IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 WP(C).No. 31748 of 2010(P) PETITIONER: --------------- MARY ELIZABETH ANTONY, LECTURER IN MATHEMATICS, MAR ATHANASIUS COLLEGE, KOTHAMANGALAM. BY ADV. SRI.BABU VARGHESE, SENIOR ADVOCATE SRI.KAPPILLIL ANILKUMAR SRI.JOHNSON T. JOHN RESPONDENTS: --------------- 1. THE SECRETARY, MAR ATHANASIUS COLLEGE ASSOCIATION/ MANAGER, MAR ATHANASIUS COLLEGE, KOTHAMANGALAM- 686 691. 2. THE MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS P.O., KOTTAYAM- 686 650. 3. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1. 4. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, PMG JUNCTION, THIRUVANANTHAPURAM-1. 5. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM, KOCHI - 11. R1 AND R3 TO R5 BY GOVERNMENT PLEADER SRI.T.T.MUHAMOOD R2 BY STANDING COUNSEL SRI.T.A.SHAJI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE MINUTES OF THE MEETING OF THE SELECTION COMMITTEE HELD ON 6.1.2010 FOR THE SUBJECT MATHEMATICS. EXT.P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 18.1.2002 ISSUED BY THE FIRST RESPONDENT. EXT.P3 TRUE COPY OF THE ORDER DATED 6.5.2010. EXT.P4 TRUE COPY OF THE STATEMENT OF WORKLOAD SUBMITTED BY THE PRINCIPAL. EXT.P4(a) TRUE COPY OF THE STAFF FIXATION ORDER DATED 24.11.2009 ISSUED BY THE SECOND RESPONDENT UNIVERSITY. EXT.P5 TRUE COPY OF THE RELIEVING ORDER OF SMT.SINDHU THOMAS DATED 31.1.2008. EXT.P5(a) TRUE COPY OF APPROVAL ORDER DATED 27.9.2006 ISSUED TO SINDHU THOMAS. EXT.P5(b) TRUE COPY OF ACQUITTANCE ROLL SHOWING THE PAYMENT OF ARREARS. EXT.P5(c) TRUE COPY OF THE RECEIPT OF THE LAST PAY. EXT.P6 TRUE COPY OF THE STATEMENT SHOWING THE STAFF POSITION OF THE DEPARTMENT OF MATHEMATICS. EXT.P7 TRUE COPY OF THE REPRESENTATION DATED 23.9.2010 FILED BY THE PETITIONER BEFORE THE FOURTH AND FIFTH RESPONDENTS. EXT.P8 TRUE COPY OF THE ORDER DATED 26.10.1995 PASSED IN O.P.NO.16572 OF 1995. EXT.P8(a) TRUE COPY OF THE ORDER DATED 24.1.2000 PASSED IN O.P.NO.24481 OF 1998. RESPONDENTS' EXHIBITS: EXT.R5(a) TRUE COPY OF G.O.(Rt)NO.458/2009/H.EDN. DATED 28.3.2009. EXT.R5(b) TRUE COPY OF LETTER NO.D4.3480/10 DATED 13.9.2010. //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 31748 OF 2010 P ------------------------------------------------------ Dated this the 22nd day of November, 2010 JUDGMENT The petitioner was appointed as Lecturer in Mar Athanasius College, Kothamangalam. The appointment was made on the basis of the recommendation made by the statutory selection committee consisting of the nominees of the Government and the University. The petitioner was appointed with effect from 20.1.2010. The appointment of the petitioner was approved by the University as per Ext.P3 order dated 6.5.2010. 2. The grievance of the petitioner is that in spite of the approval of the appointment of the petitioner by the University, salary of the petitioner was not disbursed. The salary bill submitted was not honoured without any reason. 3. The reliefs prayed for in the Writ Petition are the following: “(i) declare that the petitioner is entitled to get the salary and other benefits with arrears with effect from 20.1.2010 on the strength of Exhibit P3 approval order and Exhibits P8 & P8(a) orders of this Honourable Court. W.P.(C) NO.31748 OF 2010 :: 2 :: (ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 5th Respondent to honour Exhibit P3, and to disburse salary and other benefits with arrears with effect from 20.1.2010 on the strength of Exhibit P3 approval order. (iii) award costs and interest to the petitioner for the delayed payment. and (iv) issue such other order or direction as this Hon'ble court may deem fit and proper in the circumstances of the case.” 4. It is stated in the counter affidavit filed by the fifth respondent that prior “sanction” of the Government was essential for filling posts. Such prior permission was not obtained in the case of the petitioner. It is also stated in the counter affidavit that the presence of the required workload alone would not be sufficient. Since prior “concurrence” of the Government was not obtained, the appointment was illegal. 5. The question of law involved in the Writ Petition is well W.P.