Abdul Hakeem M.A. and others v. Mahatma Gandhi University and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **WEDNESDAY, THE 8TH DAY OF JANUARY 2014/18TH POUSHA, 1935** ## **OP.No. 3818 of 2003 (D)** **---------------------------------** ## **PETITIONERS:** - **---------------------** **1. ABDUL HAKEEM M.A., LECTURER, UNIVERSITY COLLEGE OF ENGINEERING, THODUPUZHA.** **2. SIBU P.M.,LECTURER, UNIVERSITY COLLEGE OF ENGINEERING, THODUPUZHA** **3. BINDU BABY THOMAS, LECTURER, UNIVERSITY COLLEGE OF ENGINEERING, THODUPUZHA.** **4. RAVIKUMAR.B., LECTURER, UNIVERSITY COLLEGE OF ENGINEERING, THODUPUZHA.** **5. ANANDA RESMI.S., LECTURER, UNIVERSITY COLLEGE OF ENGINEERING, THODUPUZHA.** **6. DEEPA P.GOPINATH, LECTURER, UNIVERSITY COLLEGE OF ENGINEERING, THODUPUZHA.** **7. SHAILAJA.R, LECTURER, UNIVERSITY OF ENGINEERING, THODUPUZHA** **8. NEELAKANTAN P.C., LECTURER, UNIVERSITY COLLEGE OF ENGINEERING, THODUPUZHA.** **9. LENY MATHEW, LECTURER, UNIVERSITY COLLEGE OF ENGINEERING, THODUPUZHA** - **10.JOSEPHINE GEORGE, LECTURER, UNIVERSITY COLLEGE OF ENGINEERING, THODUPUZHA.** - **11.MARY LUBI.C. LECTURER, UNIVERSITY COLLEGE OF ENGINEERING, THODUPUZHA.** - **12.LATHA KUMARI.B., LECTURER, UNIVERSITY COLLEGE OF ENGINEERING, THODUPUZHA.** **BY SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE, ADV. SRI. A. RAJASIMHAN.** ## **O.P.NO.3818/2003-D:** ## **RESPONDENTS:** **-----------------------** **1. THE MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR PRIYADARSINI HILLS P.O., KOTTAYAM.** **2. THE VICE CHANCELLOR, THE MAHATMA GANDHI UNIVERSITY, KOTTAYAM.** ## **3. THE PRINCIPAL,** - **UNIVERSITY COLLEGE OF ENGINEERING, THODUPUZHA.** **4. THE DIRECTOR, SCHOOL OF TECHNOLOGY AND APPLIED SCIENCES, MAHATMA GANDHI UNIVERSITY, KOTTAYAM.** **5. THE SYNDICATE, MAHATMA GANDHI UNIVERSITY, REPRESENTED BY THE VICE CHANCELLOR, M.G.UNIVERSITY, KOTTAYAM.** **6. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHEREDUCATION, GOVT. SECRETARIAT, THIRUVANANTHAPURAM.** **R1 TO R5 BY DR.P.LEELAKRISHNAN, S.C, R6 BY GOVERNMENT PLEADER MR.P.V. ELIAS.** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 08-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **O.P.NO.3818/2003-D:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P.1: TRUE COPY OF THE NOTIFICATION SF-1/STAS/2076/96 DT. 15/07/96.** - **EXT.P.2: TRUE COPY OF THE NOTIFICATION SF-1/STAS/UCET/2098/97 DT. 10/03/98.** - **EXT.P.3: TRUE COPY OF THE MEMO OF APPOINTMENT DT. 12/11/1997. EXT.P.4: TRUE COPY OF THE SANCTION ORDER. EXT.P.5: TRUE COPY OF THE ORDER DTD. 16/06/1999 ISSUED BY THE REGISTRAR INFORMING THE DECLARATION OF SATISFACTORY COMPLETION OF PROBATION.** - **EXT.P.6: TRUE COPY OF THE SANCTION ACCORDED BY THE VICE CHANCELLOR TO PAY THE FAMILY PENSION TO SMT. SUHUDA.** - **EXT.P.7: TRUE COPY OF THE MEMO DTD. 25/04/1998 ISSUED BY THE R.1. EXT.P.8: TRUE COPY OF THE ORDER ISSUED BY THE REGISTRAR DATED 31/07/98 IMPLEMENTING RESOLUTION OF THE SYNDICATE.** - **EXT.P.9: TRUE COPY OF THE ORDER OF THE REGISTRAR DTD. 20/07/99. EXT.P.10: TRUE COPY OF THE ORDER DTD. 18/06/1999 ISSUED BY REGISTRAR. EXT.P.11: GOVERNMENT ORDER G.O.(P).NO.68/2000 DTD. 18/05/2000. EXT.P.12: TRUE COPY OF THE ORDER ISSUED BY THE REGISTRAR. EXT.P.13: TRUE COPY OF THE NO. SF1/3/5127/2001 DTD. 23/03/2001 BY THE REGISTRAR OF THE UNIVERSITY.** - **EXT.P.14: TRUE COPY OF THE LETTER NO. UCET/STAFF/2001 DTD. 18/04/2001 OF THE R3, PRINCIPAL.** - **EXT.P.15: TRUE COPY OF THE REPRESENTATION OF THE PETITIONERS DTD. 01/06/2001 TO THE R.2. VICE CHANCELLOR.** - **EXT.P.16: TRUE COPY OF THE DETAILED REPRESENTATION DTD. 06/05/02 BY THE PETITIONERS TO THE R.2. VICE CHANCELLOR.** - **EXT.P.17: TRUE COPY OF THE ORDER NO.SF.1/STAS/UCET/2434/97 DTD. 20/01/1998.** - **EXT.P.18: TRUE COPY OF THE APPOINTMENT ORDER OF ONE SMT. SOBHANA N.V.** - **EXT.P.19: TRUE COPY OF THE ORDER OF APPOINTMENT OF THE ONE SMT. SUMA MATHEW.** **Prv.** ## **O.P.NO.3818/2003-D:** - **EXT.P.20: TRUE COPY OF THE LETTER DTD. 24/01/2000 WRITTEN BY THE REGISTRAR OF THE R.1. TO THE SCHOOL OF MEDICAL EDUCATION.** - **EXT.P.21: TRUE COPY OF THE ORDER DTD. 20/01/98 ISSUED BY THE REGISTRAR OF THE R.1.** - **EXT.P.22: TRUE COPY OF THE IDENTICAL ORDER PASSED IN THE CASE OF SRI. SASIKUMAR.P.** - **EXT.P.22.