STATE OF KERALA & ORS. ETC. ETC.versusARUN GEORGE & ORS. ETC. ETC.

                      [2015] 11 S.C.R. 1034



A            STATE OF KERALA & ORS. ETC. ETC.

                                v.
               ARUN GEORGE & ORS. ETC. ETC.
B             (Civil Appeal Nos. 8459-8461 of 201 0)

                       JANUARY 14, 2015.

        [V. GOPALA GOWDA AND R. BANUMATHI, JJ.]
C       Education I Educational Institutions - Private.
  educational institutions and managements - Payment of
  salary to teachers appointed in the newly commenced
  courses - Direct Payment System evolved by State
  Government whereby it decided to introduce a scheme of
0
  direct payment of salaries to teaching and non-teaching staff
  of private colleges, the management of which agreed to
  Government control in the matter of appointment of teaching
  & non-teaching staff, and in the admission of students - 81h
E respondent-management executed and agreed to the same
  - Vide Government Order, sanction was accorded for starting
  new courses subject to the condition that there will be no
  additional financial commitment on the part of Government
  - Sanction of new courses led to the increase of work load
F and the services of respondent nos. 1 to 7 utilised by the Bth
  respondent-management - Resppndent nos. 1 to 7
  appointed against sanctioned posts of teachers - Proposal
  forwarded by Bth respondent-management for approval of the
  appointment of respondent nos. 1 to 7 rejected- Writ petition
G - High· Court held that the conditions relied on by the
  Government were violative of the provisions contained in the
  Direct payment agreement and directed the State to pay
  salary and allowances to the teachers appointed by the
  private managements in the newly commenced courses -
H
                               1034
  STATE OF KERALA& ORS. v. ARUN GEORGE & ORS.                 1035


Justification - Held: Justified- No case of the Government A
that 81h respondent- management violated the terms of the
Direct Payment Agreement- For many years services of
                                             1


respondent nos. 1 to 7 were utilized for imparting instruction
                                                          1

invigi/ation and other duties- When respondent nos. 1 to 7
were appointed by the Statutory Selection Committee no B
                                                      1


reason as to why respondent nos. 1 to 7 should be denied
the payment of salary- It was oblig_atory for the Government
to honour these appointments and pay the salary.

    CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.           C
8459-8461 of 2010

     From the Judgment and Order dated 07.10.2009 of the
High Court of Kerala at Ernakulam in R.P. Nos. 101 and 180
of 2008 and W.A. No. 2529 of 2005                             o
                             With    ·

     Civil Appeal Nos. 8463-8464,8466, 8470, 8471-8472,
8473,8474,8475,8476,8477,8478,8479,8480,8481-8482
and 8483 of 2010                                              E

    Civil Appeal Nos. 1368, 10865, 10867-10868 and
10869 of 2011

     Civil Appeal No. 1552 of 2012                            F
     Civil Appeal No. 8893-8894 of2014

     Civil Appeal Nos. 1202.;1203 of2015

     C. S. Rajan, Mathai M. Paikaday, Babu Varghese, K. L.    G
Varghese, Jogy Scaria, Bina Madhavan, P. V. Dinesh, P. 1.
Jose, Alok K. Prasad, Vishwanath Bahuguna, James P.
Thomas; Rohit Kumar Singh, V. J. Francis, Anupam Mishra,
Simanta Kumar, M.P. Vinod, Jose Abraham, E. M. S.Anam,
Dheeraj Nair, Haris Beeran, Mushtaq Salim, Radha Shyam        H
1036         SUPREME COURT REPORTS                 [2015] 11 S.C.R.


 A     Jena, M/s. T. T. K. Deepak & Co., K. Rajeev, Dr. K. P.
       Kylasanatha Pillay, A. Venayagam Balao, Ranjith K. C.,
       Lakshmi Raman Singh, Harshad V. Hameed, Difeep
       Poollakkot, Sajith P., B. N. Dubey for the Appearing Parties.

