Mahatma Gandhi University & The Syndicate of Mahatma Gandhi University v Dr. Aniamma Mathew & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY, THE 31ST DAY OF OCTOBER 2016/9TH KARTHIKA, 1938** **WA.No. 883 of 2015 () IN WP(C).884/2015 -----------------------------------------** ## **AGAINST THE ORDER/JUDGMENT IN WP(C) 884/2015 of HIGH COURT OF KERALA** ## **APPELLANTS /RESPONDENTS 1 AND 2:** **------------------------------------------** **1. MAHATMA GANDHI UNIVERSITY REPRESENTED BY REGISTRAR,PRIYADARSINI HILLS P.O, KOTTAYAM-686 560** **2. THE SYNDICATE OF THE MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS CHAIRMAN-VICE CHANCELLOR,PRIYADARSINI HILLS P.O,KOTTAYAM-686 560** **BY ADVS.SRI.P.JACOB VARGHESE (SR.) SRI.VARUGHESE M.EASO, SC, M.G.UNIVERSITY SRI.VIVEK VARGHESE P.J., SC, M.G.UNIVERSITY** ## **RESPONDENT/PETITIONER & RESPONDENT NO.3:** **-------------------------------------------------------** **1. DR. ANIAMMA MATHEW CLINICAL PSYCHOLOGIST,SCHOOL OF BEHAVIORAL SCIENCES, MAHATMA GANDHI UNIVERSITY,PRIYADARSINI HILLS P.O, KOTTAYAM-686 560** **2. STATE OF KERALA** **REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,HIGHER EDUCATION DEPARTMENT,GOVT.SECRETARIAT,THIRUVANANTHAPURAM-695 001** **R1 BY ADV. SRI.BABU VARGHESE (SR.) R1 BY ADV. SRI.V.NARAYANA SWAMI R1 BY ADV. SRI.C.V.ALEXANDER R BY GOVERNMENT PLEADER SRI PAUL ABRAHAM VAKKANAL BY ADV. SRI. ASOK M CHERIAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 31-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ANTONY DOMINIC & SHIRCY.V,JJ -----------------------------------** ## **W.A.No.883 of 2015** ## **-----------------------------------------------Dated this the 31[st] day of October, 2016** ## **JUDGMENT** ## Antony Dominic,J The Mahatma Gandhi University and its syndicate have filed this appeal aggrieved by the judgment of the learned single Judge in W.P.(C)No.884 of 2015. By the judgment under appeal, the learned single Judge directed that if it is found that the first respondent, a Clinical Psychologist is substantially discharging the work of imparting instructions, necessarily, the post of Clinical Psychologist held by her, shall be redesignated as Assistant Professor in Clinical Psychology. 2. We heard the counsel for the appellants, the learned Senior Counsel appearing for the first respondent and the learned Government Pleader for the State. 3. Briefly stated the facts of the case are that the first respondent, after rendering service in NIMHANS, and the State Government, got herself appointed by Ext.P1 W.A.No.883 of 2015 2 order as a Clinical Psychologist, in the School of Behavioural Sciences of the appellant University. On 11.5.2011, she submitted Ext.P10 representation requesting the University to appoint her as a lecturer in Clinical Psychology in a vacancy, the incumbent of which was absent by availing leave without allowance. It is stated that on receipt of the representation, the then Vice Chancellor constituted an Academic Expert Committee and the Committee submitted Ext.P12 report resolving to recommend the first respondent as Assistant Professor in Clinical Psychology. On receipt of the report, University made Ext.P13 recommendation to the government requesting for sanction to upgrade the post of Clinical Psychologist to that of Assistant Professor in Clinical Psychology so as to place the first respondent as a faculty in the School of Behavioural Sciences. However, the government rejected the request made by the University by Ext.P16 order stating that it does not find any special circumstances for upgrading the post in question and to place the incumbent in the UGC pattern. W.A.No.883 of 2015 3 4. The first respondent again submitted Ext.P19 representation to the Vice Chancellor contending that there was no need to seek the government sanction and referred to the case of one Sri.Roy C Mathew, who according to her was redesignated without reference to the State Government. She also contended that if she was redesignated, she would be entitled to continue in service till she attains 60 years, a benefit available to academic staff. Thereafter, the first respondent filed W.P(C) No.15170 of 2014 which was disposed of by Ext.P21 judgment, where this Court directed consideration of Ext.P19, taking into account the proceedings whereby the post for Roy C Mathew was upgraded and the observations in the judgment. Accordingly, the Vice Chancellor considered the matter and Ext.P26 is the order that was passed. In the said order, the Vice Chancellor held that there is no provision in the University Laws enabling him to appoint the first respondent holding a non teaching post in the teaching post of Assistant Professor. It was also found that Roy. C Mathew's case W.A.No.883 of 2015 4 stands on a different footing and was incomparable to the case of the first respondent. He made reference to Section 23 of the Mahatma Gandhi University Act and according to him for redesignation, sanction of the government was necessary. In sum and substance, the case of the first respondent was rejected. 5. It was in these circumstances, seeking to quash the impugned orders and to declare that the first respondent was entitled to be redesignated/upgraded as Assistant Professor in Clinical Psychology in the School of Behavioural sciences that the writ petition was filed. In the judgment under appeal, the learned single Judge upheld the requirement of government sanction for upgradation/redesignation of the post and concluded that this Court cannot direct the government to upgrade the post to suit the needs of the petitioner. Accordingly, it was held that the issue of upgradation is concluded against the first respondent and that she was bound by the decision of the government as well as the University declining upgradation. Thereafter, the learned single W.A.No.883 of 2015 5 Judge proceeded further and referred to Mahatma Gandhi University Act defining 'teacher' and 'teacher of the University' and held that if substantial and functional duties are that of a teacher, by imparting instruction, supervisory etc., necessarily such a person, whatever be his designation, engaged by the University would fall within the definition of 'teacher'. On that basis, the learned single Judge found that if it is held that the first respondent's substantial work is that of imparting instructions, necessarily the post of the first respondent shall be re-designated. Accordingly the University was directed to take a decision retaining the first respondent in service. It is this judgment which is under challenge. 