(A): TRUE COPY OF THE IDENTICAL ORDER PASSED IN THE CASE OF SMT. M.V. LAULY.** - **EXT.P.22.(B): TRUE COPY OF THE IDENTICAL ORDER IN THE CASE OF SMT. JAYEE K. VARGHESE.** - **EXT.P.22.(C): TRUE COPY OF THE IDENTICAL ORDER PASSED IN THE CASE OF SMT. BINDU P. KALAKKALPARAMBIL.** - **EXT.P.23: TRUE COPY OF THE RELIEVING ORDER DTD. 28/06/2005.** - **EXT.P.24: TRUE COPY OF THE REPRESENTATION DTD. 12/07/2005 SUBMITTED BY THE PETITIONERS.** - **EXT.P.25: TRUE COPY OF THE RELIEVING ORDER DTD. 15/09/2005 OF SMT. MARY LUBY.** - **EXT.P.26: TRUE COPY OF THE RELEVANT PAGES OF PROGRESS PROFILE DTD. 31/03/2001.** - **EXT.P.27: TRUE COPY OF THE ORDER DTD. 10/07/1996.** - **EXT.P.28: TRUE COPY OF THE ORDER DTD. 25/08/1997.** - **EXT.P.29: TRUE COPY OF THE ORDER DTD 17/11/1999.** - **EXT.P.30: TRUE COPY OF THE JUDGEMENT IN W.P.(C).NO.20649 OF 2009.** - **EXT.P.31: TRUE COPY OF THE ORDER DTD. 17/09/11.** - **EXT.P.32: TRUE COPY OF THE REPORT SUBMITTED BY R.1. TO A.I.C.T.E. FOR THE YEAR 20-11-2012.** ## **RESPONDENTS' EXHIBITS:** - **EXT.R1.(A): TRUE COPY OF THE MINUTES OF THE MEETING OF THE SUYNDICATE DTD. 06/07/96 RESOLVING TO CONDUCT DEGREE COURSES UNDER SELF FINANCING STREAM AND CREATING THE POSTS.** - **EXT.R1.(B): TRUE COPY OF THE U.O. NO.SF-I/1/STAS/2076 (A)/96 CREATING THE POSTS.** **Prv.** ## **O.P.NO.3818/2003-D:** **EXT.R1.(C): TRUE COPY OF THE U.O. NO. 1318 DTD. 16/03/2010 FRAMING THE SPECIAL RULES. EXT.R1.(D): TRUE COPY OF THE U.O. NO. 1319 DTD. 16/03/2010 FRAMING THE SPECIAL RULES AND THE ADALATH COMMITTEE RECOMMENDATIONS. EXT.R1.(E): TRUE COPY OF THE MINUTES OF THE MEETING OF STATUTORY FINANCE COMMITTEE HELD ON 05/08/1997.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **A.V. RAMAKRISHNA PILLAI, J. -------------------------------------------------O.P. No. 3818 of 2003** **-------------------------------------------------Dated this the 8[th] day of January, 2014** ## **J U D G M E N T** Under challenge in this original petition is Ext.P13 order as well as resolution no.1655 dated 20.01.2001 and resolution no.1745 dated 19[th] and 20[th] February, 2001 of the 5[th] respondent Syndicate of the respondent University insofar as the same treat the petitioners as teachers temporarily appointed. There is yet another prayer to declare that the petitioners are regularly appointed permanent teachers of the 1[st] respondent University to the substantive posts created by the University and for other consequential reliefs. 2. All the petitioners are employed as Lecturers in the University College of Engineering, Thodupuzha, a self-financing Engineering College run by the Mahatma Gandhi University under its School of Technology and Applied Sciences. It was on the basis of Ext.P1 O.P. No. 3818 of 2003 ..2.. notification dated 15.07.1996 and Ext.P2 notification dated 10.03.1998 issued by the Registrar of the respondent University that the petitioners had applied for the post of Lecturers in different subjects. The petitioners applied to the post under serial nos.3 and 4 in Ext.P1 and under serial nos.1 to 3 in Ext.P2, which were issued in respect of vacancies available in the University College of Engineering, Thodupuzha. Pursuant to the applications, the petitioners were invited for an interview and on successful completion of interview, they were selected and appointed as Lecturers in the aforesaid college. The petitioners allege that they have been appointed as regular hands to the permanent posts created by the respondent University and; they are entitled to be treated and considered for all purposes as University Teachers as defined under the Act and Statutes. 3. However, while the petitioners were continuing O.P. No. 3818 of 2003 **==> picture [20 x 8] intentionally omitted <==** as Lecturers, the Registrar of the respondent University issued Ext.P13 order dated 23.03.2001 referring to the minutes of two Syndicate meetings of the respondent University. The first paragraph of Ext.P13 reads as follows: “The Syndicate at its meeting held on 20.01.2001 vide item No.1655 resolved to revise the pay scale of qualified teachers appointed temporarily for a period of three or more years in Nursing, Pharmacy (SME), University College of Engineering, Thodupuzha, School of Technology and Applied Sciences, and UCTE Colleges.” Against this, the petitioners submitted representations before the respondent University as well as before the Principal of the college. In the meantime, the 6[th] petitioner was issued with a relieving order dated 15.09.2004 (Ext.P23). It is in this context, they have come up before this Court. 