P. GOPINATHAN PILLAI versus UNIVERSITY OF KERALA & ORS. on 8 April 2020

1. This appeal has been filed by the appellant for quashing thejudgment of Kerala High Court dated 08.07.2016 by which Writ Petition(C)No.12179 of 2016 filed by the appellant claiming to continue in servicetill he attains the age of 60 years has been dismissed.

2. The brief facts of the case for deciding this appeal are:

The appellant was appointed as Project Officer in the Centre forAdult Continuing Education and Extension (hereinafter referred to as“CACEE”). The appellant joined at the CACEE with effect from26.12.1989. By letter dated 01.02.1990 of the Deputy Registrar of the A

B

C

D

E

F

G

H

AUniversity of Kerala, University accorded sanction to the appointmentof the appellant as Project Officer against the post at the CACEE. TheUniversity of Kerala has also implemented the University GrantsCommission (UGC) scale of pay to the CACEE staff. The appellantwas also given the UGC pay scale. The Centre has issued variouscertificates to the appellant that he has been teaching various coursesBlike the Post Graduate Diploma etc. On 07.12.2012, the appellant waspromoted as Assistant Director in the CACEE. The University GrantsCommission revised the scale of pay of the CACEE at par i.e. Director,Assistant Director and Project Officer corresponding to the pay scaleof Associate Professor, Assistant Professor, Reader, Lecturer. WritCPetition (C) No.12179 of 2016 was filed by the appellant before theHigh Court of Kerala seeking a declaration that the appellant is a Teacherof the University of Kerala and entitled to continue in service upto theage of 60 years.

3. The appellant’s case was that he cannot be retired at the ageDof 56 years. The appellant in his writ petition relied on earlier judgmentsof the Kerala High Court including judgment delivered by the High Courtwith regard to the post of Director and Assistant Director of CACEEitself. The appellant also filed certificates issued by the Centre to theappellant that he while working in the Centre has been associated withTeaching Research Extension and other activities. When the writ petitionEcame for consideration before a learned Single Judge, noticing a conflictbetween two judgments i.e. in (1) W.A. 1099 of 1988 and (2) W.A. 180of 1992, the learned Single Judge referred the matter to be heard by aDivision Bench.

4. The case of the appellant was contested by the University. TheFDivision Bench after scanning the two judgments with regard to whichconflict was noticed, observed that the said judgments were delivered inthe peculiar facts and circumstances arising in each case and there wasno justification for reference. The Division Bench proceeded to considerthe merits of the controversy and held that the appellant is not a TeacherGof the University and is not entitled to continue till the age of 60 years.The writ petition was consequently dismissed. Aggrieved by the judgmentof the Division Bench, this appeal has filed by the appellant.

5. We have heard Shri A. Raghunath, learned counsel appearingfor the appellant and Shri Jogy Scaria, learned counsel for the respondent.

H

6. Learned counsel for the appellant submits that the appellant isworking as Assistant Director in CACEE, a Teacher defined in Section2(27) and 2(28) of the Kerala University Act, 1974, hence, he is entitledto all the benefits of a Teacher of the University including the age ofretirement being 60 years. It is submitted that the University of Keralaitself placed the appellant in the senior scale for lecturer under the UGCScheme with effect from 24.05.1997.

7. Learned counsel for the appellant submits that UGC way backin 1993 directed that the staff working in CACEE be treated at par withother Teaching staff working in other faculties of the Universities. It issubmitted that the High Court of Kerala has delivered several judgmentsdeclaring that the staff of CACEE particularly posts of Project Director,Assistant Director etc. are ‘Teachers’ and entitled to continue till theage of 60 years.

8. Learned counsel for the appellant referring to variouscertificates issued by CACEE submits that the appellant has beenrecognised as being engaged in teaching and research work. It is submittedthat the High Court erred in dismissing the writ petition of the appellantby holding that the appellant is not the Teacher of the University asdefined in Section 2(28) of the Kerala University Act.

9. Learned counsel for the University refuting the submissions ofthe learned counsel for the appellant contends that CACEE in which theappellant was employed is not a Statutory University Department ofstudy and research as defined in the statutes of the University. CACEEis not affiliated to the University. CACEE is one of the many Schemessponsored by outside funding Agencies like UGC. Initially CACEE wasstarted on a temporary basis as a planned Scheme established by theGovernment of India for the purpose of eradicating illiteracy in the societyand was operative till 31.03.1997. No Agency having come forward tosponsor the Scheme. The Syndicate of the University taking into accountthe despair of the staff took a view and resolved to restructure CACEEas a Self-Supporting Centre. The normal date of the retirement of theemployees of CACEE is 56 years, some of the employees of CACEEwho were allowed to continue upto to the age of 60 years whereverthere was direction of the High Court in respective cases. The appellantwas never appointed on a teaching post rather he was appointed on anadministrative post which was a temporary post. The judgments of the AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

AKerala High Court relied by the counsel for the appellant aredistinguishable and they were delivered in the facts of each case.10. We have considered the submissions of learned counsel forthe parties and perused the records.

