IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 WP(C).No. 34582 of 2008(P) -------------------------------------- PETITIONER: ------------------- FR. JOHN JOSEPH, SELECTION GRADE LECTURER IN SYRIAC, S.B. COLLEGE, CHANGANACHERRY. BY ADV. MR.BABU VARGHESE. RESPONDENTS: ------------------------ 1. THE MANAGER, S.B. COLLEGE, CHANGANACHERRY. 2. THE MAHATHMA UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI.P.O, KOTTAYAM. 3. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, P.M.G JUNCTION, THIRUVANANTHAPURAM. 4. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM. R1 BY ADV. MR.S.MUHAMMED HANEEFF, R2 BY MR. T.A. SHAJI, SC, M.G.UNIVERSITY, R3 & R4 BY GOVERNMENT PLEADER SMT. T.B. REMANI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/08/2009, ALONG WITH W.P.(C). NO.26646/2006, THE COURT ON 30/09/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.34582/2008: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE STAFF FIXATION ORDER FOR THE YEAR 1994-95 ISSUED BY THE UNIVERSITY. EXT.P.1.(A): COPY OF THE ORDER OF APPROVAL DTD. 04/06/1996 GRANTED BY THE UNIVERSITY. EXT.P.2: COPY OF THE ORDER OF APPROVAL DTD. 04/08/2007 GRANTED BY THE UNIVERSITY IN HIS PROMOTION AS SENIOR GRADE LECTURER. EXT.P.3: COPY OF THE PROMOTION ORDER DTD. 18/08/2007 ISSUED BY THE R.1. PLACING THE PETITIONER AS SELECTION GRADE LECTURER. EXT.P.4: COPY OF THE CLAIM SUBMITTED BY THE PRINCIPAL DTD. 24/08/2007 BEFORE THE R.4. EXT.P.5: COPY OF THE REQUEST DTD. 15/05/2008 SUBMITTED BEFORE THE R.4. UNDER RIGHT TO INFORMATION ACT. EXT.P.5.A: COPY OF THE INFORMATION FURNISHED BY THE R.4. IN REPLY TO EXHIBIT P.5 DTD. 17/05/2008. EXT.P.6: COPY OF THE JUDGMENT IN O.P. NO.17890/1998. EXT.P.6.A: COPY OF THE JUDGMENT IN W.P.(C).NO.17358/2008. EXT.P.7: COPY OF THE UNIVERSITY ORDER ACAD L/R/1/91 DTD. 25/05/1992. EXT.P.8: COPY OF THE RELEVANT PAGES OF THE REGULATIONS OF THE UNIVERSITY OF KERALA. EXT.P.9: COPY OF THE ORDER ISSUED BY THE UNIVERSITY DTD. 15/03/2005. EXT.P.10: COPY OF THE REPRESENTATION DTD. 06/04/2009 FILED BY THE PETITIONER BEFORE THE HONOURABLE VICE CHANCELLOR. EXT.P.11: COPY OF THE CIRCULAR DTD. 28/06/2008 ISSUED BY THE M.G.UNIVERSITY. EXT.P.12: COPY OF THE CERTIFICATE DTD. 08/06/2009 ISSUED BY THE PRINCIPAL. W.P.(C). NO.34582/2008-P: RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE ORDER DTD. 25/05/1992 ISSUED BY THE M.G.UNIVERSITY. EXT.R3.A: COPY OF THE CIRCULAR DTD. 09/02/2004. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 34582 of 2008-P - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of September, 2009. JUDGMENT The petitioner who is working as Selection Grade Lecturer in Syriac in the first respondent's college, is aggrieved by the refusal to disburse salary and other benefits in the promoted post of Senior Grade Lecturer with effect from 26.9.2000. The main contention raised in the writ petition is that as the University has granted approval for the appointment of the petitioner as Lecturer and later his promotion as Lecturer Senior Grade, the Government cannot refuse to disburse the salary. Reliance is placed on two Division Bench decisions of this court in Cherian Mathew v. Principal, S.B. College, Changanacherry (1998 (2) KLT 144) and Shalini Rachel v. Manager, Christian College (2007 (3) KLT 355). 2. The bare facts for the disposal of the writ petition are the following: The petitioner was selected and appointed as Lecturer with effect from 26.9.1994 by a statutory selection committee after due process of selection. He was appointed in one of the two sanctioned posts for the subject in Syriac. His appointment was in the retirement vacancy of Fr. Thomas Kanjirathumootil. The approval has been granted by the University wpc 34582/2008 2 for the said appointment as per Ext.P1(a). He was promoted as Senior Grade lecturer with effect from 26.9.2000 by the management and the same was approved by the University as per Ext.P2 dated 4.8.2007. Later, by Ext.P3 he was promoted as Lecturer Selection Grade also. After Ext.P2 approval was granted, the Principal submitted the proposal for the claim and disbursement of salary in the post of Lecturer Senior Scale which is evidenced by Ext.P4. Ext.P5 is the request forwarded by the petitioner to the Deputy Director of Collegiate Education seeking disbursement of salary and by Ext.P5(a) it was informed that the matter is under consideration by the Director of Collegiate Education. The petitioner is relying upon Exts.P6 and P6(a) judgments of this court wherein, this court after following the dictum laid down in Cherian Mathew's case (1998 (2) KLT 144), directed the disbursement of salary to the petitioners. 