BY AD v. NISHA GEORGE

SMT.K.G.SAROJINI, GOVT. PLEADER BY ADVS. A.C.VENUGOPAL VIDHYA. A.C(K/332/2003) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON 17.1.2024, THE COURT ON 24.01.2024 DELIVERED THE FOLLOWING: W.P(C) No.29016/2023 3 MOHAMMED NIAS C.P., J .........................................................… W.P(C) No.29016 of 2023 ............................................................. Dated this the 24th day of  January, 2024 JUDGMENT The petitioner is stated to be working as an Assistant Professor in the Department of Commerce in the 5th respondent college and is aggrieved by the  refusal to approve her appointment and non-disbursement of salary from the date of her appointment.  As per Ext.P1, the Government had sanctioned posts in Aided Arts and Science Colleges for the academic year 2013-2014.  Two posts were created in the Commerce Department in the 5th respondent college, as seen from Ext.P2.  A Government nominee was also appointed for conducting selection as per Ext.P3.  The 5th respondent college had issued a notification inviting applications for the appointment of two Assistant Professors in the Department of Commerce, pursuant to which the petitioner had applied.  W.P(C) No.2038/2022 was filed by a candidate with BBA qualification, alleging that the post shall be filled by candidates with BBA qualification.  An interim order was passed on 24.01.2022, Ext.P4, staying the appointment.  An appeal was filed by the college, and by the judgment in W.A. No.272/2022, dated 14.3.2022, the appeal was allowed dismissing the writ petition, which was also called for along with the writ W.P(C) No.29016/2023 4 appeal and the college was directed to proceed with the selection process without any delay.  The same is produced as Ext.P5.  In view of Ext.P5 judgment, the proceedings continued, and Ext.P6 rank list was issued, which shows the petitioner ranked second in the order of merit.  Ext.P7 appointment order was given.  The person who was ranked first in the selection was appointed, and her appointment was approved by the order dated 9.2.2023 as evident from Ext.P8.  The petitioner herein was also appointed on 28.3.2022.  However, the said appointment was not approved, despite the request of the 5th respondent college to the University. A reminder was also sent on 16.02.2023 seeking approval of the appointment. The 5th respondent University offered no reason for the delay in approving the appointment.  Since the petitioner has been working since the date of her appointment without salary, the present writ petition is filed.

2.  The University has filed a counter affidavit stating that the college offers programmes in the Department of B.Com, M.Com and BBA.  It is submitted that the workload assessed in the Department of Commerce and Management in the college is 172 hours, and the post-sanctioned is 10.  It is also submitted that the Department of Commerce is conducting BBA courses, and 40% of posts of Assistant Professor in the BBA programme is to be reserved for persons with an MBA with a minimum of 55% marks and a pass in the National Eligibility Test.  It is also stated that the workload in the BBA course is 61 hours, and 40% of 61 hours is 24 hours and the post earmarked can be filled up only by an MBA candidate and not otherwise.  It W.P(C) No.29016/2023 5 is submitted that only 9 posts in the Department of Commerce can be filled up with a person having an M.Com degree with a minimum of 55% marks and a pass in the National Eligibility Test and the remaining one, by an MBA hand in the department.  It is also stated that since there exists only eight teachers, the proposal for the appointment of Rank No.1 in the list of Assistant Professors in the Department of Commerce was approved by the University.  But, in so far as the petitioner is concerned, her appointment cannot be approved since it is a post that has to be filled up by an MBA hand.  It is also stated that, for effective teaching of the BBA course, a person who has a Managerial Post Graduate Degree is essential and hence the petitioner is not entitled to approval of appointment.  It is also stated that complaints were received by the University against the appointment of the petitioner, which is being examined by the University.  Since the petitioner was appointed to a non-existing post, she cannot seek approval for the appointment. The apportionment to the post in the ratio of 60:40 is based on the decision of the Academic Council, the body to fix the workload in the college.  The petitioner has also filed a reply affidavit to the counter affidavit.

3.  Heard Sri.A.L.Navaneeth Krishnan for the petitioner, Sri. P.C. Sasidharan for the respondent University and Smt. K.G.Sarojini, the learned Government Pleader.

