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2022 Supreme(Online)(KER) 24047
HIGH COURT OF KERALA
P. B. Suresh Kumar, C.S. Sudha, JJ
STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – Appellant
Versus
DR.POORNIMA.C.C. – Respondent
WA NO. 267 OF 2022 | WP(C) 8704/2021
For the Appellants/Petitioners: SRI.A.J.VARGHESE SR.GP
For the Respondents: SRI.S.PRASANTH (AYYAPPANKAVU), SRI.SURIN GEORGE IPE, SC, M.G.UNIVERSITY, SRI.P.P.JACOB
Appointments in private colleges under the Direct Payment Scheme require prior government sanction for validity and salary eligibility, preventing retroactive claims based on workload increases.
Headnote:(A) Mahatma Gandhi University Act, 1985 - Section 59(1) - Appointment and approval of teaching posts - Whether teaching posts sanctioned relate back to the date of sanctioning new courses - The petitioners, appointed in Assistant Professor roles, claimed salary from the date of joining, asserting the workload justified their immediate appointment despite the delayed sanctioning of posts. The earlier judgement directed that salary payments occur upon posts being sanctioned, not retroactively to their appointment dates. The court asserted the necessity of government sanction for posts to qualify for salary under the Direct Payment Scheme. (Paras 1-4, 18-24)
(B) Employment Law - Direct Payment Scheme for private colleges - Appointments made against unsanctioned posts are not eligible for government salaries. The court reiterated an obligation exists for the government to approve posts before salaries are disbursed, and clear provisions govern this relationship. (Paras 7, 20)
Facts of the case:
The appellants were appointed as Assistant Professors in a college utilizing the Direct Payment Scheme and sought salary recognition from their joining date despite posts being sanctioned later.
Findings of Court:
The court noted that while there was sufficient workload justifying the appointments, without sanctioned posts, the appointments could not be approved for retroactive salary payments. The ruling emphasized that appointments require fundamental alignment with Statutes and Ordinances as well as necessary government sanctions.
Issues: The primary issue revolved around the legitimacy of employment positions contingent upon retrospective sanctioning of posts versus immediate workload-based hiring.
Ratio Decidendi: The court held that the government's sanctioning process for posts underpins salary eligibility, establishing a clear boundary that appointments ahead of sanctioned positions lack validity under the Direct Payment Scheme.
Result: Writ appeal allowed; previous judgment annulled, and writ petition dismissed.
JUDGMENT
P.B.Suresh Kumar, J.
Does sanctioning of teaching posts in private colleges coming under the Direct Payment Scheme of the State Government in terms of Section 59 (1) of the Mahatma Gandhi University Act , 1985 (the Act) consequent on sanctioning of new courses relate back to the date of sanctioning of the courses, is the question which we are called upon to answer in this appeal.
2. The appeal arises from W.P.(C) No.8704 of 2021. The State and its officials in the Directorate of Collegiate Education who were respondents 1 to 3 in the writ petition are the appellants. Parties and documents are referred to in this judgment, unless otherwise mentioned, as they appear in the writ petition.
3. The facts, sans unnecessary details, are the following:
(i) After a due process of selection, the petitioners were appointed as Assistant Professors in Hindi and Malayalam in the fifth respondent, the Cochin College (the College) on 22.01.2018. The College is one coming under the Direct Payment Scheme. Earlier, when the workload in Hindi and Malayalam in the College increased on account of two additional courses sanctioned to the college viz, B.Sc. Botany and Plant Bio-technology and B.Com, the College requested the Directorate of Collegiate Education to take necessary steps to depute a nominee of the Government for conducting the selection for appointment of two Assistant Professors, one in Hindi and the other in Malayalam. Consequent on the said request, the Director of Collegiate Education recommended to the Government to depute its nominee for constituting a Selection Committee for making appointments as requested for.
Later, the Director of Collegiate Education has also recommended to the Government at the instance of the College, to sanction to the College two additional posts of Assistant Professor, one in Hindi and the other in Malayalam.
(ii) Since the Government did not act upon the recommendation made by the Directorate of Collegiate Education for deputing its nominee so as to enable the College to conduct selection, the College filed a writ petition before this Court for appropriate directions, and this Court, in terms of Ext.P20 judgment, directed the Government to do the needful to depute its nominee for the said purpose. Later, as directed by this court, a nominee of the Government was deputed for conducting the selection and the selection was accordingly conducted. The petitioners were appointed pursuant to the said selection on 22.01.2018 and they have joined duty on 24.01.2018. (iii) Later, proposals were made by the Manager of the College before the Mahatma Gandhi University (the University) to which the College is affiliated, for approval of the appointments of the petitioners. While the said proposals were pending, on 30.12.2020, the Government created new teaching posts of Assistant Professor in various aided Arts and Science Colleges in the State including two posts in the College, one in Hindi and the other in Malayalam. Ext.P22 is the order issued by the Government in this regard. Since the posts required to accommodate the petitioners were sanctioned only with effect from 30.12.2020, the University took the stand that the proposals made by the Manager for approval of the appointments of the petitioners with effect from their date of joining cannot be considered. Ext.P24 is the communication issued by the University in this regard. The writ petition was filed in the above background challenging Ext.P24 communication and also for a direction to the University to approve the appointments of the petitioners with effect from the date of joining duty. The petitioners also sought a declaration in the writ petition that sanctioning of the posts by the Government is effective from the date of sanctioning of additional courses resulting in the increased workload.
(iv) The case set out by the petitioners in the writ petition is that insofar as there was sufficient workload in the College for sanctioning additional posts when
