BY AD v. K.S.MADHUSOODANAN

BY ADVS. AHAMED FAZIL E.C. K.M.FIROZ(K/1714/2000) P.MOHAMMED SABEER(K/000544/2016) R4 BY SRI.P.C.SASIDHARAN, SC, SRI.PREMCHAND R.NAIR, SR.GP, R5 BY SRI.AHMED FAZIL E.C., THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

11.01.2024, THE COURT ON 16.01.2024 DELIVERED THE FOLLOWING: WP(C)No. 2445 of 2023 -3- MOHAMMED NIAS C.P., J. - - - - - - - - - - - - - - - - - - - - - WP(C)No. 2445 of 2023 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of January, 2024 JUDGMENT The petitioner challenges the denial of her appointment as Assistant Professor in Commerce by the first respondent for the period from

15.2.2019 to 30.12.2020 on the ground of non-sanctioning of vacancy.

2. The brief facts necessary for deciding the writ petition are as follows:- The petitioner was ranked seventh in the selection process notified as per Ext.P1 for the post of Assistant Professor, Commerce. As per Ext.P3, it is found that there were 61 hours of workload for the regular posts of teachers apart from a part-time teacher for law. Out of the four regular teachers, the first, second and third teachers retired in 2017, 2014 and 2016, respectively. The petitioner was appointed in the retirement vacancy of one Dr. C.H. Moideen Kutty, serial No.2 in Ext.P3, who retired on

30.4.2014. The petitioner was appointed on 15.2.2019 as per Ext.P4. By WP(C)No. 2445 of 2023 -4- Ext.P5, the first respondent found that one more post is eligible and the remaining workload in the particular subject is 9 hours and above thus, out of 61 hours of work, reckoning 48 for three teachers, for the remaining 13 hours, after deducting 4 hours for the part-time post of law, 9 hours was left and therefore a full-time post was admissible. The college sought the proposal for approval of the appointment, and the 4th respondent University requested to furnish the Government concurrence for the appointment as per Ext.P6 communication.

3. The second respondent had recommended the concurrence for the workload of 9 hours since in the 2002 Post Adalath, out of the sanctioned post of three teachers + Principal + Part-Time Lecturer, since the Principal was from the Commerce Department and had retired in 2005, only two permanent teachers are working as on 19.11.2018, the date of Ext.P7 communication. By Ext.P8, the first respondent, by letter dated 5.12.2019, addressed the University that the Government had granted permission to fill up one vacancy in the college and that on Ext.P7, the Government had taken steps to create a post but the same was not been finalised therefore, the proposal for appointment of the petitioner was kept pending. While so, the first respondent, as per a letter dated 22.2.2021, addressed the second respondent, who had granted permission to accommodate the petitioner to one of the seven teaching posts created vide G.O.MS 471/2020/H. Edn dated 30.12.2020 with effect from 30.12.2020, Ext.P9. Consequently, the University also approved the appointment of the petitioner with effect from WP(C)No. 2445 of 2023 -5-

30.12.2020 by Ext.P10, and the Management issued Ext.P11 in tune with the above-referred communications. The petitioner, therefore, seeks approval of her appointment with effect from 15.2.2019, the date of her appointment under Ext.P4 in the retirement vacancy that arose on

30.4.2014, as the post was admissible and in existence.

4. A counter affidavit has been filed by the University, inter alia, raising a contention that there was no government nominee in the selection process and that, as per a letter dated 5.12.2019 by the Government, it was informed that the Commerce Department in the college was granted only three sanctioned post + Principal + Part-Time Law post, The proposal for the fourth post claimed by the Manager was kept pending.

5. The Management has filed a counter affidavit supporting the case of the petitioner and producing Exts.R5 (a) and stating that the petitioner was appointed in the retirement vacancy and Ext.R5(b) shows there was enough workload in the Commerce Department to appoint the petitioner. Ext.R5(b) also shows that four posts in the Commerce Department are admissible, and it was on the retirement vacancy of Sri. C.H. Moideen Kutty that the petitioner was appointed.

6. The Government has also filed a counter affidavit on behalf of the third respondent stating that there were only three sanctioned posts in WP(C)No. 2445 of 2023 -6- Commerce and three permanent teachers were working in the posts for the period from 15.2.2019 to 29.12.2020 and hence, there is no sanctioned post to accommodate the petitioner and that her appointment could be approved only with effect from 30.12.2020 that is the date on which seven posts were sanctioned in Commerce as per Ext.R3(a).

7. Heard Sri. Madhusoodanan, the learned counsel appearing for the petitioner, Sr.P.C.Sasidharan, the learned counsel for Calicut University, Sri.Ahamed Fazil E.C., the learned counsel for the 5th respondent and Sri.Premchand R Nair, the learned senior Government Pleader.

