IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 WP(C).No. 35957 of 2008(E) ------------------------------------ PETITIONER(S): ---------------------- N.K.BABU, AGED 42 YEARS, S/O.V.RAMANKUTTY NAIR, CHITHRALAYAM, VEERAMANGALAM P.O., OTTAPPALAM, PALAKKAD DISTRICT. BY ADV. MR.NOUSHAD THOTTATHIL RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, P.M.G.JUNCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, THRISSUR. 4. UNIVERSITY OF CALICUT, REPRESENTED BY THE REGISTRAR, CALICUT UNIVERSITY, THENHIPALAM P.O., MALAPPURAM DISTRICT. 5. MUSLIM EDUCATIONAL SOCIETY, REPRESENTED BY THE GENERAL SECRETARY, DR.P.K.FAZAL GAFOOR. 6. THE PRINCIPAL, MES ASMABI COLLEGE, VEMBALLUR P.O., KODUNGALLUR, THRISSUR DISTRICT. R1 TO R3 BY GOVT. PLEADER SMT.M.R.SREELATHA R4 BY ADVS.MR.P.C.SASIDHARAN, SC, CALICUT UTY. R5 BY MR.BABU KARUKAPADATH, SMT.M.A.VAHEEDA BABU, MR.P.G.PRAMOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.35957/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE MINUTES OF THE MEETING OF THE SELECTION COMMITTEE HELD ON 29TH JANUARY 2005. P2:- COPY OF THE APPOINTMENT ORDER NO.MES/AC/E-07/2004, DTD. 12.2.05 ISSUED BY THE FIFTH RESPONDENT TO THE PETITIONER. P3:- COPY OF THE DECLARATION CERTIFICATE NO.MEX/AC/E-07/2004, DTD. 22.3.05 OF THE 5TH RESPONDENT. P4:- COPY OF THE ORDER NO GA-II/A3/2669/05 DATED 3.2.06 ISSUED BY THE 4TH RESPONDENT FOR MAKING THE APPROVAL OF APPOINTMENT OF THE PETITIONER. P5:- COPY OF THE STATEMENT OF WORKLOAD ASSESSED ON 18.12.02 IN RESPECT OF 5TH RESPONDENT COLLEGE. P6:- COPY OF THE LETTER NO.B3/868/06 DTD. 28.2.03 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT BY WITHHOLDING THE SALARY OF THE PETITIONER. P7:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DTD. 17.1.07 PASSED IN WPC. 12109/06. P8:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DTD. 21.6.07 PASSED IN W A. 940/07. RESPONDENT'S EXHIBITS R3(a):- COPY OF THE STATEMENT OF WORK LOAD IN RESPECT OF THE MES ASMABI COLLEGE, VEMBALLUR (KODUNGALLOOR). R3(b):- COPY OF THE STATEMENT OF WORK LOAD IN RESPECT OF THE MES KALLADI COLLEGE, MANNARKKAD. R3(c):- COPY OF THE LETTER NO.B3-1106/07 ISSUED BY THE 3RD RESPONDENT TO THE PRINCIPAL . R3(d):- COPY OF THE GO(MS) NO.17/96/H.EDN. DTD. 27.1.96. R4(a):- COPY OF THE COMMUNICATION ISSUED BY THE UNIVERSITY TO THE DEPUTY DIRECTOR DTD. 27.10.09. R5(a):- COPY OF THE JUDGMENT DTD. 14.9.04 IN WPC. NO.26815/04 OF THIS HONOURABLE COURT. R5(b):- COPY OF THE LETTER DTD. 25.10.04 OF THE IST RESPONDENT NOMINATING THE GOVERNENT REPRESENTATIVE FOR SELECTION OF TEACHING STAFF IN VARIOUS AIDED COLLEGES UNDER THE MANAGEMENT OF THE SOCIETY. TRUE COPY P.A. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 35957 of 2008-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of November, 2009. JUDGMENT The petitioner was appointed as a Lecturer in Commerce in the college managed by the 5th respondent, viz. MES Asmabi College, Vemballur, Kodungallur. This is an aided college. He was appointed as per Ext.P2. The main grievance raised in the writ petition is that in spite of the appointment having been approved by the University, the salary from time to time have not been disbursed by respondents 1 to 3. 2. The petitioner is also relying upon Ext.P7 judgment in W.P.(C) NO.12109/2006 filed by certain lecturers of the M.E.S. College, Ponnani seeking for a similar relief, wherein this Court directed the third respondent therein to disburse the salary in terms of the decision of the University. Ext.P8 is the judgment in W.A. No.940/2007 and connected cases. 3. Respondents 5 and 6 filed a counter affidavit supporting the plea raised by the petitioner. It is pointed out that the said respondents had to approach this Court by filing W.P.(C) No.26815/2004 and only in terms of Ext.R5(a) judgment, the selection committee was constituted and in terms of the decision of the selection committee, the petitioner was appointed. 