Dr. K. Mohandas and others v. Mahatma Gandhi University and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY ,THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940** **WP(C).No. 12088 of 2018** ## **PETITIONER/S:** **1 DR.K.MOHNDAS AGED 53 YEARS, S/O.LATE K.S. KRISHNAN NAIR,LECTURER, COLLEGE OF TEACHER EDUCATION,MUVATTUPUZHA, RESIDING AT THULASIVANAM, MUTHOLAPURAM P.O., VIA ELANJI,ERNAKULAM DISTRICT, PIN - 686 665. 2 UDAYAKUMARI V.B. AGED 56 YEARS, W/O.PAULOSE M.V.,INSTRUCTOR IN ART AND CRAFT,COLLEGE OF TEACHER EDUCATION,MUVATTUPUZHA, RESIDING AT MOLATH HOUSE,KOOVAPPADY P.O., AIMURY, VIA PERUMBAVOOR,ERNAKULAM DISTRICT, PIN - 683 544. 3 BHASURA K.S. AGED 62 YEARS, W/O.LATE K.N.MURALIDHARAN,INSTRUCTOR IN SOCIALLY USEFUL PRODUCTIVE WORK (SUPW)AND ART WORK, COLLEGE OF TEACHER EDUCATION,ERATTUPETTA, RESIDING AT KATTOTTIL HOUSE,PUNNATHURA WEST P.O., ETTUMANOOR,KOTTAYAM DISTRICT, PIN - 686 631. 4 DR.SRINIVASAN K.K. AGED 59 YEARS, S/O.LATE DR.K.P.KESAVAN NAMPOOTHIRI,LECTURER, COLLEGE OF TEACHER EDUCATION, VAIKOM,RESIDING AT KUTTIYANIPPURATHU ILLOM, NARIYAPURAM P.O., PATHANAMTHITTA DISTRICT,PIN - 686 631.** **BY ADV. SRI.THOMAS M.JACOB** **WP(C).No. 12088 of 2018** ## **-:2:-** ## **RESPONDENT/S:** |**1**|**MAHATMA GANDHI UNIVERSITY**| |---|---| ||**PRIYADERSHINI HILLS P.O.,KOTTAYAM, PIN - 686**| ||**560,REPRESENTED BY ITS REGISTRAR.**| |**2**|**THE CO-ORDINATOR**| ||**UNIVERSITY COLLEGES OF TEACHERS**| ||**EDUCATION,UNIVERSITY COLLEGE OF TEACHER**| ||**EDUCATION,MAIN CENTRE, MAHATMA GANDHI**| ||**UNIVERSITY,PRIYADERSHINI HILLS P.O.,**| ||**KOTTAYAM,PIN - 686 560.**| |**3**|**STATE OF KERALA**| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,HIGHER**| ||**EDUCATION DEPARTMENT, GOVERNMENT**| ||**SECRETARIAT,TRIVANDRUM, PIN - 695 001.**| |**4**|**THE CENTRE FOR PROFESSIONAL AND ADVANCED**| ||**STUDIES**| ||**GANDHINAGAR P.O., KOTTAYAM, PIN - 686**| ||**008,REPRESENTED BY ITS DIRECTOR.**| ||**BY ADV. SRI.SURIN GEORGE IPE, SC,**| ||**M.G.UNIVERSITY**| ||**SHRI P.C.SASIDHARAN FOR R4**| ||**SHRI M.A.ASIF, SPL.GP**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.10.2018 ALONG WITH WPC 38283/2017 AND CON.CASES, THE COURT ON 16.11.2018 DELIVERED THE FOLLOWING:** **WP(C).No. 12088 of 2018** ## **-:3:-** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1.** **TRUE COPY OF MEMO DATED 05.09.2012 IN RESPECT OF 1ST PETITIONER.** **EXHIBIT P2.** **TRUE COPY OF OFFICE PROCEEDINGS DATED 17.05.2005 POSTING 2ND PETITIONER.** - **EXHIBIT P3. TRUE COPY OF MEMO DATED 20.04.2005 IN RESPECT OF 3RD PETITIONER.** - **EXHIBIT P4. TRUE COPY OF MEMO DATED 04.08.2014 WITH RESPECT TO 4TH PETITIONER.** - **EXHIBIT P5. TRUE COPY OF EXPERIENCE CERTIFICATE DATED 17.08.2017 ISSUED TO 4TH PETITIONER.** **EXHIBIT P6. TRUE COPY OF COMMUNICATION NO.15707(2)/SF1/3/UCTE-RENEWAL/2015 VOL.II DATED 13.06.2016.** - **EXHIBIT P7. TRUE COPY OF ORDER NO.G.O (MS.) NO.552/2014 H.EDN. DATED 19.07.2017 REGARDING TERMS AND CONDITIONS OF TEACHING STAFFS IN SELF-FINANCING INSTITUTION.** **EXHIBIT P8. TRUE COPY OF JUDGMENT DATED 05.02.2018 IN W.A.NO.2638/2015 OF THIS HONOURABLE COURT.** - **EXHIBIT P9. COPY OF CIRCULAR NO.ADA1-2/246/2017 DATED 17.06.2017 OF THE 1ST RESPONDENT.** **EXHIBIT P10. TRUE COPY OF ORDER DATED 3.8.2017 IN WP(C) NO.25812/2017.** **WP(C).No. 12088 of 2018** ## **-:4:-** **EXHIBIT P11. TRUE COPY OF PROCEEDINGS NO.77/EST/RET/TERMN/STAFF/2018 DATED 26.03.2018 TOGETHER WITH ITS ANNEXURE. EXHIBIT P12. TRUE COPY OF ORDER DATED 28.03.2018 IN WP(C) NO.11164/2018.** RESPONDENTS' EXTS: NIL \\TRUE COPY// PS TO JUDGE ms _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** **“C.R.”** ## A.MUHAMED MUSTAQUE, J. ========================= W.P.(C).Nos. |38283/2017|30128/2017|41873/2017| |---|---|---| |5155/2013|30897/2017|11185/2018| |260/2015|31154/2017|11370/2018| |12685/2017|31171/2017|11374/2018| |13266/2017|32139/2017|11414/2018| |21861/2017|32148/2017|12088/2018| |22406/2017|32292/2017|12326/2018| |25812/2017|32341/2017|17239/2018| |25940/2017|32363/2017|26424/2018| |25981/2017|33096/2017|28535/2018| |26037/2017|35918/2017|28687/2018| |26041/2017|36112/2017|28773/2018| |26281/2017|36220/2017|28808/2018| |27411/2017|36309/2017|28930/2018| |27941/2017|36908/2017|29389/2018| |28322/2017|36959/2017|30941/2018| |28476/2017|38284/2017|32571/2018| |29581/2017|41029/2017|| |29715/2017|41453/2017|| |~~~~~~~~~~~~~~~~~~~~~~~~~<br>Dated this the 16thday of November, 2018||| ## J U D G M E N T The problem presented in this writ petition is inexorable in the wake of liberalization in education sector. When source of fund _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ``` WPC No.38283/2017 and c/cases ``` ## **-:2:-** is depleted, the policy of the Government in educational sector was to allow private sector participation to fill up the role of the Government in discharging the duties as providers of education. The Government also devised other mechanisms to discharge those functions. That was how