ABDUL HAKEEM M.A. & ORS. versus MAHATMA GANDHI UNIVERSITY & ORS. on 28 February 2019

382

SUPREME COURT REPORTS[2019] 3 S.C.R. 382

[2019] 3 S.C.R.

ABDUL HAKEEM M.A. & ORS.

A

v.

MAHATMA GANDHI UNIVERSITY & ORS.

(Civil Appeal Nos. 2388-89 of 2019)

B

FEBRUARY 28, 2019

[UDAY UMESH LALIT AND INDIRA BANERJEE, JJ.]

Service Law:

Appointment – Whether temporary or were against substantiveCposts – Pay revision – Refusal of – To lecturers/professors appointedthrough selection process – On the ground that the posts weretemporary – Writ petition challenging the order/Resolution wherebythe appellants were treated as having been appointedtemporarily – The University while contesting the petition statedthat the Institution in question was a Self Financing Institution andDtherefore the concerned University statutes were not applicable tothe teachers of such institutions – Single Judge of High Courtallowed the petition – However, Division Bench of High Courtallowed the writ appeal holding that the appellants were not theteachers of the University – Review petition challenging the orderEin writ appeal was dismissed – On appeal, held: The facts of thecase indicate that the appointment of the appellants were nottemporary and they were appointed against substantive posts – TheUniversity was also not correct in dissociating itself from theinstitution in question – Thus, there was no reason to limit the scopeof extension of the benefit of pay revision to the appellants –FMahatma Gandhi University Act, 1985 – s. 2(30).

Allowing the appeals and segregating the SLPs, the CourtHELD: Civil Appeal Nos.2388-89 of 2019:

1.1At no stage, the posts of teachers in engineeringGdisciplines were referred to or described as contractual or onpart time basis. Their appointment orders did not mentionanything that the appointments were contractual or on part timebasis. The appointment orders in fact stated that the appointmentwould be governed by the provisions of the University Statutes.HAll the documents unequivocally suggest that the appointments of the appellants were not on contractual basis or for a limitedperiod of time. Whenever appointments were to be for limitedduration or on contractual basis, a clear stipulation was alwaysmade in the concerned Resolution or Notification. The facts onrecord indicate that the appointments of the appellants were onpermanent basis and that they were appointed through regularselection process. The appellants are right in submitting thattheir appointments were on substantive basis and not oncontractual basis or for limited duration of time. [Para 8][396-D-H; 397-A]

1.2 The Order issued by the University on 04.08.1999extended the benefits of the Kerala Government Pay Revision,1997 to the Non-Teaching (Technical) staff. The Order issuedby the Government of Kerala on 18.05.2000 for implementingrevised scales of pay for teachers in Engineering Colleges in theState contemplated extension of revision in line with therecommendations of AICTE as approved by the Government ofIndia with effect from 01.01.1996. Though similar benefits wereextended by the University to the teachers of University Collegeof Engineering, the benefits were restricted and the effect wasgiven from 01.01.2001 instead of 01.01.1996. No reason isavailable on record why such benefit was restricted and the onlyexplanation offered is that the teachers of University College ofEngineering were temporarily appointed for a period of threeyears or more. As the facts indicate that the appointments of theappellants were not temporary and that they were appointedagainst substantive posts, which were created pursuant toresolutions passed by the concerned authorities, there was noreason to limit the scope of extension of benefits. Even thePrincipal of the University College of Engineering in letter dated18.04.2001 voiced a concern that the teachers in the Collegewere not temporary and that they would otherwise be entitled tothe extension of some financial benefits. The steps taken andthe stand adopted thereafter by the University is on the premisethat the University College of Engineering under the School ofTechnical and Applied Sciences was a Self Financing Institutionwhich was not getting any grants from the Government/All IndiaCouncil and that it was not part of 20 Departments listed underthe Statutes of the University. There is nothing on record to A

