State Of Kerala Represented By The ... vs Anas.N on 27 August, 2025

[Cites 9, Cited by 0]

Kerala High Court

State Of Kerala Represented By The ... vs Anas.N on 27 August, 2025

In both references, the main issue is the same, namely, whether Government sanction is required for the approval of appointments in private aided colleges affiliated to Universities. Accordingly, we have considered this larger legal question in ICR(WA) No. 4/2025, as we consider that ICR(WA) No. 5/2025 can be disposed of based on our discussion on the law in ICR(WA) No. 4/2025.

ICR (WA) No. 4/2025:

2. The Mahatma Gandhi University Act, 1985, and the Kerala ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:4:- 2025:KER:65830 University Act, 1974, were amended in 2005. These amendments made it mandatory to obtain Government sanction for the appointment of teachers in private aided colleges who are entitled to receive salary from the Government under the direct payment scheme. The impact of these amendments forms the core issue to be considered in the present reference made by the Division Bench. The amendments were necessitated in light of the judgment of this Court in Cherian Mathew v. Principal, S. B. College, Changanassery [1998 KHC 336], wherein the Division Bench held that the Government cannot sit in judgment over the decision of the University regarding the number of teachers to be appointed in a department of a private aided college. Before the amendments, approval of posts in private aided colleges rested with the University, based on workload and staff pattern as provided in the University Ordinances. With the implementation of the UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Staff in the Universities and Colleges and Measures for the Maintenance of ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:5:- 2025:KER:65830 Standards in Higher Education, 2010 and 2018 (hereinafter referred to as the "UGC Regulations"), however, the determination of staff pattern is now governed by the norms prescribed therein.

3. Under the University Ordinances regarding workload and staff pattern of teaching staff, workload assessment is carried out as of the 1st of November of the preceding year. Before the 2005 amendments, if, based on such an assessment, the University was of the view that a post required approval, it would accord the same. No mechanism was provided either under the University Statutes or the Ordinances for obtaining prior sanction from the State Government before the year 2005. It was for this reason that, in Cherian Mathew (supra), the Division Bench held that the State Government cannot sit in judgment over the decision of the University in the matter of approval of staff pattern.

4. The scope and impact of the 2005 amendment, in its application to colleges that were already in existence before its incorporation, forms the subject matter of the present dispute. On a ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:6:- 2025:KER:65830 plain reading of the amendment, there can be no doubt that Government sanction is mandatory in the case of new aided colleges established after the 2005 amendment. The real controversy, therefore, is whether the said requirement also applies to appointments in private colleges that had already been established before the amendment came into force, in respect of posts that were created by the operation of law before the amendment.

5. A Division Bench of this Court in State of Kerala and Others v. Dr. Poornima C.C. and Others [2022 (5) KLT 547] elaborately considered the impact of the amendment and came to a definite conclusion that without sanctioning of the post by the State Government, no appointment can be made in private aided colleges and no appointee can seek retrospective approval of the appointment. We note that a Special Leave Petition filed against Poornima (supra) has been dismissed.

6. The Division Bench, in its reference order dated 04/03/2024 in W.A. Nos. 1814/2022 and connected case, noted ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:7:- 2025:KER:65830 earlier judgments in Amina v. State of Kerala [2004 (1) KLT 657], Shalini Racheal v. Manager, Christian College [2007 (3) KLT 355] and State of Kerala and Others v. Dr. Sina A. R. and Others [2007 (3) KHC 96], and opined that the judgment in Poornima (supra) conflicts with the above cited judgments. The learned Senior Government Pleader, Smt. Vinitha B. vehemently argued that there is no conflict between Poornima (supra) and the other judgments referred to above. We affirm this contention.

Apparently, we do not see any conflict, and the judgment in Poornima (supra) was rendered on interpreting the amended provision and not based on the unamended provision. In Shalini Racheal (supra) and Dr. Sina (supra), approval of appointments was granted in regard to the existing posts. In Dr. Sina (supra), the Division Bench in no uncertain terms held that the Government had no obligation to disburse salary if appointments are made by aided colleges to non-existent posts when a new subject is sought to be taught or a new division is sought to be started; therefore, the ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:8:- 2025:KER:65830 Division Bench in this reference apparently failed to note that there was no conflict between the proposition of law laid down in Poornima (supra) and the other cases referred to in the reference order. In the reference order itself, the Division Bench opined that an authoritative pronouncement on the question is required. In such a situation, we need to address the issues in a broader frame in regard to questions of sanction, approval, etc.