8. The reason for rejecting the approval of the petitioner from

15.2.2019 was that there were only three full-time posts, and there was no post to accommodate the fourth vacancy. It is also the contention of the Government that the third rank holder in Ext.P2 ranked list, Dr Divya.M, was appointed by orders dated 7.1.2019 in the third vacancy of retirement of one C.K. Hassan. It is to be noted that principal Dr K.A.Abdu Rahiman was from the Commerce department and who was handling 5 hours had retired on 31.5.2005 and in that vacancy, Sri.K.P.Hassan was appointed by transferring from MES Ponnani College to the 5th respondent college and had taken charge on 1.7.2005; therefore there were four teachers, in which Sri.K.H.Abdul Razack, the 4th teacher was transferred and appointed in the post sanctioned for 9 hours, apart from a Part-Time Law Lecturer, who was handling 4 hours. This is clear from Ext.P13 staff WP(C)No. 2445 of 2023 -7- attendance register of the Department of Commerce for July 2005, Sri. K.P. Hassan retired on 31.5.2012, and in that vacancy, on 26.2.2013, one Nisab.T was appointed as Assistant Professor. At that point of time, there was a dispute regarding the adequacy of 9 hours of work for the fourth post approved by the fourth respondent. This arose as the Directorate took a stand that it was five hours and the balance would be only 8 hours, which is insufficient for a post, but the University had clarified that the working hours for the Part-Time Lecturer in Law is 4 hours. On that ground, the third respondent had declined to counter-sign the salary bill of Sri. Nisab T., which led to the filing of WP(C)No.23650/2015. In the said case, the University had pointed out that the number of hours of teaching to be set apart for the Part-Time Teacher in Law is only four, in that case, the remaining 57 hours have to be set apart for full-time teachers when there would be three full-time teachers with an excess of 9 hours left. As per the provisions in the University Ordinances, there can be an additional post if the leftover period is 9 hours or more. It is clear from Ext.P15 judgment in WP(C)No.23650 of 2015 dated 17.7.2017. This aspect is again made clear by the second respondent as per Ext.P16.

9. In the light of the above fact, the approval of the petitioner sought from 15.2.2019 in the retirement vacancy of Dr. C.H. Moideen Kutty, who retired on 30.4.2014, cannot be declined. It is also relevant to note that the finding in Ext.P9 that there is no sanctioned post with effect from

15.2.2019 to approve the petitioner’s appointment is clearly without WP(C)No. 2445 of 2023 -8- considering the report of the second respondent directed when he found the necessity for sanctioning one more post as per Ext.P7. Thus, Ext.P9 cannot be accepted in view of Ext.P7, and in Ext.P8, all that was said was on account of Ext.P7 report, the request for proposal of the appointment of the petitioner with effect from 15.2.2019 is kept pending, and none of these things are considered while considering Ext.P9. It is also to be seen that 9-hour relaxation for creating a post is taken only with effect from

1.6.2020, as is seen from Ext.P11, and the petitioner’s appointment was with effect from 15.2.2019. Therefore, she is entitled to get the benefit of Ext.P5. Though it stood modified under Ext.P12 as Ext.P12 itself stipulates that the approvals pending on the appointments made between 9.5.2018 and 31.5.2020 by a valid selection committee constituted as per the existing Government Orders shall be considered in the light of the Government Order dated 9.5.2018, which is Ext.P5. Under such circumstances, I do not think that the reason for the impugned orders can be sustained.

10. Learned Government Pleader argued that the Government did not grant sanction from the date of appointment as there was no sanctioned post. He also relies on the judgment of this Court in WA No.267 of 2022, dated 23.8.2022. It is to be noted that the said Division Bench judgment only considers the case of appointments made by the colleges against non-existent posts and not in cases like one on hand where the appointment was made against the retirement vacancy and that too on the WP(C)No. 2445 of 2023 -9- workload allowed for the post held by the petitioner. The appointment in the instant case cannot be said to be violating the provisions of any of the statutes or the terms of the agreement that the college entered with the Government. When appointments are made to the existing sanctioned posts, no prior sanction from the Government is required. This is not a case where a new post is to be sanctioned, a new subject is to be introduced, or a new division is to be started wherein alone the Government sanction will be a pre-condition. Under such circumstances, I am not inclined to accept the argument of the learned Government Pleader.

