Allowed

Shalini Thomas v. the Manager

Kerala HC22 Nov 2021WP(C)/5575/2015

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition by an Assistant Professor seeking salary regularization. The Court quashed an order denying salary due to alleged insufficient workload and directed the management to pay salary from the date of appointment. The Court held that once a vacancy is approved, the government cannot deny salary on workload grounds in aided colleges.

What did the court decide?

Quashing of the order denying salary; direction to pay salary with effect from the date of appointment and to regularize salary paid during pendency.

Shalini Thomas Vs the Manager — Pension and Retirement Benefits | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 22^ND DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA, 1943 WP(C) NO. 5575 OF 2015

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PETITIONER/S:

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SHALINI THOMAS ASSISTANT PROFESSOR IN ECONOMICS, BCM COLLEGE, KOTTAYAM. BY ADVS. SRI.BABU VARGHESE (SR.) SRI.C.V.ALEXANDER SRI.V.NARAYANA SWAMI

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RESPONDENT/S:

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1 THE MANAGER, BCM COLLEGE FOR WOMEN, KOTTAYAM - 686 001. 2 THE MAHATMA GANDHI UNIVERSITY REPRESENTED BY ITS REGISTRAR PRIYADARSINI HILLS P.O., KOTTAYAM - 686 560.

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3 THE STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVT., DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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4 THE DIRECTOR OF COLLEGIATE EDUCATION VIKAS BHAVAN PMG JUNCTION THIRUVANANTHAPURAM - 695 033.

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5 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION KOTTAYAM - 686 001. BY ADVS. SRI.BABY ISSAC ILLICKAL SRI.BABY ISSAC ILLICKAL SRI.ISAAC KURUVILLA ILLIKAL SRI.VARUGHESE M.EASO, SC, M.G.UNIVERSITY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY

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OTHER PRESENT:

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SRI SURIN GEORGE IYPE SC MG

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 5575 OF 2015

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JUDGMENT

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Petitioner is an Assistant Professor in Economics duly appointed by the 1^st respondent/Manager, BCM College for Women on the basis of the recommendation made by the Statutory Selection Committee.

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Vide notification dated 10.2.2012, Ext.P1 a substantive vacancy arose in the department of Economics due to the retirement from service of an existing teacher, whose appointment has already been approved and salary drawn. A selection committee was constituted for making selections by appointing a Government nominee as evident from the communication dated 21.6.2012, Ext.P11. Petitioner was appointed as Assistant Professor in the department of Economics with effect from 23.7.2012, Ext.P2. Since the petitioner was qualified, her appointment was approved by the University with effect from the aforementioned date vide order dated 4.1.2013, Ext.P3.

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Learned counsel for the petitioner submitted that the Principal of the College submitted salary bill in respect of the petitioner whose appointment had already been approved by the

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WP(C) NO. 5575 OF 2015

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University but it was returned by the 5^th respondent/Deputy Director of Collegiate Education vide communication dated 30.10.2013 raising certain objections, Ext.P4. On reciept of Ext. P4, a proper reply furnishing the required clarification was given by the Principal of the college to the 5^th respondent vide communication dated 13.11.2013, Ext.P5. But 5^th respondent returned the salary bill stating that Government sanction has not been obtained for the additional work load in the Economics Department vide communication dated 31.12.2013, Ext.P6. The entire action of respondents 3 to 5 amounts to a blatant violation of the direction of this Court in Amina vs. State of Kerala (2004 (1) KLT 657 wherein it has been held that the vacancy arose in one of the sanctioned posts in an aided college, the management has authority to fill up the post and the Government is bound to pay salary to the teacher, appointed. It is further pointed out that at the time of admission of the writ petition vide interim order dated 13.3.2015, considering the approval granted, there was an interim direction to the respondents to pay the salary of the petitioner from the current month onwards.

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Learned Government Pleader appearing on behalf of

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WP(C) NO. 5575 OF 2015

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the respondent opposed the aforementioned prayer and submits that there was a change of the subject as per the order dated 26.5.2003 whereby subsidiary subject of B.A Sociology (main) and B.A History (main) was changed from Political Science to General Economics. There was no work load in the stream of Economics and rightly so, the salary was denied.

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I have heard the learned counsel for the parties and appraised the paper book and of the view that there is no force and merit in the submission of the learned counsel for the respondent State, the reasons are not one but few.

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Vide notification published in the Indian Express daily dated 10.2.2012, it was clearly mentioned that the substantive vacancy was to be filled by following the due process of law as one Smt.Kunjammini C.K, existing teacher had retired.

