Dismissed

Mahatma Gandhi University v. Dr. Rachel George M

Kerala HC10 Jul 2019WA/678/2018

Case brief

AI extract

What is this about?

The Court dismissed writ appeals filed by Mahatma Gandhi University and the State challenging a prior order granting placement as Senior Scale Lecturer to a teacher from a self-financing college owned by the University. The judgment held the teacher satisfied necessary conditions under the Government Order and University Statutes.

What did the court decide?

Writ appeals filed by University and State dismissed; prior judgment granting placement to petitioner upheld.

Mahatma Gandhi University Vs Dr. Rachel… — Pension and Retirement Benefits | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 10TH DAY OF JULY 2019 / 19TH ASHADHA, 1941

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WA.No.678 of 2018

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JUDGMENT IN WPC 18623/2012 of HIGH COURT OF KERALA DATED 27-062017

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APPELLANT/RESPONDENTS 2 AND 3:

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1 MAHATMA GANDHI UNIVERSITY REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS, KOTTAYAM-686560.

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2 THE SYNDICATE OF MAHATMA GANDHI UNIVERSITY REPRESENTED BY ITS CHAIRMAN VICE CHANCELLOR, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM-686560.

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BY ADV. SRI.SURIN GEORGE IPE, SC, M.G.UNIVERSITY

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RESPONDENT/S:

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1 DR. RACHEL GEORGE M LECTURER, SENIOR (NATURAL SCIENCE), ST.JOSEPH COLLEGE OF TEACHER EDUCATION FOR WOMEN, ERNAKULAM682035.

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2 THE MANAGER ST.JOSEPH COLLEGE OF TEACHER EDUCATION FOR WOMEN, ERNAKULAM-682035.

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3 THE DIRECTOR OF COLLEGIATE EDUCATION VIKAS BHAVAN, P.M.G. JUNCTION, THIRUVANANTHAPURAM695001.

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4 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION ERNAKULAM-682011.

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BY ADVS. SRI.BABU VARGHESE (SR.) SMT.CAROLIN SUSAN JOHNSON SRI.C.V.ALEXANDER

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OTHER PRESENT:

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SR.GP.A.J.VARGHESE

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10.07.2019, ALONG WITH WA.1455/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.Nos.678/2018 & 1455/2019

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 10TH DAY OF JULY 2019 / 19TH ASHADHA, 1941

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WA.No.1455 of 2019

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JUDGMENT IN WP(C) 18623/2012 of HIGH COURT OF KERALA DATED 27.06.2017

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APPELLANT/S:

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1 THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, PMG JUNCTION, THIRUVANANTHAPURAM695 001

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2 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM-682 011

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BY SR.GP.A.J.VARGHESE

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RESPONDENT/S:

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1 DR.RACHEL GEORGE M. LECTURER SENIOR SCALE (NATURAL SCIENCE), ST. JOSEPH COLLEGE OF TEACHER EDUCATION FOR WOMEN, ERNAKULAM-682 035

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2 THE MANAGER,

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ST. JOSEPH COLLEGE OF TEACHER EDUCATION FOR WOMEN, ERNAKULAM-682 035

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3 THE MAHATMA GANDHI UNIVERSITY REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS P.O, KOTTAYAM-686 560

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W.A.Nos.678/2018 & 1455/2019

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4 THE SYNDICATE OF THE MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS CHAIRMAN, PRIYADARSHINI HILLS P.O, KOTTAYAM-686 560

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BY ADVS. SRI.BABU VARGHESE (SR.) SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY SRI.SURIN GEORGE IPE SRI.C.V.ALEXANDER

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10.07.2019, ALONG WITH WA.678/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.Nos.678/2018 & 1455/2019

JUDGMENT

V.G.ARUN, J.

The writ appeals are filed by the Mahatma Gandhi University and the State, aggrieved by the findings and the consequential direction in the impugned judgment to approve the proposal for placement of the writ petitioner as Lecturer (Senior Scale). According to the appellants, the petitioner was appointed as Lecturer on temporary basis in a Self-Financing Institution under the University and hence not eligible for placement as Senior Scale Lecturer in terms of G.O.(P) No.171/99/H.Edn. dated 21.12.1999.