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Aindicate that when the School of Technical and Applied Scienceswas set up there was any resolution or decision by the Universityor its competent bodies to set up such School of Technical andApplied Sciences as a separate Institution. The University hadsecured conditional approval from the AICTE on 31.05.1996 andhad thereafter caused steps to be taken for creation of posts andBappointment of teachers against said posts. The University cannotdissociate itself and claim said University college of Engineeringunder the School of Technical and Applied Sciences to beotherwise than part of the University. [Para 9] [397-B-H]

1.3 At every stage the faculty position in the College ofCEngineering was always referred to and described as permanentfaculty. Progress Profile of the existing Technical Institutionprepared by AICTE which was referred to by the Single Judge isvery clear that the appellants were shown to be part of permanentfaculty and were projected to be permanent employees of the DUniversity. It would not therefore be proper on part of theUniversity to brand the very same faculty to be on contractualbasis or for a limited duration of time. It is also a matter of recordthat during the budget for financial years 2015-2016 and 2016-2017, the income and expenditure of Self Financing Institutionswere included in the University Fund and thus the Self FinancingEInstitutions were within the fold of the University. [Para 10][398-A-C]

1.4 Even after the Division Bench had ruled against theappellants in the present matter and while their review waspending before the Division Bench, in separately institutedFproceedings, the Division Bench of the same High Court hadaccepted similar challenge raised by some other teachers fromthe same Self Financing Institution and by its order dated07.12.2016 had ruled in their favour. The order dated 07.12.2016was affirmed by this Court and Special Leave Petitions wereGtherefrom dismissed. [Para 12] [399-B-C]

Special Leave Petition (Civil) Nos. 4251-4252 of 2018:

2. Since the written submissions filed by the University inSpecial Leave Petition show that the appointment order of thepetitioner had clearly stipulated the appointment to be temporary,H

this matter is segregated and it is directed that the same belisted before the appropriate court in due course. [Para 14][399-F]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.2388-89 of 2019

WITH

Special Leave Petition (Civil) Nos.4255-4256 of 2018.

From the Judgment and Order dated 20.11.2015 and 20.09.2017of the High Court of Kerala at Ernakulam in WA No.442 of 2014 in O.P.No.3818 of 2003 and RP No.151 of 2016 respectively.

R. Basant, Sidharth Luthra, Sr. Advs., C.N. Sree Kumar,Ms. Priya Balakrishnan, Amit Sharma, Ms. Sakshi Kakkar, Shakti Singh,Karan Sharma, Arun Mewar, Krishan Kumar Singh, Priyush Dwivedi,Ms. Shreyali Kanwar, Ms. Praseena Elizabeth Joseph, G. Prakash, JishnuM.L., Ms. Priyanka Prakash, Ms. Beena Prakash, Advs. for theappearing parties.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

Special Leave Petition (Civil) Nos. 4251-4252 of 2018

1. Leave granted.

2. The appellants question the judgment and orders passed by theDivision Bench of the High Court of Kerala at Ernakulam (i) dated20.11.2015 in Writ Appeal No.442 of 2014 arising from Original PetitionNo.3818 of 2003 and (ii) dated 20.09.2017 in Review Petition No.151 of2016 in Writ Appeal No.442 of 2014.

3. According to the appellants, they were appointed againstsubstantive posts created by the Resolution of the Syndicate ofMahatma Gandhi University (‘the University’, for short) at AICTE[1] scalesof pay, through selection processes which were in complete complianceof the provisions of the concerned University Statutes; and, oncompletion of one year of service, the University declared theappellants to have satisfactorily completed their probation. But theUniversity refused to implement pay revision to the teachers so appointedincluding the appellants describing them as appointed temporarily. Thisled to the filing of O.P. No.3818 of 2003 which was allowed by theSingle Judge of the High Court. The Division Bench in appeal preferred1All India Council for Technical Education A

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Aby the University however set aside the decision of the Single Judge andlater, dismissed Review Petitions as well, leading to the filing of theseappeals by special leave.