4. In the counter filed by the 6[th] respondent, the stand taken by the Government is that the Government has no role in the issuance of Exts.P1 to P10 and Exts.P12 to P29. According to the State, the University College of O.P. No. 3818 of 2003 ..4.. Engineering, Thodupuzha, was established by the respondent University during 1996 under the Self Financing Scheme and; therefore, it is the responsibility of the management to provide infrastructure for the smooth functioning of the institution. It was contended that the institution has to appoint core faculties in accordance with the norms prescribed by the AICTE before their inspection to the college. It is further averred that regarding the appointment of faculties in the college, the Government has not issued any concurrence and; as the institution is a self-financing one, the University has not turned for such concurrence from the Government. 5. The respondent University has filed a detailed counter. The University contends that as per the Mahatma Gandhi University Statute, 1997, Chapter XLII, the University has certain statutory departments and; the teachers appointed in this statutory departments are O.P. No. 3818 of 2003 **==> picture [20 x 8] intentionally omitted <==** teachers of the University and their service conditions are governed by Chapter III of the Mahatma Gandhi University Statutes, 1997. According to the respondent University, the University College of Engineering is under the School of Technology and Applied Sciences, which is a self financing institution and; the Statute providing the service conditions of teaching staff of self financing institutions is yet to be framed by the Syndicate. Therefore, it was contended that Chapter III of the Mahatma Gandhi University Statute is applicable only in the case of teachers of University and not the teachers of self financing colleges. The University further contended that the post held by the petitioners are temporary post carrying a definite rate of pay for the limited time. It was pointed out that as a policy of matter, the Syndicate had abolished self financing courses and the petitioners cannot dictate the policy decision in such matters. According to the respondent University, the petitioners O.P. No. 3818 of 2003 ..6.. joined the college fully knowing that the college is a self financing college. According to the respondent University, even though no term is mentioned in the appointment orders, the petitioners' appointments were temporary for a limited period. The respondent reiterated in their stand that the petitioners were not appointed against any substantive vacancies. It was further pointed out that the issue relates to the policy matter involving financial burden. Therefore, the respondent University prayed for a dismissal of the original petition. 6. I have heard the learned senior counsel for the petitioners, the learned Standing Counsel for the respondent University and the learned Senior Government Pleader quite in extenso. All the relevant records were perused. 7. The only question to be considered in this case is whether the petitioners were appointed in the O.P. No. 3818 of 2003 **==> picture [20 x 8] intentionally omitted <==** University College of Engineering, Thodupuzha, against any substantive vacancy. Various documents were produced by the petitioners to prove their case. Exts.P1 and P2 are the notifications issued by the respondent University. It is clear from Exts.P1 and P2 that the petitioners' appointments were made subject to communal reservation envisaged in the general rules under University Laws. It is settled law that the question of communal reservation arises only in case of appointments against substantive posts. It is made clear in Ext.P4 that the person made mention of therein was appointed as Lecturer in Electronics and Communication against one of the posts of Lecturers created vide University Order dated 25.08.1997. It is further made clear that the said appointment is governed by the provisions in the Mahatma Gandhi University Statutes, 1991. Therefore, Ext.P4 and other similar sanction orders relating to the petitioners would go to show that O.P. No. 3818 of 2003 **==> picture [20 x 8] intentionally omitted <==** the appointments were against the permanent post created by the University. In Ext.P3 memo also, there is a clarification that the appointment would be governed by the provisions in Mahatma Gandhi University First Statutes, 1991. 