The Chief Secretary To Government vs Vinil Varghese on 5 November, 2025

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Kerala High Court

The Chief Secretary To Government vs Vinil Varghese on 5 November, 2025

The respondents in W.P.(C)No.2061 of 2018 filed this writ appeal under Section 5(i) of the Kerala High Court Act, 1958, challenging the judgment dated 21.01.2019 passed by the learned Single Judge in that writ petition.

2. The respondent, who is the Manager of S.E.S. College, Sreekandapuram in Kannur District, affiliated to Kannur University, approached this Court with W.P.(C)No.2061 of 2018 filed under Article 226 of the Constitution of India, being aggrieved by the non-sanctioning of required teaching staff to the college. By Ext.P19, Government order dated 05.01.2018, the request of the respondent was rejected, stating the reason that the State is facing a severe financial crunch. The respondent contends that as per Ext.P1 order dated 12.09.2013, the Government sanctioned one P.G. course (M.C.J.) and one U.G. course (B.C.A) at his college during the academic year 2013-14. By Ext.P2 order dated 23.05.2014, the Kannur University granted provisional affiliation to M.C.J (25 seats) and B.C.A (25 seats) in self financing stream for the academic year 2013-14. The Government by Ext.P3 order W.A.No.143 of 2020 4 2025:KER:84908 dated 03.07.2014, allowed the request of the Principal of the College to start the new aided course of B.Com Co-operation with 40 seats in lieu of the already sanctioned B.C.A vide Ext.P1 order from the academic year 2014-15. Accordingly, the Kannur University granted provisional affiliation to B.Com Co-operation with an intake of 40 students during the academic year 2014-15 by Ext.P4 order dated 08.08.2014. Pursuant to the creation of teaching posts in various colleges, vide Ext.P5 order dated 20.04.2015 of the Government and Ext.P6 direction dated 14.08.2015 of the Director of Collegiate Education to submit proposals for creation of posts in aided colleges, the Principal of the respondent college assessed the existing work load in the college in each department and submitted a proposal to the Government requesting to sanction five posts of Assistant Professors in M.C.J., two posts in B.Com and two additional posts in Electronics through proper channel. The respondent produced the aforesaid Ext.P7 proposal submitted by the Principal and countersigned by the Deputy Director of Collegiate Education, dated 26.11.2015, in the writ petition. The respondent contends that Kannur University has assessed the workload and forwarded W.A.No.143 of 2020 5 2025:KER:84908 the same by way of Ext.P7(a) proforma dated 22.07.2015. The respondent later approached this Court by filing W.P.(C)No.12297 of 2017, seeking a direction against the Government to consider Ext.P7 proposal and to create the posts mentioned in that proposal. By Ext.P16 judgment dated 06.04.2017, this Court disposed of that writ petition with a direction to the Government to take a decision in Ext.P7 proposal within a period of two months from the date of receipt of a copy of that judgment. The time fixed for taking a decision by the Government was later extended for another two months by Ext.P17 order dated 13.09.2017 in an interlocutory application filed in that writ petition. However, later the Government passed Ext.P19 order impugned in the writ petition, declining the creation of posts recommended by the Deputy Director of Collegiate Education. Hence, the respondent filed the writ petition seeking the following reliefs;

"i) to issue a writ in the nature of certiorari or such other appropriate writ, order or direction calling for the records leading up to the issuance of Ext.P19 and quash the same;

ii) to issue a writ in the nature of mandamus or such other appropriate writ, order or direction commanding the first respondent to issue orders creating 5 posts of Assistant Professor in M.C.J., 2 posts of Assistant Professor in W.A.No.143 of 2020 6 2025:KER:84908 Commerce, two post of Assistant Professor in English and one post of Assistant Professor in Electronics as recommended by the Deputy Director of Collegiate Education by considering Ext.P7 proposal forthwith;

iii) declare that the petitioner is entitled to fill up the posts in accordance with the workload assessed by the Principal and countersigned by the Deputy Director of Collegiate Education in terms of the University statute without waiting for Govt. orders of post creation;"

3. In the writ petition, the 1st appellant filed a statement dated 28.02.2018, contending that the State is undergoing a severe financial crunch at present and hence it cannot shoulder additional financial burden now. Therefore, all the proposals for post creation in aided colleges are kept pending for the time being. It is further stated by the 1st appellant that the Government has permitted to engage guest lecturers for the newly sanctioned courses, so as to manage the classes without interrupting the benefits of the student community. The Government will consider all the proposals for post creation when the financial position becomes better.

