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Kerala High Court · body

2008 DIGILAW 777 (KER)

O. v. Usha VS Mahatma Gandhi University

2008-12-11

ANTONY DOMINIC

body2008
Judgment : The prayer in this writ petition is to quash Exts. P22 and P23. Petitioner also seeks a declaration that she is entitled to get benefits similar to what is extended by Exts. P12, P14 and P15 and academic status and scale of pay of Reader and other service benefits under the UGC Scheme and to continue in service upto the age of 60 years. 2. Ext.P2 dated 1/3/88 is an order issued by the 1st respondent University, conveying that the Vice Chancellor had issued orders establishing a Department of Printing and Publishing under the University. Subsequently by Ext.P3 order dated 18/3/88, sanction has been accorded by the Vice Chancellor for starting a Post Graduate Diploma Course in the Department of Printing and Publishing with effect from 1988-89. Both Exts.P2 and P3 have been issued by the Vice Chancellor exercising the powers of the Senate and Syndicate conferred under Section 5 of the Mahatma Gandhi University (Dissolution of the Senate and Syndicate) Ordinance, 1987. 3. Subsequent to Exts. P1 and P2, the post of Director of Publications was notified by the University and petitioner was one of the applicants. The candidates were subjected to a selection process before a statutory Selection Committee constituted as per the University Statutes. Petitioner was the successful candidate in the selection process and was appointed by Ext.P1 order dated 28/9/88, as Director of Publications in the scale of pay as applicable to the Reader of the University and she continued in service. While so, she was informed that on attaining the age of 55 years, she will have to retire from service on 30/11/2003. This was on the basis that the petitioner was a non teaching staff of the University. .4. Thereupon, she filed a writ petition before this Court as WP(C) No.34741/03, resulting in Ext.P17 judgment, dismissing the same holding that the petitioner is neither "a teacher" nor "a teacher of the University" as defined under Section 2(29) or 2(30) of the Mahatma Gandhi University Act, 1985 .respectively. She filed WA No.1024/07 and that writ appeal was disposed of by Ext.P18 judgment. She filed WA No.1024/07 and that writ appeal was disposed of by Ext.P18 judgment. In Ext.P18 judgment, the Division Bench took the view that the ultimate question as to whether the post held by the petitioner has to be treated as a teaching post or not, will depend upon a variety of factors and therefore it was only appropriate that the petitioner files a detailed representation with supporting materials to the Vice Chancellor of the University, who was directed to hear the petitioner and take a final decision in this matter. The findings of the learned Single Judge were also vacated by the Division Bench. 5. Accordingly, Ext.P19 representation was filed. During the pendency of the representation, by Ext.P20 dated 10/4/2007, post was again notified by the University and thereupon the petitioner filed WP(C) No.16063/07. That writ petition was disposed of by Ext.P21 judgment, permitting the University to proceed with the selection process. However, it was ordered that until a decision is taken on the representation as directed by the Division Bench, appointment orders shall not be issued. .6. Petitioner states that in pursuance to the judgments referred to above, Ext.P21(b) notice of hearing was issued and after hearing her, Ext.P23 order was passed by the Vice Chancellor rejecting her claim by Ext.P19 representation. Ext.P23 order reads as follows: .The Vice Chancellor has examined the contents of your representation dated 16/5/2007 and the arguments during the personal hearing conducted on 23/6/2007 in detail and resolved not to extend UGC benefits and service up to 60 years for the post of Director, Department of Printing and Publishing as in the case of Readers working in the University teaching departments and also to reiterate the decision of the Syndicate held on 17/11/2003. Hence, I am to inform you that your representation cannot be entertained in the light of the above. It is challenging Ext.P23, this writ petition has been filed. 7. The contention raised by the counsel for the petitioner is that the post of Director of Publications was a teaching post and that the petitioner comes within the definition of "teacher" or "teacher of the University" as defined in Section 2(29) or 2(30) of the Mahatma Gandhi University Act (hereinafter referred to as Act for short). This contention of the petitioner is sought to be contradicted by the learned counsel appearing for the University. This contention of the petitioner is sought to be contradicted by the learned counsel appearing for the University. According to the University, unless the petitioner comes within the definition of "teacher of the University" as defined in Section 2(30) of the Act which means, a person employed as a teacher in any institution maintained by the University, the petitioner cannot claim the benefit as a teaching staff. It is contended that in such an event only, her claim for UGC scale and continuance till 60 can be sustained. He also relied on the findings in Ext.P17 judgment. 