4. The facts in brief are as under:

A. After having secured conditional approval from the AICTE onB31.05.1996, the Syndicate of the University in its meeting dated 06.07.1996resolved to start B.Tech courses in certain disciplines. It was furtherresolved to create posts of teachers at various levels in said disciplines.At the same time, teachers for some of the subjects namely Geometricaldrawing, Physics, Chemistry, Mathematics and Humanities were to beCengaged on contract/part-time basis. The relevant portion of theResolution was as under:

“Further resolved to create the following posts at AICTE scalesof pay with AICTE qualifications, to be filled up throughadvertisement.

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Teachers in the following allied subjects shall be engaged oncontract/part-time basis.

1. Geometrical drawing

2. Physics

3. Chemistry

4. Mathematics

5. Humanities.”

B. Accordingly, an order was issued by the University on10.07.1996 creating posts in terms of said Resolution. The order alsodealt with teachers to be appointed on contract/part-time basis in relationto 5 subjects mentioned hereinabove. A Notification was issued on15.07.1996 inviting applications in prescribed form from qualifiedcandidates inter alia for the posts of teachers under the School ofTechnology and Applied Sciences in the University. It mentioned thatthe qualifications for the posts would be same as for similar posts in theGovernment Aided Engineering Colleges and communal reservations asprescribed in the Statutes would be observed while filling up the posts.Thereafter sanction was accorded by the Vice Chancellor on 03.09.1996for constituting various screening/scrutinizing committees for selectionto the posts of Professors and Lecturers.

C. On 25.08.1997 an Order was passed by the University whichreferred to the Resolution passed in the meeting of the Syndicate of theUniversity held on 05.08.1997 about creation of Teaching andNon-Teaching (Technical) Posts for the University College ofEngineering, Thodupuzha as under:

“O R D E R

The Director, School of Technology and Applied Sciences hasreported the requirement of teaching and technical staff in viewof the commencement of Second batch of B. Tech Courses in theUniversity College of Engineering. The Principal, UniversityCollege of Engineering has put forth the proposal for creatingTeaching & Technical posts as per the AICTE norms and workloadfor B. Tech. in Computer Science/ Electronics/Polymer Technologycourses.

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The Syndicate at its meeting held on 05.08.1997 has resolved tocreate the following teaching and non-teaching (technical) postsfor the University College of Engineering, Thodupuzha:

The expenditure for all the above posts shall be met from the selfgenerated funds of the University College of Engineering,Thodupuzha under the School of Technology and Applied Sciences.

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The above teaching positions are inter-transferable among thethree centres and the University College of Engineering,Thodupuzha depending upon the requirements fixed by theUniversity.

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Orders are issued accordingly.”

D. Some of the appellants were appointed as Lecturers pursuantto the selection undertaken in terms of the Notification dated 15.07.1996,while some were selected against the additional posts created in termsof the Resolution dated 05.08.1997. By way of illustration, relevantportion of Order dated 17.12.1997 passed by the University in case ofappellant no.1 was as under:- C

“O R D E R

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Sanction has been accorded to the following appointment inthe University College of Engineering, Thodupuzha.

Sri. M.A. Abdul Hakeem

Manzilul Karam

Thalandu P.O.

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Erattupetta – 686 580

Being appointed as Lecturer in Electronics andCommunication Engineering in the Scale of pay ofRs.2200-4000/- w.e.f. 26.11.97 FN against one of the posts oflecturers created vide U.O. read above.

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The above appointment is governed by the provisions in theMahatma Gandhi University Statues 1991.

Orders are issued accordingly.”

