IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 WP(C).No. 16853 of 2006(F) --------------------------------------- PETITIONER: ------------------- NOUSHAD J.A., AGED 30 YEARS, S/O. E.A. ALIKHAN, LECTURER,DEPARTMENT OF COMMERCE, FAROOK COLLEGE, FAROOK COLLEGE P.O.,KOZHIKODE DISTRICT. BY ADVS. MR.K.S.MADHUSOODANAN, MR.GEORGEKUTTY JACOB. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, P.M.G. JUNCTION,THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOZHIKODE. 4. UNIVERSITY OF CALICUT, REPRESENTED BY THE REGISTRAR, CALICUT UNIVERSITY, THENHIPALAM P.O., MALAPPURAM DISTRICT. 5. FAROOK COLLEGE MANAGING COMMITTEE, REPRESENTED BY THE MANAGER, ADVOCATE M.MUHAMMED. 6. THE PRINCIPAL, FAROOK COLLEGE, FAROOK COLLEGE P.O., KOZHIKODE. R1 TO R3 BY GOVT. PLEADER MR. V.T.K. MOHANAN, R4 BY MR. P.C. SASIDHARAN, S.C, R5 & R6 BY DR.K.B.MUHAMED KUTTY, SENIOR ADVOCATE, ADV. MR.K.M.FIROZ. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.16853/2006-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. GA.1/D1/7940/95 DTD. 24/11/1995 ISSUED BY THE R.4. TO THE R.5. EXT.P.2: COPY OF THE LETTER NO.GA.1/D1/7940/95 DTD. 06/02/1997 ISSUED BY THE R.4. TO THE R6. EXT.P.3: COPY OF THE ORDER NO. GA-1/J2/5989/96 DTD. 11/09/1997 ISSUED BY THE R.4. EXT.P.4: COPY OF THE ORDER NO.GA1/J2/99 DTD. 20/12/2000 ISSUED BY THE R.4. EXT.P.5: COPY OF THE ORDER NO. GA.III/G2/2935/2001 VOL.II(I) DTD. 03/03/2005 ISSUED BY THE R.4. TO THE PETITIONER. EXT.P.6: COPY OF THE CIRCULAR NO. F4-2/90(NET) DTD. 22/02/2002 ISSUED BY THE DEPUTY SECRETARY OF UNIVERSITY GRANTS COMMISSION, NEW DELHI. EXT.P.7: COPY OF THE APPOINTMENT ORDER NO. G2-2/423/2004(TSF) DTD. 20/05/2004 ISSUED BY THE R.5. TO THE PETITIONER. EXT.P.8: COPY OF THE ORDER NO. GA.III/A1/2116/04 DTD. 10/12/2004 ISSUED BY THE R.4. EXT.P.9: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DTD. 03/02/2006 PASSED IN W.P.(C).NO.22455/2006. EXT.P.10: COPY OF THE LETTER NO. D4/1468/06 DTD. 27/04/2006 ISSUED BY THE R.4. TO THE R.4. EXT.P.11: COPY OF THE LETTER NO. GA.II/A1/12116/04 DTD. 29/05/2006 ISSUED BY THE R.4. TO THE R.6. EXT.P.12: COPY OF THE CLARIFICATION LETTER NO. G2-2/2006/(TSF) DTD. 03/06/2006 ISSUED BY THE R.6 TO THE R.4. EXT.P.13: COPY OF THE CERTIFICATE OF SLET FROM BHARATHIDASAN UNIVERSITY, TAMIL NADU DTD. 11/07/2000. EXT.P.14: COPY OF THE LETTER DTD. 10/06/04 ISSUED FROM UGC BEARING NO. F.17- 5/98(NET). EXT.P.15: COPY OF THE LETTER BEARING NO. GA II/A1/2116/04 DTD. 07/07/06. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.16853 OF 2006 --------------------------------------- Dated this the 14th day of October, 2009. J U D G M E N T The petitioner herein had been working as Lecturer in the Department of Commerce, Farook College in Kozhikode District. The grievance raised by the petitioner is regarding the inaction of the 3rd respondent in not disbursing the salary from the date of his appointment by raising an objection regarding his qualification. 2. The 1st respondent accorded sanction to the 5th respondent for starting Bachelor of Business Studies course in the Farook College under the Department of Commerce from the academic year 1995-1996. By Exhibit P1, the 4th respondent- University granted affiliation to the Farook College for starting the BBS course for the academic year 1995-1996. Exhibit P3 is the order whereby the 4th respondent prescribed the qualification of Lecturers for teaching the various papers of second and third year of the BBS course. By Exhibit P4, the 4th respondent W.P.(C) No.16853/2006 2 changed the name of the Bachelor of Business Studies (BBS) course as Bachelor of Business Administration (BBA) with effect from the academic year 2001-2002. 3. The petitioner is having the qualification of MBA Degree with first class from the Bharathiar University, Coimbatore and he has also passed the State Level Education Test (SLET) in the year 2000. Thereafter, he was appointed as Guest Lecturer for more than two years at MBA Centre, Vadakara, a centre run by the Calicut University. Exhibit P6 is the circular issued by the Deputy Secretary of University Grants Commission clarifying that those candidates who have cleared SLET held before 1st June 2002 can apply for lecturership to any Universities/Colleges in anywhere in India. 