35957/2008 2 4. The 4th respondent University also has filed a counter affidavit. It is pointed out in para 4 that the total workload in the Department of Commerce of the College is 130 hours excluding the 5 hours for the Principal. In terms of the workload at least 8 teachers can be appointed. But there were only 7 teachers at that time. The Deputy Director addressed a letter to the University on the issue and the University has clarified the position to the Deputy Director as per Ext.R4(a). It is therefore contended that the approval of appointment of the petitioner is perfectly in order. 5. The third respondent, in the counter affidavit has taken the stand that in MES College, Kalladi, two lecturers were working in excess and they ought to have been adjusted against the vacancies which arose in the MES College, Asmabi. It is also averred that the Government has ordered the respective Deputy Directors of Collegiate Education to observe the statutory provisions and Government Orders with regard to workload and qualifications before effecting salary and finally, in para 8 it is pointed out that the third respondent has raised an objection before the Calicut University as per letter dated 29.8.2009. 6. The legal position in this regard is well settled by various decisions of this Court and the judgments relied upon by the petitioner. This Court in Cherian Mathew v. Principal, S.B. College, 35957/2008 3 Changanacherry (1998 (2) KLT 144), considered the question whether once the University has approved the appointment, respondents 1 to 3 could refuse to disburse the salary. It was held thus: “To the teachers whose appointment is so approved, salary should be paid by the Government through Director of Collegiate Education. In other words, when a teacher is appointed by private management in terms of the provisions contained in the Kerala University First Ordinance or the Calicut University First Ordinance as the case may be, his salary has to be disbursed by the Government if that appointment has been approved by the concerned University. In case the Director of Collegiate Education doubts the propriety of the appointment of a teacher in the sense that the work load did not require the appointment of such a teacher, the issue will have to be taken up by him with the University. The University then has to re-examine the entire issue and to take a decision on the issue as to whether the appointment was proper or not. When the University takes a decision on this aspect, that decision will be binding on the Government. No provision of the University Act, First Statutes, Ordinance or Regulations in force enables the Government to sit in judgment over the decision arrived at by the University regarding the number of teachers to be appointed in a Department in a college run by a private management.” This position has been reiterated by a Division Bench in Ext.P8 judgment. 7. Therefore, the factual position that emerges is as follows: The 35957/2008 4 third respondent had raised an objection to the University as per letter dated 29.8.2009. The University has answered the same as per Ext.R4(a) letter dated 27.10.2009. This letter is addressed to the Deputy Director of Collegiate Education, Thrissur. The University has maintained that the appointment of the petitioner as Lecturer in Commerce with effect from 25.2.2005 against the retirement vacancy of Shri Paulson Thomas was approved by the University considering the workload in the Commerce Department in that college. Therefore, the University maintains that the approval granted is perfectly in order. 7. In the light of the above, the petitioner is entitled to succeed in the writ petition. Therefore, the writ petition is allowed. There will be a direction to the third respondent to countersign and pass the salary/arrears bills for disbursing the amount to the petitioner with effect from his date of approval of appointment as Lecturer and the said payments have to be effected within a period of three months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/