State Of Kerala vs Smt .Shalini Thomas

P.B.Suresh Kumar, J.

This appeal is directed against the judgment dated 22.11.2021 in W.P.(C) No.5575 of 2015. The appellants were respondents 3 to 5 in the writ petition. Parties and documents are referred to in this judgment for convenience, as they appear in the writ petition.

The petitioner was appointed on 23.07.2012 as Assistant Professor in Economics in B.C.M. College, Kottayam, a private college affiliated to the Mahatma Gandhi University (the University). The college is one covered by the Direct Payment System of the State Government. The appointment of the petitioner was made after a due process of selection pursuant to Ext.P1 notification. In Ext.P1 notification, it is mentioned that the vacancy is a permanent one. The appointment of the petitioner was approved by the University as per Ext.P3 order on 04.01.2013. Though the appointment of the petitioner was approved by the University, the concerned Deputy Director of Education returned the salary bill of the petitioner taking the stand that there are only two sanctioned posts of Assistant Professor in Economics in the College; that two teachers are already working against those posts and that salary can be disbursed to the petitioner only with the concurrence of the Government. Ext.P4 is the communication issued by the Deputy Director of Collegiate Education in this regard. The College took up the matter with the Government, and on a reference from the Government, the Director of Collegiate Education reiterated the stand of the Deputy Director of Collegiate Education. The writ petition was instituted in the above background seeking a direction to the State and its officers to disburse the salary payable to the petitioner with arrears. The case set out by the petitioner in the writ petition is that she was appointed against a retirement vacancy and there cannot therefore be any impediment for disbursing salary to her, especially when her appointment was after a due process of selection by a Selection Committee consisting of the nominee of the Government and when the appointment has been approved by the University.

On 13.03.2015, when the writ petition came up for admission, this Court passed an interim order directing disbursement of salary to the petitioner from the month of March, 2015.

No counter affidavit is seen filed in the writ petition by the State.

Placing reliance on the decisions of this Court in Cherian Mathew v. Principal, S.B. College, Changanassery, 1998 (2) KLT 144 and State of Kerala and Others v. Dr. Sina A.R. and Others, 2007 (3) KHC 96, the learned Single Judge allowed the writ petition holding that since the appointment of the petitioner has been approved by the University, the Directorate of Collegiate Education cannot raise any objection to the disbursement of salary to the petitioner. The State and its officials are aggrieved by the said decision of the learned Single Judge and hence, this appeal.

Heard the learned Government Pleader, the learned Standing Counsel for the University, the learned counsel for the Manager of the College as also the learned Senior Counsel for the petitioner.

The learned Government Pleader submitted that when pre-degree courses were delinked from colleges, the workload of different subjects of private colleges were reassessed and re-fixed. It was pointed out by the learned Government Pleader that as per the said re-fixation, the workload of the subject Economics in the College was only 40 hours and the permissible number of posts was only 2, going by the norm that was in force at the relevant time viz, that there can be one post for every 16 hours. It was also pointed out by the learned Government Pleader that since 4 teachers were working in the College at the relevant time, two were accommodated against the permissible posts, one was accommodated against the additional 8 hours of the 40 hours as per the relaxed norms arrived at for the purpose of determining the surplus teachers and one was retained as surplus for re-deployment. It was pointed out by the learned Government Pleader that there was no re-deployment of teachers and all of them therefore continued. It was also pointed out by the learned Government Pleader that while so, one among the teachers retired in the academic year 2009-10 and another teacher retired in the academic year 2010-11. It was argued by the learned Government Pleader that insofar as the remaining two teachers were working in the College, the College was not entitled to make any regular appointment without obtaining sanction from the Government. According to the learned Government Pleader, the appointment of the petitioner made without obtaining sanction of the Government for additional post is illegal, being an appointment against a non-existing post. The argument is that the Government is not obliged to pay salary to such a teacher. It was also pointed out by the learned Government Pleader that in the meanwhile, the workload of the subject Economics in the College increased on account of the change of subsidiary subject of B.A.Sociology and B.A.History from Political Science to General Economics as also other factors and having regard to the additional workload, the Government has sanctioned an additional post of Assistant Professor in Economics for the College in the year 2020 and the appointment of the petitioner can be adjusted against the said additional post.