11. The only point to be determined in this appeal is as to whetherBthe appellant working as Assistant Director in CACEE was entitled tocontinue till 60 years of age which was the age of retirement of Teacherof the Kerala University or he was to retire at the age of 56 years.

12. The claim in the writ petition was that he is a Teacher of theUniversity within the meaning of Kerala University Act, 1974. Hence,Che was entitled for the benefit of retirement of the age as prescribed forthe Teachers of the University. We may first notice the provisions of theKerala University Act, 1974, the Kerala University First Statutes, 1977and Kerala University First Ordinances, 1978.

13. Section 2 of the Kerala University Act, 1974 is a definitionDclause. Section 2 sub-section (2) defines ‘affiliated college’. Section2(7) defines ‘college’. Section 2(19) defines ‘recognised institution’.Section 2(27) defines ‘teacher’ and Section 2(28) defines ‘teacher ofthe University’.

14. In the Kerala University First Statutes, 1977, Statute 2 sub-Eclause (f) defines ‘Department’ which is to the following effect:

“Section 2(f)”Department” means a Kerala University Departmentof Study and/or Research or a Department functioning for aspecific purpose maintenance at the cost of the Kerala UniversityFund;”F15. Chapter 3 of the Statutes deals with “Teachers of theUniversity”. Statute 10 under Chapter 3 is as follows:

“10. Applicability of certain Rules to University Teachers.-Subject to the provisions of the Kerala University Act, 1974 andthe Statutes’ issued thereunder, the Kerala Service Rules, theGKerala State and Subordinate Service Rules, and the KeralaGovernment Servant’s Conduct Rules for the time being in forceas amended from time to time shall mutatis mutandis apply tothe teachers of the University, with such modifications as thecontext may require and the expression “Government” in thoseHRules shall be construed as a reference to the “University”.

Provided that the age of retirement of teachers of theUniversity shall be 60.”

A

16. The Kerala University First Ordinances, 1978, Chapter XVIIdeals with scales of pay, qualification etc. of various posts in theUniversity. The Schedule to the Ordinances contains details of all theposts in the University including the posts in different Departments,Institutes, Colleges.

B

17. The appellant admittedly was appointed in CACEE with effectfrom 26.12.1989 which received the sanction of the University by letterdated 01.02.1990. Letter dated 01.02.1990 has been brought on the recordas Annexure-P-2. The Order dated 01.02.1990 reads:

C

“ORDER

Selection was made to the posts of Assistant Directors andProject Officers in the Centre for Adult Education and Extension,University of Kerala. The Director, Centre for Adult Educationand Extension has, vide his letter read above, reported that theDfollowing officers have reported for duty.

1. Dr. V. Reghu-Assistant Director2. Smt. A.R. Supriya-Assistant Director3. Sri.P. Gopinathan Pillai -Project Officer4. Sri. K. Mohandas-Project OfficerSanction has therefore been accorded by the E

Vice Chancellor to:-

F

******************

“All the above appointments are made against the posts at theCentre for Adult Education and Extension created temporarily till31.03.1990 coming under Point No.16 of the new 20 pointGprogramme relating to eradication of illiteracy and spread ofUniversal Elementary Education.

DEPUTY REGISTRAR (Admn-1)”

H

A

A18. The judgment of the High Court does not mention any detailsof the establishment, nature and organisation of the Centre i.e. CACEE.However, in the counter-affidavit (sworn by Dr. M. Jayaprakas, Registrar-in-charge of the University of Kerala) filed in this appeal, the details ofCentre have been elaborately pleaded. Paragraphs 5 and 6 of the counter-affidavit which are relevant for the present case are as follows:B

“5. It is submitted that Centre for Adult continuing Education andExtension (CACEE) in which the petitioner was an employeeis not a Department or Institution instituted by KeralaUniversity Authorities viz, the Senate, Syndicate or any otherstatutory body under the provisions of the aforesaid Act orCStatutes. But the CACEE is one of the many schemessponsored by outside funding agencies like UGC.