4. The petitioner was appointed as per Exhibit P7. Exhibit P8 is the order granting approval by the Calicut University. After declaration of probation, the Principal forwarded the salary bills of the petitioner along with others to the Deputy Director of Collegiate Education, Kozhikode. 5. Aggrieved by the delay in disbursement of the salary, W.P.(C) No.16853/2006 3 the petitioner filed W.P.(C) No.22455/2005. Exhibit P9 is the copy of the judgment rendered by this Court therein. The judgment was in favour of the petitioner. Even thereafter, the 3rd respondent did not disburse the salary from 01.06.2004. 6. By Exhibit P10, the Deputy Director of Collegiate Education sought for a clarification from the Registrar of the University of Calicut as to whether the qualification acquired by the petitioner is enough for the post of Lecturer in Commerce. Thereafter, the University requested the Principal to clarify the point and by Exhibit P12, the Principal submitted a detailed clarification. It is at that stage, the writ petition was filed. 7. The stand taken by the 3rd respondent in the counter affidavit is that the clarification as sought for has not been obtained and accordingly, the payment of salary in respect of the petitioner is kept in abeyance. 8. Along with the reply affidavit, the petitioner has produced Exhibits P13 to P15. Exhibit P15 is a communication from the Registrar of Calicut University to the Deputy Director of Collegiate Education, Kozhikode in reply to Exhibit P10. Therein W.P.(C) No.16853/2006 4 the University has clarified that the petitioner has the required qualifications for the post of Lecturer in Commerce Department where BBA course is also conducted. Learned standing counsel for the University also submitted that the required qualification sought for by the Deputy Director of Collegiate Education has been answered by Exhibit P15. It is pointed out that the petitioner is having the required qualification and there is sufficient workload also. 9. The issue whether the Government can deny the salary after the University has granted approval of appointment has been settled by the decisions of this Court in Cherian Mathew vs.Principal S.B.College, Changanassery(1998(2)KLT 144) and in State of Kerala and others vs. Dr.Sina A.R. and others (2007(3) KHC 96). It was held that the Government cannot sit in appeal over the approval granted by the University. Once the clarification has been replied by the University whereby the approval granted already is sought to be justified, there cannot be any denial of salary. It was held thus in paragraph 5 in Cherian Mathew's case (supra): W.P.(C) No.16853/2006 5 “No provision of the University Act, First Statutes, Ordinances 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. In the absence of such a provision, the Government is not entitled to impose a condition that prior approval from the Director of Collegiate Education is needed for a management to appoint a teacher in its staff”. 10. In the light of the above, the petitioner is entitled to succeed in the writ petition. Learned counsel for the petitioner submitted that the petitioner has left the job and joined Government service. Therefore, he will be entitled for payment of due salary as per the scale applicable from time to time, till he left the service of the college. 11. As per the interim order dated 20.09.2006, this Court directed that the salary due to the petitioner will be disbursed on condition that he executes an indemnity bond undertaking to reimburse the amounts paid to him, if ultimately it is found that he is not eligible or entitled to get the same. It was also ordered that the petitioner shall be paid salary for the ensuing months W.P.(C) No.16853/2006 6 also until further orders. It is averred that the petitioner is in receipt of the salary. In the light of the fact that the approval of appointment of the petitioner is valid, the entitlement of the petitioner for payment of salary cannot be disputed. It is declared so. The petitioner will be relieved of the conditions of the bond. If any arrears of salary is due to the petitioner, the same will also be disbursed within a period of two months from the date of receipt of a copy of this judgment. This writ petition is allowed as above. T.R. RAMACHANDRAN NAIR JUDGE smp