Kerala High Court: The present writ application addressed a reference by the Division Bench of the Court regarding whether Government sanction was required for the approval of appointments in private aided colleges affiliated to the Universities. A Three-Judge Bench of A. Muhamed Mustaque*, Shoba Annamma Eapen & S. Manu, JJ., while distinguishing between ‘sanction of posts’ and ‘approval of appointments’, clarified that if the post was not expressly abolished, the question of obtaining prior sanction from the Government did not arise for approval of the writ petitioner’s appointment made in 2015, which the University granted on the basis of the workload assessment of the preceding year.
Background:
The present case arose when the appointment of the writ petitioner was made to a non-existent post, pursuant to the workload assessment. An Adalath was conducted by the Department in association with the University in the year 2002 and the writ petitioner was appointed as Assistant Professor in Political Science in an aided college on 05-06-2015. In the Political Science Department, there were four sanctioned posts before 2002, and the petitioner was appointed to the fourth post. The University, on assessing the workload, found that the appointment was eligible for approval. The Government pleader contended that the fourth post was a non-existent post, having been found surplus during the workload Adalath conducted in 2002, consequent upon the delinking of the Pre-Degree Course in the subject of Political Science. It was pointed out that neither the University nor the Government had a case that the post was expressly abolished in 2002 because of the workload assessment in the Adalath.
Initially, the approval of the posts in private aided colleges rested with the University, based on the workload and staff pattern as provided in the University Ordinances. However, 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 of 2010 and 2018 (‘UGC Regulations’), the determination of the staff pattern was governed by the norms prescribed therein. The Division Bench of this Court in Cherian Mathew v. Principal S.B. College, Changanassery, 1996 SCC OnLine Ker 393, held that the Government could not sit in judgment over the University’s decision regarding the number of teachers to be appointed in a department of a private aided college.
Consequently, the Mahatma Gandhi University Act, 1985 (‘MGU Act’), and the Kerala University Act, 1974 (‘KU Act’), were amended in 2005, that made it mandatory to obtain Government sanction for the appointment of teachers in private aided colleges who were entitled to receive salary from the Government under the direct payment scheme. The impact of these amendments formed the core issue which was considered in the present reference made by the Division Bench.
Issue:
Whether the 2005 amendments mandating Government sanction for the approval of appointments, applied to the private colleges that were already established before its coming into force, in respect of posts that were created by the operation of law before the amendment.
Analysis and Decision:
The Court noted that Section 23 of the MGU Act and Section 23 of the KU Act provided that the approval of every appointment must be made by the Syndicate, subject to conformity with the staff pattern fixed by the University. Before the 2005 amendment, once the Syndicate accorded approval, a post was created, and such a post continued to exist unless expressly abolished by it. However, following the 2005 amendment, the creation of posts became subject to the Government’s decision, and the Syndicate’s role was shifted to approving appointments in accordance with that decision.
The Court clarified that after the 2005 amendment, the ‘sanction of posts’ and ‘approval of appointments’ were distinct and independent concepts under the University law. After the amendment, the authority to sanction posts vested exclusively with the Government, while the power to approve appointments vested with the Syndicate.
The Court referred to State of Kerala v. Poornima C.C., 2022 SCC OnLine Ker 4240, wherein it was held that without sanctioning of the post by the State Government, no appointment could be made in private aided colleges, and no appointee could seek retrospective approval of the appointment. The Court affirmed the proposition of law laid down in Poornima (supra), subject to the rider that no sanction of the Government was required if the post did not exceed the strength of posts already created in the college as on the date of the 2005 amendment. However, if the post sought to be approved would result in an excess over the posts sanctioned as of 2005, the University could not approve it unless new posts were created by the Government.
Upon workload assessment, the Court observed that the University was duty-bound to examine whether the post for which approval was sought, either on account of the introduction of a new course or otherwise, would fall within or exceed the strength of posts already created in the college as on the date of the 2005 amendment. The University must not grant approval if, in its opinion, the appointment exceeded the number of posts created as of that date.
The Court compared the provisions related to the appointment of teachers in private colleges in both the University laws before and after the 2005 amendment. The Court opined that the dilemma arose because the Government did not make any attempt to find out the staff pattern as on the date of the 2005 amendment. If the staff pattern was fixed, there was no scope for the University or the private aided colleges to seek further sanction from the Government in respect of the posts already in existence as on the date of the 2005 amendment.
The Court noted that as per the UGC Regulations, the workload of an Assistant Professor was 16 hours per week, while that of a Professor/Associate Professor was 14 hours per week and further contractual appointments were only permitted when absolutely necessary. The Court also took notice of the contention of some respondents that if the view in Poornima (supra) was followed, the Government would delay the proposal for the creation of a post, to the detriment of students enrolled in a new course. The respondents further argued that once the University undertook a workload assessment and submitted a proposal for the creation of new posts, the Government was obliged to sanction the post without delay. They also contended that, once it was found that there was a need to create a new post, the Government could not postpone the decision indefinitely, nor could it order the engagement of teachers on a contract basis or daily wage. The Court, while affirming the decision in Poornima (supra), further held that the Government must decide on the proposal without unreasonable delay and until such a decision was taken, aided college managements could engage teachers on a contract or daily wage basis. If the Government unnecessarily delayed consideration of a proposal, then, the management could also raise a claim for the full pay as applicable to the regularly appointed Assistant Professors.
The Court observed that the principle that emerged was that while the University was the authority to assess workload and approve appointments, the creation of posts beyond the sanctioned strength after the 2005 amendment remained within the exclusive domain of the Government. It was further held that there was no requirement in law to obtain a sanction from the Government because a post did not stand extinguished merely based on a workload assessment, unless the competent authority had consciously abolished it. In the present case, no such abolition was shown and accordingly, the approval of the appointment of the writ petitioner by the University was valid and regular.
Consequently, the Court, while answering the reference as discussed above, placed the matter before the Chief Justice to consider placing the matter before the appropriate Bench.
[State of Kerala v. Anas N., WA No. 201 of 2023, decided on 27-08-2025]
*Judgment authored by: Justice A. Muhamed Mustaque
Advocates who appeared in this case:
For the Appellants: A.J. Varghese, Senior Government Pleader
For the Respondents: S. Muhammed Haneeff, C.V. Alexander, Thomas Abraham (SC, University of Kerala), Nisha George, George Poonthottam (SR.), A.L. Navaneeth Krishnan, Babu Varghese (SR.), Advocates.
