Kerala High Court
State Of Kerala vs The Malankara Orthodox Church Colleges on 25 January, 2021
Equivalent citations: AIRONLINE 2021 KER 60
Bench: A.M.Shaffique, P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942
WA.No.1240 OF 2020
AGAINST THE ORDER/JUDGMENT IN WP(C) 34658/2015(F) OF HIGH COURT
OF KERALA DATED
APPELLANTS/RESPONDENTS 2 TO 4 IN THE WP(C):
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE DIRECTOR OF COLLEGIATE EDUCATION,
VIKAS BHAVAN, THIRUVANANTHAPURAM-695033.
3 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
KOTTAYAM-686001.
BY SR GOVERNMENT PLEADER SRI.A.J.VARGHESE
RESPONDENTS/PETITIONERS 1 & 2 & RESPONDENT IN WP(C):
1 THE MALANKARA ORTHODOX CHURCH COLLEGES,
REPRESENTED BY THE SECRETARY, CORPORATE MANAGEMENT,
DEVALOKAM, KOTTAYAM-686038.
2 PRINCY SUSAN KOSHY,
ASSISTANT PROFESSOR, DEPARTMENT OF CHEMISTRY,
K.G. COLLEGE, PAMPADY-686502.
3 THE MAHATMA GANDHI UNIVERSITY,
REPRESENTED BY ITS REGISTRAR, PRIYADARSINI HILLS,
ATHIRAMPUZHA, KOTTAYAM-686560.
R1 BY ADV.SRI.BABU VARGHESE (SR.)
R2 BY ADV. SRI.C.V.ALEXANDER
R3 BY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2021,
THE COURT ON 25-01-2021 DELIVERED THE FOLLOWING:
WA No.1240/2020
-:2:-
JUDGMENT
Dated this the 25th day of January, 2021 Shaffique, J.
The State of Kerala and its officers have preferred this appeal challenging judgment dated 11/7/2019 in WP(C) No. 34658/2015. By the impugned judgment, learned Single Judge while allowing the writ petition had directed respondents 2 to 4 viz, the appellants herein, to ensure that salary due to the 2 nd petitioner is paid from 3/6/2013.
2. The short facts of the case are as under and the parties are described as shown in the writ petition unless otherwise stated.
1st petitioner, the Malankara Orthodox Church Colleges which is a Corporate Management, appointed the 2 nd petitioner as Assistant Professor in the department of Chemistry at K.G. College Pampady as per Ext.P8 order dated 24/5/2013 and she took charge on 3/6/2013. Since then, she has been working in that capacity, but she was not paid salary. Initially the University WA No.1240/2020 -:3:- by Ext.P11 order dated 29/01/2015 had denied approval of her appointment, but during the pendency of the writ petition, approval was granted as per University's order dated 19/6/2017 (Annexure A3). Pursuant to an interim order dated 20/3/2018, petitioner was being paid salary from April, 2018.
3. In the counter affidavit filed by the State, it was stated that as per the workload in the said college in the department of Chemistry, only two posts of teachers were admissible, whereas three were working. Therefore, according to the Government, 2nd petitioner's appointment was not against a sanctioned post.
4. The learned Single Judge however proceeded on the basis that Government had granted sanction for filling up two vacancies in the department of Chemistry in K.G.College, Pampady as per Ext.P2 order. That apart, reference is made to judgments of this Court in Cherian Mathew v. S.B. College Changanacherry (1998 (2) KLT 144) and Shalini Rachel v. Manager, Christian College (2007 (3) KLT 355), taking a stand that once the University had granted approval, prior permission of Government is not necessary for filling up the post approved by the University.