6. The Centre for Adult continuing Education and Extension(hereinafter referred as CACEE) is not a Department or aninstitution or even a Study Centre instituted under the KeralaDUniversity Act, Statutes or Regulations. CACEE was onlyone among the schemes sponsored and functioning by way offunding from outside agencies like the UGC. Initially CACEEwas started on a temporary basis as a planned Schemeestablished by the Government of India, for the purpose ofEeradicating illiteracy in the society and was operative till31.03.1997. Thereafter no agency had come forward tosponsor the scheme. All members, including the staff wereunder the threat of termination from service. In suchcircumstances, the Syndicate of the Respondents taking intoaccount the despair of the staff, took a lenient view andFresolved to restructure, CACEE, as a Self-Supporting Centre,on the specific ground that the total expenditure of the Scheme,should be limited to the revenue generated and remitted to theKerala University, by the Scheme. The Syndicate furtherresolved that the salary for the staff of CACEE would beGpaid out of the fund remitted to the University, and in return,the University would render all the Administrative work ofCACEE, without any overhead charges or fee. As per theterms of the Scheme, the staff therein, were to retire at theage of 56. The service conditions, of a member under theKerala University Service, are governed by the Kerala H

University Act, Statutes and Ordinances. All members underthe Kerala University service are appointed against postsinstituted as per the Kerala University Act, Rules andRegulations. Facts being so, the staff under CACEE, are notgoverned by the Kerala University Act. Ordinance, and Statutesas they are not members under the Kerala University Service.”

19. Although rejoinder-affidavit has been filed by the appellant tothe above counter-affidavit of the University but neither there is anyreply to the counter-affidavit nor details mentioned in paragraphs 5 and6 of the counter-affidavit regarding nature of the establishment of theCentre has been refuted. We, thus, proceed to rely on the pleadingsmade in the counter-affidavit regarding the establishment and the natureof the Centre.

20. The Centre i.e. CACEE came to be established on temporarybasis as planned Scheme established by the Government of India for thepurpose of eradicating illiteracy. The University Grants Commission alsofunded the Centre and as pleaded in the counter-affidavit after 31.03.1997no Agency having come forward to sponsor the Scheme the Syndicateof the University resolved to restructure CACEE as a Self-SupportingCentre. The University has undertaken to render all the Administrativework of CACEE.

21. The Schedule to the First Ordinances, 1978 of the KeralaUniversity contains designations of all posts of University includingteaching and non-teaching posts in various Departments and Centreslike University, Service and Instructions Centres, Computer Centre,English Language Teaching Centre but posts in CACEE are not includedin the Schedule of the Ordinances which obviously indicates that postsin Centre are not posts in the University. Chapter 3 of the Statutes of theUniversity specifically provides for the Institution of Posts. Statute 1under Chapter 3 is as follows:

“1. Institution of Posts.- The Senate shall be competent toinstitute Professorships, Readerships, Lecturerships, and such otherteaching and research posts required by the University on themotion of the Syndicate and/or on the proposals of the AcademicCouncil therefore endorsed by the Syndicate.”

22. Had all the posts in the Centre have been instituted by Senate,they ought to have been included in the University, the posts of the Centre A

B

C

D

E

F

G

H

Aare not the posts instituted by the Syndicate and not the posts of theUniversity.

23. We come to the definition of Teacher as defined in Section 2of the Kerala University Act, 1974. Section 2(27) provides as:

“2(27) “teacher” means a principal, professor, associate professor,Bassistant professor, reader, lecturer, instructor, or such other personimparting instruction or supervising research in any of the collegesor recognised institutions and whose appointment has beenapproved by the University;”

24. The condition precedent is that such person should be impartingCinstruction or supervising research in any of the Colleges of the recognisedinstitutions. Section 2(28) reads as:

“2(28).”teacher of the University” means a person employed asteacher in any institution maintained by the University.”

D25. College and recognised institution have been defined in Section2(7) and 2(19) as follows:

“2(7). “college” means an institution maintained by, or affiliatedto the University, in which instruction is provided in accordancewith the provisions of the Statutes, Ordinances and Regulations; E2(19). “recognised institution” means an institution for researchor special studies, other than an affiliated college recognised assuch by the University;”

26. The Centre is not a College within the meaning of Section2(7) since as per the pleadings of the University, Centre is neitherFmaintained nor affiliated to the University. There are no materials onrecord also to indicate that the Centre is an institution recognised by theUniversity within the meaning of Section 2(19). It is true that the Centreis being run as a Centre under the administrative control of the University.The definition of Teacher of University in Section 2(28) also refers to aperson employed as Teacher in any institution maintained by the University.GThe High Court in the impugned judgment has held that the appellantwas never employed as Teacher hence he is not covered by Section2(28). From the pleadings on the record and the materials which arebrought on the record it is apparent that the appellant is not covered bydefinition of Teacher or the Teacher of the University under SectionH2(27) and 2(28) of the Kerala University Act, 1974. When the appellant does not fulfil the requirement of definition of Teacher or Teacher ofUniversity, he cannot claim applicability of Statute 10 of Chapter 3 ofthe Statutes.