 B          The Judgment of the Court was delivered by

             R. BANUMATHI, J. 1. Leave granted in Special Leave
       Petition (C) Nos. 29423-29424 of 2010.

             2. State of Kerala has filed these_ appeals assailing the
 C     order passed by the High Court allowing various review
       petitions filed by the respondents and declaring that the
       conditions relied on by the Government are violative of the
       provisions contained in Direct Payment Agreement and the
       University Statutes and directing the State to pay salary and
 0
       allowances to the teachers who were appointed by the Private
       Managements in the newly commenced courses.

          3. The issue arising in these appeals being similar, the
    cases were heard together and shall stand disposed of by
 E this common order. For convenience, the appeals filed by State
  · of Kerala and others in C.A. Nos. 8459-8461 of 2010
    challenging the order dated 07.10.2009 in R.P. Nos. 101 &
    180 of 2008 and W.A. No. 2529 of 2005 are taken as lead
 F case .

            4. Briefly stated the background facts are as under:-

            The State of Kerala accorded sanction on 09. 11.1998
    to the private educational institutions and managements for
 G starting few new courses subject to the condition that there
    should be no additional financial commitment on the part of
    the State on that account. The Sth respondent-management
   ·applied to the Mahatama Gandhi University and the university
    vide an order dated 13.11.1998 granted permission to start
 H
  STATE OF KERALA & ORS. v. ARUN GEORGE & ORS.                 1037


 new degree/graduate and post-graduate courses w.e.f. th.e A
 academic ·session 1~98-99 without any additional financial
commitment to the University/Government. The managements
for various aid_ed colleges including the 8th respondent -
management applied ·tor affiliation of new courses. The
Government issued an order dated 06.12.1999 according B
sanction for starting the new courses as mentioned in· the
appendix to the Government order subject to the condition that ·
the expenditure will not exceed the budget allotment for.the
purpose of any account. Respondent Nos. 1 to 7 who were
appointed by the 8th respondent-management to the various. C
new courses sanctioned by the Government, the management
forwarded the proposal for approval of their appointment to
the university; but the same was rejected on 31 ..05.2002. In
the year 2003, staff fixation order was issued to the Secretary
                                                                 0
of 8th respondent- management on 10.12.2003 for the years
2001-02 and 2002-03.

       5. Being aggrieved by the non-approval of the
appointment of respo~dent nos. 1 to 8, respondents preferred
Writ Petition (c) No. 482 of 2005 seeking a writ of mandamus E,..
and also to quash the staff fixation orders. Vide a judgment
dated 12.08.2005, learned Single Judge allowed the writ
petition holding that the Government is liable to pay the salary
and other allowances to the teachers appointed to the new F
courses by the managements.

      6. Aggrieved by the said order, State of Kerala preferred
an appeal bearing W.A. NO. 2529 of2005.1n the meantime,
many writ petitions were file~ on similar grounds. By the
common judgment dated 18.08.2007, Division Bench allowed G ·
the appeal filed by the State of Kerala and dismissed the other
writ petitions. O"ivision Bench held that the State can always.
impose conditions while according sanction and the condition
so imposed, that the new appointments are without any H
1038         SUPREME COURT REPORTS                  [2015] 11 S.C.R.


 A     additional financial commitment to the State, is perfectly legal
       and valid and the private college managements are bound by
       it.

         7. Aggrieved by the same, various review petitions were
 B preferred by the respondents and also other private college
   managements contending that the said judgment dated
   18.08.2007 was rendered without adverting to the provisions
   of the University Act, the Statutes, the Direct Payment
   Agreement and various judgments of the Apex Court as also
 C that of the High Court. Vide a common order dated 7.8.2009,
   the Division Bench allowed the review petitions holding that
   the conclusion of the Division Bench in W.A. No. 2529 of 2005
   (dated 18.08.2007) that Direct Payment Agreement do not
   apply to courses subsequently commenced, is directly contrary
 D to Clause 35 of the Agreement. While allowing the review
   petitions, the Court directed the State to pay salary and
   allowances to the teachers who were appointed by the private
   managements in the newly commenced courses. Being
   aggrieved, the state has filed these appeals assailing the said
.E order.

