IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 11TH JANUARY 2011 / 21ST POUSHA 1932 WP(C).No. 20404 of 2008(D) -------------------------- PETITIONER : --------------------- DR.M.P.AJITH KUMAR, LECTURER, SENIOR SCALE, DEPARTMENT OF HISTORY, S.D.COLLEGE, ALLEPPEY. BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI. B. UNNIKRISHNA KAIMAL RESPONDENT(S): ------------------------- 1. THE KERALA UNIVERSITY, REPRESENTED BY ITS REGISTRAR, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF COLLEGIATE OF EDUCATION, ERNAKULAM. 3. THE PRINCIPAL, S.D.COLLEGE, ALLEPPEY. 4. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. R1 BY ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UNIVERSITY R2 & R4 BY GOVERNMENT PLEADER SMT. N. SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 20404 of 2008(D) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE ORDER DATED 2.7.2007 OF THE 1ST RESPONDENT. EXT.P2 : COPY OF THE LETTER DATED 17.6.2008 OF THE 2ND RESPONDENT TO THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R2(a) : COPY OF THE POST ADALATH REVIEW DATED 16.10.2003. EXT.R2(b) : COPY OF THE CIRCULAR NO. 28796/C1/03/H.EDN. DATED 9.4.2004. EXT.R2(c) : COPY OF THE COMMUNICATION SENT TO THE FIRST RESPONDENT TO REVIEW AND CANCEL THE PLACEMENT GRANTED TO THE PETIITIONER, BY THE 2ND RESPONDENT. //TRUE COPY// P.S. TO JUDGE Mn T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.20404 of 2008-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of January, 2011. JUDGMENT The denial of selection grade to the petitioner has led to the filing of this writ petition. Ext.P2 is the communication issued by the second respondent rejecting his claim. 2. The petitioner is working as Lecturer Senior Scale in the Department of History at Sanathana Dharma College which is affiliated to the first respondent University. He was a Lecturer from July 1996 onwards and became a Lecturer Senior Scale in July 2001 in accordance with the U.G.C. Scheme, 2001. The University by Ext.P1 approved his placement in the Selection Grade from Senior Scale. When the bills were forwarded to the second respondent, the view taken is that the workload in the department does not entitle the petitioner to get placement in the Selection Grade. 3. Heard Shri K.R.B. Kaimal, learned Senior Counsel appearing for the petitioner, learned Standing Counsel for the University and learned Govt. Pleader. 4. Learned Senior Counsel appearing for the petitioner submitted that wpc 20404/2008 2 it is well settled by various decisions of this Court that once the University grants approval, the Government or the authorities under the Act cannot sit in appeal over the decision of the University. Reliance is placed on the decisions of this Court in Cherian v. Principal, S.B. College, Changanassery (1998 (2) KLT 144) and Shalini Rachel v. Manager, Christian College (2007 (3) KLT 355). 5. In the counter affidavit filed by the second respondent, reliance is placed on Ext.R2(a) relating to the workload arrived at the post adalath review. The contention mainly taken is that the workload does not permit the placement given to the petitioner. The counter affidavit in para 7 also evidences the fact that the second respondent addressed the matter to the University and requested to review and cancel the placement granted to the petitioner, as per Ext.R2(c) communication. It is also stated that the University replied through the letter dated 16.11.2007 which said that the promotion granted is in order and it satisfied the conditions mentioned in para 6.26 and 6.27 of the Government Order No.171/99/H.Edn. dated 21.12.1999. 6. In the reply affidavit filed by the petitioner, the petitioner disputes the averments in the counter affidavit that he was appointed for teaching wpc 20404/2008 3 Pre-degree. It is pointed out that he was appointed on 1.7.1996 as a regular Lecturer in the cadre post and not as a junior Lecturer. Reliance is placed on the Govt. Order dated 21.12.1999, especially para 3.3 therein to contend that teachers possessing UGC qualification, will be retained in the College even after delinking of the Pre-degree and he was granted UGC scale of pay as Lecturer and then as Senior Lecturer from July 2001 onwards. His placement as Senior Lecturer was approved by the first respondent and salary as such is being paid by the second respondent under the UGC Scheme. On completion of five years of service as Senior Lecturer, the petitioner became entitled for placement as Lecturer (Selection Grade) in terms of the Govt. Order dated 21.12.1999. It is further pointed out that the provisions of the Govt. Order concerning UGC Scheme do not specify work load as a criteria for placement in Selection Grade. It is also pointed out that Ext.R2(b) circular will not apply to the petitioner, as it applies only to Lecturers appointed against Pre-degree vacancies and continuing without work load. 7. Learned Senior Counsel for the petitioner submitted that the issue is covered in favour of the petitioner in the light of the decisions of this Court in Cherian's case (1998(2) KLT 144) and Shalini Rachel's case wpc 20404/2008 4 (2007(3) KLT 355) to contend for the position that the Government or other Officers of the Department cannot sit in appeal over the decision taken by the University, once approval is granted. 8. The question considered was whether the Government or the authorities under the Act can sit in appeal over the approval granted by the University and it was held thus in Cherian's case(supra): “3. Kerala University First Ordinance 1978 inter alia provide for assessment of work load and pattern of teaching staff in Arts and Science Colleges. Chapter XIII of the First Ordinance deals with the said issues. Statute 3 is concerned with the procedure for calculating number of teachers required for a department. In the case of Mahatma Gandhi University, it is conceded before us, no separate Ordinance has been promulgated and the Kerala University First Ordinance govern all similar issues. Likewise the Calicut University First Ordinance controls the procedure for calculating number of teachers required for a department. 4. On the basis of the work load calculated in terms of Ordinance 3 in the Kerala University First Ordinance, teachers are allowed to be appointed in Colleges run by private management. The appointment so made in conformity with the work load assessed by the University are approved by the concerned University. wpc 20404/2008 5 To the teacher whose appointments 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. 5. 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. In the absence of such a provision, the Government is not entitled to impose a condition that prior approval from the Director of Collegiate wpc 20404/2008 6 Education is needed for a management to appoint a teacher in its staff.” The said position was reiterated in the later decision in Shalini's case also and in paragraphs 10 and 11 the legal position was reiterated thus: “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 Statutes has not been taken away by the University Amendment Act 2 of 2005. Clear cut provisions have been made in the University Statutes 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 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 wpc 20404/2008 7 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 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 Cheriyan 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.” It was open for the Deputy Director of Collegiate Education to raise an objection to the University, but once the University rejects the same, he wpc 20404/2008 8 cannot refuse to pay salary. 9. Herein, as evident from the counter affidavit filed by the second respondent, the matter was taken up with the University way back in 2007 as per Ext.R2(c) and the University reiterated the stand as per their reply dated 16.11.2007. In the light of the above factual position, the decisions of this Court referred to above, apply on all fours, to the fact situation herein. 10. Therefore, the writ petition is allowed. Ext.P2 is quashed. There will be a direction to the Principal of the College to forward the bills relating to the petitioner for payment to the second respondent and on receipt of the same, the second respondent will sanction and disburse the amount along with arrears. Appropriate action will be finalised within a period of two months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/