the State allowed the Universities created under a Statute to establish these Self Financing Institutions (hereinafter, “S.F.Insts.”) in the State. These S.F.Insts. were to be run on self generated funds collected by way of fees from students, without any financial aid from the Government or other funding agency. The salary/remuneration and other expenses of these institutions were to be met from the income generated from the fees collected from the students. Since S.F.Insts. had turned financially unviable and it was legally and technically not possible to continue its conductance without affiliating it to the respective Universities constituted for the same, all the S.F.Insts. formerly run by the Mahatma Gandhi University (hereinafter, the “University”), _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ``` WPC No.38283/2017 and c/cases ``` **-:3:-** were entrusted to a society named Centre for Professional and Advanced Studies (CPAS). A situation has arisen as to the conditions of service of teaching staff engaged in the S.F.Insts., consequent upon handing over the S.F.Insts. run by the University. 2. The petitioners in all these writ petitions are engaged by University as teachers and instructors (hereinafter they are collectively referred to as "teachers" for convenience) in various S.F.Insts./Universities. Some of them were working in the S.F.Insts., for more than two decades and they were drawing the scale of pay applicable to UGC teachers. The principal issue in these writ petitions is in regard to the status of teachers in S.F.Insts. Some of the petitioners also raised a challenge against handing over S.F.Insts. to CPAS. A few petitioners accepted their transfer to CPAS, and they only question the legality of the special rules framed by CPAS by reducing their pay. They also claim U.G.C. scale of pay. They also pray service conditions to be protected. Status of an _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ## **`WPC No.38283/2017 and c/cases`** ## **-:4:-** employee of the University is claimed to challenge their disengagement by the University. All these issues will have to be decided after adverting to the brief facts of the case. 3. The University was established by the Act of the State Legislature in the year 1985. The University set up S.F.Insts. to run various programmes in Medicine, Technology & Applied Sciences, Communication & Journalism, Library & Information Sciences, Applied Life Sciences, Arts & Commerce and Teacher Education. Schools and sub-centres were established under Self Financing structure. Section 2(29) of the Mahatma Gandhi University Act, 1985 (hereinafter, the “Act”) defines “teacher” as a person imparting instruction or supervising research in any of the colleges or recognised institutions and whose appointment has been approved by the University. Section 2(30) defines “teacher of the University” as a person employed as a teacher in any institution maintained by the University. Chapter VII of the Act refers to the Financial source _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ``` WPC No.38283/2017 and c/cases ``` ## **-:5:-** of the University and also the University Fund. It also states that funds earmarked for a purpose shall not be diverted without prior approval of the Government. The proviso to Statute 1 of Chapter 3 of the Mahatma Gandhi University Statutes, 1997 (hereinafter, the “Statutes”) states that the Syndicate shall institute no teaching or research post without the previous approval of the Government if it involves expenditure in excess of the budgetary provision. Section 59 of Chapter VIII of the Act states that appointments to the posts eligible to receive the salary from the Government shall be made only against posts sanctioned by the Government. Thus, it is clear that those appointments as referred in Section 59 require prior sanction from the Government. Interestingly, S.F.Insts. were established by the University without framing service conditions as applicable to teaching and non-teaching staff. The University made appointments in S.F.Insts. by following the procedure applicable in the Act and Statutes. Appointments to the S.F.Insts. might have _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ``` WPC No.38283/2017 and c/cases ``` ## **-:6:-** been made by the Syndicate based on enabling power under Section 23(viii) of Chapter IV of the Act. Provisions in Section 23 of the Act do not distinguish between the power of the Syndicate in making appointments in the post sanctioned by the Government and in S.F.Insts. No prior sanction is required from the Government in making appointments in S.F.Insts. All other statutory provisions required for selection and procedure for appointing teachers, in fact, are to cover such appointments in post sanctioned by the Government and such procedure cannot be read in isolation of mandate of Section 59 of the Act. The University also appears to