        8. Mr. C.S. Rajan, learned senior counsel for the
   appellants contended that Government should not be
   compelled to bear the salary and expenses of those teachers
 F who were appointed by the private managements, as private
   managements got the approval of the new courses subject to
   the condition that there wil,l be no additional financial
   commitment. Further, learned senior counsel for the State
   submitted that the private colleges, after accepting the
 G conditions in the Government Orders that there will be no
   additional financial commitment, are estopped from
   contending the contrary and the University has rightly rejected
   the approval of the appointment of respondent nos. 1 to 7 for
 H want of posts/strength fixed for the academic year.
  STATE OF KERAlA&ORS. v. ARUN GEORGE & ORS.                     1039
               [R. BANUMATHI, J.J

        9. Per contra, Mr. Babu Varghese, learned senior counsel A
appearing for respondent no. 8 submitted that in the guise of
imposing restriction of financial commitment the Government
i.s violating the statutory provisions as well as the clauses in.
the Articles of Direct Payment Agreement. It was further
contended that they have fully discharged their obligation in B
terms of the provisions of Direct Payment Agreement, in terms
of admission of students, collection of fees, reservation of
seats as prescribed by Government and remitted the same in
the Government treasury and, therefore, the State is also
obliged to perform its mutual obligation under the Articles of C
Direct Payment Agreement. It was also submitted that the
documents obtained under the provisions of Right to
Information Act ~hich are annexed would clearly show that
there had been budget allocation for sanctioning aided courses
                                                                  0
and some of the teachers appointed in the new courses were
paid the salary.

      10. Mr. Mathai M. Paikeday, learned senior counsel for
respondent nos. 1 to 7 reiterated the above submissions and
additionally submitted that the Government is bound to pay E
the salaries of the teachers as both the selection of respondent
nos. 1 to 7 and their appointment were in accordance with the
provisions of the University Laws and Articles of the Direct
Payment Agreement.
                                                                 F
      t1. We have also heard the learned counsel for all other
respondents who are represented before us in other connected
matters.

      12. We have carefully considered the rival contentions G
and perused the impugned order and other materials on
record. The main point falling for con.sideration is in respect
of newly commenced courses for which affiliation was granted .
whether the State Government is bound to pay the salary to
the teachers for the relevant period?                           H
1040     . SUPREMECOURTREPORTS                   [2015] 11 S.C.R.


 A         13. Direct Payment System was evolved by the State
   Government vide GOMS No. 185/72/Edn. dated 30.08.1972
   for all the private Arts and Science colleges. Under the Direct
   Payment Agreement, Government decided to introduce a
   scheme of direct payment of salaries to the teaching and non-
 S teaching staff of private colleges, the management of which
   agree to Government control in the matter of appointment of
   the teaching and non-teaching staff and in the admission of
   students. The control would be in the form of laying down
   general principles to be followed and by participation of
 C representative of the Government and the Universities in the
   selection and appointment of staff and in the admission of
   students. Thus, a scheme for direct payment of salaries in
   private Arts and Science colleges in con$ultation with the
   Universities, the representatives of the private college
 0
   managements and the teaching and non-teaching staff
   representatives of the private colleges have been evolved. The
   Bth respondent- management executed and agreed to the
   same and is said to have complied with all the rules of the
 E agreement.

         14. Vide Government Order No. GOMS 134/98/H.Edn.
   dated 09.11.1998 sanction was accorded for starting new
   courses subject to the condition that there will be no additional
 F financial commitment on the part of Government. Pursuant to
   the same, Vice-Chancellor of Mahatma Gandhi University vide
   an order dated 13.11.1998 sanctioned the affiliation of ttfe new
   courses in the private colleges from the Academic Year 1998-
   99 subject to ratification by the Syndicate and without any
 G additional financial commitment. Vide order dated
   06.12.1999, Government granted approval for new courses
   subject to stipulation that the expenditure wiU not exceed the
   budget allotted for this purpose and University also approved
   the same vide an order dated 10.12.1999 subject to the same
 H conditions as stipulated in the order dated 13.11.1998.
   STATE OF KERALA& ORS. v.. ARUN GEORGE & ORS.                 . 1041
                [R. BANUMATHI, J.]

