K.S. Radhakrishnan, J.
1. The question raised in all these cases is with regard to the impact of the University Laws (Amendment) Act, 2005 by which Sub-section (1) was inserted to Section 57 of the Kerala University Act, 1974 and to other similar University Acts and its impact on the Statutes, Ordinances and on the Direct Payment agreement entered into between aided colleges and the State Government. For the disposal of these cases we shall refer to the provisions of the Kerala University Act, Statutes and Ordinances.
2. A learned single Judge in W.P.C. No. 12109 of 2006 took the view that filling up of the vacancies to the post of teachers in private aided colleges is governed by the provisions of the University Act and Statutes and the University Laws (Amendment) Act does not provide that for filling up of vacancies in existing sanctioned posts Government sanction is necessary, but sanction is required only for filling up the newly sanctioned posts. State maintained the stand that even for filling up the vacancies in the existing sanctioned posts and also for the newly sanctioned posts, permission of the Government or the Officers authorised by the Government is necessary Similar issue came up for consideration in another writ petition, W.P.C. No. 9563 of 2006 and another learned Judge of this Court doubted the correctness of the decision ion W.P.C. No. 12109 of 2006 and referred the matter for consideration by a larger Bench for an authoritative pronouncement on the question raised. Later few other cases have also been referred and we are now called upon to examine the impact of Section 57(1) of the Kerala University Act, 1974 as amended by Act 2 of 2005 on the various other provisions of the Kerala University Act, Statutes and Ordinances framed the reunder and Other related provision in various other University laws.
3. Petitioners in most of the cases were selected for various teaching posts by duly constituted Selection Committee which included Government representatives. Their appointments were also duly approved by the Syndicate of the respective Universities and are discharging their duties. But they are not getting their salary which according to the petitioners, the Government is bound to pay on the basis of Direct Payment Scheme. Salary bills were forwarded to the Deputy Director of Collegiate Education by the Managements for counter signature and for encashment of the salary. Deputy Director of Collegiate Education is not disbursing the salary on the ground that prior sanction of the Government was not obtained before appointing them in those vacancies. Petitioners have therefore approached this Court seeking a writ of mandamus directing the Deputy Director of Collegiate Education to countersign and pass the salary/arrears bills and also for other consequential reliefs. Petitioners in some other writ petitions were appointed against retirement vacancies, leave vacancies etc. Appointments were affected in accordance with the provisions of the University Act, Statutes and Ordinances by duly constituted Selection Committee consisting of representative of the State Government. Appointments were also approved by the Syndicate of the respective Universities, but salary is not being disbursed to them mainly on the ground that the Government had not sanctioned the posts and therefore not duty bound to pay salary in the light of Sub-section (1) of Section 57 of the Act.
4. The question as to whether Government is entitled to impose a condition that prior approval from the Deputy Director of Collegiate Education is a pre-requisite for the appointment of a teacher by the Management came up for consideration before a Division Bench of this Court in Cherian Mathew v. Principal, S.B. College, Changanacherry 1998 (2) KLT 144. State Government as well as the Deputy Director took up the stand that since Government is paying salary to teachers, even though University has approved their appointments, Government is entitled to impose the condition that prior approval from the Deputy Director of Collegiate Education is necessary for appointment of staff in aided college. The Division Bench examined the various provisions of the Kerala University First Ordinances, 1998 and held as follows:
Kerala University First Ordinance 1978 inter alia provide for assessment of work load and pattern of teaching staff in Arts and Science Colleges. Chapter XIII of the First Ordinance deals with the said issues. Statute 3 is concerned with the procedure for calculating number of teachers required for a department. In the case of Mahatma Gandhi University, it is conceded before us, no separate Ordinance has been promulgated and the Kerala University First Ordinance govern all similar issued. Likewise the Calicut University First Ordinance which is in para material with that contained in Kerala University First Ordinance controls the procedure for calculating number of teachers required for a department.
