Service Law:
Appointment – Whether temporary or were against substantive posts – Pay revision – Refusal of – To lecturers/professors appointed through selection process – On the ground that the posts were temporary – Writ petition challenging the order/Resolution whereby the appellants were treated as having
been appointed
temporarily – The University while contesting the petition stated that the Institution in question was a Self Financing Institution and therefore the concerned University statutes were not applicable to the teachers of such institutions – Single Judge of High Court allowed the petition – However, Division Bench of High Court allowed the writ appeal holding that the appellants were not the teachers of the University – Review petition challenging the order in writ appeal was dismissed – On appeal, held: The facts of the case indicate that the appointment of the appellants were not temporary and they were appointed against substantive posts – The University was also not correct in dissociating itself from the institution in question – Thus, there was no reason to limit the scope of extension of the benefit of pay revision to the appellants – Mahatma Gandhi University Act, 1985 – s. 2(30). Allowing the appeals and segregating the SLPs, the Court HELD: Civil Appeal Nos.2388-89 of 2019:
1.1 At no stage, the posts of teachers in engineering disciplines were referred to or described as contractual or on part time basis. Their appointment orders did not mention anything that the appointments were contractual or on part time basis. The appointment orders in fact stated that the appointment would be governed by the provisions of the University Statutes. All the documents unequivocally suggest that the appointments of the appellants were not on contractual basis or for a limited period of time. Whenever appointments were to be for limited duration or on contractual basis, a clear stipulation was always made in the concerned Resolution or Notification. The facts on record indicate that the appointments of the appellants were on permanent basis and that they were appointed through regular selection process. The appellants are right in submitting that their appointments were on substantive basis and not on contractual basis or for limited duration of time. [Para 8] [396-D-H; 397-A]
1.2 The Order issued by the University on 04.08.1999 extended the benefits of the Kerala Government Pay Revision, 1997 to the Non-Teaching (Technical) staff. The Order issued by the Government of Kerala on 18.05.2000 for implementing revised scales of pay for teachers in Engineering Colleges in the State contemplated extension of revision in line with the recommendations of AICTE as approved by the Government of India with effect from 01.01.1996. Though similar benefits were extended by the University to the teachers of University College of Engineering, the benefits were restricted and the effect was given from 01.01.2001 instead of 01.01.1996. No reason is available on record why such benefit was restricted and the only explanation offered is that the teachers of University College of Engineering were temporarily appointed for a period of three years or more. As the facts indicate that the appointments of the appellants were not temporary and that they were appointed against substantive posts, which were created pursuant to resolutions passed by the concerned authorities, there was no reason to limit the scope of extension of benefits. Even the Principal of the University College of Engineering in letter dated 18.04.2001 voiced a concern that the teachers in the College were not temporary and that they would otherwise be entitled to the extension of some financial benefits. The steps taken and the stand adopted thereafter by the University is on the premise that the University College of Engineering under the School of Technical and Applied Sciences was a Self Financing Institution which was not getting any grants from the Government/All India Council and that it was not part of 20 Departments listed under the Statutes of the University. There is nothing on record to indicate that when the School of Technical and Applied Sciences was set up there was any resolution or decision by the University or its competent bodies to set up such School of Technical and Applied Sciences as a separate Institution. The University had secured conditional approval from the AICTE on 31.05.1996 and had thereafter caused steps to be taken for creation of posts and appointment of teachers against said posts. The University cannot dissociate itself and claim said University college of Engineering under the School of Technical and Applied Sciences to be otherwise than part of the University. [Para 9] [397-B-H]
1.3 At every stage the faculty position in the College of Engineering was always referred to and described as permanent faculty. Progress Profile of the existing Technical Institution prepared by AICTE which was referred to by the Single Judge is very clear that the appellants were shown to be part of permanent faculty and were projected to be permanent employees of the University. It would not therefore be proper on part of the University to brand the very same faculty to be on contractual basis or for a limited duration of time. It is also a matter of record that during the budget for financial years 2015-2016 and 20162017, the income and expenditure of Self Financing Institutions were included in the University Fund and thus the Self Financing Institutions were within the fold of the University. [Para 10] [398-A-C]
1.4 Even after the Division Bench had ruled against the appellants in the present matter and while their review was pending before the Division Bench, in separately instituted proceedings, the Division Bench of the same High Court had accepted similar challenge raised by some other teachers from the same Self Financing Institution and by its order dated 07.12.2016 had ruled in their favour. The order dated 07.12.2016 was affirmed by this Court and Special Leave Petitions were therefrom dismissed. [Para 12] [399-B-C]
Special Leave Petition (Civil) Nos. 4251-4252 of 2018:
2. Since the written submissions filed by the University in Special Leave Petition show that the appointment order of the petitioner had clearly stipulated the appointment to be temporary, this matter is segregated and it is directed that the same be listed before the appropriate court in due course. [Para 14] [399-F]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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