4. After hearing both sides and on appreciation of the materials on record, the learned Single Judge disposed of the writ petition by the impugned judgment. Paragraph 2 and the last W.A.No.143 of 2020 7 2025:KER:84908 paragraph of that judgment read thus;

"2. The question is whether the Government can reject the proposal on the ground of financial obligation. Admittedly, the College entered into a Direct Payment Agreement with the Government. In terms of Direct Payment Agreement, the Government would have to honour such obligation. The matter is covered in favour of the petitioner in the light of the judgment of the Hon'ble Supreme Court in State of Kerala v. Arun George [2015(1) KLT 833(SC)], wherein it was held that aided courses are governed by Direct Payment Agreement and the Government has to honour and it cannot fix unilateral conditions absolving itself from financial liabilities.

In the light of the dictum as above, I am of the view that the Government is bound to honour the statutory provisions in the light of Direct Payment Agreement by granting necessary sanction. Therefore, appropriate decision shall be taken to sanction the post within a period of 2 months. It is made clear that the sanction has to be granted in the light of proposal submitted by the Deputy Director of Collegiate Education as per Ext.P7.

Writ petition is disposed of as above."

5. Being aggrieved by the direction in the impugned judgment to sanction the posts as proposed in Ext.P7 by the Deputy Director of Collegiate Education, the appellants filed the present writ appeal.

6. Heard the learned Senior Government Pleader for the W.A.No.143 of 2020 8 2025:KER:84908 appellants and the learned counsel for the respondent.

7. The learned Senior Government Pleader, by inviting our attention to the judgment of this Court in State of Kerala & Others v. Dr. Poornima C. C. & Others [2022 (3) KLJ 1000] and State of Kerala v. Anas N. [2025 (6) KHC 1] submitted that the sanction of posts is a matter to be left to the discretion of the Government taking in to consideration of all the attending circumstances, by sanctioning the post as proposed in Ext.P7, the learned Single Judge tied the hands of the Government. Therefore, the interference of this Court is necessary to that extent. At the same time, the learned counsel for the respondent supported the judgment of the learned Single Judge.

8. In Dr. Poornima C. C. & Others [2022 (3) KLJ 1000] while considering the issue whether sanctioning of teaching posts in private colleges coming under the Direct payment scheme of the State Government in terms of Section 59(i) of M.G. University Act, 1985, consequent on sanctioning of new courses relate back to the date of sanctioning of the course, a Division Bench of this Court held thus;

"20. Now, let us consider the contentions raised by the W.A.No.143 of 2020 9 2025:KER:84908 learned counsel for the petitioners. The first and foremost contention raised by the learned counsel for the petitioners that the stand taken by the petitioners that when additional courses are sanctioned to an existing college covered by the Direct Payment Scheme, the colleges are entitled to appoint teachers if there is sufficient work load in terms of the provisions of the Ordinances framed under the Act is covered in their favour by the decision of the Division Bench of this court in Arun George which has been affirmed by the Apex Court in Arun George. It is seen that the question considered in Arun George was whether the Government can absolve themselves from the financial commitment involved in sanctioning of new courses in colleges covered by Direct Payment Scheme. The question was answered in the negative by this court holding that if the courses are aided, the Government is obliged to honour the Direct Payment agreement and it cannot absolve themselves from the liability under a statutory contract. It is that decision that has been affirmed by the Apex Court in Arun George . Paragraphs 17, 18 and 19 of the judgment of the Apex Court read thus :