The learned Standing Counsel for the University endorsed the argument of the learned Government Pleader that there were only two sanctioned posts of Assistant Professors in Economics in the College at the time when the petitioner was appointed and since the said two other teachers were working against those posts, the College could not have appointed the petitioner. To a query from the court as to how the University could approve the appointment of the petitioner if that were to be the position, the learned Standing Counsel, after obtaining instructions from the University, submitted that the appointment of the petitioner was approved inadvertently.

The learned counsel for the Manager of the College contended that the appointment of the petitioner was made against the vacancy of Smt.Kunjammini C.K. who was permitted to continue in the College in terms of the relaxed norms introduced for determining surplus teachers at the time of de-linking of the pre-degree courses and her appointment was therefore in order. According to the learned counsel, even otherwise, the College was entitled to make a regular appointment as per the then prevailing norms concerning the workload. It was also argued by the learned counsel that at any rate, insofar as the Government deputed its nominee for the purpose of constituting the Selection Committee, which recommended the appointment of the petitioner against a permanent vacancy, the post in which the petitioner was appointed should be considered as duly sanctioned by the Government. The learned counsel has relied on the decision of the Division Bench of this Court in W.A No.1067 of 2020, in support of the said proposition.

The learned Senior Counsel for the petitioner contended that in light of the decision of this Court in Dr.Sina A.R. (supra), the appointment of the petitioner as also its approval cannot be said to be illegal. Placing reliance on Ext.P11 communication issued by the Government in connection with the deputation of its nominee to the Selection Committee, it was argued by the learned Senior Counsel that inasmuch as the petitioner was selected and appointed, she may not be put to loss, if the appointment is found to be not in order.

We have examined the arguments advanced by the learned counsel for the parties.

It is seen that when Pre-degree courses were de-linked from colleges, the workload of all private colleges were revised, after a process of reassessment. Ext.P8 is the statement jointly prepared on behalf of the Director of Collegiate Education and the Principal of the College in this regard. As per Ext.P8 statement, the workload in the department of Economics of the College was revised to 40 hours. Ext.P8 statement indicates that permissible number of posts for 40 hours of workload was only two, going by the norm prevailing then and that since 4 teachers were working in the College at the relevant time, two were accommodated against the permissible posts, one was accommodated against the extra 8 hours as per the relaxed norms arrived at for the purpose of determining the surplus teachers and one was retained as surplus for re-deployment. Neither the petitioner nor the Manager of the College has a case that there was any re-deployment of teachers. In other words, all the teachers were permitted to continue. Ext.P9 statement issued by the Principal of the College indicates that one among the four teachers referred to in Ext.P8 retired in the academic year 2009-10 and another namely, Kunjammini C.K. retired in the academic year 2010-11. It is seen from Ext.P9 that the College did not take any steps to make a regular appointment in the vacancy of Kunjamani C.K. Instead, in the academic year 2011-12, the college appointed a guest lecturer in Economics for making up the shortfall of teachers to cover the excess eight hours of workload. It was while so, on 10.02.2012, the College issued Ext.P1 notification on the premise that there exists a permanent vacancy in the department of Economics. As noted, when Ext.P1 notification was issued, two among the four teachers referred to in Ext.P8 were very much in the service of the College and the College was proceeding as if they were entitled to make appointment in the vacancy that arose on account of the retirement of Kunjammini C.K. It is explicit from Ext.P8 statement that going by the norms governing workload then in existence, the College was entitled to only two posts in the department of Economics as on 01.06.2001. Neither the petitioner nor the Manager has a case that there was any upward revision in the number of the sanctioned posts anytime thereafter till 2020. As such, insofar as two among the four teachers who were working in the College as on 01.06.2001 were continuing in the academic year 2011-12, the College was not entitled to make any further regular appointment in the department of Economics. True, as indicated in Ext.P8 statement, one among the four teachers who were working in the college at the time when pre-degree courses were delinked, was accommodated against the additional workload of eight hours in terms of the relaxed norms introduced then. It is common knowledge that relaxed norms were introduced then only for the purpose of protecting the existing teachers from re-deployment. Insofar as it is prescribed in Ext.P8 joint statement that the College is entitled to have only two regular teachers for a workload of 40 hours, the College was not entitled to make a fresh appointment on the retirement of such protected teachers. In other words, the appointment of the petitioner in the academic year 2012-13 can only be regarded as one made against a non-existing post.