6. From the above, it is obvious that the grievance of the University is with respect to the finding of the learned single Judge that if substantial and functional duties of the first respondent are that of a teacher by imparting instructions to the students, such a person, irrespective of the designation, would fall within the definition of 'teacher'. The standing counsel for the W.A.No.883 of 2015 6 appellants relied on the provisions of the Act to contend that unless a person is employed as a teacher, irrespective of the nature of the duties, such person cannot be a teacher for the purposes of the Mahatma Gandhi University Act. This contention was contradicted by the learned counsel for the first respondent by referring to us Ext.P5 to Ext.P9 documents, whereby counsel contended that it was clear that the University itself had assigned teaching and supervisory duties to the first respondent. He also referred to us Ext.P28 to contend that the juniors of the first respondent who continued under the Medical Education Department were promoted as Associate Professors long ago. The counsel also referred us to Ext.P17 and P27 and stated that there is no reason for the University to take a different stand in the case of the first respondent from that of Sri.Roy C.Mathew 7. We have considered the submissions made. 8. The short question that arises for consideration is whether for the purposes of the Mahatma Gandhi W.A.No.883 of 2015 7 University Act, the first respondent could be treated as a teacher of the University. 9. Before we refer to the statutory provisions, we may refer to Ext.P1, the order appointing the first respondent which show that she was appointed as a Clinical Psychologist and the order does not give any indication with regard to the nature of duties or whether she was employed by the University as a teacher. In so far as Exts.P5 and P5(a) are concerned, those are certificates issued by NIMHANS Bangalore and National Institute For The Mentally Handicapped where the first respondent was employed prior to joining the University. Ext.P6 is the experience certificate pertaining to the period when the first respondent was employed under Directorate of Medical Education and Ext.P7 is a similar certificate issued from the Ministry of Health, Eritrea, where also the first respondent was employed. In short Exts.P5, P6 and P7 pertain to a period prior to her joining the School of Behavioural Sciences of the appellant University and these documents can be of no assistance W.A.No.883 of 2015 8 to resolve controversy. 10. Ext.P8 and P8(a) are the time tables during 2011-12, which prima facie show that she was engaged in teaching also. Ext.P9 are the series of documents which indicate that the Director of the School had requested the first respondent to give guidance to M.Sc.Psychology students for the purposes mentioned therein. She was also deputed for conducting practical examinations, practical courses and invigilation duty. According to us, irrespective of the aforesaid documents and the duties that were discharged by her, the question whether she is a teacher is to be examined in the light of the statutory provisions. 11. The relevant statutory provisions are sections 3 (29) 3(30) of the Mahatma Gandhi University Act which reads thus. Section 3(29):- “Teacher” means a Principal, Professor Associate Professor, Assistant Professor, reader, lecturer instructor, or such other person imparting instruction or supervising the research in any of the colleges or recognised institutions and whose appointment has been approved by the University.” W.A.No.883 of 2015 9 Sec. 3(30):- “Teacher of the University” means a person employed as teacher in any institution maintained by the University” 12. A perusal of section 3 (30) makes it amply clear that to be a teacher of the University, a person has to be employed in any of the institutions maintained by the University. Therefore, unless a person is employed by the University as a teacher, even if that person incidentally discharges duties which otherwise a teacher would discharge, he cannot claim the status of teacher of the University. This question has already been considered by a Division Bench of this Court in _**Gopinathan Pillai P. (Dr.) v. University of Kerala, Tvm and Others [2016 (4) KHC 153]**_ , where dealing with the provisions contained in Section 2(27) and 2(28) of the Kerala University Act, this Court held thus. “A reading of S.2(27) shows that 'teacher has been given the meaning as a 'principal, professor, associate professor, assistant professor, reader, lecturer, instructor, or such other person imparting instructions or supervising research in any of the colleges or recognised institutions and whose appointment has been approved by the University.'” W.A.No.883 of 2015 10 13. The aforesaid conclusion was on the basis of Division Bench judgment in Writ appeal No.1099 of 1988 rendered in the context of similar provisions contained in the Calicut University Act. If the principle laid down in Gopinathan's case are applied, it has to be held that since the first respondent was not employed by the University as a teacher, she cannot claim the status of a teacher of the University. Therefore, the conclusion of the learned single Judge that if substantial and functional duties are that of a teacher, necessarily such a person would fall within the definition of 'teacher' cannot be sustained. Similarly the further direction that if it is found that the substantial work rendered by the first respondent is that of imparting instructions, necessarily the post held by the first respondent shall be re designated also cannot be sustained. However, the fact remains that there are other factual claims made by the first respondent and these are matters to be decided by the Vice Chancellor as directed W.A.No.883 of 2015 11 by the learned single Judge. Therefore vacating the aforesaid findings contained in the judgment, the matter will stand remitted to the University for reconsideration. This shall be done as expeditiously as possible. Writ Appeal is disposed of as above. **ANTONY DOMINIC JUDGE SHIRCY.V JUDGE** smm