8. As rightly pointed out by the learned senior counsel for the petitioners, the Statute contemplates only regular appointments. It is pertinent to note that the petitioners were declared to have completed their probation on successful completion of one year's service vide separate proceedings issued by the 2[nd] respondent Vice Chancellor. Ext.P5 is one of such orders. There are similar orders also. 9. Though the learned Standing Counsel would argue that probation was prescribed for determining the fitness of an officer to continue in the post in future and it is only a period in which the suitability of the officer is examined, I am not inclined to accept the same. Though O.P. No. 3818 of 2003 **==> picture [20 x 8] intentionally omitted <==** there is no communication in the notification as well as the appointment order regarding the period of probation, orders like Ext.P5 make it clear that the Principal of the College had certified that the work and conduct during the period of probation of the petitioners were satisfactory and; all except one have not availed any leave other than casual leave during probation. It cannot be said that it was an empty formality. 10. It was pointed out by the learned senior counsel that in case of temporary appointments, the respondent University used to clearly substantiate the same as is evident from serial no.4 in Ext.P2 notification. Serial no.4 in Ext.P2 notification relates to three posts of Lecturer in Mathematics notified and to be appointed on temporary basis for a period of three years. Those vacancies were notified to the other centres of School of Technology and Applied Sciences. Contrary to this, in the case of all vacancies notified under Exts.P1 and P2 in respect of O.P. No. 3818 of 2003 **==> picture [26 x 8] intentionally omitted <==** University College of Engineering, Thodupuzha, there is no mention that they are temporary vacancies or temporary appointments. 11. It was pointed out by the learned senior counsel that there was not even a single lecturer in the University College of Engineering, Thodupuzha, who has been appointed temporarily for a period of three years or more, whereas in Ext.P13 order of the University, it has been resolved to revise the pay scale of qualified teachers appointed temporarily for a period of three or more years in different institutions under the University including the University College of Engineering, Thodupuzha. Further, Ext.P13 says that the Syndicate has also resolved to implement the pay revision of teachers of different institutions under the 1[st] respondent including University College of Engineering, Thodupuzha, appointed temporarily for a period of three or more years as per the AICTE pay revision. It was pointed out that there were O.P. No. 3818 of 2003 **==> picture [26 x 8] intentionally omitted <==** no temporary lecturers in the aforesaid college as categorically stated in Ext.P14 by the 3[rd] respondent Principal. The relevant portion reads as follows: “It may be noted that the teachers appointed in this college are not temporary and it is stated in their appointment order that their appointment in the University is governed by the provisions in the 1991/1997 statutes of Mahatma Gandhi University. Hence revised AICTE scales of pay cannot be implemented in UCET based on the U.O. cited above.” 