Before proceeding further, it is necessary to understand the scheme of appointment of teachers in private colleges covered by the Direct Payment Scheme formulated by the State Government. As noted, the College involved in this case is one affiliated to the Mahatma Gandhi University established under the Mahatma Gandhi University Act, 1985. Having regard to the pari materia provisions contained in the Kerala University Act, 1974 and in the First Statutes and Ordinances issued thereunder, a Division Bench of this Court has held in Cherian Mathew (supra) that when a teacher is appointed in a private college in terms of the provisions contained in the concerned University Statute, his salary has to be disbursed by the Government, if that appointment is approved by the University. It was also held in that case that if the Director of Collegiate Education doubts the propriety of the appointment of the teacher in the sense that the workload did not require the appointment of such a teacher, the issue will have to be taken up by him with the University and the University then has to re-examine the entire issue and take a decision as to whether the appointment was proper. It was also held therein, that if the University takes a decision on this aspect, that decision will be binding on the Government. It was further held that in the absence of any provision in the University Statute, prior approval of the Directorate of Collegiate Education is not required for appointment of a teacher. It is after the decision of this Court in Cherian Mathew (supra), Sub-section (1) to Section 59 was introduced to the Mahatma Gandhi University Act by way of an amendment. The said provision provides that appointments to posts eligible to receive salary from the Government shall be made only against those posts sanctioned by the Government or by such officers as may be authorised by the Government. Section 59 (1) reads thus:

“59. Appointment of teachers in private Colleges.-

(1) Appointments to the posts eligible to receive salary from the Government shall be made only against posts sanctioned by the Government or by such officers as may be authorized by the Government.”

As evident from the extracted provision, it was intended to clarify that only incumbents appointed against posts sanctioned by the Government will be eligible to receive salary from the Government. Thus it is clear that the position after the amendment is that, if only sanction is accorded by the Government, appointments can be made by the management against those posts in accordance with the staff strength fixed by the University and if those appointments are approved by the University, having regard to the provisions contained in the respective Statutes and Ordinances dealing with the work load assessment and fixation of staff strength, the Government is bound to disburse salary to the appointed teachers under the Direct Payment Scheme. In other words, sanctioning of posts by the Government which is the paymaster, is a mandatory prerequisite for private colleges to make regular appointments in order to make appointees eligible to receive salary from the Government and they cannot make appointments against non-existent posts. Needless to say, if appointments are made against non-existent posts, the University is precluded from approving the same and the Government has no obligation to pay salary to such appointees. This aspect has been dealt with by this court in Shalini Rachel v. Manager, Christian College, 2007 (3) KLT 355. Shalini Rachel was a case in which the contention taken by the Government was that in the light of the provision contained in Section 57(1) of the Kerala University Act corresponding to Section 59(1) of the Mahatma Gandhi University Act, sanction of the Government is required for filling up of the vacancies in sanctioned posts. This court repelled the said stand of the Government, holding that it is for the University to sanction the required number of posts in terms of the relevant statutory provisions in the case of private colleges coming under the Direct Payment Scheme, depending upon the work load and staff pattern fixed by the University and once the University accords sanction of a post and grants approval, it is obligatory for the State Government to disburse salary under the Direct Payment Scheme. It was also held in the said case that the power of the University to sanction posts and grant approval for appointments made against sanctioned posts is not taken away in terms of Section 57(1) of the Kerala University Act. Paragraphs 11 and 12 of the judgment in the said case read thus:

“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 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 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.

We allow all the Writ Petitions and declare that it is obligatory on the part of the Government to release salary due to the teachers whose appointments are approved by the University. Government have however no obligation to disburse salary, if appointments are made by the aided colleges, to a non existent posts, when a new subject is sought to be introduced, or, division is sought to be started, for which Government sanction is a pre-condition as provided under S.57 (1) of the University Act. Universities are also not expected to grant their approval in such a situation. For existing posts on grant of approval from the University on the basis of work load and staff fixation, Government and the officers authorised by, the Government, have to honour the Direct Payment agreement and release the salary due to the teachers. In view of the declaration, of law made by us, Universities would process the request for approval of appointment and orders be issued accordingly without delay and on that basis, the Deputy Director of Collegiate Education would release the salary of the teachers.”

(underline supplied)

As evident from the extracted paragraphs, it was made clear by the Division Bench that the Government has no obligation to disburse salary, if appointments are made by the aided colleges, to non-existent posts. It was also made clear by this Court that Universities are not obliged and expected to approve appointments made against non-existent posts.