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2. A concise narration of the essential facts is as follows:-

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On 28.02.2000, the petitioner was appointed as Lecturer (Natural Science) in the University College of Teacher Education under the School of Pedagogical Sciences, a Self-Financing Institution

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W.A.Nos.678/2018 & 1455/2019

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in the M. G. University. The appointment was for

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a period of three years initially and was later extended until further orders or till a substitute is appointed, whichever is earlier. The petitioner continued in the institution for a period of seven years without break and was relieved of her duties with effect from the afternoon of 28.2.2007 for

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taking up appointment as Lecturer in the St. Joseph Training College, Ernakulam. The petitioner was appointed as Lecturer in Natural Science at the St. Joseph College of Teacher Education for Women on 1.3.2007 and her appointment was approved by the Syndicate of the University, with effect from the date of appointment. Thereafter, at the request of the petitioner, the Principal of St. Joseph College submitted a proposal before the University to approve the placement of the petitioner as Lecturer Senior Scale with effect from 1.3.2008, counting the previous service rendered by the petitioner in the University

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W.A.Nos.678/2018 & 1455/2019

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College of Teacher Education under the school of Pedagogical Sciences in the Mahatma Gandhi University for the period from 28.2.2000 to 28.2.2007. In the request, it was pointed out that the petitioner satisfied the requirements in G.O.(P) No.171/99/H.Edn dated 21.12.1999. The

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Standing Committee of the Syndicate, on

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affiliation, considered the proposal favorably and recommended to the Syndicate to count the past service of the petitioner as Lecturer (Natural Science) in the Self-Financing University College of Teacher Education, for the purpose of placement as Lecturer Senior Scale. Despite such recommendation, the Syndicate of the University deferred its decision on the proposal submitted by the College. Hence, the writ petition was filed seeking a declaration that the petitioner is entitled to get her placement as Senior Scale Lecturer approved, on the basis of the proposal submitted by the College, and also for salary and

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W.A.Nos.678/2018 & 1455/2019

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arrears with effect from 1.3.2008.

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3. The University and the Government opposed

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the prayer on the following grounds:-

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(i) The University College of Teacher

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Education is only a Self-Financing Institution under the M.G.University and is not a statutory department.

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(ii)Appointment of the petitioner was purely on temporary basis.

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(iii) Even though the Standing Committee of the Syndicate on affiliation had recommended grant of promotion to the petitioner as Senior Scale Lecturer, the Syndicate is not bound by such recommendation.

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(iv) Counting of past service rendered by the petitioner for the purpose of placement as Senior Scale Lecturer would cause great financial

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liability to the Government, as similar requests may arise from teachers of aided colleges under the M.G.University.

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W.A.Nos.678/2018 & 1455/2019

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4. The petitioner, through her reply

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affidavit, refuted the contentions in the counter affidavit and reiterated that she satisfied all the conditions in G.O.(P) No.171/99/H.Edn dated 21.12.1999. Reliance was also placed on Ext.P10, a counter affidavit filed by the University in an earlier original petition (O.P.No.21541 of 1999), wherein the definite stand of the University was that appointment to the posts of Lecturer in the University College of Teacher Education was to regular posts carrying scale of pay. That, even though the posts were created for a period of three years, all the posts were likely to be made

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permanent on getting permanent recognition for the University College of Teacher Education. That, the selection and appointments were made in accordance with the latest NCTE norms.

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5. The learned Single Judge, on a

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consideration of the entire legal and factual aspects, rejected the contentions of the

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W.A.Nos.678/2018 & 1455/2019

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University and the Government and held that for all practical purposes, Self-Financing

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Institutions of the University have to be considered as part of the University's structure. It was found that the petitioner satisfied the relevant Clauses in G.O.(P) No.171/99/H.Edn dated 21.12.1999 and hence, there was no impediment in considering the proposal for placement of the petitioner as Senior Scale Lecturer. Based on the said findings, the University was directed to approve the proposal without delay and to release the monetary benefits for which the petitioner would be entitled, on her placement as Senior Scale Lecturer.

