Prof. (Dr.) G. Sadasivan Nair 'Pratheeksha' v. Kerala University of Fisheries and Ocean Studies (KUFOS)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 16TH DAY OF AUGUST 2019 / 25TH SRAVANA, 1941** **WP(C).No.32647 OF 2018(E)** ## **PETITIONER:** **PROF. (DR.) G. SADASIVAN NAIR 'PRATHEEKSHA', TEMPLE ROAD, COCHIN UNIVERSITY P O, KOCHI 682022** **BY ADV. SRI.SHYAM KRISHNAN** ## **RESPONDENT:** **KERALA UNIVERSITY OF FISHERIES AND OCEAN STUDIES (KUFOS)REPRESENTED BY ITS REGISTRAR, PANANGAD, KOCHI 682506** **BY SRI.VIPIN DAS T.K., SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.32647/2018 2 ## **JUDGMENT** The petitioner, who was working as Professor and Director of the School of Legal Studies in Cochin University of Science and Technology, retired from service on 30.4.2007. He was appointed as Academic Consultant for the L.L.M. course in Kerala University of Fisheries and Ocean Studies on contract basis, with effect from 27.11.2013 as per Exhibit-P1 order dated 26.12.2013. In Exhibit-P1 order, appointment was for a period of one year with a remuneration of Rs.50,000/-. While working as Academic Consultant, he was appointed as Adjunct Professor and Academic Co-ordinator of the LLM Programme of the University as per Exhibit-P6 order dated 6.9.2016 on a consolidated pay of Rs.50,000/- per month. Exhibit-P6 order provided for the powers, functions, responsibilities etc. of the Adjunct Professor as follows : 1. “Dr.G.Sadasivan Nair is appointed as Adjunct Professor and Academic Coordinator of LLM programme at consolidated pay of Rs.50,000/(Rupees Fifty Thousand only) per month for a period of one year. 2. The Adjunct Professor has to engage a minimum of 10 hours direct teaching and has to undertake other academic responsibilities like lab work, tutorials, examination work etc. as per UGC norms of Professors. 3. The Adjunct Professor shall be in charge of one Academic Programme as Academic Co-ordinator based on his subject specialisation. In his capacity as Academic Co-ordinator he shall function as Mentor of students under his control. It is the duty of the Mentor to advice the students to choose the appropriate effectives under choice based credit system depending on their strength and weakness both from within the departments and outside. 4. The Adjunct Professor can select a leader from among the students in the W.P.(C) No.32647/2018 3 class as class leader to support him to maintain the discipline in the class. 5. The Adjunct Professor has to maintain the attendance of the class and pass on to the Director every month. Every teacher who is handling classes has to submit the attendance to the Academic Co-ordinator for that purpose. 6. The Adjunct Professor can seek the support of the Office of the Director concerned for any clerical assistance for the successful conduct of the class. 7. The Adjunct Professor shall monitor the proper conduct of class as per the time table and it is his duty to complete all academic activities under his control as per the Academic Calendar of the University. 8. The Adjunct Professor may guide PhD students along with the approved guides. 9. The Adjunct Professor shall function as Associate in plan funded projects and externally aided projects to bring out quality output including excellent research publications. 10. It is also ordered that this office order reference 4 cited stands modified to this extend.” 2. As there was no revision of remuneration since his appointment as Academic Consultant and even after his appointment as Adjunct Professor, the petitioner submitted representations before the authorities. It is pointed out that on Exhibit-P7 representation dated 9.9.2016, the Director, School of Management of KUFOS recommended the request. However, there was no positive action. The petitioner further submitted Exhibits-P8 and P9 representations individually and jointly. The petitioner also points out that the matter was taken up by the Governing Council in its meeting held on 23.4.2018 as agenda No.1117. But it was deferred for placing before the Standing Council for works and W.P.(C) No.32647/2018 4 infrastructure by simply stating that the request made by the Adjunct Professors, Academic Consultant, etc., who are engaged on contract basis with a consolidated pay of Rs.50,000/-, are expecting rise of Rs.80,000/-. It was also noticed that the University had enhanced the remuneration of Assistant Professors on contract basis and Guest Lecturers from Rs.35,000/- to Rs.42,000/- giving 20% rise. It was by Exhibit-P12 order dated 31.1.2018 that the remuneration of Assistant Professors working on contract basis was enhanced to Rs.42,000/- for those with Phd and Rs.40,000/- for those without Phd. This Writ Petition is filed under the above circumstances seeking a declaration that the petitioner is entitled for enhancement of remuneration. 