ext.P18 assumes relevance in the context of the case and the same reads thus: “Inviting attention to the reference cited. I am to convey permission for filling up of the regular vacancies of non-teaching staff. I am to request you to wait for W.P.(C) NO.16995 of 2005 3 Government decision on revised staff pattern of non- teaching staff in aided colleges which will be issued shortly. Ext.P3 letter is disposed of accordingly.” (Emphasis supplied) 4. On account of changes in the curriculum, appointments were effected as per Exts.19 to P22 against the post of lecturers in BBS course as two each in Management Studies and Commerce and one in Statistics. Despite the fact that permission was already granted for filling up of the regular vacancies of teaching staff in the college by the Government, as is obvious from Ext.P18, the University had again requested for creation of teaching posts on the basis of workload of colleges concerned including that of the first petitioner. That was followed by a representation by the principal of the college (Ext.P24) and Manager of the college (Ext.P25). However, disregarding Ext.P18 that was passed pursuant to Ext.P17 judgment, Government have declined to grant sanction as requested as per Ext.P26 and the reason for such disinclination has been given as hereunder: “Inviting attention to the reference cited. I am to inform you that the request of the Principal, St.Pius X College, Rajapuram for appointing teaching staff for Bachelor of Business Studies (BBS) Course cannot be granted, as the course of BBS was sanctioned to the College on specific condition that the expenditure will not exceed the budget allotment for the purpose on any account.” W.P.(C) NO.16995 of 2005 4 5. The petitioners have produced certain additional documents as Exts.P28 to P30 which are the replies given to the concerned applicant one Sri.Sabu Malathuruthil on his application(Ext.P27). The informations furnished as per Ext.P30 assumes relevance in the context of the case: Item No.7: Yes, In some Private aided colleges, the managements have appointed teachers against the workload of the courses sanctioned as per G.O (MS) No.162/99/H.Edn. dated 6/12/99 and the Universities have approved these appointments. Item No.8: a) Yes, Salary is disbursing to one lecturer appointed for B.Sc Computer Science Course in Mary Matha Arts & Science College, Mananthavady b) Yes, Salary is disbursing to one lecturer appointed for B.Sc Polymer Chemistry in NAM College, Kallikandy c) Yes, Salary is disbursing to two lecturers appointed for B.Sc Computer Science Course in MG College, Iritty d) Yes, Salary is disbursing to one lecturer appointed for the subsidiary subject to B.Sc. Microbiology course started in EMEA College, Kondotty Item No.11: In certain cases, the teachers who were appointed in the courses sanctioned as per G.O.(MS) No.162/99/H.Edn dated 6/12/99 were given salary on account of the judgment in WP(C)'s filed by the concerned persons. It is pertinent to note the aforesaid 4 colleges were sanctioned the aforesaid respective new courses along with the first petitioner's college as per Ext.P1. W.P.(C) NO.16995 of 2005 5 6. That apart, 4th respondent university, has subsequently accorded sanction for creation of four posts of lecturers in the first petitioner's college as per Ext.P31 order dated 7.1.2008. That was followed by Ext.P32 order of approval of appointment of the four lecturers viz., petitioners 2 to 5 herein. It would reveal that the appointments of petitioners 2 to 4 were approved by the university with effect from the dates of their appointments as is evident from Exts.P19 to P22. Ext.P32 would also make it clear that the appointments of petitioners 2 to 5 were made in accordance with the statutes, ordinances of Kannur University in the matters of selection procedure, workload and qualification. Thereafter, the salary bills of petitioners 2 to 5 were prepared and forwarded for countersigning to the third respondent. However, the third respondent declined to countersign the salary bills of petitioners 2 to 4 for the reasons assigned as per Ext.P33. After reiterating the fact that Ext.P1 order was a conditional one, the reason to decline to approve the bills has been stated therein. It is stated that this Court in judgment in W.A No.2529/05 dated 18.8.07 held that Government did not have any liability to pay salary in respect of persons appointed as teaching staff in respect of courses sanctioned with the condition as has been stated in Ext.P1. As noticed hereinbefore, the condition in Ext.P1 is that the expenditure would not exceed the budget allotment for the purpose on any account . The facts narrated hereinbefore would thus reveal the W.P.(C) NO.16995 of 2005 6 following:- The courses were started by the first petitioner-college pursuant to sanction by the Government. Subsequently, the fourth respondent university gave sanction for creation of posts and permission for the same was granted by the Government as per Ext.P18. Appointments of petitioners 2 to 5 were effected as per Ext.P19 to P22 in the light of the sanction accorded by the university and the permission granted by the Government. Most importantly, the appointments thus effected as per Ext.P19 to P.22 were approved by the university as per Ext.P32. In the aforesaid factual position obtained in this case, it is contended that there is no reason or justification for declining sanction for payment of salaries to the petitioners. Ext.P33 is unsustainable, it is contended. 