IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16995 of 2005(W)
1. THE MANAGER, ST.PIUS X COLLEGE,
... Petitioner
2. BIJU JOSEPH, LECTURER IN MANAGEMENT
3. SANTHOSH.C. LECTURER IN COMMERCE,
4. PRASAD, P.J. LECTURER IN COMMERCE,
5. SHYMA.S.G. LECTURER IN STATISTICS,
Vs
1. THE STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DIRECTOR OF COLLEGIATE EDUCATION,
3. THE DEPUTY DIRECTOR OF COLLEGIATE
4. THE KANNUR UNIVERSITY,
For Petitioner :SRI.N.SUGATHAN
For Respondent :SRI.MOHAMMED MUSTAQUE, SC, KANNUR UTY.
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :20/10/2009
O R D E R
C.T. RAVIKUMAR, J.
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W.P.(C) NO. 16995 OF 2005
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Dated this the 20th day of October, 2009
JUDGMENT
The grievance of the petitioners is regarding the non-disbursement
of salary to the petitioners 2 to 5 in spite of approval of their appointment
by the University.
2. Certain courses were sanctioned by the Government as per
Ext.P1 G.O dated 6.12.99. It is a conditional order that the expenditure
should not exceed the budget allotment for the purpose on any account.
As per Ext.P1, new courses were sanctioned during the year 1999-2000 to
St. Pius X College, Rajapuram, Kasaragod District, of which the first
petitioner is the manager. Pursuant to Ext.P1, the first respondent had
effected certain appointments as per Exts.P2 to P4 against the substantive
vacancies, as Guest Lecturers. Admittedly, third respondent had
countersigned the bills and directed to honour the bills in respect of the
said appointees. The Syndicate had, later, resolved to make a request to
the Government for its prior concurrence for the creation of teaching posts
in respect of five affiliated colleges, including St.Pius X College,
Rajapuram, Kasaragod and pursuant to the same the University had
W.P.(C) NO.16995 of 2005 2
forwarded all the required details to the Government and requested for
favourable consideration of the matter, as per Ext.P15. The Appendix to
Ext.P15 reads as follows:
APPENDIX
——————————————————————————————-
Subject Workload per week No. of Existing Additional
staff Requirement
——————————————————————————————–
Commerce 47 hours Nil 3
Statistics 8 hours Nil 1
——————————————————————————————–
3. Ext.P16 is the reply of the Government to Ext.P15. As per
that, the University was requested to defer the proposal for better demands
in view of the economy orders. Aggrieved by the same, Writ Petition
No.7368/04 was filed by the Manager of the said college and the same was
closed as per Ext.P17 recording the submission of the learned Government
Pleader that appropriate follow up order would be passed on Ext.P3 therein.
In terms of the said submission recorded in Ext.P17, the matter was
considered and Government have issued Ext.P18. Ext.P18 assumes
relevance in the context of the case and the same reads thus:
“Inviting attention to the reference cited. I am to
convey permission for filling up of the regular vacancies
of non-teaching staff. I am to request you to wait forW.P.(C) NO.16995 of 2005 3
Government decision on revised staff pattern of non-
teaching staff in aided colleges which will be issued
shortly. Ext.P3 letter is disposed of accordingly.”
(Emphasis supplied)
4. On account of changes in the curriculum, appointments were
effected as per Exts.19 to P22 against the post of lecturers in BBS course as
two each in Management Studies and Commerce and one in Statistics.
Despite the fact that permission was already granted for filling up of the
regular vacancies of teaching staff in the college by the Government, as is
obvious from Ext.P18, the University had again requested for creation of
teaching posts on the basis of workload of colleges concerned including
that of the first petitioner. That was followed by a representation by the
principal of the college (Ext.P24) and Manager of the college (Ext.P25).
However, disregarding Ext.P18 that was passed pursuant to Ext.P17
judgment, Government have declined to grant sanction as requested as per
Ext.P26 and the reason for such disinclination has been given as hereunder:
“Inviting attention to the reference cited. I am to
inform you that the request of the Principal, St.Pius X
College, Rajapuram for appointing teaching staff for
Bachelor of Business Studies (BBS) Course cannot be
granted, as the course of BBS was sanctioned to the
College on specific condition that the expenditure will
not exceed the budget allotment for the purpose on any
account.”