have followed reservation in making such appointments. All other service conditions as applicable to the University teachers, who are appointed to the post sanctioned by the Government were also followed in the matter of appointment of teachers in S.F.Insts. Their period of probation was also declared in the light of the University provisions. The Univesity also followed the statutory _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ## **`WPC No.38283/2017 and c/cases`** ## **-:7:-** provisions prescribed in the matter of granting leave to teachers in S.F.Insts. Special Rules were formulated governing service conditions of teachers in S.F.Insts in the year 2010. The Special Rules categorised teaching staff into four; (i) temporary, (ii) Contract, (iii) Guest and, (iv) external Guest. It also refers to the “teachers” of S.F.Insts as teachers, who are paid from the Self Financing Fund of the University. It had not conceived any permanent faculty. It also states that the teachers and employees cannot claim compensation on termination from service and service is not a pensionable service. It further stipulates the age of retirement as 56 years. Rules have no statutory character in as much as that it has not undergone any other procedure for adoption in the University as applicable to regular University teachers. There is also a challenge regarding the Special Rules framed by CPAS in some of the writ petitions. The petitioners also _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ## **`WPC No.38283/2017 and c/cases`** ## **-:8:-** would submit that the Special Rules had not seen the light of the day till the disengagement notice was issued. 4. The S.F.Insts run by the University requires approval from AICTE, NCTE, etc. Therefore, some of the teachers were shown as a permanent faculty under the S.F.Insts. The appointments in the S.F.Insts were made without entering into any formal contract. Representations were made by the teachers claiming UGC scale of pay. Pursuant to the direction of this Court, the UGC scale of pay was granted to teachers, who are qualified as per UGC Regulations. This followed a spate of litigations ultimately resulting in a liability of Rs.11 crores. The University appears to have paid this amount pursuant to initiation of contempt proceedings. Yet another scenario which changed the mindset of the administrators of S.F.Insts. was consequent upon formation of the Kerala University of Health Sciences in the year 2010. On its formation, all medical courses have to be affiliated with the Health University. An _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ``` WPC No.38283/2017 and c/cases ``` **-:9:-** Engineering University was also established in the year 2014 as APJ Abdul Kalam Technological University. All Engineering Colleges were also to be affiliated with the said University. It is also not legally possible for a University to affiliate with another University. In the wake of a financial liability as well as on the formation of Health and Engineering Universities, the Government took a serious note of these issues as running S.F.Insts. became practically impossible for M.G.University. 5. The Government intervened in the matter. A governmentsponsored society was formed as a Centre for Professional and Advanced Studies (CPAS). The Society was registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. It appears that a decision was taken at Government level that CPAS shall be entrusted with the Management and Administration of all S.F.Insts. run by the M.G.University. Memorandum of Association of CPAS indicates that _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ``` WPC No.38283/2017 and c/cases ``` ## **-:10:-** all teaching and non-teaching staff working in the S.F.Insts. may continue to work under the CPAS on a contract basis and in accordance with the directions and service conditions laid down by CPAS. The Syndicate of the University had decided not to conduct academic programmes under the S.F.Insts. by the University from the academic year 2017-18 and to disengage all teachers. University consequent upon such a decision also issued a memo to all teaching staffs intimating them that their service in the S.F.Insts. have been disengaged. An agreement was also executed between M.G.University and CPAS. In the agreement, it was agreed that all teaching and non-teaching staff other than regular employees deployed by the University might continue to work in the S.F.Insts. under the contract with CPAS, provided they possess requisite qualification as per the regulations of the University and other regulatory bodies. CPAS also agreed to pay rent to the University with regard to the land and buildings of the S.F.Insts. In effect, in _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ## **`WPC No.38283/2017 and c/cases`** ## **-:11:-** the place of UGC scale of pay, or other scales of pay, being paid to teaching staff, CPAS