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The appointment of the petitioner on 23.7.2012 and approval by the University on 4.1.2013 vide Ext.P2 and P3 respectively are the testimony that there was no ambiguity in the process of appointment and approval thereof. But the respondent, for the reasons best known raised the objection that there was no sufficient work load. The Government cannot raise this objection once the syndicate had already granted the

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WP(C) NO. 5575 OF 2015

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approval for filling up the existing vacancy. The aforementioned view of mine is derived from the ratio decidendi culled out by the Division Bench of this Court in State of Kerala and Others v. Dr.Sina A.R and Others (2007 (3) KHC 96) .

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The Government does not have any power to sit in the judgment over the decision arrived at by the University regarding the number of teachers to be appointed in the department in a college run by the Private management. In the absence of such provision, the Government is not entitled to impose a condition regarding obtaining of prior approval from the Director of Collegiate to appoint a teacher as its staff. The aforementioned view of mine is derived from the decision taken by the Division Bench of this Court in Cherian Mathew v. The

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Principal, S.B College (O.P No.33 of 1996) decided on 25.3.1996. It is also a matter of record that by virtue of the interim order referred to above, respondents are paying the arrears of the salary to the petitioner, since she was appointed in 2012. Respondents are liable to disburse the salary to the management for onward transmission to the petitioner

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Writ petition is allowed. The impugned decision Ext.P6 is

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WP(C) NO. 5575 OF 2015

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hereby quashed. Respondents are directed to pay the salary to the petitioner with effect from the date of appointment and the salary paid during the pendency of the writ petition is ordered to be also regularized, forthwith.

Sd/-

sab

AMIT RAWAL

JUDGE

WP(C) NO. 5575 OF 2015

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APPENDIX OF WP(C) 5575/2015

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PETITIONER EXHIBITS

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EXT.P1: TRUE COPY OF THE NOTIFICATION PUBLISHED IN THE INDIAN EXPRESS DAILY DATED 10/02/2012.

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EXT.P1(A): TRUE COPY OF THE MINUTES OF THE MEETING OF THE STATUTORY SELECTION COMMITTEE.

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EXT.P2: TRUE COPY OF THE APPOINTMENT ORDER DATED 23/07/2012 ISSUED BY THE 1ST RESPONDENT.

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EXT.P3: TRUE COPY OF THE UNIVERSITY ORDER GRANTING APPROVAL TO THE APPOINTMENT OF THE PETITIONER DATED 04/01/2013.

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EXT.P4: TRUE COPY OF THE OBJECTION DATED 30/10/2013 ISSUED BY THE 5TH RESPONDENT.

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EXT.P5: TRUE COPY OF THE REPLY DATED 13/11/2013 GIVEN BY THE PRINCIPAL OF THE COLLEGE TO THE 5TH RESPONDENT.

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EXT.P6: TRUE COPY OF THE LETTER DATED 31/12/2013 SENT BY THE 5TH RESPONDENT TO THE PRINCIPAL.

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EXT.P7: TRUE COPY OF THE LETTER DATED 24/10/2014 ISSUED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT.

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EXT.P8: TRUE COPY OF THE ASSESSMENT OF WORKLOAD AND REVISED FIXATION CONDUCTED BNY THE 4TH RESPONDENT IN THE POST ADALATH REVIEW DATED 16/10/2003.

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WP(C) NO. 5575 OF 2015

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EXT.P8(A): TRUE COPY OF THE PROCEEDOINGS DATED 22/05/2012 APPROVING THE APPOINTMENT OF GUEST LECTURER IN THE COLLEGE FOR THE ACADEMIC YEAR 2011-2012.

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EXT.P9: TRUE COPY OF THE STATEMENT OF THE FACULTY OF ECONOMICS DEPARTMENT SINCE 2008-2009.

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EXT.P10: TRUE COPY OF THE UNIVERSITY ORDER DATED 26/05/2003 SANCTIONING THE CHANGE OF SUBSIDIARY SUBJECT.

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EXT.P11: TRUE COPY OF THE GOVERNMENT LETTER NO.17768/D2/12H.ED.DATED 21/06/2012.

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EXT.P12: TRUE COPY OF THE ORDER PASSED IN WPC.NO.666 OF 2011.

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EXT.P12(A): TRUE COPY OF THE ORDER DATED 10TH DECENBER, 2014 IN WPC.NO.24384/2014 AS CORRECTED BY ORDER DATED 10TH DECENBER, 2014.

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EXT.P12(B): TRUE COPY OF THE JUDGMENT DATED 10TH DECEMBER, 2010 IN WPC.NO.19282/2010.

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EXHIBIT P13 A TRYE COPY OF THE LETTER NO.PF2(3)/28831/2016/DCE DATED 08.12.2017 ADDRESSED TO THE PRINCIPAL OF THE 1ST RESPONDENT COLLEGE.

Shalini Thomas v. the Manager

Case brief

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Shalini Thomas v. the Manager

Case brief

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