W.P.(C) NO.16995 of 2005 4
5. The petitioners have produced certain additional documents as
Exts.P28 to P30 which are the replies given to the concerned applicant one
Sri.Sabu Malathuruthil on his application(Ext.P27). The informations
furnished as per Ext.P30 assumes relevance in the context of the case:
Item No.7: Yes, In some Private aided colleges, the
managements have appointed teachers against the
workload of the courses sanctioned as per G.O
(MS) No.162/99/H.Edn. dated 6/12/99 and the
Universities have approved these appointments.
Item No.8:
a) Yes, Salary is disbursing to one lecturer appointed for
B.Sc Computer Science Course in Mary Matha Arts &
Science College, Mananthavady
b) Yes, Salary is disbursing to one lecturer appointed for
B.Sc Polymer Chemistry in NAM College, Kallikandy
c) Yes, Salary is disbursing to two lecturers appointed for
B.Sc Computer Science Course in MG College, Iritty
d) Yes, Salary is disbursing to one lecturer appointed for
the subsidiary subject to B.Sc. Microbiology course
started in EMEA College, KondottyItem No.11: In certain cases, the teachers who were appointed
in the courses sanctioned as per G.O.(MS)
No.162/99/H.Edn dated 6/12/99 were given salary
on account of the judgment in WP(C)’s filed by
the concerned persons.
It is pertinent to note the aforesaid 4 colleges were sanctioned the aforesaid
respective new courses along with the first petitioner’s college as per Ext.P1.
W.P.(C) NO.16995 of 2005 5
6. That apart, 4th respondent university, has subsequently accorded
sanction for creation of four posts of lecturers in the first petitioner’s college
as per Ext.P31 order dated 7.1.2008. That was followed by Ext.P32 order of
approval of appointment of the four lecturers viz., petitioners 2 to 5 herein.
It would reveal that the appointments of petitioners 2 to 4 were approved by
the university with effect from the dates of their appointments as is evident
from Exts.P19 to P22. Ext.P32 would also make it clear that the
appointments of petitioners 2 to 5 were made in accordance with the
statutes, ordinances of Kannur University in the matters of selection
procedure, workload and qualification. Thereafter, the salary bills of
petitioners 2 to 5 were prepared and forwarded for countersigning to the
third respondent. However, the third respondent declined to countersign the
salary bills of petitioners 2 to 4 for the reasons assigned as per Ext.P33.
After reiterating the fact that Ext.P1 order was a conditional one, the reason
to decline to approve the bills has been stated therein. It is stated that this
Court in judgment in W.A No.2529/05 dated 18.8.07 held that Government
did not have any liability to pay salary in respect of persons appointed as
teaching staff in respect of courses sanctioned with the condition as has
been stated in Ext.P1. As noticed hereinbefore, the condition in Ext.P1 is
that the expenditure would not exceed the budget allotment for the purpose
on any account . The facts narrated hereinbefore would thus reveal the
W.P.(C) NO.16995 of 2005 6
following:-
The courses were started by the first petitioner-college pursuant to
sanction by the Government. Subsequently, the fourth respondent
university gave sanction for creation of posts and permission for the same
was granted by the Government as per Ext.P18. Appointments of
petitioners 2 to 5 were effected as per Ext.P19 to P22 in the light of the
sanction accorded by the university and the permission granted by the
Government. Most importantly, the appointments thus effected as per
Ext.P19 to P.22 were approved by the university as per Ext.P32. In the
aforesaid factual position obtained in this case, it is contended that there is
no reason or justification for declining sanction for payment of salaries to
the petitioners. Ext.P33 is unsustainable, it is contended.