insisted on engagement on contract basis. Consequent upon disengagement, the Director of CPAS issued a communication requesting teaching and non-teaching staff to express their willingness to continue under CPAS. They were also requested to submit their bio-data and details regarding qualification to continue under CPAS. 6. Prayers in all these writ petitions are distinct and different though in most of the writ petitions common challenges were laid claiming the status of University employee. According to the petitioners, discontinuation of engagement by the University was arbitrary and they being University teachers, are entitled to protection. In essence, they contended that all teachers are University teachers and therefore, University could not have disengaged them without recourse to the statutory provisions under the University Act and Statutes. They also seek prayers to permit _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ``` WPC No.38283/2017 and c/cases ``` **-:12:-** them to continue in the service of M.G.University. Some of them have accepted their transfer from S.F.Insts. to CPAS. However, they contend that their original pay will have to be protected. There is also challenge in regard to special rules framed by CPAS. There is also challenge in regard to fixation of the age of retirement in CPAS. In some of the writ petitions, a challenge was also laid against the formation of CPAS. 7. The terms and conditions of employment are having its origin in contract. All such employment will have to be characterized as a contract of personnel service. Once such terms and conditions of such employment are governed by statutory rules and regulations, the employee attains his status in public service and the terms and conditions of service would form part of public law. The conditions of service of such persons, who are so appointed, therefore, is in public service. One of the salient features of public service is security in service since such employees _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ``` WPC No.38283/2017 and c/cases ``` **-:13:-** will have to work without fear and favour. Security of tenure is the salient feature of such employment. Such service being in the affairs of the State or statutory authority, the Constitution extended protection in Part XIV. Such protection enures to them by virtue of the rules framed under Article 309 of the Constitution. All other engagement of an employee other than that covered by the statutory provisions will come under the purview of ordinary law. Contract of personnel service cannot be enforced through a Court of law. (See Section 14 of the Specific Relief Act, 1963). 8. Modern Government and Statutory authorities are engaged in a vast sphere of activities. Broadly speaking, the affairs have to be categorised relating to public law and private law. Private powers of the public body are subjected to ordinary law remedy. Any affairs to fall within the realm of Public Law, it must be traceable to the Constitution for the source. Legislative or Executive powers must be derived from the Constitution. Source of power to public _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ``` WPC No.38283/2017 and c/cases ``` **-:14:-** authorities from legislation applied in two distinct ways; one category as enabling power and for the Rules to govern the relationship between Ruler and Ruled; the other category of the source is traceable to enabling power alone and rules laid down to govern relationship have no trace of statutory character at all. This is the foundational distinction between the statutory authorities exercising public and private powers. Public authorities enter into a wide range of contract both statutory and non-statutory. While the statutory contract can be subjected to public law remedy, any dispute with regard to the non-statutory contract will have to be resolved through the ordinary law. There is an exception to the matter relating to private powers of a public body. That is in a situation where public body acts arbitrarily in relation to actions arising out of private affairs. Any public authority must act either in public or private affairs in conformity with the Constitutional obligation under Article 14 of the Constitution of India. Thus, the _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ## **`WPC No.38283/2017 and c/cases`** **-:15:-** Court can interfere if a public authority arbitrarily cancels a contract and it can be subjected to judicial review and constitutional remedies. However, any dispute emanating out of terms and conditions of a contract has to be treated purely as a private matter, even when the employer is the statutory authority or a State organ. Thus, protection to an employee engaged in the public affairs would enure to him only if the public authority engage him on the condition of service as determined by the Statute. Public authorities in the exercise of enabling powers, engage employee without an intention that relationship be governed by statutory norms, such employee will not be entitled to any protection. He will have to resort to ordinary law remedy for any loss suffered on account of termination of employment. 