"17. Although, initially approval was not granted for the appointments of respondent Nos. 1 to 7, the University granted approval to these appointments vide its order No. AC.B1/1/3169/05 dated 29.10.2005. As noticed earlier, sanction of new courses led to the increase of work load and the services of respondent nos. 1 to 7 were utilised by the 8th respondent - management. The courses are W.A.No.143 of 2020 10 2025:KER:84908 purely aided courses and therefore, the provisions of Direct Payment Agreement are undoubtedly applicable. The State administration cannot shirk its responsibility of ensuring proper and quality education in Schools and Colleges on the plea of lack of resources. In the facts and circumstances of the case in hand, we do not deem it necessary to consider this question in further detail.

18. It is also to be noted that by perusal of the records viz. Annexures R8/14, 15, 16, 17 & 18, it is evident that respondent nos. 1 to 7 were appointed only against sanctioned posts. It is not the case of the Government that 8th respondent - management violated the terms of the Direct Payment Agreement. For many years i.e., from 2002, services of respondent nos. 1 to 7 have been utilized for imparting instruction, invigilation and other duties. By perusal of the information obtained under Right to Information Act that the Government has paid salaries and emoluments to some of the lecturers appointed in other private colleges. When the respondent nos. 1 to 7 were appointed by the Statutory Selection Committee, we find no reason as to why respondent nos. 1 to 7 should be denied the payment of salary. When respondent nos. 1 to 7 have been appointed by the Statutory Selection Committee, it becomes obligatory for the Government to honour these appointments and pay the salary.

W.A.No.143 of 2020 11

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19. In our considered view, the learned Single Judge of the High Court and the Division Bench in review petitions rightly held that respondent nos. 1 to 7 are entitled to the payment of salary for the relevant period and we find no reason to interfere with the same."

As is evident from the extracted paragraphs, the view taken is that if teachers are appointed against posts sanctioned by the University and if they are selected by statutory committees, they cannot be denied salary by the Government. The effect of Section 59(1) of the Act is not seen considered by this court and the Apex Court in that matter obviously since the appointments involved in the said case were appointments made prior to the introduction of the said statutory provision. As such, we are of the view that the said judgment may not stand in the way of this Court deciding the impact of Section 59(1) of the Act in the case on hand."

[Underline supplied]

9. Similarly, in Anas N. [2025 (6) KHC 1], this Court, while considering the issue of creation of new posts and engagement of teachers on contract basis, held thus;

"14. In Poornima (supra), the Division Bench held that the sanctioning of new teaching posts cannot relate to the date of appointment. As we have already observed, the power to sanction is the exclusive prerogative of the Government after the amendment. The mere introduction of a new course does not, by itself, result in the creation or W.A.No.143 of 2020 12 2025:KER:84908 sanctioning of a new post. Commencement of a course is conceptually distinct from the sanctioning of a post. While the authority to sanction posts rests with the Government, approval of appointments must be based on workload assessment carried out by the University. Where the introduction of a new course necessitates the creation of additional posts, the University must first ascertain whether such posts fall within the cadre strength or staff pattern already sanctioned as on the date of the 2005 amendment. If the posts so required are in excess of the sanctioned strength, no approval can be granted by the University without prior sanction from the Government. 14.1. As seen from the UGC Regulations of 2010 and 2018, the workload of an Assistant Professor is 16 hours per week, while that of a Professor/Associate Professor is 14 hours per week. Regulation 13.0 of the UGC Regulations, which deals with appointments on a contract basis, specifically stipulates that such appointments are permitted only when absolutely necessary. We note the arguments of some of the respondents. They contend that, if the view in Poornima (supra) is followed, the Government would delay the proposal for the creation of a post, to the detriment of students enrolled in a new course. They further argue that, once the University undertakes a workload assessment and submits a proposal for the creation of new posts, the Government is obliged to sanction the post without delay.