E. On 10.03.1998, the University issued another Notificationinviting applications for appointment of Teaching/Technical posts underGthe School of Technology and Applied Sciences in the University. Theposts were stated to be transferable among four units of School ofTechnology and Applied Sciences viz. University College ofEngineering, Thodupuzha, Regional Centres of School of Technologyand Applied Sciences at Edappally, Mannanam and Pathanamthitta. The H

Aposts were of Lecturers in Mechanical Engineering, ChemicalEngineering and Computer Science. In addition, applications were alsoinvited for three posts of Lecturers in Mathematics which posts were ontemporary basis for a period of three years but were likely to be madepermanent. Again, a Screening Committee was appointed, after duesanction from the Vice Chancellor of the University, to short-list theBapplications received for the posts of Lecturers. The appellants 2 and4 were selected in the selection process so undertaken as Lecturers inComputer Science and Engineering and Mechanical Engineeringrespectively. Thereafter, orders were issued by the University on16.06.1999 in respect of appellants 1 and 5 that they had satisfactorilyCcompleted probation as Lecturers in University College of Engineering.

F. On 04.08.1999 under an Order issued by the University,benefits of the Kerala Government Pay Revision, 1997 for non-teaching(Technical) staff were extended to those who were appointed alongwith the appellants. On 18.05.2000 Government of Kerala issued an DOrder implementing revised scales of pay for Teachers in EngineeringColleges in the State w.e.f. 01.01.1996 in accordance with the schemerecommended by the AICTE and approved by the Government of India.An Order was thereafter issued by the University on 23.03.2001 forimplementing the UGC/AICTE pay revision to the Teachers including the Teachers of University College of Engineering. However, insteadEof making these pay revisions effective from 01.01.1996, the effect wasgiven from 01.01.2001. This Order further described the Teachers ofUniversity College of Engineering as “Temporarily appointed for aperiod of 3 or more years”.

G. Soon thereafter, the Principal of the University College ofFEngineering informed the Registrar of the University on 18.04.2001 thatthe Teachers appointed in the College were not temporary and theirappointments were governed by the provisions of the statutes of theUniversity. The relevant portion of the letter was as under:

“As per G.O. cited above as ref.(2) revised AICTE scales areGimplemented for the teachers of Engineering Colleges in the statewith effect from 1.1.1996. In the U.O. cited above as ref (1) it isstated that AICTE pay revision is implemented for the teachersof University College of Engineering, Thodupuzha who areappointed temporarily for a period of three or more years, witheffect from 01.01.2001.H

It may be noted that the teachers in the college are nottemporary and it is stated in their appointment order that theirappointment in the University is governed by the provisions in the1991/1997 statutes of Mahatma Gandhi University. Hence revisedAICTE scales of pay cannot be implemented in UCET based theU.O. cited above. It is therefore requested to consider therepresentation of teachers favourably and issue necessary ordersat the earliest.”

H) The appellants represented to the Vice Chancellor of theUniversity on 01.06.2001 followed by another representation on06.05.2002 that they were regular teachers of the University and wereentitled to AICTE pay revisions w.e.f. 01.01.1996. The appellantsthereafter filed a Petition under Article 226 of the Constitution of Indiabeing O.P. (C)No.3818 of 2003 praying inter alia for quashing of theOrder dated 23.03.2001 and Resolutions passed in the meeting of theSyndicate of the University insofar as the appellants were treated ashaving been appointed temporarily.

I) While contesting the petition, the University filed four affidavitsin reply at different stages. The stand taken by the University was thatthe University College of Engineering under the School of Technical andApplied Sciences was a Self Financing Institution; for Self FinancingInstitution no grant was received from the Government/All India Council;the income generated from the Self Financing Institutions alone wasutilized for infrastructure and remuneration of the teaching and non-teaching staff; that there were 20 departments listed under the Statutesof the University and that Self Financing Institutions were not part ofthat. It was further asserted that no service conditions for teachingstaff of Self Financing Institutions were formulated by the Syndicate ofthe University and that the Statutes were applicable only in respect ofteachers of the University and not to the teachers of Self FinancingInstitutions. In the affidavit filed in January 2007, it was asserted inparagraph 19 as under:- “19. The definition clause “teachers of the University” containedin the Mahatma Gandhi University Act 1985 only means teachersof departments maintained by the University under Chapter 42 ofthe Mahatma Gandhi University Statutes 1997. It cannot beinterpreted to mean as a teacher of Self-Financing Institution.These institutions are not included in the Statute. It is pertinent to AB

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note that at the faming of Act, the Self Financing Institutions werenot started by the Government of Kerala and Universities. TheState Legislature has amended the Act 1985 (Vide Act 9 of 1995)and certain provisions were included in the case of unaidedColleges.”