7. When the matter was taken up for final hearing, the learned
counsel for the petitioners Sri.N.Sugathan contended that even the reasons
assigned in Ext.P33 unsustainable in view of the fact that the judgment
referred to therein was subsequently reviewed and recalled by this Court as
per order dated 7.10.09 in R.P.No.101/08 in W.A.No.2529/05. The
judgments in W.P.(C) Nos.30527/2005 and 939/2006 were also recalled as
per the said order dated 7.10.09. Thereafter a common judgment was passed
in W.A.No.2529/05, W.P.(C).Nos.30527/05 and 939/06 by a Bench of this
W.P.(C) NO.16995 of 2005 7
Court whereby the Writ appeal preferred by the Government was dismissed
and the Writ Petitions were allowed. The learned counsel for the
respondents and the learned Government Pleader strenuously attempted to
support and sustain Ext.P33 and also the entire actions that culminated in
Ext.P33. However, they admitted that the judgments in W.A.No.2529/05
and connected cases were reviewed and recalled and Writ Appeals filed by
the State were dismissed and Writ Petitions were allowed. Therefore,
having regard to the facts and circumstances of the case I am not adverting
to the rival contentions.
8. The ultimate effect and impact of the common judgment in
W.A No.2529/05 and connected cases is that the third respondent cannot
now assign that the appointments of the petitioners 2 to 5 are not in terms of
Ext.P1 G.O dated 6.12.99 and decline to pass and countersign the salary
bills in respect of petitioners 2 to 5 drawn and forwarded to him in the light
of Exts.P18, P31 and P32. In this case there is no need to issue a direction
to the university to approve the appointments in terms of staff fixation. The
University has already accorded sanction for creation of four posts of
lecturers as per Ext.31 order based on the workload statement furnished by
the college as on 1.6.04. As per Ext.P32, the appointments of the petitioners
2 to 5 made as per Exts.P19 to P22 were approved by the university. The
W.P.(C) NO.16995 of 2005 8
said approval is legal and in consonance with the order issued by the
Government as per Ext.P18 whereby Government granted permission for
appointments in the college of the first petitioner. Paragraph 14 therein, in
so far as it is relevant in this context, reads thus:-
“Annexure A8, is an application submitted before the
State Public Information Officer, appointed under the
Right to Information Act. In answer to Question Nos.1
and 2, by Annexure A8(b), it is informed that Ext.P2(a)
was issued on the basis of Cabinet decision on
24.11.1999, and that the new courses have been
sanctioned in order to accommodate teachers rendered
in excess consequent on the declining of Pre-Degree
courses. It is also stated that the new courses were
sanctioned as there was budget
provision………………………………………………………..”
9. Question N0.7 was whether any permanent appointment in
private aided colleges against the vacancies which come into existence as a
result of courses sanctioned as per Ext.P2(a) has been approved and
Question No.8, whether salary is disbursed to lecturers in the colleges
mentioned therein, have been answered in the affirmative as per Annexure
8E. The informations furnished as per Ext.P30 by the Public Information
Officer appointed under the Right to Information Act would reveal that
those informations pertain to the colleges to which sanction was accorded
for starting new courses, along with St.Pius X College, Rajapuram,
Kasaragod District, as per Ext.P1. The courses started by such colleges are
aided courses and the colleges in question are governed by Direct Payment
W.P.(C) NO.16995 of 2005 9
Agreement were taken into consideration to hold that by imposing unilateral
conditions, the Government cannot absolve itself of the liabilities arising
under such a statutory contract. Indisputably, the course started by St.Pius
X College, Rajapuram in terms of Ext.P1 is also an aided course and the
college is governed by Direct Payment System. Ext.P32 would also reveal
that the appointments of the petitioners 2 to 5 were already held by the
University as appointments effected in accordance with the statutes,
ordinances of Kannur University in the matters of selection procedure,
workload and qualifications. What is emerging from these discussions is
that Ext.P33 cannot be sustained. Therefore, Ext.P33 is quashed.
Consequently, there shall be a direction to the 3rd respondent to approve the
salary bills pertaining to petitioners 2 to 5 when once it is drawn and
forwarded to him by the competent authority based on Ext.P32. The 3rd
respondent shall pass and countersign the salary bills pertaining to
petitioners 2 to 5 forwarded for his approval as expeditiously possible, at
any rate, within a period of 3 months from the date of receipt of a copy of
this judgment.
The Writ Petition is disposed of accordingly.
(C.T. RAVIKUMAR)
spc JUDGE
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