Now let us consider the arguments advanced by the learned counsel for the Manager. We have already repelled the stand taken by the College that they were entitled to make a regular appointment in the vacancy of Smt.Kunjammini C.K. As noted, another argument advanced on behalf of the Manager was that, even otherwise, the College was entitled to make a regular appointment when the petitioner is appointed as per the norms prevailing then as regards the workload. We do not find any merit in this argument. Even assuming that there was sufficient workload in the College for an additional post, in light of Section 59(1) of the Mahatma Gandhi University Act, in order to claim salary from the Government, an appointment could be made only after obtaining sanction from the Government. There is also no substance in the argument advanced by the learned counsel for the Manager based on the decision of this court in W.A.No.1067 0f 2020. Ext.P11 is the order issued by the Government deputing its nominee to the Selection Committee. The relevant portion of Ext.P11 reads thus:

“I am to invite your attention to the reference cited and to inform you that Sri K. James Joseph, Joint Secretary to Government, Law Department is nominated as Government representative in the staff selection committee of BCM College, Kottayam for filling up of the vacancies ONE each in English, Physics, History & Economics and TWO each in Mathematics, Zoology & Sociology subject to the directions in Government Letter 2nd cited.

Government nominee should ensure that selection is effected to the above vacancies only and furnish a report to Government within one week from the date of meeting. The Director of Collegiate Education/The Deputy Director of Collegiate Education should ensure that selection, appointment and approval are effected only after assessing the workload and vacancies and subject to the conditions stipulated in the GO 1st and Government Letter 2nd cited. Otherwise it will be considered as personal liability of the persons who carried out selection, appointment and approval.”

It is categorically stated in Ext.P11 that the concerned officials of the State Government shall ensure that selection, appointment and approval of appointments are effected only after assessing the workload and vacancies, or otherwise, it will be considered as a personal liability of the persons who carried out selection, appointment and approval of the appointments. True, there is an observation in the judgment of this court in W.A.No.1067 of 2020 that “if there was no sanctioned post, there was no necessity to appoint a nominee of the Government for conducting selection.” In light of the specific terms in Ext.P11 communication, we do not think that the observation aforesaid of this Court in W.A.No.1067 of 2020 would help the petitioner to contend that she was appointed against a sanctioned post.

As noticed, the main argument advanced by the learned Senior Counsel for the petitioner was that insofar as the appointment of the petitioner has been approved by the University, in the light of the dictum in Dr.Sina A.R. (supra), the petitioner is entitled to receive salary from the date of her appointment. Paragraphs 9 to 12 of the judgment in Dr.Sina A.R. (supra) read thus:

“9. We are of the view, above mentioned provisions of the University Act, Statutes and Ordinances would clearly indicate that it is for the University to sanction the post as per Clause (3) of Statute 14 of the Kerala University (Conditions of Service of Teachers and Members of Non-teaching Staff) First Statutes, 1979 in the case of private colleges coming under the Direct Payment Scheme, depending upon the workload and staff pattern fixed by the University. Once University accords sanction of a post and grants approval depending upon the workload and staff pattern, the Deputy Director of Collegiate Education shall verify before making direct payment of salaries as to whether the post for which payment is claimed is in accordance with the staff pattern and workload fixed by the University. If the University grants approval noticing that it is in accordance with the staff pattern and workload fixed by it the Director of Collegiate Education or the officers concerned are obliged to make payment of salary as per the direct payment scheme.

Scope of Section 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 workload 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.

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-section (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 workload 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 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 dismissed W.A. No. 940 of 2007.

We allow all the writ petitions and declare that it is obligatory on the part of the Government to release salary due to the teachers whose appointments are approved by the University. Government have however no obligation to disburse salary, if appointments are made by the aided colleges, to a non existent posts, when a new subject is sought to be introduced, or division is sought to be started, for which Government sanction is a pre condition as provided under S.57(1) of the University Act. Universities are also not expected to grant their approval in such a situation. For existing posts on grant of approval from the University on the basis of workload and staff fixation, Government and the officers authorised by the Government, have to honour the Direct Payment agreement and release the salary due to the teachers. In view of the declaration of law made by us, Universities would process the request for approval of appointment and orders be issued accordingly without delay and on that basis, the Deputy Director of Collegiate Education would release the salary of the teachers."