9. In Indian Airlines Corporation v. Sukhdeo Rai [1971 AIR 1828], the Hon'ble Supreme Court observed that the relationship between the person appointed and the employer even if such _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ``` WPC No.38283/2017 and c/cases ``` ## **-:16:-** employer is the statutory authority, is contractual as between a master and servant and therefore, termination of such relationship would not entitle a servant to claim that his employment had not been validly determined. It was so observed after adverting to the fact there is no statutory provision governing such relationship and the Court observed that the Courts do not ordinarily grant specific performance of service. 10. The Apex Court elaborately considered the principles relating to the contract of personnnel service. The issue considered in Executive Committee of Vaish Degree College Shamli and others v. Lakshmi Narain and Ors. [1976 AIR SC 888]. This matter arose out of the termination of a Principal of a private college affiliated with the University. The decision was rendered in an appeal arising from a suit filed by the Principal challenging illegality of termination. It was observed that merely because the college was governed by statutory provision, it would not clothe the college with a statutory _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ``` WPC No.38283/2017 and c/cases ``` ## **-:17:-** status or character and held that a contract of personnel service cannot be ordinarily enforced through a court. The Apex Court carved out three exceptions; (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311; (ii) where a worker after dismissal is sought to be reinstated under Industrial Law and; (iii) where a statutory body acts in breach of violation of the mandatory provisions of the Act. In fact, the Apex Court approved the three exceptions after referring to Vidya Ram Mishra v. Managing Committee, Shri Jai Narain College [(1972) 3 SCR 320]. The Apex Court in K.K.Saksena v. International Commission on Irrigation and Drainage and Others [(2015) 4 SCC 670] reiterated the principles relating to non-enforcement of contract of personnel service and approved the exception as referred in Executive Committee of Vaish Degree College Shamli's case (supra). It is appropriate to refer para 50 of the Apex Court judgment: _**2018:KER:61262**_ ``` WPC No.38283/2017 and c/cases ``` **==> picture [49 x 49] intentionally omitted <==** ## **-:18:-** “We have also pointed out above that in Election Commission of India v. Saka Venkata Rao [AIR 1953 SC 210], this Court had observed that administrative law in India has been shaped on the lines of English law. There are catena of judgments in English courts taking same view, namely, contractual and commercial obligations are enforceable only by ordinary action and not by judicial review. In R. (Hopley) v. Liverpool Health Authority (unreported) (30-7-2002), Justice Pitchford helpfully set out three things that had to be identified when considering whether a public body with statutory powers was exercising a public function amenable to judicial review or a private function. They are: (i) whether the defendant was a public body exercising statutory powers; (ii) whether the function being performed in the exercise of those powers was a public or a private one; and (iii) whether the defendant was performing a public duty owed to the claimant in the particular circumstances under consideration.” _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ``` WPC No.38283/2017 and c/cases ``` ## **-:19:-** 11. Coming back to the issues involved in this writ petition, there are enabling provisions in the M.G.University Act for the Syndicate to appoint teachers. The definition of 'teachers' as referred in Section 2(30) of the Act would also embrace in its fold the teachers employed in S.F.Insts. However, the appointments made by the University will have to be distinguished as appointments to statutory posts and appointments to non-statutory posts. Merely because the Syndicate has the power to appoint teachers, that does not mean that the appointment itself was according to the statutory provisions. The Chapter 3 of the Mahatma Gandhi University Statutes, 1997 refers to the applicability of the Rules in relation to ' Teachers of the University'. It also laid down the selection procedures for the appointment of teachers. The said Chapter would clearly indicate that such appointment as referred in Chapter 3 is in respect to a statutory post. None of the petitioners has a case that they are governed by statutory _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ## **`WPC