IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 WP(C).No. 30341 of 2010(P) --------------------------------------- PETITIONER(S): ----------------------- RAJESH P.C. LECTURER IN PHYSICAL EDUATION, BCM COLLEGE, KOTTAYAM BY SRI.BABU VARGHESE, SENIOR ADVOCATE, ADV. SRI.KAPPILLIL ANILKUMAR, SRI.JOHNSON T. JOHN, SRI.ADARSH A.VARGHESE. RESPONDENT(S): -------------------------- 1. THE MANAGER, BCM COLLEGE, KOTTAYAM 2. THE MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS PO, KOTTAYAM. 3. THE STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVT., DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 4. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, PMG JUNCTION, THIRUVANANTHAPURAM. 5. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM. R3 TO R5 BY GOVT. PLEADER MR.T.T. MUHAMOOD. R1 BY SRI.JOSEPH KODIANTHARA, SENIOR ADVOCATE, ADV. SRI.V.ABRAHAM MARKOS, SRI.MATHEWS K.UTHUPPACHAN, SRI.BINU MATHEW, SRI.B.J.JOHN PRAKASH, SRI.TOM THOMAS (KAKKUZHIYIL), SRI.TERRY V.JAMES. R2 BY ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs K.T.SANKARAN, J. ------------------------------ W.P.(C).No. 30341 OF 2010 ------------------------------ Dated this the 1 st day of November, 2010 JUDGMENT The petitioner was appointed as Lecturer in Physical Education in BCM College, Kottayam. He was appointed on the basis of recommendation made by the statutory committee consisting of the Government and the University nominees. The grievance of the petitioner is that he was not paid salary from the date of his appointment, namely, 19.2.2009. The appointment of the petitioner was approved by the University, as per Ext.P4 order dated 2.2.2010. The salary bill of the petitioner was submitted after the approval of the appointment. But Ext.P7 objection was raised by the Deputy Director of Collegiate Education that the student strength admitted only the appointment of one Physical Education Lecturer in the College. The petitioner was appointed on 19.2.2009 and a Guest Lecturer was working from 19.2.2009 to 28.2.2009. Therefore, the Principal was directed to W.P.(C).No. 30341 OF 2010 2 remit the salary drawn by the Guest Lecturer for the aforesaid period. 2. Learned counsel for the petitioner submitted that Ext.P6 representation dated 2.6.2010 was submitted by the Principal to the Registrar of the University, to re-examine the fixation of staff strength and to revise the admissibility of the number of Physical Education Lecturers as two instead of one. The Principal of the College had also submitted Ext.P7 (a) representation dated 2.6.2010 to the Registrar of the University. It is submitted that Exts.P6 and P7 (a) are pending disposal by the University. 3. The question involved in the Writ Petition is well settled in favour of the petitioners 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 W.P.(C).No. 30341 OF 2010 3 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 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 has to re-examine the entire issue 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. 4. Paragraph 10 and 11 of 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 work load and fixation of staff pattern as per the Statues has not been taken away by the University Amendment Act 2 of 2005. Clear cut provisions have been made in the University Statues and Ordinances as to how the work load 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 W.P.(C).No. 30341 OF 2010 4 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 work load 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 work load 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 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.” 5. In the facts and circumstances of the case and in view of the well settled legal position, the Writ Petition is allowed as follows: W.P.(C).No. 30341 OF 2010 5 a) Respondent No. 5 is directed to disburse the salary and arrears of salary payable to the petitioner within a period of two months from the date of receipt of a copy of the judgment. b) While paying the salary and arrears of salary an amount of Rs.2160/- shall be deducted, the amount being the salary drawn by the Guest Lecturer for the period mentioned above. c) If the said sum of Rs.2160/- is paid by the Manager or by the Guest Lecturer or by the Principal, that amount shall be disbursed to the petitioner. d) If on the representations submitted by the Principal, the University takes a view that two posts of Physical Education W.P.(C).No. 30341 OF 2010 6 Lecturers could be sanctioned, in that eventuality, the petitioner would be entitled to get back Rs.2,160/- deducted from his salary. e) The learned Government Pleader submitted that the rights of respondents 3 to 5 to raise objection before the University that the workload does not permit appointment of Physical Education Lecturer, as observed in Cherian Mathew's case may be reserved to them. It is so reserved. K.T.SANKARAN, JUDGE cms