3. The petitioner relies on Exhibit-P3 guidelines issued by the University Grants Commission. Clause 6.2 of the Guidelines provided that adjunct faculty could be provided an honorarium of Rs.1,000/- per lecture to a maximum of Rs.4,000/-per day of service subject to a maximum ceiling of Rs.80,000/- per month. It is also provided that the adjunct faculty will work at the host institution for a minimum of 2 days per visit. Adjunct faculty will be provided travel cost, as per entitlement, from his/her institution/place of stay and back, maximum six times per academic year. No reimbursement for hiring accommodation will be permissible. However, she/he will be provided free lodging and boarding in the Guest House. Exhibit-P3 guidelines provided for empanelment of adjunct faculty W.P.(C) No.32647/2018 5 in Universities and Colleges. This faculty provides for the objectives to develop a useful and viable collaboration between institutions and industry and enhancing quality of education and skills by involvement of academicians, scholars, practitioners, policy makers and skilled professionals in training and related services on regular basis. It provides to recognise the skills of professionals in their respective areas of excellence irrespective of their academic qualifications to impart training to the learners of skill based vocational courses in Universities and Colleges. The petitioner, therefore, seeks a direction to the University to take a positive decision on the request made by him. 4. The respondent has filed a counter affidavit. He stated that the petitioner was empanelled as an Adjunct Professor fixing the terms and conditions with a consolidated pay of Rs.50,000/- per month as per the decision of the Governing Council held on 1.8.2016 on item No. 771. Hence he was being engaged as Adjunct Professor with effect from 1.9.2016 initially for a period of one year on contract basis. It is stated that the petitioner has executed the agreement of contract for a period of one year from 1.9.2016 onwards accepting the terms and conditions including the remuneration of Rs.50,000/- per month fixed in Exhibit-P6 order. He is being continued on execution of similar agreements with the very same conditions as provided in Exhibit-R1 series of agreements. Therefore, it is stated that the petitioner is not entitled to get any W.P.(C) No.32647/2018 6 enhancement in the remuneration. It is also stated that the petitioner was a pensioner of CUSAT and he was free to decide whether he may continue as Adjunct Professor of the respondent - University or as per the existing terms and conditions of the University. It is further stated that Exhibit-P3 guidelines only provided for maximum honorarium of Rs.80,000/-. That has not imply the entitlement of the petitioner to get the maximum amount. 5. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the University. 6. The learned counsel for the petitioner relying on the judgments of the Apex Court in **Central Inland Water Transport Corporation Limited and another v. Brojo Nath Ganguly and another** and **Central Inland Water Transport Corporation Limited and another vs. Tarun Kanti Sengupta and another (1986) 3 SCC 156** and **Swaran Singh Chand v. Punjab State Electricity Board and others (2009) 13 SCC 758** argued that the conditions in a contract which fixes the remuneration of Rs.50,000/- is violative of the public policy hence to that extent it is illegal. It is argued that just because the petitioner entered into a contract, the respondents cannot have deny enhancement of salary,. in view of the dictum laid down in _Central Inland Water Transport Corporation Ltd_ .'s case (supra). 7. It is also pointed out that in the judgment in _Swaran Singh Chand_ 's case (supra) also, the dictum is approved and reiterated; the W.P.(C) No.32647/2018 7 respondents are bound to comply with the guidelines and enhance the remuneration. Relying on the judgment of the Apex Court in **State of Maharashtra and another A.W.Dhope and others v. Sanjay Thakre and others 1995 Supp (2) Supreme Court Cases 407** and **Swaran Singh Chand v. Punjab State Electricity Board and others (2009) 13 SCC 758** , it was argued that in the absence of any provision relating to remuneration, the University is bound to follow the guidelines issued by the UGC. 8. The contention of the learned counsel for the University is that the petitioner is a person who is drawing pension and therefore, the judgments regarding public policy or the statutory force of UGC norms are irrelevant especially when what is prescribed in the guidelines is the ceiling on remuneration. 