WA No.1240/2020-:4:-
5. Learned Senior Government Pleader Sri.A.J.Varghese while contending for the position that the appointment of 2 nd petitioner was not against a sanctioned post, submitted that she is not eligible to receive any salary from the Government. It is pointed out that as per Ext.P2 dated 14/12/2010, the Corporate Management has three colleges and though permission was granted to fill up two vacancies in Chemistry, it was specifically stated that it should be ensured that there are no excess teachers working in the establishment and that the Director should ensure the same. It is pointed out that, in the statement for re-assessment of work-load as per the revised fixation of staff strength and identification of surplus staff as on 18/12/2002, in respect of K.G. College, Pampady, the total workload assessed was 38 hours and number of teachers required was only 2, whereas 3 were working and one was in excess. The Government had granted sanction to fill up the vacancies in the respective colleges as per Government Order dated 10/7/2012. Though 2 vacancies in Chemistry Department were permitted to be filled up in the Catholicate College, Pathanamthitta coming under the very same Management, in K.G. College Pampady, permission WA No.1240/2020 -:5:- was granted only to fill up two vacancies of Assistant Professors in Commerce. Ext.P6 is the minutes of the Selection Committee wherein a panel of names were prepared by the Selection Committee for filling up the post of Assistant Professors in Chemistry in Malankara Orthodox Colleges without specifying the College as such. Learned Government Pleader submits that when Government nominee was appointed pursuant to Ext.P5(a) dated 10/7/2012, no permission was granted to conduct selection to K.G. College Pampady in the Chemistry Department, whereas permission was granted only to appoint two Professors in Catholicate College, Pathanamthitta and therefore the select list prepared as Ext.P6 was not intended for appointing 2 nd petitioner in K.G.College Pampady. However, by Ext.P9 dated 5/7/2013, the College had made a request to M.G. University to approve the appointment of the 2nd petitioner at K.G. College, Pampady. It is pointed out that M.G. University declined to approve the said appointment to the 2nd petitioner by Ext.P11 dated 29/01/2015 and stated as under:
"With reference to the above, I write to inform you that in addition to the fact that there is no Government nomination for WA No.1240/2020 -:6:- the post of Assistant Professor in Chemistry at K G College, Pampady, the claim that there is 9 hours work load for the Chemistry (sub) for the B.Sc Zoology sanctioned in G.O (MS) No.260/2010/Hidn dated 20.08.2010 is not correct.
Vide G.O No.260 dated 20.08.2010, B.Sc Zoology was regularised to the extent of approving the staff pattern of Zoology. But no work load was sanctioned by the Government against the subsidiary Chemistry of B.Sc Zoology. So there is no workload as claimed by you to accommodate a teacher to the 3 rd post and for the appointment of Smt.Princy Susan Koshy to the said post."
It seems that a representation was submitted by the College to the University and during the pendency of the writ petition, approval was granted by the University as per Annexure A3 dated 19/6/2017.
6. In the reply affidavit, the petitioners took up a contention that after preparation of the selection list, two vacancies in Catholicate College, Pathanamthitta were filled up by appointing Dr.Sindhu Mathai and Smt.Anju Linda Varghese. According to them, in K.G. College, Pampady, 3 teachers were working in Chemistry department in 1993. Even during 2009, 3 teachers were working in the Chemistry department. On 31/3/2009 Dr.P.C.Varghese retired and on 31/3/2010 Prof.Annamma Varghese also retired. Prof. Thomas Baby was WA No.1240/2020 -:7:- appointed in the retirement vacancy of Dr.P.C.Varghese w.e.f. 6/7/2011 and Prof.Vinitha Varkey in the retirement vacancy of Prof.Annamma Varghese. Those appointments were approved by the University as per Exts.P16 and P16(a). Prof.Mariamma George V. retired on 31/3/2013 and it is against the said vacancy that the 2nd petitioner was appointed. Therefore, according to them, 3 teachers were working in the Chemistry department until March, 2013. It was also stated that sufficient work load was available, when B.Sc Zoology course was permitted, which had chemistry as subsidiary.
7. An additional affidavit had been filed by the learned Government Pleader producing certain annexures along with IA Nos.3 and 4/2020. Annexure A5 had been produced to show the statement regarding the workload details and teachers working in K.G. College, Pampady from 2000-2001 to 2020-2021. In 2000- 01, 5 teachers were working when the sanctioned post was only
2. In the year 2010-11, when the workload was 45 hours, three teachers were working. The sanctioned strength was only 2 and one teacher was in excess. The third teacher Smt.Pritty Markose was working only as a Guest Lecturer. In 2009-10 also, one WA No.1240/2020 -:8:- teacher Smt.Ambily S. was working as Guest Lecturer. By 2011- 12, 2 teachers viz. Sri.P.C.Varghese and Smt.Annamma Varghese had retired and therefore two other teachers were also appointed, which was approved. According to the Government, that was a mistake since the sanctioned post was only 2. Therefore, during 2012-13, when Prof.Mariamma George retired, Prof.Thomas Baby was excess. According to the Government, the vacancy that had arisen on account of retirement of Prof.Mariamma George should not have been filled up without a sanctioned post as two posts alone were sanctioned and all along the college was having an excess teacher. Therefore, Government has no obligation to pay salary. Reference is also made to Section 59(1) of the Mahatma Gandhi University Act, 1985, which reads as under:-
"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."
