Kerala High Court
The Manager, Pazhassiraja College And ... vs The University Of Calicut And Ors. on 31 July, 2007
Equivalent citations: 2007(2)KLJ795
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, Antony Dominic
JUDGMENT K.S. Radhakrishnan, J.
1. Writ Petition has been preferred by the Manager of an aided college along with the Parent Teacher Association seeking a declaration that Section 57(1) incorporated by "the University Laws (Amendment) Act 2005" and the guidelines issued by the Government vide Ext.P17 G.O.Ms. No. 95/2006H. Edn dated 10-8-2006 are invalid and ultra vires of the Constitution of India and contrary to the Direct Payment Agreement and also for a direction to the first respondent to issue staff Fixation order in view of Exts.Pl(a), P4, P6 and P7 and Ordinances relating to the workload and staff pattern of Teachers. Petitioners have also prayed for a direction to respondents 1 and 2 to depute University and Government nominees so as to constitute the Selection Committees and to effect appointments to the vacant posts.
2. The impact of the University Laws (Amendment) Act, 2005 by which Sub-section (1) was inserted to Section 57 of the Kerala University Act, 1974 and to other similar University Acts on the Direct Payment agreement entered into between aided colleges and the State Government was considered in State of Kerala v. Dr. Sina A.R. 2007 (3) KGC 96. This Court declared that it is obligatory on the part of the Government to release salary due to the teachers whose appointments are duly approved by the University taking note of the work load and staff fixation. This Court also held that Government have however to obligation to disburse salary if appointments are made by the aided colleges to posts which are not sanctioned by the Government when a new subject is sought to be introduced, or a new course or division is sought to be started. Government sanction is a pre condition under Section 57(1) of the University Act. Ext.P 17 order of the Government which is under challenge reads as follows:
In view of the above, till such time as formal Government orders are issued specifying the number of vacancies and the discipline in which such Private Aided College is allowed to fill up vacancies, there is no need to hold selection committee meetings by the Managements. Accordingly, Government are pleased to order that no nominees are permitted as Government representatives to the teachers Selection Committee or any aided college until a formal order is issued to fill up specified vacancies in a College.
The Universities are also advised not to nominate their representative to such selection Committee until formal orders for filling up vacancies of teachers are issued by the Government.
This court in Dr. Sina's case (supra) affirmed the principle laid down by a Division Bench of this Court in Cherian Mathew v. Principal, S.B. College, Changanacherry 1998 (2) KLT 144 and held as follows:
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 work load 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 work load 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.
3. Petitioners have stated that Government had accorded sanction for B.A. Tourism and Travel Management course to the college vide G.O. No. 12004/B/95/H.Edn dated 29-09-1995. University had granted permanent affiliation to the said course and for forty hours of workload, 3 teaching posts have been sanctioned to the college. Later as per order dated 4-11 -2004 University had granted permanent affiliation for the course for an intake of 40 students. According to the Management, it is a degree course and the delinking of pre-degree has not affected the student strength and staff pattern. Further it is stated that as against the three sanctioned posts for B.A.(Tourism and Travel Management) course three teachers are appointed in accordance with the statutory provision. Due to deputation granted by the University to M.R. Dileep, one of the Lecturers of the Department on appointment as Lecturer in Kerala Institute of Tourism and Travel Studies, an undertaking of the State Government, one post out of three sanctioned posts fell vacant. Further since the Head of the Department of Travel Management Dr. Robinet Jacob was assigned the charge of NCC and he has to teach only 12 hours as against 16 hours. Management is of course duty bound to submit statement showing the details of actual workload with student strength and University is bound to issue and communicate staff fixation orders before the commencement of the academic year, petitioners submit despite the submission of the workload statement, University is not issuing any staff fixation order.
4. Petitioners' college is also having a Department of Economics which has 40 hours workload and three sanctioned posts. Due to the demise of Prof. Babukutty one post fell vacant and at present there are only two teachers available. Statements of workload and the student strength were forwarded to the University. Nothing has been done in the matter and the same is pending consideration. Petitioners submit that since Management wants to full up the existing vacant post of B.A. (Tourism and Travel) and B.A.(Economics) first petitioner has made written request before the University to send their nominees subject experts so as to constitute the Selection Committee. No action has been taken either by the University or by the Government in view of Ext.P17 order.
5. The University and the Government have to act within the four corners of the University Act, Statutes and Ordinances, scope of which has already examined by this Court in Cherian Mathew's case, supra as well as in Pr. Sina's case. Learned single Judge in a batch of cases, O.P. No. 21268 of 2002 has also examined the impact of the situation created due to delinking of Pre-degree. There was a statutory ban on the appointment in various aided colleges due to the delinking of Pre-degree course. Ban period was however extended through executive orders and the Government interdicted appointments in various aided colleges which was found to be illegal by this Court. The decision of the Government banning appointments or its approval and also the decision taken not to send nominees to Selection Committees constitutes under the various Universities for filling up the existing vacancies is illegal. Government, in our view, have an obligation to send their nominees to the Selection Committees. We are therefore inclined to quash Ext.PS order and give a direction to the Government to depute nominees to the Selection Committee.
6. The Management has however no right to effect illegal appointments contrary to student strength and workload. Considerable responsibility is cast upon the Government and its nominees who are in the Selection Committee constituted under the University Act to see that proper selection is made. Statutory obligation is also cast on the Director of Collegiate Education to examine the workload and the student strength. Statute 79 of the Kerala University First Statutes authorises the Director of Collegiate Education to examine the workload of teachers in the college and the staff pattern and to satisfy himself that no extra staff is permitted to continue in service and the Director shall, if he so desires can have periodical consultation with the University in the matter. If they properly exercise their statutory powers much of the apprehension voiced by the Government could be met effectively. If the Director of Collegiate Education and the officers are not discharging their duties the Government can always take appropriate action against them. Statute 14 also casts statutory obligation on the Director of Collegiate Education to verify before making Direct Payment as to whether the post for which the payment is claimed is in accordance with the staff pattern and workload fixed by the University and doubtful cases shall be referred to the University for clarification and the correctness of direct payment ensured.
7. Government, in our view, would take stringent action against the Director of Collegiate Education and their officers for not discharging their statutory functions properly. If they properly exercise their statutory function many of the complaints highlighted by the Government could be solved and aided colleges would not be able to appoint excess teachers in the college burdening the State exchequer. We hope Government will take serious note of the above aspects and take remedial measures. Government however cannot bypass the statutory obligation cast on it under the University Act and the Statutes by not deputing its nominees to the Selection Committees. Government have got an obligation to send nominees as per law and Government nominee should exercise the power diligently and discharge their duties in accordance with law. Ext.Pl 7 order for the above mentioned reasons cannot be sustained and hence it is quashed. Government is directed to send nominees forthwith and the nominees would discharge their statutory obligation strictly in accordance with University Act and Statutes. The University should also depute its nominee to the Selection Committee at the earliest. Writ Petition is disposed of as above.