7. We make it clear that the question of this nature has arisen in the context of requests for approval in private aided colleges which were in existence before the amendment. There cannot be any dispute in regard to the requirement of obtaining a sanction for the creation of posts in all newly established aided management colleges after the amendment.

8. The intention of the law-makers is unambiguous: sanction from the Government is a mandatory prerequisite for the creation of a new post in a private aided college. The term 'sanction' denotes the prerogative authority vested with the power to authorise an ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:9:- 2025:KER:65830 action. Its meaning may vary depending upon the context, but it is always employed in a regulatory sense. In the context of appointments to posts in Universities, 'sanction' connotes the creation of a new post. Once such a post is created or sanctioned by the Government, appointments to the said post can be approved only in accordance with the terms of authorisation contained in the government order sanctioning the post. However, insofar as appointments in private aided colleges are concerned, the statutory authority to accord approval continues to vest with the University.

9. It is appropriate to refer to the provisions relating to approval of appointments under both University laws.

9.1. Clause 16 of the Mahatma Gandhi University Statutes, 1997 reads as follows:

"16. Approval of appointment:-

(1) Approval of every appointment to the teaching post shall be made by the Syndicate subject to the conditions that the appointment is in accordance with the staff pattern fixed by the University and that the person so appointed is fully qualified for the post.

ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:10:- 2025:KER:65830 (2) The Deputy Director of Collegiate Education concerned 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. Doubtful cases shall be referred to the University for clarification and the correctness of direct payment ensured.

(3) In the case of those private colleges coming under the Direct payments Scheme, the Director of Collegiate Education or the Officer authorised by him in this behalf shall verify in consultation with the University as to whether the teaching post in private colleges are in excess of the posts sanctioned by the University. However, in the case of incumbents declared as supernumeraries by the University, the controlling offices shall ensure that no fresh appointment is made against future vacancies until all the supernumeraries are absorbed against these vacancies. The direct payment of salaries shall not be made to the persons appointed against fresh vacancies, before the absorption of supernumeraries."

9.2. Section 23 of the Mahatma Gandhi University Act, 1985 reads:

"23. Powers of Syndicate -

(xviii) to approve the appointment of teachers in private colleges."

9.3. Clause 14 of the Kerala University (Conditions of Service of Teachers and Members of Non-Teaching Staff) First Statutes, 1979 ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:11:- 2025:KER:65830 reads thus:

"14. Approval of appointment.- (1) Approval of every appointment to the teaching post shall be made by the Syndicate subject to the conditions that the appointment is in accordance with the staff pattern fixed by the University and that the person so appointed is fully qualified for the post. (2) The Deputy Director of Collegiate Education concerned 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. Doubtful cases shall be referred to the University for clarification and the correctness of direct payment ensured.

(3) In the case of those private colleges coming under the Direct Payment Scheme, the Director of Collegiate Education or the Officer authorised by him in this behalf shall verify in consultation with the University as to whether the teaching posts in private colleges are in excess of the post sanctioned by the University. However, in the case of incumbents declared as supernumeraries by the University, the controlling officers shall ensure that no fresh appointment is made against future vacancies until all the supernumeraries are absorbed against those vacancies. The direct payment of salaries shall not be made to the persons appointed against fresh vacancies, before the absorption of supernumeraries."

9.4. Section 23 of the Kerala University Act, 1974 reads:

"23. Powers of Syndicate -

(xviii) to approve the appointment of teachers in private colleges."

ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:12:- 2025:KER:65830

10. Both statutory provisions expressly provide that approval of every appointment shall be made by the Syndicate, subject to conformity with the staff pattern fixed by the University. The Syndicate is vested with the statutory power to approve such appointments; in the result, it created a post that necessarily follows a corollary, that the Syndicate is also vested with the power to abolish such posts. This was the scenario before the 2005 amendment. It is to be emphasised that creation and extinction of a teaching post in an aided college are not isolated events, but phases in a continuum, each requiring the conscious application of mind by the competent authority. Before the 2005 amendment, once the Syndicate accorded approval, a post was created, and such a post continued to exist unless expressly abolished by the Syndicate. After the amendment in 2005, however, creation of posts became subject to the decision of the Government, and the Syndicate's role was confined to approving appointments in accordance with that decision. Consequently, the authority to abolish posts created after 2005 rests ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:13:- 2025:KER:65830 exclusively with the Government, and the approving authority cannot itself abolish such posts. At the same time, posts created before 2005 continued to owe their existence to the Syndicate's decision. Hence, if abolition of those posts is required after 2005, such abolition must also be effected by the Syndicate, since the University Acts referred herein do not confer power on the Government to abolish posts created before the amendment. Thus, after the amendment in 2005, it is clarified that "sanction of posts" and "approval of appointments"

