IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 RP.No. 658 of 2008(G) ---------------------------- AGAINST THE JUDGEMENT IN WPC.23377/2007 Dated 20/08/2007 .................... REVIEW PETITIONERS/ RESPONDENTS: --------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOLLAM. 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM. BY GOVERNMENT PLEADER SRI.SANDESH RAJA. RESPONDENTS/PETITIONERS & RESPONDENTS 4 & 5:: --------------------------------------------------------------------------- 1. PRIYA.L.G, LECTURER IN ECONOMICS, V.T.M.N.S.S.COLLEGE, DHANUVACHAPURAM, THIRUVANANTHAPURAM. 2. SHAIJUMON C.S, LECTURER IN ECONOMICS, V.T.M.N.S.S.COLLEGE, DHANUVACHAPURAM, THIRUVANANTHAPURAM. 3. SALINI.V, LECTURER IN ECONOMICS, N.S.S.COLLEGE, CHERTHALA. 4. MINI.M.NAIR, LECTURER IN ECONOMICS, M.G.COLLEGE, THIRUVANANTHAPURAM. 5. KISHORE.H, LECTURER IN ECONOMICS, M.G.COLLEGE, THIRUVANANTHAPURAM. 6. DR.USHAKUMARI.K.P, LECTURER IN HINDI, N.S.S.COLLEGE, NILAMEL. 7. DR.LEKHA.S.NAIR, LECTURER IN HINDI, V.T.M.N.S.S.COLLEGE, DHANUVACHAPURAM, THIRUVANANATHAPURAM. 8. THE MANAGER, N.S.S.COLLEGE, CENTRAL COMMITTEE, CHANGANACHERRY. 9. THE PRINCIPAL, VTMNSS COLLEGE, DHANUVACHAPURAM, THIRUVANANTHAPURAM. SRI.P.GOPAL,SC,N.S.S.COLLEGES FOR R8 & R9. SRI.P.C.SASIDHARAN - R3. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 20/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.P.No.658 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of November, 2008 Order This review Petition is at the instance of the Secretary to Govt., Higher Education Department and the Deputy Directors of Collegiate Education at Kollam and Ernakulam respectively. 2. The Review Petition has been field with a considerable delay of 278 days . However in view of the peculiar facts and circumstances and also in view of the order that I propose to pass, I am satisfied that the delay can be condoned. Ordered accordingly. 3. The Review Petition is directed against the judgment dated August 20, 2007 in W.P. No.23377/2007. The writ petition was filed by seven college teachers working in various aided colleges under the corporate management of Nair Service Society, Changanacherry. In the course of hearing of the Writ Petition, it was brought to the notice of this Court that the appointment of the petitioners had already been approved by the University. But the grievance of the petitioners was that their salary was being withheld. The writ petition was disposed of after hearing learned counsel for the petitioners and the learned Govt. Pleader with the following directions: “3. It is contended by the petitioners that the Deputy Director concerned ought to have reverted back to the University in case there was any RP.658/2008. 2 doubt regarding the availability of vacancies or non-sanctioning of the post in question. Learned counsel invites my attention to the latest decision rendered by a Division Bench of this Court in Writ Appeal 940/07 and connected cases. Anyhow, in view of the fact that the University had approved the appointment of the petitioners and in the absence of any material produced by the Directorate to show that the posts in question were not sanctioned by the Government, I am satisfied that there is considerable force in the contention raised by the petitioners. In any view of the matter, the stand taken by the Directorate cannot be justified. However, I hasten to add that it will be open to the Deputy Director concerned to approach the University to seek clarifications in the matter, if so advised. If the University takes the view that the appointments were made against posts for which RP.658/2008. 3 sanction/concurrence of the Government was necessary or that there was sufficient work load in the Colleges, it will be open to the Directorate to take appropriate decision in the matter. Anyhow, this process shall be completed within one month from the date of receipt of a coy of this judgment. Respondents 2 and 3 shall ensure that the salary and allowances payable to the petitioners are disbursed, within three months from today, if there is no other legal impediment.” 4. It appears that Smt.Salini who was petitioner No.3 in the writ petition, was not paid the salary payable to her. Therefore she filed Contempt of Court Case No.219 of 2008 in February 2008. 5. The Contempt Petition was closed on February 29, 2008 recording the submission made by the learned Govt. Pleader that the Deputy Director of Collegiate Education, Ernakulam had already passed an order admitting salary of Smt.Salini from June 1, 2006 till September 2007 to the tune of Rs.2,88,529/-. But later Smt.Salini filed a petition to re-open the contempt, since the Deputy Director refused to pay salary for the subsequent period. I do not propose to refer to the RP.658/2008. 4 various communications between the Head of the Institution and the Deputy Director in this connection. Suffice it to say that the Deputy Director took the stand that the approval of appointment given by the University in respect of Smt.Salini was not sustainable, in view of Govt. letter No. 516/D1/08/H.Edn. dated 28/1/2008 (Annexure A7). Yet again I refrain from making any observation on the stand taken by the Deputy Director in this regard in view of the order that is being passed in this petition. 6. In the Review Petition it is contended by Sri.Sandesh Raja, learned Govt. Pleader, that the Directorate had approached the University and sought for certain clarifications pursuant to and in the light of the observations made by this Court in the judgment . But the University has not so far responded to any of the queries made by the Directorate. It is further contended that Smt.Salini could not have been appointed by the management in a transfer vacancy, particularly in view of Annexure A7 letter of the Government. 7. In this context learned counsel for Smt.Salini invites my attention to the fact that Smt.Salini was appointed way back in December 30, 2005 and her appointment was approved by the University on May 5, 2007 with effect from January 6, 2006. 8. It is further contended by the learned Government Pleader that the Deputy Director could not get an opportunity to file a counter affidavit in the writ petition clarifying the above aspects. He would further contend that if only a counter affidavit had been filed, it could have been brought to the notice of this Court that the University was RP.658/2008. 5 not justified in approving the appointment of Smt.Salilni. 9. I am afraid the above contention cannot be sustained for reasons more than one. It may be noticed that in the judgment it was made clear that it would be open to the Directorate to approach the University and seek appropriate clarifications. It was further made clear that the salary would be paid to all the petitioners in the case, including Smt.Salini after obtaining such clarification and that too if there was no other legal impediment. Nothing prevented the Directorate in approaching the University and getting proper clarification, if there was any ambiguity or legal impediment in the matter of her appointment. That not having been done, it is idle for the review petitioners to raise the above contentions in the guise of review of the judgment and that too after making substantial payment amounting to Rs.288529/- to Smt.Salini. Moreover, salary for the period from October 2007 till January 2008 was also disbursed thereafter. 10. Anyhow, I refrain from making any further observation in view of the limited submission made by the learned Govt. Pleader at the Bar . He submits that steps have already been initiated to ensure that clarifications from the University are obtained expeditiously. In the meanwhile, salary will be disbursed for the remaining period. He further submits that the review petitioners will be satisfied if it is clarified that payment of salary to Smt.Salini for the subsequent period from February 2008 onwards, will be subject to the result of the orders that may be passed by the University on the basis of the clarifications sought for by the Directorate. In that view of the matter, I do not RP.658/2008. 6 propose to deal with any of the contentions raised by the parties in the Review Petition at this stage. The Review Petition is closed as requested by the petitioners making it clear that payment of salary to Smt.Salini for the subsequent period from February 2008 shall be subject to the orders that may be passed by the Directorate after obtaining clarifications from the University on the question of legality of the order of approval of her appointment. A.K. Basheer Judge. an.