27. Much emphasis has been laid down by the learned counselfor the appellant on different certificates issued by the Centre where ithas been mentioned that the appellant is imparting instruction in variouscourses like Post Graduate Diploma in Extension and Field Outreach,Diploma in Non-Formal Education, Master of Human ResourceManagement and PG Certificate Courses etc. Even if it is assumed thatthe appellant is imparting instruction in different courses in the Centrethat itself cannot make the appellant Teacher within the meaning ofSection 2(27) and 2(28). The appellant having never been appointed asTeacher he is not covered by the definition of Teacher of the University.

28. Now we need to notice various judgments of the Kerala HighCourt which have been relied by the learned counsel for the appellant insupport of his case. The first judgment which has been relied by thelearned counsel for the appellant and has also been relied in subsequentjudgments of the Kerala High Court itself is a Division Bench judgmentin C.A.No.180 of 1992D decided on 20.07.2000 in Dr. K. SivadasanPillai vs. The University of Kerala and others. Dr. Pillai was workingas a Reader in the Department of Education of the University of Keralawhereafter he was appointed as Director of the Centre i.e. CACEE.The writ petition filed by Dr. Pillai was dismissed hence the appeal wasfiled. The Division Bench granted interim stay under which Dr. Sivadasanwas continued in the post and retired at the age of 60 years. The DivisionBench in its decision made following observation in paragraph 2 of thejudgment:

“2…………The appellant/petitioner was a Reader in theUniversity. Thereafter he was selected and appointed as theDirector of Centre for Adult Education and Extension. The Pro-Vice Chancellor of the University had given a certificate, AnnexureIX, wherein it is stated that appellant/petitioner, Director, Centrefor Adult Education and Extension, University of Kerala, wasteaching students of Post Masters Diploma in Adult Educationand Continuing Education while he was the Pro-Vice-Chancellorof the University. Several other documents were also producedby the appellant/petitioner to show that he was holding the post ofteaching as a Director in the Adult Education Department. It is A

B

C

D

E

F

G

H

Acontended that appellant/petitioner did not produce thesedocuments in the original petition because there was no suchcounter by the University.”

29. Dr, Sivadasan worked as Reader in the University and finallycontinued till 60 years because as Reader he was admittedly worked asBa Teacher of the University. It appears that before he attained the ageof superannuation as Teacher, he was appointed as Director of the Centre,he had lien on the post of Reader as well as he was entitled to continuetill the age of 60 years with all retiral benefits. The conclusion of theHigh Court itself was to the following effect:

C“3……………The documents produced by the petitioner showsthat he was holding the post of Teacher while he was working asDirector in the Centre for Adult Education and Extension.”

30. The above case, thus, was a case where the appellant washolding a Teaching post in the University and thereafter, he was appointedDas Director and had rightly held by the High Court to continue him till 60years.

31. The next judgment relied by the counsel for the appellant isthe judgment of Kerala High Court dated 14.06.2005 in W.P.(C) No.3141of 2004(Y), Dr. B. Vijayakumar vs. The University of Kerala andEothers. In the above case the writ-petitioner was also working asDirector, and reliance was placed on the judgment in Writ Appeal No.180of 1992. The learned Single Judge relying on the Division Bench judgmentin Dr. Sivadasan Pillai allowed the writ petition. In paragraph 3 of thejudgment learned Single Judge himself has observed as follows:

F“3. The Learned Counsel for the University would submit that thesaid Dr. K. Sivadasan Pillai was retaining his lien in the Departmentof Education and therefore his case cannot be treated at par withthat of the petitioner. When a Division Bench of this Courtcategorically holds that the post of Director in CACEE is the postof a teacher and therefore the incumbent is entitled to continue tillGhe attains the age of 60 years, then I need not look any further tohold that the petitioner also is holding the post of teacher andtherefore entitled to continue till he attains 60 years of age.Therefore, I have absolutely no hesitation in holding that thepetitioner is holding the post of a teacher as Director in the CACEE.As such, he is entitled to continue in service till he attains the ageH

of 60 years. It is declared so. The petitioner will be entitled to allconsequential benefits. The Writ Petition is allowed as above butwithout no order as to costs.”