On the basis of the work load calculated in terms of Ordinance 3 in the Kerala University First Ordinance, teachers are allowed to be appointed in Colleges run by private management. The appointments so made in conformity with the work load assessed by the University are approved by die concerned University. To the teacher whose appointment is so approved, salary should be paid by the Government through Director of Collegiate Education. In other words, when a teacher is appointed by private management in terms of the provisions contained in the Kerala University First Ordinance or the Calicut University First Ordinance as the case may be, his salary has to be disbursed by the Government if that appointment has been approved by the concerned University. In case the Director of Collegiate Education doubts the propriety of the appointment of a teacher in the sense that the work load did not require the appointment of such a teacher, the issue will have to be taken up by him with the University. The University then has to re-examine the entire issue and to take a decision on the issue as to whether the appointment was proper or not. When the University takes a decision on this aspect, that decision will be binding on the Government.
No provision of the University Act First Statutes, Ordinance or Regulations in force enables the Government to sit in judgment over the decision arrived at by the University regarding the number of teachers to be appointed in a Department in a college run by a private management. In the absence of such a provision, the Government is not entitled to impose a condition that prior approval from the Director of Collegiate Education is needed for a management to appoint a teacher in its staff.
Learned Senior Government Pleader submitted that in view of the newly introduced Sub-section (1) of Section 57 by Act 2 of 2005 the Bench decision of this Court is no longer good law and that prior sanction of the Government is necessary for filling up the existing vacancies or else there is no obligation on the part of the Government to pay salary to the appointees.
5. We may examine the question raised in the light of the various provisions of the Kerala University Fist Statutes and Ordinance and also the impact of Act 2 of 2005 on the Bench ruling of this Court in Cherian Mathew's case. Amendment effected by Act 2 of 2005 is as follows:
57. Appointment of teachers in private colleges- (1) Appointments to the posts eligible to receive salary from the Government shall be made only against posts sanctioned by the Government or by such officers as may be authorized by the Government.
The Kerala University Act, 1974 was enacted to provide for the reorganisation of the University in Kerala with a view to establish a teaching, residential and affiliating University for the southern districts of the State of Kerala. Sub-section (2) of Section 2 defines what is an 'affiliated college'. A college is affiliated to the University in accordance with the provisions of the Act and the Statutes and in which instruction is provided in accordance with the provisions of the Statutes, Ordinances and Regulations. Sub-section (27) of Section 2 defines the word 'teacher' to mean principal, professor, associate professor, assistant professor, reader, lecturer, instructor, or such other person imparting instructions or supervising research in any of the colleges or recognised institutions and whose appointment of teachers approved by the University will satisfy the definition of teacher under Section 2(27) of the Act. Section 21 deals with constitution of Syndicate. It says that the Syndicate shall be the Chief Executive body of the University and shall consist of ex officio members and other members. Secretary to Government, Higher Education or an officer not below the rank of Joint Secretary nominated by him, Director of Public Instruction and Director of Collegiate Education are ex officio members of the Syndicate apart from Vice Chancellor, Pro Vice Chancellor etc. Section 23 deals with powers of the Syndicate. Syndicate has been conferred with the power to approve appointment of teachers in private colleges. Chapter VIII of the Kerala University Act deals with private colleges and affiliation of colleges. Section 52 deals with governing body for private college under unitary management. Governing body consists of persons nominated by the Government. Section 53 deals with Managing Council for private colleges. Section 83 of the Act says that notwithstanding anything contained in the University Act, the First Statutes and the First Ordinances of the University shall be made by the Government.