11. Accordingly, Ext.P9 is quashed so far; it refuses approval of appointment with effect from 15.2.2019. There will be a direction to approve the appointment of the petitioner with effect from 15.2.2019 in view of Exts.P5 and P7. The petitioner shall also be given the consequential benefits for the period from 15.2.2019 to 30.12.2020. This shall be done within an outer time limit of four months from today. The writ petition is allowed as above. Sd/- MOHAMMED NIAS C.P. JUDGE dlk/14.1.2024 WP(C)No. 2445 of 2023 -10- APPENDIX OF WP(C) 2445/2023 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE PHOTOCOPY OF THE RELEVANT EXTRACT OF ADVERTISEMENT PUBLISHED IN HINDU DAILY DATED 05-04- 2017 BEARING ADVT. NO.11/17. EXHIBIT P2 TRUE PHOTOCOPY OF THE SELECT LIST OF ASSISTANT PROFESSORS IN COMMERCE BEARING NO. 08. EXHIBIT P3 TRUE PHOTOCOPY OF THE ALLOTMENT OF WORKLOAD AMONG THE TEACHING STAFF FOR THE YEAR 2012- 2013 FOR DEPARTMENT OF COMMERCE EXHIBIT P4 TRUE PHOTOCOPY OF THE APPOINTMENT ORDER BEARING MES/AC/E-1396/27/2016 DATED 15-02-2019. EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 EXHIBIT P9 EXHIBIT P10 EXHIBIT P11 TRUE PHOTOCOPY OF THE ORDER FIXING WORKLOAD IN AIDED COLLEGES BEARING G.O (MS) NO. 93/2018/ H.EDN DATED 9-5-2018 OF 1ST RESPONDENT. TRUE PHOTOCOPY OF THE LETTER BEARING NO. 115844/ GA/II-A3/2019/ADMN DATED 17-07-2019 OF 4TH RESPONDENT TO 5TH RESPONDENT. TRUE PHOTOCOPY OF THE LETTER DATED 19-11-2018 BEARING NO. D6/34781/2018/COLL.EDN.DEPT. OF 2ND RESPONDENT TO 1ST RESPONDENT TRUE PHOTOCOPY OF THE LETTER DATED 05-12-2019 BEARING NO. D2/188/2019/H.EDN OF THE 1ST RESPONDENT TO 4TH RESPONDENT. TRUE PHOTOCOPY OF THE LETTER DATED 22-02-2021 BEARING NO. D2/188/2018/H.EDN OF THE 1ST RESPONDENT TO 2ND RESPONDENT. TRUE PHOTOCOPY OF THE ORDER BEARING U.O.NO.5595/ 2021/ADMN DATED 26-05-2021 OF THE 4TH RESPONDENT TRUE PHOTOCOPY OF THE REVISED APPOINTMENT ORDER BEARING NO. MES/AC/E-1396-27(A)/2020 DATED 30- 12-2020 ISSUED BY MES -11- WP(C)No. 2445 of 2023 EXHIBIT P12 TRUE PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT DATED 11-09-2020 BEARING GO(MS) NO.313/ 2020/HEDN. RESPONDENTS EXHIBITS EXHIBIT R5(A) TRUE COPY OF THE PAY AND ALLOWANCE STATEMENT ISSUED BY GOVERNEMNT OF KERALA WITH RESPECT TO 5TH RESPONDENT COLLEGE DATED NIL EXHIBIT R5(B) TRUE COPY OF THE ATTENDANCE REGISTER FOR THE MONTH OF MARCH, 2014 WITH RESPECT TO DEPARTMENT OF COMMERCE IN 5TH RESPONDNET COLLEGE EXHIBIT R3(A) TRUE COPY OF THE GO(MS) NO.471/2020/H.EDN DATED 30-12-2020 EXHIBIT R3(B) TRUE COPY OF THE LETTER NO.D2/188/2018/H.EDN DATED 05-01-2019 EXHIBIT R3(C) TRUE COPY OF THE ORDER NO.MES/AC/E-1396/23/2016 DATED 07-01-2019 EXHIBIT R3(D) TRUE COPY OF THE LETTER NO.D6/34781/2018/COLL.EDN DATED 19-11-2018 PETITIONER'S EXHIBITS EXHIBIT P13 EXHIBIT P14 PHOTOCOPY OF THE RELEVANT PAGE OF STAFF ATTENDANCE REGISTER IN DEPARTMENT OF COMMERCE FOR JULY, 2005 - PHOTOCOPY OF THE RELEVANT PAGE OF ATTENDANCE REGISTER FOR THE MONTH OF MARCH, 2013 SHOWING THE NAMES OF NISAB T AS 4TH TEACHER IN THE DEPARTMENT OF COMMERCE EXHIBIT P15 PHOTOCOPY OF THE JUDGMENT IN W.P.(C). 23650/2015 DATED 17-07-2017 OF THIS HON`BLE HIGH COURT EXHIBIT P16 - PHOTOCOPY OF THE ORDER DATED 09-10-2018 BEARING NO. D6 - 64781 / 2018 / COLL. EDN DEPT