(C) NO.31748 OF 2010 :: 3 :: settled in favour of the petitioner in Cherian Mathew v. Principal, S.B.College, Changanassery (1998(2) KLT 144) and Shalini Rachel v. Manager, Christian College (2007(3) KLT 355). In Cherian Mathew's case, it was held that a teacher whose appointment is approved by the University, should be paid the salary by the Government. It was also held that in case the Director of Collegiate Education doubts the propriety of the appointment of a teacher in the sense that the workload did not justify the appointment of such a teacher, the issue will have to be taken up by him/her with the University. The University has to re-examine the entire issues and to take a decision on the issue as to whether the appointment was proper or not. It was also held that when the University takes a decision on that aspect, that decision will be binding on the Government. 6. Paragraphs 10 and 11 in Shalini Rachels case read as follows: “10. Scope of S.57(2) of the Kerala University Act has to be tested in the light of the above mentioned statutory provisions. Power of the University in granting approval as well as sanctioning posts after ascertaining the workload and fixation of staff pattern as per the Statutes has not been taken away by the University W.P.(C) NO.31748 OF 2010 :: 4 :: Amendment Act 2 of 2005. Clear cut provisions have been made in the University Statutes and Ordinances as to how the workload has to be assessed and staff strength fixed so as to avoid unnecessary appointments. Further the interest of the students is also to be safeguarded by appointing sufficient number of teachers without delay. Power is also conferred on the Deputy Director of Collegiate Education to take up the matter with the University in case there is any doubt with the approval granted. In appropriate cases, Government can also examine the action taken by the Deputy Director and address the University through him. 11. We have no reason to think that an august body like Syndicate or the Deputy Director of Collegiate Education would act arbitrarily or against public interest while exercising powers statutorily conferred on them. Sub-s.(1) of S.57 only says that appointments to the posts eligible to receive salary from the Government shall be made only after getting prior sanction from or from such officers authorised by the Government. For filling up the posts sanctioned by the University on the basis of workload or staff pattern, no prior permission of the Government is necessary. Once Syndicate of the University grants approval for filling up the existing vacancies depending upon the workload and staff pattern Government is obliged to pay salary of the teachers appointed by duly constituted Selection Committee. If Government or its officers find that the approval was granted by the University illegally it can always take up the matter before the University or other forums so that public interest will not suffer. S.57(1) was introduced not to take away the statutory powers already conferred on the Syndicate of the University. Principle laid down in Cherian Mathew's case, supra, in our view, still holds good. In view of the above mentioned W.P.(C) NO.31748 OF 2010 :: 5 :: circumstances, we are inclined to affirm the judgment of the learned single Judge in W.P.C.No.12109 of 2006 and dismiss W.A.No.940 of 2007.” 7. In view of the binding and authoritative pronouncement mentioned above, the petitioner is entitled to the reliefs prayed for in the Writ Petition. The fifth respondent shall honour the salary bills in respect of the petitioner. Arrears of salary shall be paid within a period of two months. The salary due to the petitioner shall be paid without default. 8. Learned Government Pleader submitted that the right to address the University as mentioned in Cherian Mathew's case may be reserved. In the facts and circumstances, the respondents would be entitled to get such reservation. However, it is made clear that such reservation should not stand in the way of implementation of the directions contained in the preceding paragraphs. The Writ Petition is disposed of as above. (K.T.SANKARAN) Judge ahz/