are distinct and independent concepts under the University law. After the amendment, the authority to sanction posts vests exclusively with the Government, while the power to approve appointments rests with the Syndicate. Once this distinction is kept in view, the controversy in the present case admits of a clear and straightforward resolution.

11. Before the 2005 amendment, there was no legal requirement to obtain any sanction from the Government for the creation of posts. All posts that came into existence before the ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:14:- 2025:KER:65830 amendment must, therefore, be deemed to have been validly created upon approval by the University. In effect, such posts stood sanctioned by operation of the statutory provisions then in force. For these deemed sanctioned posts, no further approval of the Government is necessary, since the 2005 amendment operates only prospectively. Consequently, in respect of posts created prior to 2005, the University is competent to approve appointments, provided the minimum workload requirements under the UGC Regulations and the University Ordinances relating to workload and staff pattern of teaching staff are satisfied.

12. It is appropriate to refer to the provisions related to the appointment of teachers in private colleges in both the University laws before and after the 2005 amendment.

The Mahatma Gandhi University Act, 1985 Before Amendment of 2005 After Amendment of 2005

59. Appointment of teachers in private colleges.- 59. Appointment of teachers in private Colleges.- (1) Appointments to the lowest grade of teacher (1) Appointments to the posts eligible to receive in each department of a private college shall be salary from the Government shall be made only made by the educational agency by direct against posts sanctioned by the Government or by recruitment on the basis of merit. such officers as may be authorized by the ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:15:- 2025:KER:65830 The Mahatma Gandhi University Act, 1985 Government.

(2) Appointments of principals shall be made by the educational agency by promotion from among (1A)Appointments to the lowest grade of teacher the teachers of the college or of all the colleges, in each department of a private college shall be as the case may be, or by direct recruitment. made by the educational agency by direct recruitment on the basis of merit.

(3) Where the appointment of principal is made by promotion, the educational agency shall make (2) Appointments of principals shall be made by the appointment on the basis of seniority-cum- the educational agency by promotion from among fitness. the teachers of the college or of all the colleges, as the case may be, or by direct recruitment.

(4) Appointments to the posts, other than those referred to in sub-sections (1) and (2), shall be (3) Where the appointment or principal is made made by the educational agency by promotion by promotion, the educational agency shall make from among the teachers of the college or of all the appointment on the basis of seniority-cum- the colleges, as the case may be, on the basis of fitness. seniority-cum-fitness, or, if none among them is fit for promotion, by direct recruitment. (4) Appointments to the posts, other than those referred to in [sub-section (1A)] and (2) shall be (5) For making appointment under this section by made by the educational agency by promotion direct recruitment, the post shall be advertised in from among the teachers of the college or of all such manner as may be prescribed by the the colleges, as the case may be, on the basis of Statutes. seniority-cum-fitness, or if none among them is fit for promotion, by direct recruitment.

(6) Notwithstanding anything contained in sub- sections (1) and (4), a teacher discharged from a (5) For making appointment under this section by private college on or after the 14th day of March, direct recruitment, the post shall be advertised in 1974, due to abolition of a course of study in that such manner as may be prescribed by the college or for any other reason except disciplinary Statutes. action against him shall be given preference in the matter of future appointments in the private (6) The educational agency shall not abolish a college or, as the case may be, any of the private course of study in a private college without the colleges under the management of the prior approval of the University. educational agency within the University area.

(7) Every appointment under this section shall be (7) The educational agency shall not abolish a made by a written order of the Manager in such course of study in a private college without the form as may be prescribed by Statutes prior approval of the University. communicated to the person to be appointed, with copy to the University.

(8) Every appointment under this section shall be made by a written order of the manager in such form as may be prescribed by the Statutes, (8) Every appointment under this section shall be communicated to the person to be appointed, reported to the University for approval. with copy to the University.