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BIn its affidavit filed in November, 2011, the University assertedthat on 05.08.1997 a meeting of the Statutory Finance Committee of theUniversity was held. In this meeting, while approving Budget estimatesan additional item was also considered, which was regarding creation ofteaching/non-teaching posts in University College of Engineering,Thodupuzha. In said meeting, the recommendation was to create saidCposts for a period of three years. However, the Resolution was notreferred to in the Order dated 25.08.1997 passed by the University andwhat was referred to was the Resolution of the Syndicate of the Universitypassed on 05.08.1997.

J) In affidavit in reply by State of Kerala, it was submitted thatDthe Government order issued in respect of pay revision was not applicableto teachers by Self Financing Institutions; that no directions were issuedby the State regarding appointment of faculty in such Self FinancingInstitutions and that the Government had no control over the managementand fixation of staff.

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K) The aforesaid Writ Petition was allowed by Single Judge ofthe High Court by judgment and order dated 08.01.2014. It was heldthat the Statutes of the University contemplated only regular appointments;and that whenever any appointments were supposed to be temporarythe notifications made specific reference in that behalf, whereas all thevacancies notified under Notifications dated 15.07.1996 and 10.03.1998Fwere not stated to be temporary. The Single Judge referred to Ext. P-26 which was copy of the progress profile of the existing TechnicalInstitution prepared by AICTE in respect of the faculty including theappellants as:- G “13. Ext. P26 is the copy of the progress profile of the existingapproved technical institutions. The same was prepared by AICTE.Ext.P26 contains Annexure-II, which gives the details of teachingfaculties. There, all the petitioners were shown as permanentfaculties. This would indicate that for the purpose of gettingaffiliation to AICTE, the respondent University has projected theHpetitioners as permanent employees.”

Allowing the writ petition the Single Judge directed:-

“It is hereby declared that the petitioners are regularly appointedpermanent teachers of the University appointed against substantiveposts created by the University. Needless to say that the petitionersshall be entitled to the subsequent pay revision benefits also. Theconcerned authority shall issue formal orders extending the payrevision benefits to the petitioners within a period of three months.”

L) Aggrieved by the view taken by the Single Jude, the Universityfiled Writ Appeal No.442 of 2014 before the Division Bench of the HighCourt. During the pendency of the appeal, in terms of the directivesissued vide order dated 01.02.2014, the University in its budget for thefinancial year 2015-2016 included the income and expenditure of SelfFinancing Institutions in the University fund. Same position was repeatedfor the next financial year 2016-2017.

M) The Writ Appeal was allowed by the Division Bench on20.11.2015. It was concluded that the appellants were not teachers ofthe University within the meaning of Section 2(30) of Mahatma GandhiUniversity Act, 1985; that they were not governed by Chapter III of theUniversity Statutes and the source of funds to meet the entire expenditureof the Self Financing Institutions was the funds generated by suchFinancial Institutions out of the fees collected from the students. TheDivision Bench observed that mere statement that that the appellantswould be governed by the University Statutes would not confer anybenefit upon the appellants and that the University could not be compelledto treat the appellants on par with teachers of the University. The DivisionBench however recorded the statement of the Counsel for the Universitythat the University was prepared to grant benefits of pay revision to theappellants with effect from 01.01.1996.