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6. In the appeals, in addition to the contentions urged in the writ petition, the appellants, especially, the University, has placed reliance on the judgment of a Division Bench of this Court in W.A.Nos.442 of 2014 and 339 of 2015, to contend that the status of teachers of Self-

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W.A.Nos.678/2018 & 1455/2019

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financing Institutions of the University is not equal to that of teachers of the statutory departments of the University. Those writ appeals were filed by the M.G.University aggrieved by the judgment in O.P.N.3818 of 2003 declaring the writ petitioners therein, who were also teachers of Self-financing Institutions of the University, to

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be deemed regularly appointed permanent teachers of the University, appointed against substantive posts created by the University. The writ appeals were allowed holding that the University cannot be compelled to treat the petitioners as or on par with teachers of the University. The judgment in

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the writ appeals were subjected to challenge before the Honourable Supreme Court in Civil Appeal Nos.2388 and 2389 of 2019. The Apex Court, after detailed consideration of the terms and conditions of appointment of the appellants therein and the relevant provisions of the University Act and Statutes, held that the facts

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W.A.Nos.678/2018 & 1455/2019

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on record indicated that the appointments of the appellants were against substantive posts and that they were always considered to be persons appointed on permanent basis. Based on the said finding, the appeals were allowed, setting aside the judgment of the Division Bench and restoring the judgment of the learned Single Judge in O.P.No.3818 of 2003.

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7. The issue regarding the status of teachers appointed to Self-Financing Institutions of the University had come up for consideration before this Division Bench in W.A.No.2394 of 2018 and connected cases. Therein, the dispute had arisen

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when the University unceremoniously terminated the service of teachers of Self-financing Institutions, leaving them with an option of being appointed to the Centre for Professional and Advanced Studies ('CPAS' for brevity; alternatively referred to as the 'Society'), with which the administration of the Self-financing

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W.A.Nos.678/2018 & 1455/2019

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Institutions was entrusted. The teachers

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challenged their termination on the ground that they were teachers of the University and hence entitled to continue as such, in spite of formation of the CPAS. The learned Single Judge dismissed the writ petitions finding that the writ petitioners are not having the status of statutory

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employees. The appointment of the teachers was found to be contractual. The teachers came in appeal and by a common judgment, the Division Bench allowed the appeals, reversing the finding of the learned Single Judge regarding the status of the teachers. It was held that the status of

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the teachers would not be akin to those of the faculty employed directly in the department of the University, but shall be similar to those in unaided affiliated colleges. The question

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regarding the status of the petitioner having been thus decided, the other issue to be considered is

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as to whether the petitioner satisfied the

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W.A.Nos.678/2018 & 1455/2019

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relevant conditions under G.O.(P) No.171/99/H.Edn dated 21.12.1999.

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8. The conditions enumerated in Clause (7) of the Government order reads as under:-

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“7.1 Previous service, without any break as a Lecturer or equivalent, in a University, college, national laboratory, or other scientific organisation, eg. CSIR, ICAR, DRDO, UGC, ICSSR, ICHR and as a UGC Research Scientist, should be counted for placement of lecturer in Senior Scale/Selection Grade provided that:

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7.2 The post was in an equivalent grade/scale of Pay as the post of Lecturer.

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7.3 The qualifications for the post were not lower than the qualifications prescribed by the UGC for the post of Lecturer.

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7.4 The Candidates who apply for direct recruitment should apply through proper channel.

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7.5 The concerned Lecturers possessed the minimum qualifications

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W.A.Nos.678/2018 & 1455/2019

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prescribed by the UGC for appointment as Lecturers;

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7.6 The post was filled in accordance with the prescribed selection procedure as laid down by the University/State Government/ Central Government/ Institution's regulations.