3. The respondents have filed counter affidavits and the petitioner has filed a reply affidavit also. It is the contention of the third respondent that as per the U.G.C. Regulations, postgraduate degree in the concerned subject with at least 55% marks should be there and the petitioner should have cleared the eligibility test, i.e. NET. In the absence of the same, the approval granted as per Ext.P2 by the University cannot be supported. The petitioner is not entitled to get exemption from NET qualification also. It is wpc 34582/2008 3 the further contention of the third respondent that the work load does not support the approval granted. It is also pointed out that the Deputy Director of Collegiate Education had requested the University as per letter dated 12.11.2008 to re-examine the orders approving promotion as Lecturer Senior Scale in respect of the petitioner and the University has not issued any clarification in the matter. 4. The University in its counter affidavit, has pointed out that the University granted approval of appointment as Lecturer in Syriac before the implementation of the U.G.C. Regulations. He had completed six years of service and had attended one orientation course and one refresher course. It is also averred that the University did not receive any objection regarding the validity of the approval granted, at that point of time. 5. At the time of hearing, learned Standing Counsel for the University submitted that the objections received from the Deputy Director of Collegiate Education and the Principal Secretary to the Government, were considered by the Syndicate Standing Committee on Affiliation in its meeting held on 20.7.2009 and it was resolved not to review the promotion already given to the petitioner as he was appointed on 26.9.1994 with the qualification prescribed in the regulations relevant at that point of time and no NET is being conducted for Syriac and also he had satisfied all other wpc 34582/2008 4 conditions for promotion. The communication issued to the Principal Secretary to Higher Education (F) Department from the Registrar of the University, was produced for perusal, by the learned Standing Counsel. In the counter affidavit filed by the first respondent, it has been explained that the qualifications prescribed for the post of Lecturer in Syriac are First Class Master's Degree or a Second Class Master's Degree in any subject with not less than 55% marks and Bachelor's Degree in any subject with first class or second class in Syriac as second language. As per Ext.R1(a), the Mahatma Gandhi University resolved to adopt the Regulations of the University of Kerala and made applicable the same with effect from 2.10.1983. Even though the Kerala University regulations relating to qualifications of teachers in all subjects prescribed a P.G. degree in the concerned subject with at least 55% marks, for teachers in Latin as well as in Syriac a first class Master's degree or a second class Master's Degree in any subject is prescribed. Thus, the contention raised is that the P.G. degree was not insisted at the time of original appointment and no other qualification is prescribed for further placements except one orientation course and one refresher course of approved duration, and hence the placement given to the petitioner is perfectly justified. 6. The petitioner has reiterated his contentions in the reply affidavit. wpc 34582/2008 5 It is pointed out that the Regulations made by the University of Kerala which have been adopted by the M.G. University, provides for P.G. qualification in any subject as far as the subject Syriac is concerned. The same has been produced as Ext.P8. It is further pointed out that none of the Syriac Teachers in the State placed in UGC Scheme possess NET, as UGC has not conducted any NET for Syriac at the relevant time and even now. It is also pointed out that similarly placed teachers in the subject Syriac in St. Thomas College, Pala, Baselius College, Kottayam and Catholicate College, Pathanamthitta who have the same qualifications as that of the petitioner, were granted approval and salary being disbursed by the Government. It is further contended that as the petitioner had the required qualification at the time of initial appointment and as he was selected by a statutory selection committee, he fulfils the provisions stipulated by the U.G.C. for promotion/placement as Lecturer Senior Scale as per G.O.(P) No.171/99/H.Edn. dated 21.12.1999. As regards the work load, it is pointed out that the University has not declared any teacher in the department as supernumerary and the University as per Ext.P11 circular, has clarified that for the purpose of promotion of college teachers, it is not necessary to look into whether they are excess in the department, if they are otherwise qualified for promotion. It is also averred relying upon Ext.P12 wpc 34582/2008 6 certificate issued by the Principal that there are 18 hours work load for the subject Syriac, eve after the delinking of pre-degree course from the college. 