Government sanction is mandatory to create new posts in aided colleges post-2005 amendment, while approval of appointments for existing posts remains with the University, reaffirming that previous posts are valid unless explicitly abolished.

 ORDER :

A. Muhamed Mustaque, J.

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 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 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 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 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