8. Learned Government Pleader also placed reliance on the judgments of this Court in WP(C) No.33871/2019 dated 18/8/2020 (Anty T.J. v. State of Kerala) and WA No.2164/2018 WA No.1240/2020 -:9:- dated 16/10/2019 (State of Kerala v. Bindu John) to substantiate his contention. It is pointed out that this is a case in which even the University had declined approval on account of the fact that there was no workload to accommodate a third teacher. At no point of time has the Government sanctioned a third post in Chemistry department at K.G. College, Pampady. All along they were working with excess hands. However, at one point of time, Government had approved the appointment of a teacher without a sanctioned post. But, when Prof.Mariamma George retired, University declined approval by stating that there was no sufficient workload to accommodate a third teacher. Therefore, the approval of Prof.Thomas Baby does not make any difference at all. No request had been made by the college to sanction an additional post at any point of time. Unless such a request is made and the Government sanctions the post, a retrospective approval by the University is not enough to pay salary to the teacher concerned.
9. On the other hand, learned senior counsel Sri.Babu Varghese, appearing on behalf of the petitioners placed much reliance on the judgment of this Court in State of Kerala v. WA No.1240/2020 -:10:- Arun George (2015 (1) KLT 833). He had also submitted a note of argument inter alia contending that 2nd petitioner was appointed to an existing retirement vacancy. It is pointed out that when by Ext.P2 the Government had accorded sanction to fill up 2 vacancies and Smt.Vinitha Varkey and Prof.Thomas Baby were appointed to those vacancies, it is rather clear that there were three sanctioned posts. Learned counsel submitted that when all the teachers were being paid salary throughout, there is no reason to deny salary to the 2nd petitioner. According to the counsel, right from the very start, 3 teachers were working in the Chemistry department and when B.Sc Zoology was sanctioned to the college in the year 2001 with Chemistry as subsidiary, the existing workload in Chemistry department got enhanced by 9 hours. It is submitted that failure to grant salary would amount to total injustice to the teacher who was working since 2013.
10. As rightly pointed out by the learned Government Pleader, the minutes of the Selection Committee dated 11/8/2012 (Ext.P6) contains the panel of names prepared in the order of merit for appointment to the post of Assistant Professor in Chemistry in Malankara Orthodox Church Colleges to fill up the WA No.1240/2020 -:11:- existing vacancies. Apparently, as on that date, there was no vacancy in the Chemistry department in K.G.College, Pampady coming under the said management. Vacancy arose only on 31/3/2013 when Prof.Mariamma George V. retired. Therefore, the selection made pursuant to Exts.P5 and P6 was not to fill up the post of Assistant Professor in Chemistry in K.G.College, Pampady. It is also evident that the second petitioner though was selected as per Ext.P6, her appointment was not expected to be done in K.G.College, Pampady. Further, though the Corporate Management sought for approval of appointment of the 2 nd petitioner in K.G.College, Pampady as per their letter dated 5/7/2013 (Ext.P9), the University rejected the approval on two grounds. One is that there was no Government nomination for the post of Assistant Professor in Chemistry in K.G.College, Pampady and secondly workload was not sanctioned by the Government against the subsidiary Chemistry of B.Sc Zoology. Therefore, it was held that since there was no workload to accommodate a teacher to the third post, she cannot be appointed. It seems that a representation was submitted by the college to the University on 13/2/2015. Subsequently, by WA No.1240/2020 -:12:- Annexure A3 dated 19/6/2017, University had approved the appointment of 2nd petitioner in the retirement vacancy of Prof.Mariamma George w.e.f. 3/6/2013 subject to the decision in the pending case [WP(C) No. 34658/2015].