6. The Government in exercise of the powers conferred under Section 83 of the Act, made the Kerala University (Conditions of Service of Teachers and Members of Non-Teaching Staff) First Statutes, 1979 in respect of the conditions of service other than pension, provident fund, gratuity, insurance and age of retirement of teachers and members of the non teaching staff in private colleges. Statute 3 deals with appointment of teachers staff in private colleges. Statute 3 deals with appointment of teachers by direct recruitment which says that for making appointments to the posts of teachers by direct recruitment, the posts shall be advertised in two English and two Malayalam daily news papers approved by the University giving a minimum period of thirty days for the aspirants to apply. Statute 4 deals with Constitution of Selection Committee for appointment. Clause (3) of Statute 4 says that notwithstanding anything contained in Clause (1), in the case of any Educational Agency which has voluntarily entered into a written agreement with the Government for the direct payment of salaries to the teachers and the non-teaching staff of its Arts, Science or Training Colleges, appointments of teachers, whether provisional or permanent, shall be made only from a list of persons prepared by a selection committee constituted by the Educational Agency and consisting of one member chosen by the Educational Agency from among the Secretaries to the Government and District Collectors. Statute 6 deals with Selection Committee for teaching staff of private engineering colleges which says that in the case of a private engineering college, appointments to the teaching posts including workshop staff whether provisional or permanent shall be made by the Educational Agency only from a list of persons prepared by a selection committee according to the rank assigned by that committee. Selection Committee for teaching staff shall consist of various persons including Director of Technical Education or his nominee, the Regional Officer of the Ministry of Education or his nominee etc. Statute 13 deals with form of appointment order, which says that every appointment to the teaching staff shall be made by a written order of the Manager in Form I and a copy of every such order shall be forwarded with a report thereon to the University for approval.
7. Statute 19 deals with fixation of post. It says that each college shall send a proposal for fixation of the number of posts in each department in accordance with the norms laid down by the University. The University shall ordinarily communicate the fixation of posts within three months of the receipt of the proposals for fixation in the University office. Proposals for changes in the fixation during the year shall be forwarded to the University by 30th September for further approval of the Syndicate. Clause (2) of Statute 20 says that in the case of those Educational Agencies which have entered into written agreements with the Government for direct payment of salary to their staff by Government, the salary shall be paid in accordance with the orders of Government issued from time to time and in accordance with such agreement. Chapter 5 of the First Statutes, 1979 deals with special provisions in respect of private colleges which have accepted the direct payment scheme. Statute 75 authorises the Director of Collegiate Education or the officer authorised in that behalf by the Director of Collegiate Education shall be competent to examine in detail the work load of each department of study in each college and the staff position and satisfy himself that no extra staff is permitted to continue in service and the Director shall, if he so desires, have periodical consultation with the University in the matter. First Ordinance 1978 was issued by the Government in exercise of the powers conferred under Section 83 of the University Act. Chapter XIII deals with the work load and staff pattern of teaching staff of Arts and Science and Training Colleges.
8. Statute 14 deals with approval of appointment. For easy reference we may extract Statute 14 in its entirety.
14. Approval of appointment (1) Approval of every appointment to the teaching post shall be made by the Syndicate subject to the conditions that the appointment is in accordance with the staff pattern fixed by the University and that the person so appointed is fully qualified for the post.
(2) The Deputy Director of Collegiate Education concerned shall verify before making direct payment of salaries as to whether the post for which payment is claimed is in accordance with the staff pattern and workload fixed by the University. Doubtful cases shall be referred to the University for clarification and the correctness of direct payment ensured.
(3) In the case of those private colleges coming under the Direct Payment Scheme, the Director of Collegiate Education or the Officer authorised by him in this behalf shall verify in consultation with the University as to whether the teaching posts in private colleges are in excess of the post sanctioned by the University. However, in the case of incumbents declared as supernumeraries by the University, the controlling officers shall ensure that no fresh appointment is made against future vacancies until all the supernumeraries are absorbed against those vacancies. The direct payment of salaries shall not be made to the persons appointed against fresh vacancies, before the absorption of supernumeraries.