N) The appellants filed Review Petition No.151 of 2016 in theHigh Court against aforesaid Order dated 20.11.2015. During thependency of this review petition, while dealing with challenge on behalfof the University against the decision of a Single Judge of the HighCourt granting relief to some other teachers from the same Self FinancingInstitution, Writ Appeal No.727 of 2011 preferred by the University andother connected matters were dismissed by Division Bench of the HighCourt on 07.12.2016. It was observed:- A

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A“19. It is the admitted case of the University, that an establishmentof the Self Financing Institutions, it had issued notifications invitingapplications for appointment of teaching staff. The first of suchadvertisement is Ext.P1 dated 20.12.1993 in W.A.727/11 and itwas followed by several other notifications. Ext.P1, like all othernotifications, contained the qualifications to be satisfied by theBcandidates. In pursuance to the notification, the eligible applicantswere considered and subjected to a Selection process, whichresulted in the select lists already referred to as Exts.P22(a) and(b). The Syndicate approved the select lists and recommendedthe candidates for appointment. It was on that basis the firstCrespondent in W.A. 727/11 was appointed by Annexure-I order,dated 21.04.1995. Contesting respondents in the other writ appealsand the petitioners in W.P.(C)2148/11 also entered service.”

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O) The challenge to the decision of the Division Bench dated07.12.2016 in Writ Appeal No.727 of 2011 and other connected matters Dby the University in Special Leave Petitions (Diary No.10974 of 2017and other connected matters) was rejected by this Court on 03.07.2017.

P) Review petition No.151 of 2016 was thereafter taken up forconsideration. The High Court did not find any error calling forinterference and the Review Petition was dismissed by order datedE20.09.2017.

5. The appellants, being aggrieved are challenging correctness ofthe aforesaid judgment and orders passed by the Division Bench on20.11.2015 and 20.09.2017. In its affidavit in reply filed in this Court, thestand taken by the University is as under:

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“It is submitted that just because some of the provisions havebeen made applicable, does not mean that Petitioners have beneappointed as regular/permanent employees of University. Thoseprovisions have been made applicable to maintain the transparencyand efficiency as at that point of time there were no rules &Gregulations governing the self financing institutions. The post againstwhich the Petitioners were appointed, were the post against whichthe Petitioners were appointed, were the post under “School ofTechnology Applied Sciences” which is the self financing institution.The post under those institutions are temporary in nature, as thesame are not created after obtaining the consent from the Govt.

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which was must for the University. Applicability of the Rules andregulation of the university to the self financing institution whichhas been affiliated with the university by itself doesn’t lead to theconclusion that the teachers appointed for the self financinginstitution are the permanent teachers of the University”.

6. We have heard Dr. Gopakumaran Nair, learned Senior Advocatewho led the arguments on behalf of the appellants and Mr. SiddharthLuthra, learned Senior Advocate for the University and Mr. G. Prakash,learned Advocate for the State of Kerala. It was submitted by theappellants that their appointments were against substantive posts whichwere created after requisite Resolutions were passed by the University;and that at no stage the appellants were intimated that their appointmentswere for a temporary period. Reliance was placed on the decision ofthe Division Bench of the High Court in Writ Appeal No.727 of 2011which decision was affirmed by this Court, where a diametrically oppositeview was accepted. On the other hand, the University reiterated itsstand which was consistently taken all through, including in the replyfiled in this Court. However, no explanation was offered in respect ofthe decision in Writ Appeal No.727 of 2011 and as to how both theselines of decisions could be reconciled. In the written submissions filedon behalf of the appellants, apart from reiterating the submissionsadvanced in the High Court, the document submitted by the Universitywhile seeking extension of approval granted by the AICTE for the college,for the academic year 2018-2019, was also placed on record. Writtensubmissions were also filed by the University which inter alia placedminutes of the meeting of the Syndicate held on 22.12.1995 on record inwhich the decision to set-up Self Financing schools in various subjectswas taken. According to the minutes, each school under the SelfFinancing scheme was to be a viable unit.

7. In the backdrop of the facts as aforesaid, the instant mattercan broadly be classified under four segments: -

a) The stand taken by the University prior to the Order dated23.03.2001 under which pay revisions to the teachers were givenfrom 01.01.2001 instead of from 01.01.1996 and which describedthe teachers of University College of Engineering as “temporarilyappointment for a period of three years or more”,

b) The effect of the stand taken in the Order dated 23.03.2001.