7. The question, therefore, is whether as the University has finally overruled the objection raised by the Government and the Deputy Director of Collegiate Education, can they refuse to pay salary? In Cherian Mathew's case (1998 (2) KLT 144), the Division Bench held that “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.” It was held further that “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 wpc 34582/2008 7 the appointment was proper or not. When the University takes a decision on this aspect, that decision will be binding on the Government.” The above dictum was followed in Shalini Rachel's case (2007 (3) 355) by another Division Bench of this court. The said legal position was reiterated by the Division Bench. Therefore, the primacy is vested on the University itself as regards the grant of approval and once the University communicates their decision even after an objection is raised by the Director of Collegiate Education or Deputy Director as the case may be or by the Government, they cannot refuse to pay salary. 8. In the light of the above legal position, there cannot be any doubt that the petitioner is entitled for payment of salary in the post of Lecturer Senior Scale. 9. Learned Govt. Pleader, by referring to the above two decisions, contended that those decisions relate to approval granted based on work load and therefore, the said principle cannot apply here. I am afraid, the said contention cannot be accepted. The question decided is whether the decision of the University to grant approval could be set at naught by the Government or its functionaries. It was held that they cannot sit in appeal over the decision of the University. Therefore, the said contention cannot be accepted. In Exts.P6 and P6(a) judgments, in the case of other teachers, wpc 34582/2008 8 this court overruled similar objections and directed disbursement of salary. 10. In fact, the stand taken in the counter affidavit filed by the third respondent is that the Deputy Director of Education requested the University to re-examine the orders approving promotion as Lecturer Senior Scale in respect of the petitioner. Now that the University has clarified it based on the decision of the Syndicate Standing Committee on Affiliation, there is no change as regards the promotion granted to the petitioner. Therefore, the Deputy Director of Collegiate Education cannot pursue the objection further in the light of the dictum laid down in the two decisions of the Division Bench referred to above. 11. It is clear from the pleadings that the Regulations of the Kerala University were adopted by the M.G. University, whereby for appointment as Lecturer in Syriac, a First Class or Second Class Master's Degree in any subject with not less than 55% marks is sufficient. In that view of the matter, as far as the subject Syriac is concerned, it cannot be insisted that there should be a P.G. degree in the subject itself. It is clear from the reply affidavit filed by the petitioner and the counter affidavit filed by the first respondent that M.A. course in Syriac was not there in India and it was started for the first time in August 1997, after the appointment of the petitioner. U.G.C. has not conducted any NET for Syriac at the relevant wpc 34582/2008 9 point of time and even now, which fact is also not disputed. The averment in the reply affidavit that other lecturers who were similarly placed in various colleges are granted the salary in terms of the approval granted, is also not disputed. Therefore, the petitioner cannot be discriminated on that ground also. He had completed six years of qualifying service and has participated in one orientation course and one refresher course for approved duration which have been considered by the management as well as by the University for grant of approval. Regarding the work load also, the objection raised by the second respondent cannot be sustained, evidently and in the light of the decision taken by the University. The petitioner has not been declared as supernumerary or excess by the University and Ext.P12 would show that there is sufficient work load. 12. Learned counsel for the petitioner further relied upon the decision of a Division Bench of this court in S.N. College v. N. Raveendran (2001 (3) KLT 938) to contend that as far as the qualification for appointment is concerned, the relevant provisions framed under the University Act will be applied and unless amendments are effected in the University Statutes, the provisions of U.G.C. Scheme would not be applicable. I find force in the said submission also in the light of the dictum laid down by the Division Bench in the above case. wpc 34582/2008 10 For all these reasons, the petitioner is entitled to succeed in the writ petition and the same is allowed. It is declared that the petitioner is entitled to get the salary and other benefits with arrears in the promoted post of Senior Grade Lecturer with effect from 26.9.2000 in the light of Ext.P2 order of approval. There will be a direction to the 4th respondent to countersign the salary bills and arrear bills of the petitioner in the promoted post with effect from 26.9.2000 and disburse the salary within two months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/