(9) Any person aggrieved by any appointment (9) Every appointment under this section shall be under this section may appeal to the Appellate reported to the University for approval. Tribunal. ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:16:- 2025:KER:65830 The Mahatma Gandhi University Act, 1985 (10) Any person aggrieved by any appointment under this section may appeal to the Appellate Tribunal.

The Kerala University Act, 1974 Before Amendment of 2005 After Amendment of 2005

57. Appointment of teachers in private colleges.- 57. Appointment of teachers in private colleges.- (1) Appointments to the lowest grade of teacher in each department of a private college shall be (1) Appointments to the posts eligible to receive made by the educational agency by direct salary from the Government shall be made only recruitment on the basis of merit. against posts sanctioned by the Government or by such officers as may be authorized by the (2) Appointments of principals shall be made by Government. the educational agency by promotion from among (1A) Appointments to the lowest grade of teacher the teachers of the college or of all the colleges, in each department of a private college shall be as the case may be, or by direct recruitment. made by the educational agency by direct recruitment on the basis of merit.

(4) Appointments to the posts, other than those referred to in sub-sections (1) and (2), shall be (3) Where the appointment of principal is made made by the educational agency by promotion by promotion, the educational agency shall make from among the teachers of the college or of all the appointment on the basis of seniority-cum- the colleges, as the case may be, on the basis of fitness. seniority cum-fitness, or, if none among them is fit for promotion, by direct recruitment. (4) Appointments to the posts, other than those referred to in (sub-section (1A)) and (2). shall be (5) For making appointment under this section by made by the educational agency by promotion direct recruitment, the post shall be advertised in from among the teachers of the college or of all such manner as may be prescribed by the the colleges, as the case may be. on the basis of Statutes. seniority-cum-fitness, or if none among them is fit for promotion, by direct recruitment.

(6) Notwithstanding anything contained in sub- sections (1) and (4), a teacher discharged from (5) For making appointment under this section by a private college on or after the 14th day of direct recruitment, the post shall be advertised in ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:17:- 2025:KER:65830 The Kerala University Act, 1974 March, 1974, due to abolition of a course of study such manner as may be prescribed by the in that college or for any other reason except Statutes. disciplinary action against him shall be given in preference in the matter of future appointments (6) Notwithstanding anything contained in this in the private college or, as the case may, be any Act, the Statutes. Ordinances and Regulations of the private colleges under the management of made thereunder.- the educational agency within the University area.

(a) a person appointed as teacher in a private (7) The educational agency shall not abolish a college in a temporary vacancy on or after the course of study in a private college without the 14th day of March. 1974 and continuing as such, prior approval of the University. shall be appointed as teacher in any permanent vacancy or any temporary vacancy of longer (8) Every appointment under this section shall be duration that may arise, after such appointment made by written order of the manager in such in the temporary vacancy, in the private college form as may be prescribed by the Statutes, or, as the case may be. any of the private colleges communicated to the person to be appointed, under the management of the educational agency with copy to the University. within the University area. (9) Every appointment under this section shall be (b) a teacher relieved from a private college on or reported to the University for approval. after the 14th day of March, 1974. due to the abolition of a course of study in that private (10) Any person aggrieved by any appointment college or the cessation of the period for which he under this section may appeal to the Appellate was appointed or for any other reason except Tribunal. disciplinary action against him, shall be given preference in the matter of, future appointments in the private college or, as the case may be, any of the private colleges under the management of the educational agency within the University area.

(c) Any dispute arising or pending between the management of a private college and the teacher of that college, in respect of any matter coming under clause. (a) or (b) shall be decided in accordance with the provisions of this Act and the Statutes made thereunder.

Explanation. Where the number of claimants under clause (a) or clause (b) is more than the number of vacancies, the order of preference for appointment shall be in accordance with the date of first appointment of the claimants under the educational agency within the University area. (7) The educational agency shall not abolish a course of study in a private college without the prior approval of the University.

ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:18:- 2025:KER:65830 The Kerala University Act, 1974 (8) Every appointment under this section shall be made by a written order of the manager in such forms as may be prescribed by the Statutes, communicated to the person to be appointed, with copy to the University.

(9) Every appointment under this section shall be reported to the University for approval.

(10) Any person aggrieved by any appointment under this section may appeal to the Appellate Tribunal.