They also contend that, once it is found that there is a need to create a new post, the Government cannot postpone the decision indefinitely, nor can it order the engagement of W.A.No.143 of 2020 13 2025:KER:84908 teachers on a contract basis or daily wage. It is true that, in Poornima (supra), the Division Bench took the view that no appointment shall be made without sanction from the Government, and that no approval can be granted retrospectively for an appointment made without such sanction. While we agree with the opinion expressed in Poornima (supra), we hold that the Government must decide on the proposal without unreasonable delay. It is appropriate that the Government issue guidelines for decision-making to avoid stalemates that affect students enrolled in such programs. We are of the view that the Government shall decide within a reasonable time, and until such a decision is taken on the proposal, aided college managements may engage teachers on a contract or daily wage basis. If the Government unnecessarily delays consideration of a proposal, then, in an appropriate case, the management may also raise a claim for full pay, as applicable to regularly appointed Assistant Professors.

15. Thus, the principle that emerges is this: while the University is the authority to assess workload and approve appointments, the creation of posts beyond the sanctioned strength after the 2005 amendment remains within the exclusive domain of the Government.

16. We expect that the Government, to avoid confusion regarding approval of appointments, will undertake an exercise to fix the number of posts as on the date of the 2005 amendment. The workload assessment is only for the creation of a post or for the limited purpose of determining whether approval of an appointment can be granted or not; W.A.No.143 of 2020 14

2025:KER:84908 it did not, by itself, result in either the creation or abolition of a post unless a conscious decision was taken by the competent authority to create or to abolish the post. Neither the University nor the Government can proceed on the assumption that such posts have become non-existent merely because of a reduction in the required number of posts based on workload assessment. The law under the University Acts referred to herein, before the 2005 amendment, was clear: once a post was approved by the University Syndicate, it came into existence. A post so created cannot be deemed to have been abolished in the absence of an express decision of the approving authority."

[Underline supplied]

10. The grievance of the respondent in the present case is that even after sanctioning of new courses in the college of the respondent and submission of a proposal for the creation of teaching posts for the newly sanctioned courses after conducting a workload study by the University, the same is not sanctioned by the Government, stating the reason of financial crisis. However, while going through the direction issued by the learned Single Judge, we notice that by directing the Government to sanction the posts as proposed in Ext.P7 submitted by the Deputy Director of Collegiate Education, the hands of the Government are tied, as rightly pointed out by the learned Senior Government Pleader. W.A.No.143 of 2020 15

2025:KER:84908 Even though it is necessary to sanction new teaching posts in view of sanctioning new courses in the college of the respondent, the same requires detailed consideration by the Government. If a blanket order is granted directing the Government to sanction the posts as requested in Ext.P7, there is no room for any variation to be done by the Government, if found necessary.

In such circumstances, without going into the merits of the contentions raised by both sides relying on the principles laid down in Dr. Poornima and Anas N., we modify the impugned order of the learned Single Judge and direct the appellants to consider Ext.P7 proposal submitted by the Deputy Director of Collegiate Education to sanction additional teaching posts in the college of the respondent in accordance with law as expeditiously as possible, at any rate, within a period two months from the date of receipt of a certified copy of this judgment. The writ appeal is disposed of as above.

Sd/-

ANIL K. NARENDRAN JUDGE Sd/-

MURALEE KRISHNA S. JUDGE MSA W.A.No.143 of 2020 16 2025:KER:84908 APPENDIX OF WA 143/2020 RESPONDENT ANNEXURES Annexure -R1(g) TRUE CPY OF G.O.(M) NO. 87/2012/H.EDN.

DATED 12.3.2012 ISSUED BY THE HIGHER EDUCATION (D) DEPARTMENT Annexure -R1(h) TRUE COPY OF G.O.(MS) NO. 93/2018/HEDN.

DATED 9.5.2018 ISSUED BY HIGHER EDUCATION (D) DEPARTMENT

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