9. Having heard the contentions on both sides, I find that even without going into the question regarding public policy, the remuneration at the rate of Rs.50,000/- per month was fixed as early as in 2013 when the petitioner was appointed as Academic Consultant. On his appointment as Adjunct Professor on 6.9.2016 also, the remuneration continued to be the same. The purpose for which Adjunct Professors are appointed, as given in Exhibit-P3 guidelines, and Exhibit-P6 order is to enhance the excellence of the institution. Therefore, it is quite unfair for the University to reject the request to enhance the remuneration on the ground that the petitioner is W.P.(C) No.32647/2018 8 drawing pension or that he could have opted out. Academic expertise of the petitioner alone has attracted the University to avail his service. Exhibit-P3 guidelines issued in the year 2015, provided the maximum of remuneration at Rs.80,000/-. When the petitioner who continues with the remuneration fixed in 2013 has been requesting for enhancement, it was only proper for the University to consider the same positively. It is also relevant to note that the matter was being placed before the Governing Council from time time, taking note of the fact that remuneration of the petitioner fixed in 2013 continues even in 2019, whereas in the case of Assistant Professors, enhancement was made on 31.1.2018 as per Exhibit-P12 order. The purpose for which the revision of pay is affected is equally applicable to an Adjunct Professor also even in a case where the said Professor draws pension. Admittedly the petitioner is not expected to render free service to the University. Therefore, the University which has to act as model employer is duty bound to enhance the remuneration from time to time to any employee or teacher under it, like the state Govt. depending upon the rise in cost of living and to maintain the dignity of the post to which an appointment is made. Therefore, there is no justification in refusing to consider the request for enhancement of remuneration and in not enhancing the remuneration. The Writ Petition is therefore disposed of directing the University to take up the request made by the petitioner for enhancement of W.P.(C) No.32647/2018 9 remuneration and place it before the Governing Council/competent body, which shall consider the same in the light of Exhibit-P3 guidelines and taking note of the enhancement made in respect to other posts including that of the Assistant Professors under it and also the status of Adjunct Professors, in the next Governing Council within a period of one month from the date of receipt of a copy of the judgment. Sd/- **P.V.ASHA, JUDGE** csl W.P.(C) No.32647/2018 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF UNIVERSITY ORDER, NO.GA2/2832/2013(i) DATED 26.12.2013,ISSUED BY THE RESPONDENT KUFOS, APPOINTING THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE LETTER DATED 27.4.2015 OF THE UGC TO THE VICE-CHANCELLORS RELATING TO EMPLOYMENT OF ADJUNCT FACULTY.** - **EXHIBIT P3 TRUE COPY OF THE UGC GUIDELINES FOR EMPANEL-MENT OF ADJUNCT FACULTY IN UNIVERSITIES AND COLLEGES PUBLISHED ON 29.4.2015 IN THE UGC WEBSITE.** **EXHIBIT P4 TRUE COPY OF THE ORDER SME/GAI/148/2015 DATED 19.10.2015 OF THE DIRECTOR OF SCHOOL OF MANAGEMENT AND ENTRENEURSHIP (SME) KUFOS TO THE REGISTRAR INDICATING THE SERVICES OF A SENIOR PROFESSOR OF LAW LIKE THE PETITIONER, IS VERY MUCH ESSENTIAL FOR CONDUCTING A POST GRADUATE COURSE IN LAW IN KUFOS.** **EXHIBIT P5 TRUE COPY OF UNIVERSITY ORDER NO GA54416/2015 DATED 10.8.2016 ISSUED BY KUFOS IMPOSING CERTAIN CONDITIONS WHILE HIRING ADJUNCT PROFESSORS/ADJUNCT FACULTIES/GUST FACULTIES.** **EXHIBIT P6 TRUE COPY OF UNIVERSITY ORDER NO GA24350/2016(V) DATED 6.9.2016 ISSUED BY KUFOS, APPOINTING THE PETITIONER ASD ADJUNCT PROFESSOR.** **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 9.9.2016 SUBMITTED BY THE PETITIONER TO THE REGISTRAR OF KUFOS REQUESTING FOR A REASONABLE ENHANCEMENT OF REMUNERATION FOR WORKING AS ADJUNCT PROFESSOR. EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED** W.P.(C) No.32647/2018 11 **PROFESSORS AND ADDRESSED TO THE REGISTRAR OF KUFOS REQUESTING FOR ENHANCING THEIR REMUNERATION.** - **EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 14.2.2018 ADDRESSED TO THE VICE CHANCELLOR OF KUFOS BY ADJUNCT PROFESSORS, CHAIR PROFESSORS AND PROFESSORS OF EMINENCE REQUESTING FOR ENHANCEMENT OF THEIR REMUNERATION.** - **EXHIBIT P10 TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE MEETING OF THE GOVERNING COUNCIL OF KUFOS HELD ON 23.4.2018** - **EXHIBIT P11 TRUE COPY OF THE ADVERTISEMENT OF THE NOTIFICATION DATED 19.1.2016 OF KUFOS FOR SELECTION TO THE POST OF ACADEMIC CONSULTANT.** - **EXHIBIT P12** - **THE TRUE COPY OF THE KUFOS PROCEEDINGS NO GAW/782/2017 DATED 31.1.2018, INDICATING THAT ASSISTANT PROFESSORS ARE GIVEN A REMUNERATION OF RS.42,000/-** ## **RESPONDENT'S EXHIBITS:** - **EXHIBIT R1(a) TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENT DATED 17.9.2016** **EXIBIT R1(b) TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENT DATED 26.9.2017 EXHIBIT R1(c) TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENT DATED 3.9.2018**