4.  It is seen that the 5th respondent college had notified a post of Assistant Professor in Commerce which was sanctioned as per Exts.P1 and W.P(C) No.29016/2023 6 P2 and the said notification was challenged by candidates possessing MBA qualification.  Though an interim order was granted, the same was taken up in appeal and the writ petition and the writ appeal were heard together and a specific direction was given to the 5th respondent college to proceed with the recruitment process as notified.  The selection was done by a duly constituted selection committee.  There cannot be any doubt about the availability of the post or about the selection process as the first rank holder was appointed, and Ext. P8 approved the said appointment.  In so far as the notification did not indicate any bifurcation like the 60:40 ratio now claimed by the University, the subsequent decision that it has to be earmarked for a candidate with an MBA cannot be accepted at all.  There is no contention that the petitioner is not qualified under the UGC Regulations to be appointed as an Assistant Professor in Commerce.  The selection was also carried out, and the stand of the University after the preparation of the ranked list and after the approval of the appointment of the first rank holder cannot be justified.  In short, the petitioner is UGC qualified, the post was sanctioned after the University itself found sufficient workload, and there is no stipulation in the notification about any bifurcation of posts on a ratio, as the University is pointing out now, the contention of the University has to necessarily fail. In view of the above, there will be a direction to the 4 th respondent University to consider the approval of appointment of the petitioner pursuant to Ext.P7 appointment order, in accordance with the findings W.P(C) No.29016/2023 7 rendered above, within two months from the date of receipt of a copy of the judgment.  There will also be a direction to respondents 2 and 3 to disburse the salary to the petitioner based on the approval so granted within three months from the decision on approval. The writ petition is allowed as above. Sd/- MOHAMMED NIAS  C.P. JUDGE okb/ W.P(C) No.29016/2023 8 APPENDIX OF WP(C) 29016/2023 PETITIONER EXHIBITS Exhibit-P1 Exhibit-P2 Exhibit-P3 Exhibit-P4 Exhibit-P5 Exhibit-P6 Exhibit-P7 Exhibit-P8 A COPY OF THE ORDER DATED 12.09.2013 BEARING NO. HO (MS) 615/13/HEDN ISSUED BY THE ADDITIONAL CHIEF SECRETARY OF THE GOVERNMENT THE RELEVANT PAGES OF THE ORDER DATED 30.12.2020 BEARING NO. G.O (MS) NO. 471/2020/HEDN ISSUED BY THE PRINCIPAL SECRETARY, GOVERNMENT OF KERALA A COPY OF THE ORDER DATED 01.06.2021 BEARING NO. D2/220/2021/HEDN ISSUED BY THE JOINT SECRETARY, GOVERNMENT OF KERALA A COPY OF THE INTERIM ORDER DATED 24.01.2022 IN W.P.(C) NO. 2038 OF 2022 PASSED BY THIS COURT STAYING THE APPOINTMENTS A COPY OF THE JUDGMENT DATED 14.03.2022 IN W.A.NO. 272 OF 2022 PASSED BY THIS COURT A COPY OF THE ORDER NO. 75/87/B-44 DATED 27.03.2022 ISSUED BY THE STAFF SELECTION COMMITTEE FOR THE SELECTION OF THE TEACHING STAFF (ASSISTANT PROFESSOR IN COMMERCE) IN THE 5TH RESPONDENT COLLEGE A COPY OF THE APPOINTMENT ORDER BEARING NO. 5/46/B-45 DATED 28.03.2022 ISSUED BY THE 5TH RESPONDENT COLLEGE TRUE COPY OF THE ORDER DATED 09.02.2023 BEARING NUMBER U.N.NO. 2344/2023/ADMN ISSUED BY THE ASSISTANT REGISTRAR OF 4TH RESPONDENT UNIVERSITY Exhibit-P9 TRUE COPY OF THE LETTER DATED 16.02.2023 BEARING NO. 75/105/B- 474 ISSUED BY THE 5TH RESPONDENT Exhibit-P10 TRUE COPY OF THE COMMUNICATION DATED 11.04.2023 BEARING NO. 75/113/B-549 SUBMITTED BY THE MANAGER OF THE 5TH RESPONDENT COLLEGE BEFORE THE REGISTRAR OF THE 4TH RESPONDENT