8. Therefore, the question that arises for consideration is whether the petitioner was a teacher of the University. The materials that are relied on by the counsel for the petitioner in support of his contention are the following. .(1) Ext.P4 is the notification issued by the University on 18/3/92 by which the amendment to Statute 2 of Chapter 42 of the University Statute was notified. Chapter 42 of the University Statutes specifies the University Departments. Statute 2 enumerates the Departments/Schools of study and Research of the University. By the amendment effected by Ext.P4, the Department of Printing and Publishing has been included at Sl.No.13 of Statute 2 as a Department/School of study and/or Research in the University. It also provides that each Department/School of study and Research shall be under a Head of the Department/Director. From Ext.P4, it is evident that the Department of Printing and Publishing was accepted as a Department of Study and/or Research in the University. .(2) It is the petitioners specific case that she has been selected by a statutory selection committee .constituted as provided in Statute 4(b) of Chapter 3 of the Statutes. Statute 4 of Chapter 3 provides for the selection committee for appointment of teachers. Statute 4(b) specifically provides for the Selection Committee for the post of Reader/Lecturer, which reads as under. .(b) For the posts of Reader/Lecturer etc: There shall be a Committee in addition to the Vice-Chancellor as Chairman, one Syndicate member to be selected by the Vice Chancellor, two outside experts chosen by the Syndicate and Head of the Department or Professor-in-charge. Statute 4(b) specifically provides for the Selection Committee for the post of Reader/Lecturer, which reads as under. .(b) For the posts of Reader/Lecturer etc: There shall be a Committee in addition to the Vice-Chancellor as Chairman, one Syndicate member to be selected by the Vice Chancellor, two outside experts chosen by the Syndicate and Head of the Department or Professor-in-charge. .In so far as the non teaching staff are concerned, their recruitment is governed by Statute 8 of Chapter 4 of the University Statutes which provides for constitution of the Selection Committee, which is totally different from the Selection Committee constituted for teaching posts. In so far as the selection which led to the appointment of the petitioner is concerned, it is admitted in the counter affidavit of the University that the selection committee consisted of Vice Chancellor as Chairman, a Syndicate member and two external experts. This Committee evidently is the Committee that is contemplated for teaching staff as per Statute 4(b) of Chapter 3 of the University Statutes. .(3) The petitioner refers to Ext.P5, the notification issued by the University on 22/11/88, by which, exercising his powers under Section 28 (1A)(C) of the Act, the Chancellor nominated the persons mentioned therein to the Board of Studies in the Department of Printing and Publishing for a period of three years. In view of the provisions contained in Section 28(1A)(a) of the Act, being the Head of the Department, petitioner has been nominated as its Chairman. Chapter 12 of the University Statutes deal with the Boards of Studies at the University and Statute 1 provides that there shall be a Board of Studies attached to each subject of study of groups of subjects in the University and members are nominated in terms of the Statute 4. Statute 5 provides that no person shall be appointed as a member of Board unless he is a teacher of, or has special knowledge in the subject or one of the subjects with which the Board is concerned. Therefore, the Board of Studies has been constituted in terms of Chapter 12 of the University Statutes and the petitioner was nominated for the reason that she is a teacher. Therefore, the Board of Studies has been constituted in terms of Chapter 12 of the University Statutes and the petitioner was nominated for the reason that she is a teacher. Section 28 of the Mahatma Gandhi University Act provides that the Head of Department shall be the Chairman of the Board of Studies and it was therefore that, the petitioner was nominated as the Chairman of the Board of Studies. Thus unless the Printing and Publishing was treated as a subject of study, the University would not have constituted Board of Studies and unless the petitioner was not a teacher, the petitioner would not have been nominated to the Board of Studies. .(4) Petitioner then refers to Ext.P6, by which she was nominated to the Academic Council of the University. A reading of Ext.P6 shows that the Vice Chancellor has passed orders constituting the Academic Council, with the members mentioned therein, exercising his powers under the sub sections to Section 24(3), mentioned therein. At Sl.No.27 is the name of the petitioner. Section 24 provides that the Academic Council shall be academic body of the University. Sub Section 3 provides that the Academic Council shall consist of the members specified therein. Sub Section (k) provides that all the "Heads of University Departments of Study and Research" who are not Deans or faculties shall be members of the Academic Council. Evidently, the petitioner was nominated to the Academic Council by Ext.P6, being the Head of the Department of study and Research, along with others similarly situated, whose names are indicated at Sl.Nos.18 to 26 of Ext.P6. .