11. In Arun George's case {2015 (1) KLT 833 (SC)}, the Apex Court had occasion to consider the question whether the Government has obligation to pay salary and other allowances to teachers appointed to the new courses by the management. The State took up a contention that the Government is entitled to impose conditions while according sanction, and when a condition is imposed stating that the new appointments should be made without any financial commitment to the State, the Government will have no obligation to pay their salary. The Apex Court held that if the teachers were appointed against sanctioned posts and if they were appointed by the statutory Selection Committee, they cannot be denied payment of salary. There cannot be any controversy with reference to the above proposition. If the appointment is made by the college against a sanctioned post, necessarily the Government has the obligation to pay salary.
12. The question to be considered is whether the WA No.1240/2020 -:13:- appointment of the 2nd petitioner has been made against a sanctioned post. In Annexure A5 produced along with IA No.4/2020, it is evident that from 2000-2001 onwards, 3 teachers were working as against the sanctioned post of 2. One teacher was always in excess. However, during 2011-12, on the retirement of Sri.P.C.Varghese on 31/3/2009 and Prof.Annamma Varghese on 31/3/2010, two teachers were appointed in that vacancy viz., Smt.Vinitha Varkey and Prof.Thomas Baby on 6/7/2011. Even according to the Government, it was a mistake committed by the department without taking note of the fact that one teacher was excess at the relevant time. Smt.Mariamma George retired on 31/3/2013 and it is in her place that the 2 nd petitioner was appointed. Therefore, according to the Government and as evident from the records, the 2 nd petitioner's appointment was in excess of the sanctioned strength though 3 teachers were working all along. It is in that premise that the University had also rejected the approval of appointment of the 2nd petitioner as per Ext.P11.
13. In Shalini Rachel's case (supra), a Division Bench of this Court had occasion to consider the scope and effect of WA No.1240/2020 -:14:- S.57(1) of the Kerala University Act, 1974, which is same as that of S.59(1) of the Mahatma Gandhi University Act, 1985. The Division Bench held that, once the University has approved the staff pattern based on the workload, it is incumbent on the part of the Government to pay salary. It was held that, for filling up the post sanctioned by the University on the basis of workload and staff pattern, no prior permission of Government is necessary and once the Syndicate of the University grants approval depending upon the workload and staff pattern, Government is obliged to pay salary to the teachers. But, in this case, it is evident that the University did not approve the appointment of 2 nd petitioner initially on account of the fact that there was no sufficient workload. University of course had subsequently and during the pendency of the writ petition and subject to the decision of this Court, approved the appointment of 2nd petitioner w.e.f. 3/6/2013.
14. The question to be considered is whether there was sufficient workload to accommodate a third teacher, which all along was the contention urged by the Government. In fact, in Shalini Rachel (supra) itself, this court held as under:
"xxxGovernment have however no obligation to disburse WA No.1240/2020 -:15:- salary, if appointments are made by the aided colleges, to a non existent post, when a new subject is sought to be introduced, or division is sought to be started, for which Government sanction is a precondition as provided under Section 57(1) of the University Act.xxxx"
Apparently a situation warranting appointment of another teacher had arisen only when B.Sc Zoology was regularized and Chemistry became a subsidiary subject. The question would be, even after adding Chemistry as a subsidiary subject, whether there was sufficient workload to sanction an additional post or not? The college also did not attempt to seek for an additional post at any point of time probably proceeding on the basis that all along there were three teachers. But when Pre-degree was delinked, the situation had changed and when it was found even at the earliest point of time by the Deputy Director that from 2000-2001, one teacher was in excess, the college could not have selected and appointed a third teacher. Government of course, admits the fact that when Prof.Thomas Baby was appointed, it was not against a sanctioned post.
15. The learned senior counsel appearing for the respondent however would place reliance on the judgment of the WA No.1240/2020 -:16:- Apex Court in M.S.Mudhol and Others v. S.D.Halegkar and Others [(1993) 3 SCC 591] and the judgment of a learned Single Judge of this Court in Rajalekshmi v. State of Kerala (1992 (1) KLT 458) to contend for the position that even assuming that there was no sanctioned post, when a person has already been appointed and there is sufficient workload in the college, the teacher cannot be denied salary from the date of appointment. True that there is some defect in the nature of appointment insofar as the 2nd petitioner is concerned. She was not selected after getting permission from the Government for appointing a nominee for conducting the selection to K.G.College Pampady in the Chemistry department. But still, she was selected after a due process of selection attended by the Deputy Director of Education, who was the nominee of the Government and therefore, at this point of time, we do not think it necessary to declare the selection as illegal. However, there is absolutely no record to indicate that the appointment was made against a sanctioned post by the Government. It is also true that the University had approved her appointment w.e.f. 3/6/2013 during the pendency of the writ petition. But the fundamental question WA No.1240/2020 -:17:- is whether there is sufficient workload to accommodate the said teacher. Though in Ext.P11, University had taken up a plea that there was no sufficient workload, while approving the appointment of the 2nd petitioner, nothing has been stated in that regard.