32. Learned Single Judge although noted the distinguishing featureof case of Dr. Pillai that he had lien in the Department of Education, butwithout adverting to the distinguish facts of Division Bench judgmentand without adverting as to how the writ petitioner was a Teacher withinthe meaning of Kerala University Act, the writ petition was allowed.The above judgment of the learned Single Judge having mechanicallyfollowed the Division Bench judgment in W.A.No.180 of 1992 cannotcome to the rescue of the appellant.

33. Another judgment relied by the appellant is the judgment ofthe Kerala High Court dated 14.02.2006 in Writ Petition (C) No.25669of 2004(E) in Dr. V. Reghu vs. The University of Kerala and another.Learned Single Judge in the above case also relying on the DivisionBench judgment in W.A. No.180 of 1992 filed by Dr.K. Sivadasan Pillaihas made the following observation in paragraph 8:

“8……………There is overwhelming evidence and materials onrecord to show that the petitioner by discharging the duties ofAssistant Director of CACEE has been imparting instruction atthe Centre right from his appointment in the year 1980.”

34. Learned Single Judge has, thus, relied on the claim of the writpetitioner that while discharging the duty of Assistant Director thepetitioner has been imparting instruction at the Centre. How only byimparting instruction the petitioner had become Teacher within themeaning of Section 2(27) and 2(28) was neither been dealt with norconsidered.

35. Another case which has been relied by the appellant is judgmentdated 25.05.2012 in W.P.(C)No.15447 of 2007(L), M.N.C. Bose vs.University of Kerala and Ors. In the above case, the writ petitionerwas working as Director of Students Services which was a non-teachingpost as per Ordinances of the University which fact was noticed inparagraph 2 of the judgment. Learned Single Judge proceeded to heldthat while working as Director of Students Services the writ petitioneras per duties and functions was imparting instruction. The said case hasno relevance in the facts of the present case since the post of StudentsServices was admittedly post within the University whereas the none of A

B

C

D

E

F

G

H

Athe posts in Centre is included in the Ordinances hence the said case isclearly distinguishable.

36. Learned counsel for the appellant has also relied on thejudgment of this Court inS. Ramamohana Rao vs. A.P. AgriculturalUniversity and another, 1997 (8) SCC 350. In the above case theBappellant was working as a Director of Physical Director in the BapatlaAgricultural College. The appellant was initially appointed as PhysicalDirector in Agricultural College which was a Government College whichCollege stood transferred to the Andhra Pradesh University, when itwas formed, the services of the appellant stood transferred to theAgricultural University and he continued to work as Director in the saidCUniversity. This Court noted the definition of Teacher in the UniversityStatutes and came to the conclusion that Physical Director is also Teacherwithin the meaning of Section 2(n) of the Andhra Pradesh AgriculturalUniversity Act, 1963. The said judgment has no bearing in the presentcase since admittedly the appellant in the said case was working in theDUniversity as Director of Physical Education.

37. We may also notice one of the letters dated 31.10.2014 broughton record as Annexure-P-17 to the petition which is a communication bythe Government of Kerala according sanction for merging the Centrefor Adult, Continuing Education & Extension which is to the followingEeffect:

“ORDER

Sanction is accorded for merging the Centre for Adult,Continuing Education & Extension (CACEE) which is functioningas Self Financing Centre under the University of Kerala, withFInstitute of Distance Education so that the department can functionin dual mode as Institute of Distance and Adult ContinuingEducation.

(By order of the Governor)

Dr. K.M. ABRAHAMAdditional Chief Secretary.”

G

38. As per the Government letter Centre has been merged withInstitute of Distance Education, what are the consequences of mergerof Centre with Institute of Distance Education have neither beenHexplained by the appellant nor there are any material to come to the

P. GOPINATHAN PILLAI v. UNIVERSITY OF KERALA & ORS.[ASHOK BHUSHAN, J.]

conclusion that by such merger the Centre shall become Centremaintained by the University. The above letter of the Government alsosupports our conclusion that Centre is not maintained by the Universityand it is Self-Financing Centre. The said letter also in no manner supportsthe case of the appellant as the claim of the appellant as raised in thisappeal.

39. In view of the foregoing discussion, we do not find any meritin the appeal which is dismissed accordingly.

Divya Pandey

Appeal dismissed.

A

B

C

D

E

F

G

H