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Ac) The stand taken by the University before authorities like AICTEand later in submission of budget proposals, and

d) The mutually inconsistent views held by two Division Benchesin case of teachers of the same institution.

8. The first document on record is the Resolution of the SyndicateBdated 06.07.1996 whereunder it was resolved to create posts of teachersat various levels in engineering disciplines for starting B. Tech courses.The Resolution clearly indicated that the posts of Professors andLecturers in various branches of Engineering were without anyqualification whereas by the same Resolution, posts of teachers in certainCsubjects like Geometrical drawing, Physics, Chemistry, Mathematics andHumanities were to be filled on contractual or part time basis. TheOrder issued by the University on 10.07.1996 was in tune with theResolution dated 06.07.1996. The Notification issued thereafter invitingapplications from qualified candidates for posts of teachers was alsoconsistent with earlier Resolution and the Order issued by the University.DThe sanction accorded by the Vice Chancellor for constituting screeningor scrutinizing Committees for selection was also in same spirit. Thus,at no stage, the posts of teachers in engineering disciplines were referredto or described as contractual or on part time basis. Same thought wascarried in Resolution passed by the Syndicate in the Meeting held onE05.08.1997 for creating additional posts in engineering disciplines. Theorder dated 25.08.1997 passed by the University was again a reflectionof the Resolution passed by the Syndicate on 05.08.1997. The appellantswere appointed pursuant to selection undertaken in terms of Notificationdated 15.07.1996 or Resolution dated 05.08.1997. Their appointmentorders did not mention anything that the appointments were contractualFor on part time basis. The appointment orders in fact stated that theappointment would be governed by the provisions of the UniversityStatutes. The subsequent Notification dated 10.03.1998 invitingapplications for further additional posts was also in the same light. Allthese documents unequivocally suggest that the appointments of theGappellants were not on contractual basis or for a limited period of time.Whenever appointments were to be for limited duration or on contractualbasis, a clear stipulation was always made in the concerned Resolutionor Notification. The facts on record indicate that the appointments ofthe appellants were on permanent basis and that they were appointedthrough regular selection process. The appellants are right in submittingH

that their appointments were on substantive basis and not on contractualbasis or for limited duration of time. The facts in the first segment,therefore, are definitely in favour of the appellants.

9. The Order issued by the University on 04.08.1999 extendedthe benefits of the Kerala Government Pay Revision, 1997 to the Non-Teaching (Technical) staff. The Order issued by the Government ofKerala on 18.05.2000 for implementing revised scales of pay for teachersin Engineering Colleges in the State contemplated extension of revisionin line with the recommendations of AICTE as approved by theGovernment of India with effect from 01.01.1996. Though similar benefitswere extended by the University to the teachers of University Collegeof Engineering, the benefits were restricted and the effect was givenfrom 01.01.2001 instead of 01.01.1996. No reason is available on recordwhy such benefit was restricted and the only explanation offered is thatthe teachers of University College of Engineering were temporarilyappointed for a period of three years or more. As the facts in the firstsegment indicate that the appointments of the appellants were nottemporary and that they were appointed against substantive posts, whichwere created pursuant to resolutions passed by the concerned authorities,there was no reason to limit the scope of extension of benefits. Eventhe Principal of the University College of Engineering in letter dated18.04.2001 voiced a concern that the teachers in the College were nottemporary and that they would otherwise be entitled to the extension ofsome financial benefits. His letter in that behalf is quite eloquent. Thesteps taken and the stand adopted thereafter by the University is on thepremise that the University College of Engineering under the School ofTechnical and Applied Sciences was a Self Financing Institution whichwas not getting any grants from the Government/All India Council andthat it was not part of 20 Departments listed under the Statutes of theUniversity. There is nothing on record to indicate that when the Schoolof Technical and Applied Sciences was set up there was any resolutionor decision by the University or its competent bodies to set up suchSchool of Technical and Applied Sciences as a separate Institution. TheUniversity had secured conditional approval from the AICTE on31.05.1996 and had thereafter caused steps to be taken for creation ofposts and appointment of teachers against said posts. The Universitycannot dissociate itself and claim said University college of Engineeringunder the School of Technical and Applied Sciences to be otherwisethan part of the University.