No.38283/2017 and c/cases`** ## **-:20:-** provisions as referred in Chapter 3, and their selection was made by a selection committee as referred to in the Statute. If the appointments are not made in accordance with Section 59 of the Act, it cannot be said that such appointments were in accordance with the statutory provisions. Incorporation of the rules of procedure for making appointments in S.F.Insts. itself will not make it as a statutory rule unless the Statute confers power to incorporate. In fact, a Division Bench of this Court in W.A.No.442/2014 after adverting to various statutory provisions in relation to teachers of S.F.Insts. under the M.G.University observed as follows: “13. Chapter XLII of the MG University Statutes is also relevant in this context, which provides for the 20 departments maintained by it. These are the only departments maintained out of the University Funds. Self Financing Institutions do not come under any of these Statutory Departments. _**2018:KER:61262**_ ``` WPC No.38283/2017 and c/cases ``` **==> picture [49 x 49] intentionally omitted <==** ## **-:21:-** The appointments of the teachers under the University are governed by Chapter III of M.G.University Statute 1997. Statute 3 of Chapter III provides that, teachers of University shall be appointed by the Syndicate after publishing advertisement inviting applications as provided therein. As per Statute 4, the applications received on such invitation shall be referred to the selection committee consisting of Vice Chancellor as Chairman (1) Syndicate member to be selected by the Vice Chancellor (2) outside experts chosen by the Syndicate and Head of the Department or Professor in charge. Syndicate is to make appointments thereafter on the basis of the recommendations of the selection committee placed before it. 14. The petitioners do not have a case that they were appointed by the syndicate of the University or that their appointments are approved by the University. On the other hand, the appointments of the petitioners to the self _**2018:KER:61262**_ ``` WPC No.38283/2017 and c/cases ``` **==> picture [49 x 49] intentionally omitted <==** ## **-:22:-** financing institutions were not made by selection as provided in Chapter III of the Statutes. In the above circumstances, the petitioners cannot claim that they are to be treated on par with the teachers directly under the University. The self financing stream does not come under any of the departments under the University. From the order of appointment referred to by the petitioners itself, it is clear that the posts against which they were appointed were created as per the U.O Note referred to therein, which is for the self financing institution. The University Funds are not extended to the self financing institutions and the self financing institutions are depending upon its self generated funds out of the fees collected. In such circumstances, the petitioners cannot have any valid claim for benefits on par with the teachers of the University Departments, even assuming that they are in permanent posts. In this view of the matter, we are unable to agree with the findings of the learned Single Judge, as we find that the _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ## **`WPC No.38283/2017 and c/cases`** ## **-:23:-** petitioners are not teachers of the University within the meaning of that term as defined under section 2 (30); they are not governed by Chapter III of the University Statutes; the Self financing institutions in which they are working are not maintained out of the University Funds as defined under section 2 (33) as well as Section 46 of the University Act. When the only source for the funds to meet the entire expenditure of the self financing institution is the funds generated by it out of the fees collected from the students, there is no rationale in directing the University to grant the petitioners all the benefits treating them as permanent on par with the University teachers.” 12. In the light of the categorical finding by the Division Bench, I need not probe further in regard to the status of the petitioners. The University even though is a public authority and derived its power to enter a contract with teachers from Statute, the terms and conditions were not prescribed by the Statute and _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ## **`WPC No.38283/2017 and c/cases`** ## **-:24:-** therefore, it cannot be said that such exercise of power by the University was in discharge of public duty. Merely because enabling power is referable to the Statute, it will not change the character of an employment as a contractual employment unless such contractual employment's terms and conditions are determined by the statutory provisions. Therefore, I have to hold that none of the petitioners has any statutory protection. Their employment by the University was under a contract of personnel service. The remedy of the petitioners, therefore, lies before the ordinary court for seeking damages or such other reliefs which they are legally entitled. 