16. In Cherian Mathew's case (supra), a Division Bench of this Court held that colleges run by private management are allowed to appoint teachers based on the workload calculated in terms of Ordinance 3 of the Kerala University First Ordinance. Once such appointments are assessed and approved by the University, salary has to be paid by the Government through Director of Collegiate Education. If the Director of Collegiate Education has any doubt regarding the propriety of appointment of a teacher, especially whether the workload required appointment of such a teacher, he will have to take up the matter before the University and the University has to reexamine the entire issue and take a decision. Once such a decision is taken by the University, it will be binding on the Government. After the judgment in Cherian Mathew (supra), an amendment was brought to the Kerala University Act by incorporating sub-section WA No.1240/2020 -:18:- (1) to S.57 which indicated that the 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. The effect of the aforesaid amendment came up for consideration in Shalini Rachel (supra). The Division Bench held that the judgment in Cherian Mathew (supra) still holds good and the amendment does not take away the powers of the University in fixing the workload. However, having declared that it is obligatory on the part of the Government to release salary due to the teachers whose appointments are approved by the University, it was held that the Government have no obligation to disburse salary, if appointments are made by Aided Colleges to a non-existent post or when a new subject is sought to be introduced or a division is sought to be started and it was held that in such instances, Government sanction is a precondition as provided u/s 57(1) of the University Act. It was clarified that for existing posts, on grant of approval from the University, on the basis of workload and staff fixation, Government and the officers authorized by the Government are bound to honour the direct payment agreement WA No.1240/2020 -:19:- and release salary to the teachers.
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.
18. The question therefore to be considered is whether the 2nd petitioner had been appointed against a sanctioned post. The materials placed on record do not indicate that a third post in the Chemistry department at K.G.College, was sanctioned by the University or the Government at any point of time. But before the appointment of the 2nd petitioner, 3 teachers were working in the WA No.1240/2020 -:20:- Chemistry department. As already stated, the Government had taken up a case that approval and payment of salary to the third teacher itself was a mistake.
19. The primary question to be considered is whether there was sufficient workload to sanction a third post. As already stated, 2nd petitioner was not a person selected for appointment in K.G.College, Pampady. Therefore, Government had no role to play in selecting the said candidate. Even assuming that the selection of the 2nd petitioner is not an irregularity, still the question would be whether when she was appointed, there was sufficient workload in the said department. University initially had not approved the appointment of 2 nd petitioner on the ground that there was no workload and the new subject was not sanctioned by the Government. When the Government has taken a contention that there is no sufficient workload to accommodate a third teacher, necessarily such an issue requires to be considered. No college is entitled to appoint an additional teacher without sufficient workload. The University of course has approved the appointment of the 2 nd petitioner effective from 3/6/2013. But, in the order of approval, there is absolutely no WA No.1240/2020 -:21:- material to indicate that they have reassessed the workload. Taking into account all these facts, we are of the view that unless and until the College is able to justify that they had sufficient workload to sanction an additional post in the department or to continue with three teaching posts in the said department, petitioners are not entitled for the aforesaid relief.
20. That the University had already approved the appointment of the 2nd petitioner will not stand good in the case on hand since right from 2002-03 onwards, as per the workload prepared by the Deputy Director, one teacher was in excess. Therefore, unless the workload is assessed and determined, the University cannot grant any approval nor can the Government be called upon to pay salary.
21. In Bindu John (supra), Division Bench of this court in which one among us was a party (myself), had occasion to consider the scope and effect of Section 57(1) of the University Act and it is held as under:
"10. 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 WA No.1240/2020 -:22:- 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 WA No.1240/2020 -:23:- of this judgment, which shall be considered within a further period of three months, in accordance with law".