       15. It appears that new courses so sanctioned led to the A
 increase of work load. So the private college managements
 acting in consonance with the provisions of the University
 Statutes and Direct Payment Agreement constituted Statutory
 Selection Committee, the Committee comprised of both the
 representatives of the Government and the University. It is B
 stated that respondent nos. 1 to 7 were also appointed by the
 said Statutory Selection Committee. Respondent Nos.1 to 4,
 6 and 7 were appointed on 01.07.2002and respondent no. 5
 on 07.01.2002.
                                                                  c
         16. Learned senior counsel appearing for the respondent
  nos: 1 to 7 has urged that GOMS No. 134/98/H/Edn. dated.
  09.11.1998 and GOMS No. 162/99/H7Edn. were issued only
  to accom~odate the lecturers who were rendered surplus due
  to de-linking of pre-degree courses from the colleges and the D
   same fact is evident from annexure R1/3. It is stated that due
  to de-linking of pre-degree. courses, Pre-degree Courses
  (Abolition) Act, 19.97 was passed and as per Section 5 of the
  Act, a statutory ban was imposed on appointments for a period
  of three years commencing from 03.06.1997 to 02.06.2000. E
  However, after the expiry of the period, the State has not fixed
  staff pattern. Hence, respondent no. 8 and Kerala Private
  College Management Association and other private colleges
  approached the High Court by OP No. 21268 of 2002 which F
  was disposed of directing the university to fix the staff stre~gt~
  in the. respondents' colleges and to consider the
  representations of the private colleges in accordance with the·
  Statutes and Ordinances. As the University did not comply
· with the order, contempt proceedings were initiated against G
  the University and it has later approved certain appointments;
  but rejected the appointment of respondent nos. 1 to 7 due to
  want of vacancy and also due to the fact that the courses
  were sanctioned without any financial commitment on the part
  of the Governmenf Appointments of respondent nos. 1 to 7 H
1042        SUPREME COURT REPORTS               [2015] 11 S.C.R.

 A     were thus not approved and, hence, they were not getting
       salary.

          17. Although, initially approval was not granted for the
   appointments of respondent nos. 1 to 7, the University granted
 B approval to these appointments vide its order No. AC.B1/1/
   3169/05 dated 29.10.2005. As noticed earlier, sanction of
   new courses led to the increase of work load and the services
   of respondent nos. 1 to 7 were utilised by the 81h respondent-
   management. The courses are purely aided courses and
 C therefore, the provisions of Direct Payment Agreement-are
   ~ndoutedly applicable. The State administration cannot shirk
   its responsibility of ensuring proper and quality education In
   Schools and Colleges on the plea of lack of resources. In the
   facts and circumstances of the case tn hand, we do not deem
 D it necessary to consider this question in further detail.

         18. It is also to be noted that by perusal of the records
   viz. Annexures R8/14, 15, 16, 17 & 18, it is evident that
   respondent nos. 1 to 7 were appointed only against
 E sanctioned posts. It is not the case of the Government that 8th
   respondent - management violated the terms of the Direct
   Payment Agreement. For many years i.e. from 2002, services
   of respondent nos. 1 to 7 have been utilized for imparting
   instruction, invigilation and other duties. By perusal of the
 F information obtained under Right to Information Act that the
   Government has paid_salaries and emoluments to some of
   the lecturers appointed in other private colleges. When the
   respondent nos. 1 to 7 were appointed by the Statutory
   Selection Committee, we find no reason as to why respondent
 G nos. 1 to 7 should be denied the payment of salary. When
   respondent nos. 1 to 7 have been appointed by the Statutory
   Selection Committee, it becomes obligatory for _the
   Government to honour these appointments and pay the salary.

 H
  STATE OF KERALA& ORS. v. ARUN GEORGE & ORS.                      1043
               [R. BANUMATHI, J.)

      19. In our considered view, the learned Single Judge of A
the High Court and the Division Bench in review petitions rig~tly
held that respondent nos·. ~ to 7 are entitled to the payment of
salary for the relevant period and we find no reason to interfere
with the same.
                                                                  B
      20. In the result, these appeals are dismissed and
consequently, the other connected appeals stand dismissed.

Bibhuti Shushan Bose                          Appeals dismissed.




                       I