13. The petitioners raised a challenge against discontinuation of engagement and termination from the service of the University. According to them, without following any procedure established by law, they could not have been terminated from service. It was argued that the University had not followed principles of natural _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ``` WPC No.38283/2017 and c/cases ``` ## **-:25:-** justice while passing order while disengaging them, therefore, the petitioners are entitled to be reinstated in service of the University. As already adverted, this Court found that Contract of personnel service cannot be legally enforced. This Court while considering the challenge against discontinuation from engagement and termination cannot grant the petitioners a higher right than which are not otherwise available to them. At the best this Court can restore such loss that is corresponding to the right to which the petitioners are entitled under public law. If the petitioners have suffered any loss on account of abrupt termination or discontinuation from engagement, they are free to seek remedies under private law. The Court can consider their claims which are only relatable to public law. The University has every power to terminate the contract. Such termination being related to the contract of personnel service, this Court cannot order reinstatement as their engagement concerned was based on the contract of _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ``` WPC No.38283/2017 and c/cases ``` ## **-:26:-** Personnel Service. However, that does not mean that public authorities should discard fairness while ordering discontinuation of engagement of teachers. It is a well-established proposition that public authorities while exercising public power must act fairly even in relation to matters referable under private law. The principles as referable under the labour enactment, would not directly apply in the matter. Those principles would operate on general principles to govern the public authorities as well to act fairly in the absence of any Statute or provisions. The University could not have ordered discontinuation of engagement of teachers without at least issuing one month notice. Such an abrupt action would certainly have an impact on the life of the teachers. Under Section 25F of Industrial Disputes Act, 1947 an employee would be entitled to one month's notice, and in lieu of such notice, he would be entitled to wages for the period of notice. Therefore, all petitioners should be given one month's salary in lieu of notice. Further, the petitioners also should _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ## **`WPC No.38283/2017 and c/cases`** ## **-:27:-** be given the gratuity. Gratuity is not a bounty from an employer. The past service rendered by the petitioners should not go regardless. Therefore, they should be given gratuity as applicable under the Payment of Gratuity Act, 1972. Since the University ignored public authority's fairness of duty, the Court can only restore such loss to the petitioners by directing the University to pay one month's salary and gratuity. Therefore, this Court order that all petitioners, who have been ordered to be discontinued from engagement are entitled to one month's salary and gratuity. 14. Some of the petitioners raised a challenge against the formation of CPAS. CPAS was formed as a Society. The petitioners have no right to question the formation of CPAS. This is purely a policy matter for the Government. In the matter of administration of the University, the Executive is the best judge to decide in what manner a particular problem has to be resovled in the absence of _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ## **`WPC No.38283/2017 and c/cases`** ## **-:28:-** any statutory provisions. It is not a case where no reasons have been assigned for handing over S.F.Insts. to CPAS. After formation of Health and Engineering Universities, M.G.University cannot get affiliation with those Universities as there are no statutory provisions for a University to affiliate with another University. Further, financial burden also might have persuaded the Government and the Unviversity to decide on transfer of administration and management. When there are reasons for such decisions, the Court must respect such decision of the Government. The Court cannot substitute its own wisdom as superior to Government's wisdom. Therefore, there is no arbitrariness in the decision to handover S.F.Insts. to CPAS. Formation of CPAS cannot be questioned by the petitioners. Therefore, that challenge must fail. 15. There is a challenge in regard to Special Rules of the University as well as Special Rules framed by CPAS. The Special _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ``` WPC