7. When the matter was taken up for final hearing, the learned counsel for the petitioners Sri.N.Sugathan contended that even the reasons assigned in Ext.P33 unsustainable in view of the fact that the judgment referred to therein was subsequently reviewed and recalled by this Court as per order dated 7.10.09 in R.P.No.101/08 in W.A.No.2529/05. The judgments in W.P.(C) Nos.30527/2005 and 939/2006 were also recalled as per the said order dated 7.10.09. Thereafter a common judgment was passed in W.A.No.2529/05, W.P.(C).Nos.30527/05 and 939/06 by a Bench of this W.P.(C) NO.16995 of 2005 7 Court whereby the Writ appeal preferred by the Government was dismissed and the Writ Petitions were allowed. The learned counsel for the respondents and the learned Government Pleader strenuously attempted to support and sustain Ext.P33 and also the entire actions that culminated in Ext.P33. However, they admitted that the judgments in W.A.No.2529/05 and connected cases were reviewed and recalled and Writ Appeals filed by the State were dismissed and Writ Petitions were allowed. Therefore, having regard to the facts and circumstances of the case I am not adverting to the rival contentions. 8. The ultimate effect and impact of the common judgment in W.A No.2529/05 and connected cases is that the third respondent cannot now assign that the appointments of the petitioners 2 to 5 are not in terms of Ext.P1 G.O dated 6.12.99 and decline to pass and countersign the salary bills in respect of petitioners 2 to 5 drawn and forwarded to him in the light of Exts.P18, P31 and P32. In this case there is no need to issue a direction to the university to approve the appointments in terms of staff fixation. The University has already accorded sanction for creation of four posts of lecturers as per Ext.31 order based on the workload statement furnished by the college as on 1.6.04. As per Ext.P32, the appointments of the petitioners 2 to 5 made as per Exts.P19 to P22 were approved by the university. The W.P.(C) NO.16995 of 2005 8 said approval is legal and in consonance with the order issued by the Government as per Ext.P18 whereby Government granted permission for appointments in the college of the first petitioner. Paragraph 14 therein, in so far as it is relevant in this context, reads thus:- “Annexure A8, is an application submitted before the State Public Information Officer, appointed under the Right to Information Act. In answer to Question Nos.1 and 2, by Annexure A8(b), it is informed that Ext.P2(a) was issued on the basis of Cabinet decision on 24.11.1999, and that the new courses have been sanctioned in order to accommodate teachers rendered in excess consequent on the declining of Pre-Degree courses. It is also stated that the new courses were sanctioned as there was budget provision.................................................................” 9. Question N0.7 was whether any permanent appointment in private aided colleges against the vacancies which come into existence as a result of courses sanctioned as per Ext.P2(a) has been approved and Question No.8, whether salary is disbursed to lecturers in the colleges mentioned therein, have been answered in the affirmative as per Annexure 8E. The informations furnished as per Ext.P30 by the Public Information Officer appointed under the Right to Information Act would reveal that those informations pertain to the colleges to which sanction was accorded for starting new courses, along with St.Pius X College, Rajapuram, Kasaragod District, as per Ext.P1. The courses started by such colleges are aided courses and the colleges in question are governed by Direct Payment W.P.(C) NO.16995 of 2005 9 Agreement were taken into consideration to hold that by imposing unilateral conditions, the Government cannot absolve itself of the liabilities arising under such a statutory contract. Indisputably, the course started by St.Pius X College, Rajapuram in terms of Ext.P1 is also an aided course and the college is governed by Direct Payment System. Ext.P32 would also reveal that the appointments of the petitioners 2 to 5 were already held by the University as appointments effected in accordance with the statutes, ordinances of Kannur University in the matters of selection procedure, workload and qualifications. What is emerging from these discussions is that Ext.P33 cannot be sustained. Therefore, Ext.P33 is quashed. Consequently, there shall be a direction to the 3rd respondent to approve the salary bills pertaining to petitioners 2 to 5 when once it is drawn and forwarded to him by the competent authority based on Ext.P32. The 3rd respondent shall pass and countersign the salary bills pertaining to petitioners 2 to 5 forwarded for his approval as expeditiously possible, at any rate, within a period of 3 months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of accordingly. (C.T. RAVIKUMAR) spc JUDGE W.P.(C) NO.16995 of 2005 10