Above mentioned provisions of the Statute make it very clear that every appointment made to the teaching staff should get the approval of the University. Statute 14(3) says that in the case of private colleges coming under the Direct Payment Scheme, the Director of Collegiate Education or the Officer authorised by him in this behalf shall verify in consultation with the University as to whether the teaching posts in private colleges are in excess of the post sanctioned by the University. Expression, 'post sanctioned by the University' needs emphasis. Power is statutorily conferred on the Syndicate and the University to approve the appointment if it is in accordance with the staff pattern fixed by the University and the person so appointed is fully qualified to the post. Further Clause (2) of statute 14 authorise the Deputy Director of Collegiate Education to verify before making-direct payment of salaries as to whether the post for which payment is claimed is in accordance with the staff pattern and workload fixed by the University. Therefore it is for the Syndicate of the University to sanction a post/approval in accordance with the work load and staff pattern and once the University grants approval for filling up the post sanctioned by it on the basis of workload and staff pattern the Government have the obligation to disburse the salary. Power is therefore conferred on the Syndicate of the University to sanction the post and approve the same and the Deputy Director to verify whether the post sanctioned/approved is in accordance with the staff pattern and work load fixed by the University and in doubtful cases he can take up the matter with the University.
9. We are of the view, above mentioned provisions of the University Act, Statutes and Ordinances would clearly indicate that it is for the University to sanction the post as per Clause (3) of Statute 14 of the Kerala University (Conditions of Service of Teachers and Members of Non-teaching Staff) First Statutes, 1979 in the case of private colleges coming under the Direct Payment Scheme, depending upon the work load and staff pattern fixed by the University. Once University accords sanction of a post and grants approval depending upon the work load and staff pattern, the Deputy Director of Collegiate Education shall verify before making direct payment of salaries as to whether the post for which payment is claimed is in accordance with the staff pattern and workload fixed by the University. If the University grants approval noticing that it is in accordance with the staff pattern and work load fixed by it the Director of Collegiate Education or the officers concerned are obliged to make payment of salary as per the direct payment scheme.
9.1. Scope of Section 57(2) of the Kerala University Act has to be tested in the light of the above mentioned statutory provisions. Power of the University in granting approval as well as sanctioning posts after ascertaining the work load and fixation of staff pattern as per the Statutes has not been taken away by the University Amendment Act 2 of 2005. Clear cut provisions have been made in the University Statutes and Ordinances as to how the work load has to be assessed and staff strength fixed so as to avoid unnecessary appointments. Further the interest of the students is also to be safeguarded by appointing sufficient number of teachers without delay. Power is also conferred on the Deputy Director of Collegiate Education to take up the matter with University in case there is any doubt with the approval granted. In appropriate cases Government can also examine the actin taken by the Deputy Director and address the University through him
9.2. We have to reason to think that an august body like Syndicate or the Deputy Director of Collegiate Education would act arbitrarily or against public interest while exercising powers statutorily conferred on them. Sub-section (1) of Section 57 only says that appointments to the posts eligible to receive salary from the Government shall be made only after getting prior sanction from or from such officers authorised by the Government. For filling up the postal sanctioned by the University on the basis of work load or staff pattern, no prior permission of the Government is necessary. Once Syndicate of the University grants approval for filling up the existing vacancies depending upon the workload and staff pattern Government is obliged to pay salary of the teachers appointed by duly constituted Selection Committee. If Government or its officers find that the approval was granted by the University illegally it can always take up the matter before the University or other forums so that public interest will not suffer. Section 57(1) was introduced not to take away the statutory powers already conferred on the Syndicate of the University. Principle laid down in Cherian Mathew's case, supra in our view, still holds good. In view of the above mentioned circumstances, we are inclined to affirm the judgment of the learned single Judge in W.P.C. No. 12109 of 2006 and dismissed W.A. No. 940 of 2007.
10. We allow all the writ petitions and declare that it is obligatory on the part of the Government to release salary due to the teachers whose appointments are approved by the University. Government have however no obligation to disburse salary, if appointments are made by the aided colleges, to a non existent posts, when a new subject is sought to be introduced, or division is sought to be started, for which Government sanction is a pre condition as provided under Section 57(1) of the University Act. Universities are also not expected to grant their approval in such a situation. For existing posts on grant of approval form the University on the basis of work load and staff fixation, Government and the officers authorised by the Government, have to honour the Direct Payment agreement and release the salary due to the teachers. In view of the declaration of law made by us, Universities would process the request for approval of appointment and orders be issued accordingly without delay and on that basis, the Deputy Director of Collegiate Education would release the salary of the teachers.