13. The dilemma in all these cases has arisen for the simple reason that the Government has not undertaken any attempt to find out the staff pattern as on the date of the amendment in the year 2005. If the staff pattern is fixed, there is no scope for the University or the private aided colleges to seek further sanction from the Government in respect of the posts already in existence as on the date of the 2005 amendment. The confusion now entertained by the Government is much reflected in their stand before this Court. We shall advert to this dilemma with reference to the facts involved in ICR(WA) No. 5/2025.

ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:19:- 2025:KER:65830

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 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 ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:20:- 2025:KER:65830 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 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 ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:21:- 2025:KER:65830 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 ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:22:- 2025:KER:65830 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; 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.

17. From the foregoing discussion, we deduce the law relating to sanction and approval of posts as follows:

ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:23:- 2025:KER:65830 i. We affirm the proposition of law laid down in Poornima (supra), subject to the rider that no sanction of the Government is required if the post does not exceed the strength of posts already created in the College as on the date of the 2005 amendment. However, if the post sought to be approved would result in an excess over the posts sanctioned as of 2005, the University cannot approve unless new posts are created by the Government.

ii. Upon workload assessment, the University is duty-bound to examine whether the post for which approval is sought, either on account of the introduction of a new course or otherwise, would fall within or exceed the strength of posts already created in the college as on the date of the 2005 amendment. The University shall not grant approval if, in its opinion, the appointment would exceed the number of posts created as of that date.

iii. In respect of posts that do not exceed the strength of created posts, the University is competent to approve appointments without any further sanction from the Government, provided it is satisfied, ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:24:- 2025:KER:65830 on workload assessment, that the appointment is justified. iv. Workload assessment is mandatory for both creation of posts and approval of appointments, and such assessment shall be carried out strictly in accordance with the UGC Regulations. v. Based on workload assessment before 2005, if any post stood reduced, such post shall nevertheless be deemed to continue in existence unless it has been expressly abolished by the approving authority. For future approval, no sanction of the Government is required in respect of such posts, provided they have not been abolished by the approving authority, and the workload assessment justifies approval of appointments to them. vi. Based on workload assessment, if a new post is required to be created, the University shall forward the proposal to the Government and shall permit colleges to engage teachers on a daily or contract basis till a decision is taken by the Government on the creation of posts. The Government shall take a decision on the proposal within ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:25:- 2025:KER:65830 a reasonable time without delay in the light of the UGC regulation that discourages employing teachers on a contract basis.

18. We answer the reference in ICR (WA) No. 4/2025 arising from the common order in W.A. No.1814/2022 & W.A. No.1768/2022 as above. Since disputed facts are involved, we may not be able to dispose of the appeals, though we have the power under Section 7 of the Kerala High Court Act, 1958, to dispose of the matter itself finally in a reference.

ICR (WA). No.5/2025

19. We shall now advert to ICR (WA). No.5/2025:

The learned Senior Government Pleader, Shri A.J. Varghese, submits that the appointment of the writ petitioner, Mr. Anas, was made to a non-existent post, pursuant to the workload assessment Adalath conducted by the Department in association with the University in the year 2002. Mr. Anas was appointed as Assistant Professor in Political Science in an aided college, pursuant to a selection process ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:26:- 2025:KER:65830 initiated on 05/06/2015. There is no dispute that the appointment of Mr. Anas did not exceed the number of posts already created in the aided college as on the date of workload Adalath in the year 2002. In the Political Science Department, there were four sanctioned posts before 2002. Mr. Anas was appointed against the fourth post. The University, on assessing the workload, found that the appointment was eligible for approval. The contention of the learned Government Pleader is that the fourth post was a non-existent post, having been found surplus during the workload Adalath conducted in 2002, consequent upon the delinking of the Pre-Degree Course in the subject of Political Science. It is not in dispute that Mr. Anas was appointed in the vacancy arising on account of the retirement of Dr. Varghese Thomas, who retired on 31/05/2015. According to the learned Senior Government Pleader, Dr. Varghese Thomas had been permitted to continue till retirement in a non-existent post. However, it is relevant to note that neither the University nor the Government has a case that the post was expressly abolished in 2002 as a ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:27:- 2025:KER:65830 consequence of the workload assessment in the Adalath. Even if the post was treated as surplus in 2002, that by itself would not amount to abolition, unless a conscious decision to abolish the post was taken by the competent authority before 2005. We are examining the matter in the backdrop of the prior sanction insisted by the Government. In the absence of such abolition, the question of obtaining prior sanction from the Government does not arise for approval of the appointment made in 2015, which the University granted on the basis of the workload assessment of the preceding year.