(emphasis supplied)

In W.A.2164 of 2018, the Division Bench of this court has clarified that the said judgment does not lay down the principle that for making appointment which requires payment of salary by the Government, sanction of the Government is not required. It was reiterated in the said case that in order to direct the Government to pay salary, the appointment must be one made against an existing post. This court also took note of the fact in the said case that the appointment involved in Dr.Sina A.R. (supra) were appointments made in leave vacancies and retirement vacancies. Paragraph 10 of the judgment in W.A.No.2164 of 2018 reads thus:

Though it is strenuously argued by the learned counsel for the 1st respondent/petitioner that Section 57(1) of the Act had been watered down by the aforesaid judgment, we do not think so. In so far as Section 57(1) remains in the Statute, merely for the reason that the University had approved a post does not enable the management to appoint a person to the college unless sanction is obtained in terms of Section 57 (1). The Division Bench while deciding the aforesaid case has only stated that “sub-section (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 workload or staff pattern, no prior permission of the Government is necessary”. It only indicates that prior permission is not required for the University for fixing the workload or staff pattern. But it does not indicate that for making appointment which require payment of salary by the Government, sanction of the Government is not required. In order to direct the Government to pay salary, it should be an existing post. Even according to the petitioner, an additional post was created only by Exts.P4 and P9, when the number of teaching hours get enhanced from 18 to 27 and then to 31. In Dr. Sina's case (supra) appointments were made in leave vacancies and retirement vacancies. If we take a different view, it will violate the Statute. Under such circumstances, we are of the view that, the judgment in Dr. Sina's case (supra) cannot be applied to the factual situation that has arisen in this case. For that reason itself, we set aside the judgment of the learned Single Judge and sustain the orders passed by the University. However, it shall be open for the management to approach the Government to seek sanction of the post in the light of the staff fixation orders passed by the University, in which event, the management shall submit a representation to the Government within a period of one month from the date of receipt of a copy of this judgment, which shall be considered within a further period of three months, in accordance with law.”

The view aforesaid has been reiterated by another Division Bench in W.A.No.1240 of 2020. Paragraph 17 of the said judgment reads thus:

“17. From the law laid down in Shalini Rachel (supra), it is rather clear that if a new subject is sought to be introduced or a division is sought to be started, Government sanction u/s 57(1) of the University Act is a precondition and Universities are not expected to grant their approval in such a situation. Therefore, the Division Bench in Shalini Rachel (supra) had categorized the existing sanctioned posts and non-existent posts differently. If appointments are made by the aided colleges to sanctioned posts, no prior sanction from Government is required. But if a new post is to be sanctioned or a new subject is to be introduced, or a new division is to be started, Government sanction is a precondition and unless such a sanction is granted by the Government, University is not expected to approve the appointment.”

We are in agreement with the view taken by this court in W.A.Nos.2164 of 2018 and 1240 of 2020. In other words, insofar as it is found that the appointment of the petitioner was against a non-existent post, the dictum in Dr.Sina A.R. (supra) has no application. The fact that the appointment of the petitioner was approved by the University also does not, according to us, improve the case of the petitioner, as the University also now maintains the stand that the appointment was not in order inasmuch as it was made against a non-existent post. As noted, as held by this Court in Cherian Mathew (supra), if the Director of Collegiate Education doubts the propriety of the appointment of a teacher, the University has to re-examine the entire issue and if only the University finds that the appointment is in order on re-examination, the State Government has the obligation to pay salary to the teacher.

There is also no merit in the argument advanced by the learned Senior Counsel for the petitioner that inasmuch as the petitioner is working in the College pursuant to the appointment made after a due process of selection, she shall not be deprived of the benefit of the salary payable to her, for the sin, if any committed by the management. Having regard to the scheme of appointment of teachers in private colleges, as contained in the Mahatma Gandhi University Act and the Statutes and Ordinances framed thereunder, the obligation of the Government to pay salary arises only when an appointment is made against a sanctioned post and the same is approved by the University after ensuring that the appointment is in conformity with the workload and the staff pattern fixed by the University. In other words, insofar as it is found that the appointment of the petitioner was not against a sanctioned post, the Government has no obligation to pay salary.

In the result, the appeal is allowed, the impugned judgment is set aside and the writ petition is dismissed. It is, however, made clear that this judgment will not stand in the way of the management of the College adjusting the appointment of the petitioner against any subsequent vacancy. It is also made clear that insofar as the petitioner was working in the College all throughout, the salary disbursed to the petitioner pursuant to the interim order shall not be realised from the petitioner based on this judgment, and the Government would be free to realise the loss, if any, caused on account of the same from the management of the college, if the appointment of the petitioner cannot be adjusted against any vacancy arose before the date of the interim order so as to regularise the payment of salary made pursuant to the interim order.