12. According to the learned senior counsel, Ext.P13 has resulted in an infringement of the fundamental rights of the petitioners guaranteed under Articles 14 and 16 of the Constitution of India insofar as the pay revision sanctioned thereunder is not intended for the petitioners, who are regular appointees of the University, and that the petitioners are discriminated as against the non-teaching staff, who were appointed as regular staff under the same notification following the same procedure and are getting the benefit of the pay revision notified by the State Government. As per Ext.P13, the 3[rd] respondent accorded sanction to the G.O. O.P. No. 3818 of 2003 **==> picture [26 x 8] intentionally omitted <==** relating to pay revision for the non-teaching staff of the University having been implemented in the University and necessary orders having been passed by the Registrar of the University. Under the said order, the non-teaching staff of the University College of Engineering, Thodupuzha, appointed under Exts.P1 and P2 notifications along with the petitioners are getting the benefit of the pay revision accepted by the State Government. 13. Ext.P26 is the copy of the progress profile of the existing approved technical institutions. The same was prepared by AICTE. Ext.P26 contains Annexure-II, which gives the details of teaching faculties. There, all the petitioners were shown as permanent faculties. This would indicate that for the purpose of getting affiliation to AECTE, the respondent University has projected the petitioners as permanent employees. 14. On account of the aforesaid treatment of the O.P. No. 3818 of 2003 ..13.. petitioners by the respondent University, till Ext.P13 was issued, in fact, the petitioners believed that their appointments were against substantive vacancies. After the lapse of so many years, by a single stroke of pen, the respondent University has tried to take away the right, which was already given to the petitioners. It was pointed out by the learned senior counsel for the petitioners that had it been known to the petitioners at the inception, they could have left the institution in search of a better employment. 15. The doctrine of promissory estoppel preserves a right accrued on the petitioners, which cannot be destroyed by Ext.P13 and the resolutions made mention of therein. The petitioners have been continuing in service on legitimate expectation that they would be treated at par with other permanent employees. The apex court in **Southern Petrochemical Industries Co. Ltd.** v. **Electricity Inspector & E.T.I.O. & Others** O.P. No. 3818 of 2003 **==> picture [26 x 8] intentionally omitted <==** [2007 (5) SCC 447] has held that legitimate expectation is now considered to be a part of the principles of natural justice. Here, the right which accrued on the petitioners was taken away by Ext.P13 and the resolutions made mention of therein without affording the petitioners an opportunity of being heard. Once the legitimacy of expectation is established, this Court is bound to have the task of weighing the requirements of fairness against any overriding public interest relied upon for the change of policy. The respondent University has not alleged, far less shown, any overriding public interest to divest the accrued rights of the petitioners. Therefore, Ext.P13 as well as the resolutions thereof are liable to be quashed. In the result, the original petition is allowed. Ext.P13 and resolution no.1655 dated 20.01.2001 and resolution no.1745 dated 19[th] and 20[th] February, 2001 of the 5[th] respondent Syndicate of the respondent University quoted in Ext.P13 order insofar as the same O.P. No. 3818 of 2003 **==> picture [26 x 8] intentionally omitted <==** treating the teachers as temporarily appointed are quashed. It is hereby declared that the petitioners are regularly appointed permanent teachers of the University appointed against substantive posts created by the University. Needless to say that the petitioners shall be entitled to the subsequent pay revision benefits also. The concerned authority shall issue formal orders extending the pay revision benefits to the petitioners within a period of three months. To facilitate an early decision, the petitioners shall be at liberty to file a representation before the concerned authority along with a copy of this writ petition and a copy of this judgment within a period of one month from today. Sd/- ## **A.V. RAMAKRISHNA PILLAI, JUDGE** bka/-