No.38283/2017 and c/cases ``` ## **-:29:-** Rules framed by University as well as Special Rules framed by CPAS have no statutory colour or flavour. Rules are of contractual nature and are in private law domain. The Court cannot subject such Rules formulated even by the Statutory authority for judicial review unless Rules have statutory character. It is purely within the discretion of the parties concerned to accept such Rules framed by CPAS. Therefore, Special Rules framed by the University also cannot be questioned. Further, challenges regarding Special Rules framed by the University becomes redundant consequent upon finding that the petitioners are not entitled for any protection under the Statute. This Court in Shaiju K. and others v. Alappuzha District Cooperative Bank Ltd. No.4203 and others [2018 (4) KHC 880] held that bye-laws of a Co-operative Society cannot be challenged invoking the power of judicial review. _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ``` WPC No.38283/2017 and c/cases ``` ## **-:30:-** 16. The petitioners have a case that retirement age applicable to teachers, while they were engaged by the University, was at 60 years. In the Rules framed by CPAS it was fixed at 56 years. The transfer of management between M.G.University and CPAS is based on the Memorandum of Understanding entered into between them. There is no continuity of service for the petitioners. Merely because CPAS had agreed to absorb such teachers in accordance with their Rules, the petitioners cannot insist that they should be engaged on the very same terms and conditions under which they were engaged in the University. Both are two independent and distinct entities. Service conditions are not attached to the post as this Court already found. Therefore, it is unenforceable against the transferee management. The petitioners can claim the protection of service conditions only when they have the status of statutory employment in public service and when service conditions are attached to the post. Therefore, this challenge must also fail. In the light of the _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ``` WPC No.38283/2017 and c/cases ``` ## **-:31:-** discussions as above, the petitioners' claim for regularisation as University teachers also must fail. 17. Petitioners have claimed pay scales in accordance with the UGC Regulations on Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 (for short, the “UGC Regulations”) as amended in 2016. Regulation 2.1.0 states that Regulation would apply to every University established under the Central Law or State Act and institutions including a constituent or an affiliated college recognised by the University Grants Commission in consultancy with the University Concerned. The amended UGC Regulation 2016 also states that it would apply to such affiliated colleges recognised by the University Grants Commission. UGC Regulations as such cannot be directly made applicable to the College unless the _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ## **`WPC No.38283/2017 and c/cases`** ## **-:32:-** College is the recipient of UGC fund. It can be seen from Regulation 2.1.0 that Universities and Institutions funded by UGC shall give pay scale shall be in accordance with the decision of the Central Government, Ministry of Human Resource Development (Department of Education). Therefore, as a matter of right, the contractual teachers cannot claim UGC scale of pay unless the institution in which they are engaged is the recipient of UGC fund. However, if any of the petitioners had not so far executed willingness to be engaged by CPAS as directed to them in the communication of 14.8.2017, they shall do so within one month of receipt of a copy of this judgment. However, their engagement in CPAS will be in accordance with the Rules framed by CPAS. Some of the writ petitioners are enjoying same scale of pay which they were drawing in the University from CPAS pursuant to the interim order passed by this Court. This Court already found that there is no continuation of employment and the salary would depend upon the _**2018:KER:61262**_ **==> picture [49 x 49] intentionally omitted <==** ``` WPC No.38283/2017 and c/cases ``` ## **-:33:-** Rules of CPAS. It would be too iniquitous to direct the petitioners to refund the salary which they have drawn in excess of the pay fixed by CPAS which they have drawn based on certain directions of this Court. Therefore, CPAS should take a decision whether recovery should be effected from the petitioners or not. 18. The upshot of the discussions leads to the conclusion that the petitioners are not entitled to any reliefs sought in the writ petitions except to one month's salary and gratuity. The University shall disburse salary and gratuity as above within two months. The writ petitions are, therefore, disposed of as above. No order as to costs. Sd/- A.MUHAMED MUSTAQUE, JUDGE ms