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A10. We now move to the third segment. It is interesting to notethat even after such stand was taken by the University in the year 2001,in its communications with AICTE, at every stage the faculty position insaid College of Engineering was always referred to and described aspermanent faculty. Progress Profile of the existing Technical Institutionprepared by AICTE which was referred to by the Single Judge is veryBclear that the appellants were shown to be part of permanent facultyand were projected to be permanent employees of the University. Itwould not therefore be proper on part of the University to brand thevery same faculty to be on contractual basis or for a limited duration oftime. It is also a matter of record that during the budget for financialCyears 2015-2016 and 2016-2017, the income and expenditure of SelfFinancing Institutions were included in the University Fund and thus theSelf Financing Institutions were within the fold of the University.

11. The facts as culled out in these three segments, point only inone direction that the appellants were appointed against substantive postsDand were always treated to be on permanent basis. At no stage werethey informed either through any Resolution or through any individualcommunication that their appointments were temporary or contractualbasis. The only document which purportedly supports the stand takenby the University is the Resolution of the statutory Finance Committeeof the University held on 05.08.1997. This Resolution was brought onErecord only in the year 2011 through an affidavit of the University.According to this Resolution, the item was taken as an additional item onthe Agenda while approving Budget Estimates and the Committee hadrecommended to create the posts “for a period of three years”. Ironically,on the same day a Resolution was passed by the Syndicate of theFUniversity about creation of teaching and non-teaching (technical) postsfor the University College of Engineering. It is the Resolution of theSyndicate which is referred in the order passed by the University on25.08.1997 and not the Resolution of the statutory Finance Committee.The Order dated 25.08.1997 also did not qualify the posts to be limitedfor three years. Similarly, the document placed on record throughGwritten submissions, i.e. the Resolution of the Syndicate of the Universitypassed in the meeting dated 22.12.1995 would again have no bearing.That was a Resolution passed when the AICTE approval was not yetgranted. What is material to consider are the steps taken by the Universityafter the approval was granted, when the posts were created, applicationsH

from the concerned candidates were invited and individual appointmentswere made. Those steps do not indicate any qualification or restrictioninsofar as the terms of employment were concerned. We, therefore, donot find anything on record which could substantiate the stand taken bythe University.

12. Lastly, we must notice a peculiar feature of the matter thateven after the Division Bench had ruled against the appellants in thepresent matter and while their review was pending before the DivisionBench, in separately instituted proceedings, the Division Bench of thesame High Court had accepted similar challenge raised by some otherteachers from the same Self Financing Institution and by its order dated07.12.2016 had ruled in their favour. The order dated 07.12.2016 wasaffirmed by this Court and Special Leave Petitions were therefromdismissed. We have not proceeded only on the fact that the decision ofthe Division Bench dated 07.12.2016 having stood affirmed by this Court,nothing more is required to be done in the matter. We have gone throughthe record in its entirety, which record, in our view, points completely inthe direction of the appellants and in their favour. We have therefore nohesitation in accepting the contentions of the appellants.

13. We, therefore, allow these appeals set aside the judgment andorders under appeal and restore the order dated 08.01.2014 passed bythe Single Judge in O.P.(Civil) No.3818 of 2003.

14. No costs.

Special Leave Petition (Civil) Nos. 4255-4256 of 2018

(Jacob K Daniel vs. Mahatma Gandhi University, PriyadarshiniHills & Anr.)

Since the written submissions filed by the University show thatthe appointment order of the petitioner had clearly stipulated theappointment to be temporary, we segregate this matter and direct that itbe listed before the appropriate court in due course.

Kalpana K. Tripathy

Appeals allowed and Petitions segregated for listing.

A

B

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D

E

F

G

H