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7.7 The appointment was not ad-hoc

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or in a leave vacancy of less than one year duration. Ad-hoc service of more than one year duration can be counted provided-

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(a) the ad-hoc service was of more than one year duration;

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(b) the incumbent was appointed on the recommendation of duly constituted Selection Committee; and

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(c) the incumbent was selected to the permanent post in continuation to the ad-hoc service, without any break.”

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9. The petitioners appointment satisfy each

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of these conditions. Even adhoc appointments

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could be reckoned if it is for more than one year and the recommendation for appointment was by a duly constituted Selection Committee. In fact

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W.A.Nos.678/2018 & 1455/2019

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though it was found that the status of the petitioner is akin to that of a teacher in an unaided affiliated college under the University, her appointment was in accordance with the Act, Statutes and Ordinances since the College, though self-financing, was owned and managed by the University. Her previous service without break as

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a Lecturer can be counted for placement of Lecturer Senior Scale. This is subject to the condition that the post in which she had worked

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was in equivalent grade/scale of pay. There is no dispute regarding this aspect.

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10. In the appeal, the University raised a

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contention that the petitioner did not satisfy the condition that her qualifications were not lower than the qualifications prescribed by the UGC for the post of Lecturer. The petitioner countered that contention by producing evidence regarding her qualifications, which are B.Ed, M.Ed, M.Sc. and NET, all of which were acquired prior to her

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W.A.Nos.678/2018 & 1455/2019

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appointment and Ph.D, which qualification, the petitioner had acquired subsequent to her appointment. Hence, the petitioner had the requisite qualification prescribed by the UGC at the time of her appointment. The next contention is regarding the prescribed selection procedure

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laid down by the University not having been followed and the appointment not having been effected on the recommendation of a duly constituted selection committee. The procedure regarding appointment of teachers in private colleges by direct recruitment is contained in Chapter 45 of the Mahatma Gandhi University

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Statutes, 1997. Statute (2) of Chapter 45

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stipulates the requirement of giving due publicity regarding the posts and the process of appointment. Statute 3 deals with the Constitution of Selection Committee for appointments. As per Statute 3, the Selection Committee shall consist of (a) two representatives of the Educational

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Agency nominated by it, one of whom shall be the Chairman of the Selection Committee; (b) the Principal of the College; (c) the Head of Department in the subject concerned; and (d) one

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expert in the subject nominated by the ViceChancellor.

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11. The petitioner has produced Annexure R1(e), the proceedings of the Selection Committee meeting held on 4.10.1999 which decided to include the petitioner in the rank list to the post of Lecturer in the University College of Teacher Education. The proceedings would show that the Vice Chancellor of the University, two subject

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experts, a Syndicate Member, Director of the School of Pedagogical Sciences and the Registrar of the University were the members who constituted

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the selection committee. Hence, the contention

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that the petitioner was not recommended by a duly constituted selection committee also fails.

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12. Ext.P1 would show that the petitioner was

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W.A.Nos.678/2018 & 1455/2019

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appointed as Lecturer in a scale of pay for three years initially. The period was later extended until further orders vide Ext.P1 (a) order. As per Ext.P3, the petitioner was relieved from the University College of Teacher Education with effect from the afternoon of 28.2.2007 to take up appointment as Lecturer in the St.Joseph Training College. Ext.P4 would show that the petitioner had joined the new college on 1.3.2007. Having satisfied all the conditions in the Government order, the petitioner was entitled to be granted placement as Senior Scale Lecturer, as held in the impugned judgment.

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Hence, the challenge against the impugned judgment fails and consequently, the writ appeals are dismissed. No order as to costs. We make it clear that the ratio of this judgment is not applicable to the teachers appointed under the other un-aided affiliated Colleges of the University and is only in the peculiar facts

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arising in this case, of the unaided affiliated college being owned and managed by the University and the appointments being under the Act, Statutes

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and Ordinances.

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Sd/K. VINOD CHANDRAN JUDGE

Sd/-

V.G.ARUN JUDGE

Scl/10.07

W.A.Nos.678/2018 & 1455/2019