20. That being the case, there is no requirement in law to obtain a sanction from the Government. As we have already held, a post does not stand extinguished merely based on a workload assessment, unless the competent authority has consciously abolished it. In the present case, no such abolition is shown. Accordingly, the approval of the appointment of Mr. Anas by the University is valid and regular.

ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:28:- 2025:KER:65830 In conclusion, we order:

I. ICR(WA) No. 4/2025 - Reference is answered. Therefore, we place these matters before the Hon'ble the Chief Justice to consider placing the matter before the appropriate Bench.

II. ICR(WA) No. 5/2025 - We decided this appeal (W.A. No.201/2023) and affirm that the approval accorded to the appointment of Mr. Anas shall stand confirmed as regular. Reference is answered as above, and W.A. No.201/2023 is dismissed.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE Sd/-

SHOBA ANNAMMA EAPEN, JUDGE Sd/-

S.MANU, JUDGE ms ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:29:- 2025:KER:65830 APPENDIX OF WA 201/2023 PETITIONER ANNEXURES Annexure A1 PHOTOCOPY OF THE WORK LOAD ADALATH FOR THE YEAR 2002.

Annexure A2 PHOTOCOPY OF THE G.O.(MS)NO.61/2002/H.EDN DATED 17.06.2002.

Annexure A3 PHOTOCOPY OF THE G.O.(MS)NO.471/2020/H.EDN DATED 30.12.2020.

Annexure A4 PHOTOCOPY OF THE ORDER NO. GO(MS)NO.

155/2020/H.EDN DATED 01.04.2020.

Annexure A5 PHOTOCOPY OF THE JUDGMENT DATED 26.09.2018 IN W.P.(C)NO.30605/2017.

RESPONDENT ANNEXURES Annexure R1(a) TRUE COPY OF THE GOVERNMENT ORDER BEARING G.O.(P) NO.152/2020/FIN. DATED 05.11.2020 .

Annexure R2(c) The true copy of the letter No.19713/D2/15/H.Edn dated 27.07.2015 issued by the 1st appellant Department of Higher Education.

Annexure R2(b) The true copy of the request dated 15.06.2015 submitted by the Manager of the 2nd respondent college before the 1st appellant Department of Higher Education.

Annexure R2(d) The true copy of the Order No.Ac.F1/52280/2016/UOK dated 04.03.2022 issued by the 3rd respondent University granting approval to the 1st and 6th respondents.

Annexure R2(e) The true copy of the pay bill no.A1 579/2012 dated 24.04.2012 showing that all 4 teachers were receiving salary.

Annexure R2 (f) The true copy of the list of teaching staff currently working in the Department of Political Science in the 2nd respondent college.

Anneure R2 (a) The true copy of the Order issued by 3rd respondent University vide No. Ac.F1/036851/2013 dated 26.10.2013 with regard to workload assessment and fixation of staff strength of teaching staff for the year 2013-2014 in 2nd respondent MSM College. Annexure-R1(b) True copy of the Government Order bearing G.O.(Ms) No. 87/2012/H.Edn dated 12.03.2012 Annexure R3(a) The true copy of the workload assessed during the ICR (WA) No.4/2025 in W.A. No.1814/2022 ICR (WA) No.5/2025 in W.A. No.201/2023 W.A Nos. 1768/2022, 1814/2022 & 201/2023 -:30:- 2025:KER:65830 year 2020-2021 PETITIONER ANNEXURES Document No.1 : - True copy of G.O(P) No. 5/2001/H.Edn dated 3.01.2001 Document No.2 :- True copy of G.O. (MS) 61/2002/G.Edn dated 17.06.2002 Document No.3 :- True copy of G.O(P) No.225/11/H.Edn dated 14.09.2011 Document No.4 True copy of G.O(MS) No.8/2013/H.Edn dated 15.01.2013 Document No.5 - True copy of G.O(MS) No.93/2018/H.Edn dated 09.05.2018 Document No.6 :- True copy of G.O(MS)No.155/2020/H.Edn dated 01.04.2020 Document No.7 :- True copy of order in SLP No.6776/2021

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