(5) Petitioner also relies on Exts. P7 and P8. Ext.P7 is the minutes of the first meeting of the Board of studies which indicates that the Board of studies discussed the course outline, regulations, staff requirements and scope of the post graduate diploma course in Printing and Publishing which was commenced in the University during 1988-89. Ext.P8 is the regulations, syllabus and scheme of examination for 1989 examination for the course of post graduate diploma in Book Publication. As rightly contended by the counsel for the petitioner, but for the fact that the department which was headed by the petitioner was a teaching department, Exts.P7 and P8 would not have been .necessitated. Ext.P8 is the regulations, syllabus and scheme of examination for 1989 examination for the course of post graduate diploma in Book Publication. As rightly contended by the counsel for the petitioner, but for the fact that the department which was headed by the petitioner was a teaching department, Exts.P7 and P8 would not have been .necessitated. .(6) Counsel for the petitioner rely on Ext.P9, which shows that the petitioner was the Chairman of Board of Examiners for the course of Post Graduate Diploma in Book Publishing. Ext.P10 is also relied on to show that the Academic Council met for instituting staff council of the University and that the petitioner was also invited for the said meeting. Similarly, Ext.P11 is the minutes of the meeting of Heads of the Departments held on 13th of October 1998 and the participants are all belonging to teaching faculty and the petitioner was one of the participants. Counsel therefore rightly contends that Exts. P7 to P11 show that the University treated the department of Printing and Publishing as a teaching department and the petitioner, a teacher of the University. .(7) Learned counsel for the petitioner also relies on Exts. P12 and P14. Ext.P12 is the order passed by the University based on a decision taken by the Syndicate which resolved to consider the post of Director of Student Services as a teaching post in the cadre of Reader. Similarly, Ext.P14 is also relied on to show that the post of Programme Co-ordinator in the school of Behavioural Sciences has been treated as a teaching post. It is contended that since similarly situated posts have been treated as teaching posts, there is no reason for treating the petitioners a non teaching post. 9. In my view, the aforesaid uncontradicted materials relied on by the petitioner fortifies the contention that the University treated the post of Director of the Department of Printing and Publishing, to which she was appointed by the University in the pay scale of Reader, as a teaching post. As contended by the counsel for the University, it may be true that the post graduate diploma course commenced in the University was discontinued after a year or two and that she was not imparting any teaching, once the course was discontinued. But that will not in any manner, in my view, affect the petitioners status as a teacher. As contended by the counsel for the University, it may be true that the post graduate diploma course commenced in the University was discontinued after a year or two and that she was not imparting any teaching, once the course was discontinued. But that will not in any manner, in my view, affect the petitioners status as a teacher. Learned counsel for the University relied on the findings in Ext.P17 judgment in WP (C) No.34741/2003 and contended that in view of those findings, petitioner cannot claim to be a teacher to be entitled to the prayers sought for. However, having regard to the fact that all those findings have been vacated in Ext.P18 judgment rendered by the Division Bench, I do not find any force in this contention. 10. As the University itself treated her post as a teaching post, there was absolutely no justification to make the petitioner retire on the basis that she was holding a non teaching post. Therefore, I am satisfied that the petitioner is entitled to the reliefs prayed for. 11. Petitioner seeks to quash Ext.P22, by which the 4th respondent was appointed in her place. In view of the fact that admittedly the petitioner was out of employment since 30/11/2003 and she has also attained the age of 60 years on 30/11/2008, I see no justification for that prayer. Therefore, the writ petition will stand disposed of quashing Ext.P23 and with a declaration that the petitioner is entitled to get the academic status and scale of pay of Reader and other service benefits under the UGC Scheme. She will be entitled to all monetary benefits which shall be quantified and paid to her within 2 months, treating her as having continued upto the age of 60 years as Director of Printing and Publishing in the University.