22. In Anty (supra), we had occasion to consider a similar situation where the college did not get prior approval from the Government. It was a case relating to the M.G.University itself. In that case, after having found that the college did not request for sanction of a post, it was held by us at paragraphs 12, 13, 14 and 15 as under:-
"12. The question to be considered is whether college could appoint a teacher without permission of the Government. Under S.59 (1) of the Mahatma Gandhi University Act, 1985 (hereinafter referred to as the Act), it is provided that "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." It is apparent that, after 2002, there had not been any staff fixation orders issued by the Government. Therefore, when in the year 2002 only when one post of Physical Education Teacher was sanctioned, it cannot be stated that an additional post was available in the college. The University had also proceeded on the basis that the two vacancies were sanctioned posts, which apparently is not correct. What is required to be considered is whether there was sufficient student strength as on 20/10/2014 to accommodate the petitioner. Petitioner cannot be a person who could be accommodated in the transfer vacancy of WA No.1240/2020 -:24:- Sri.Abin Wilson. But at any rate, at the relevant time, there was only one Physical Education Teacher. Therefore, unless in terms of S.59(1) of the Act, the Government sanctions the post depending upon the respective student strength, it may not be possible for this Court to direct that the petitioner could be accommodated in the said post.
13. We had occasion to consider an almost similar matter in the judgment dated 16/10/2019 in WA No. 2164/2018 in which one among us (myself) was a party. We were considering the effect of S.57(1) of the Kerala University Act, 1974 which is similar to S.59(1) of the Mahatma Gandhi University Act. In the said judgment, Division Bench has clearly indicated that despite the approval of the University, in instances which require payment of salary by the Government, sanction of the Government is mandatory. If the Government is to be directed to pay salary, it should be to an existing post and that S.57(1) was not an empty formality. Therefore, if the appointment had been made in respect of a sanctioned post, there would not have been any difficulty in directing the Government to pay salary. But if the post has not been sanctioned by the Government and unless it is sanctioned based on the parameters specified for sanctioning such posts, the Court will not be justified in directing payment of salary.
14. Learned Government Pleader also submitted that, so far, the college has not requested for sanctioning an additional post after 2002. But, it seems that several communications have been exchanged between the parties requesting for payment of salary. The present situation is that Government had requested the University to WA No.1240/2020 -:25:- reconsider their approval. Apparently it is based on the presumption that there is no sanctioned post. But in a case where there is sufficient student strength to sanction an additional post for Physical Education teacher, necessarily, the matter requires consideration.
15. From the factual circumstances, it is also evident that the petitioner was working as Physical Education teacher in the Vocational Training School and he had resigned from the said job to be appointed to the aforesaid post."
23. We are of the view that this is also a case in which a similar direction can be issued. Accordingly, we set aside the judgment of the learned Single Judge and the writ petition is disposed of as under:-
That the 1st petitioner in the writ petition shall submit an application to the Government for sanction of an additional post of Assistant Professor, Chemistry in the vacancy as on 3/6/2013. Director of Collegiate Education or the concerned officer, as the case may be, shall conduct necessary enquiry into the matter and if it is found that the college had sufficient workload to accommodate one more Assistant Professor in Chemistry department during the relevant time, necessary sanction WA No.1240/2020 -:26:- shall be granted during the said academic year or any other academic year as may be found so, in accordance with the procedure prescribed. If so granted, the 2 nd petitioner shall be paid salary from the date of sanctioning the post. The entire process shall be completed within a period of three months from the date of receipt of the representation.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
GOPINATH P.
Rp JUDGE
WA No.1240/2020
-:27:-
APPENDIX
APPELLANT'S EXHIBITS:
ANNEXURE A1 COPY OF THE ORDER DATED 28/10/2020 IN
CONTEMPT CASE (C) NO.1211/2020.
ANNEXURE A2 TRUE COPY OF THE GO(P) NO.28/2012/H.EDN.
DATED 25/01/2012.
ANNEXURE A3 TRUE COPY OF THE ORDER
NO.3645/B1/ACD/2017 DATED 19/06/2017.
ANNEXURE A4 TRUE COPY OF THE GO(MS) NO.
260/2010/H.EDN. DATED 20/08/2010.
ANNEXURE A5 STATEMENT SHOWING THE WORKLOAD OF
TEACHERS WORKING FROM THE YEAR 2000-01
TO TILL THIS YEAR.