P. Gopinathan Pillai vs University Of Kerala .

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1641 of 2020 (arising out of SLP(C)No.26880 of 2016)

P. GOPINATHAN PILLAI ...APPELLANT(S)

VERSUS

UNIVERSITY OF KERALA & ORS. ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

This appeal has been filed by the appellant for

quashing the judgment 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

service till he attains the age of 60 years has been

dismissed.

2. The brief facts of the case for deciding this

appeal are:

Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2020.04.08 18:21:42 IST Reason:

The appellant was appointed as Project Officer in

the Centre for Adult Continuing Education and 2

Extension (hereinafter referred to as “CACEE”). The

appellant joined at the CACEE with effect from

26.12.1989. By letter dated 01.02.1990 of the Deputy

Registrar of the University of Kerala, University

accorded sanction to the appointment of the appellant

as Project Officer against the post at the CACEE. The

University of Kerala has also implemented the

University Grants Commission (UGC) scale of pay to

the CACEE staff. The appellant was also given the

UGC pay scale. The Centre has issued various

certificates to the appellant that he has been

teaching various courses like the Post Graduate

Diploma etc. On 07.12.2012, the appellant was

promoted as Assistant Director in the CACEE. The

University Grants Commission revised the scale of pay

of the CACEE at par i.e. Director, Assistant Director

and Project Officer corresponding to the pay scale of

Associate Professor, Assistant Professor, Reader,

Lecturer. Writ Petition (C) No.12179 of 2016 was

filed by the appellant before the High Court of

Kerala seeking a declaration that the appellant is a

Teacher of the University of Kerala and entitled to 3

continue in service upto the age of 60 years.

3. The appellant’s case was that he cannot be

retired at the age of 56 years. The appellant in his

writ petition relied on earlier judgments of the

Kerala High Court including judgment delivered by the

High Court with regard to the post of Director and

Assistant Director of CACEE itself. The appellant

also filed certificates issued by the Centre to the

appellant that he while working in the Centre has

been associated with Teaching Research Extension and

other activities. When the writ petition came for

consideration before a learned Single Judge, noticing

a conflict between two judgments i.e. in (1) W.A.

1099 of 1988 and (2) W.A. 180 of 1992, the learned

Single Judge referred the matter to be heard by a

Division Bench.

4. The case of the appellant was contested by the

University. The Division Bench after scanning the two

judgments with regard to which conflict was noticed,

observed that the said judgments were delivered in

the peculiar facts and circumstances arising in each

case and there was no justification for reference. 4

The Division Bench proceeded to consider the merits

of the controversy and held that the appellant is not

a Teacher of the University and is not entitled to

continue till the age of 60 years. The writ petition

was consequently dismissed. Aggrieved by the judgment

of the Division Bench, this appeal has filed by the

appellant.

5. We have heard Shri A. Raghunath, learned counsel

appearing for the appellant and Shri Jogy Scaria,

learned counsel for the respondent.

6. Learned counsel for the appellant submits that

the appellant is working as Assistant Director in

CACEE, a Teacher defined in Section 2(27) and 2(28)

of the Kerala University Act, 1974, hence, he is

entitled to all the benefits of a Teacher of the

University including the age of retirement being 60

years. It is submitted that the University of Kerala

itself placed the appellant in the senior scale for

lecturer under the UGC Scheme with effect from

24.05.1997.

7. Learned counsel for the appellant submits that 5

UGC way back in 1993 directed that the staff working

in CACEE be treated at par with other Teaching staff

working in other faculties of the Universities. It is

submitted that the High Court of Kerala has delivered

several judgments declaring that the staff of CACEE

particularly posts of Project Director, Assistant

Director etc. are ‘Teachers’ and entitled to continue

till the age of 60 years.

8. Learned counsel for the appellant referring to

various certificates issued by CACEE submits that the

appellant has been recognised as being engaged in

teaching and research work. It is submitted that the

High Court erred in dismissing the writ petition of

the appellant by holding that the appellant is not

the Teacher of the University as defined in Section

2(28) of the Kerala University Act.

9. Learned counsel for the University refuting the

submissions of the learned counsel for the appellant

contends that CACEE in which the appellant was

employed is not a Statutory University Department of

study and research as defined in the statutes of the

University. CACEE is not affiliated to the 6

University. CACEE is one of the many Schemes

sponsored by outside funding Agencies like UGC.

Initially CACEE was started on a temporary basis as a

planned Scheme established by the Government of India

for the purpose of eradicating illiteracy in the

society and was operative till 31.03.1997. No Agency

having come forward to sponsor the Scheme. The

Syndicate of the University taking into account the

despair of the staff took a view and resolved to

restructure CACEE as a Self-Supporting Centre. The

normal date of the retirement of the employees of

CACEE is 56 years, some of the employees of CACEE who

were allowed to continue upto to the age of 60 years

wherever there was direction of the High Court in

respective cases. The appellant was never appointed

on a teaching post rather he was appointed on an

administrative post which was a temporary post. The

judgments of the Kerala High Court relied by the

counsel for the appellant are distinguishable and

they were delivered in the facts of each case.

10. We have considered the submissions of learned

counsel for the parties and perused the records. 7

11. The only point to be determined in this appeal is

as to whether the appellant working as Assistant

Director in CACEE was entitled to continue till 60

years of age which was the age of retirement of

Teacher of 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 the University within the meaning of

Kerala University Act, 1974. Hence, he was entitled

for the benefit of retirement of the age as

prescribed for the Teachers of the University. We may

first notice the provisions of the Kerala University

Act, 1974, the Kerala University First Statutes, 1977

and Kerala University First Ordinances, 1978.

13. Section 2 of the Kerala University Act, 1974 is a

definition clause. Section 2 sub-section (2) defines

‘affiliated college’. Section 2(7) defines ‘college’.

Section 2(19) defines ‘recognised institution’.

Section 2(27) defines ‘teacher’ and Section 2(28)

defines ‘teacher of the University’.

14. In the Kerala University First Statutes, 1977, 8

Statute 2 sub-clause (f) defines ‘Department’ which

is to the following effect:

“Section 2(f)”Department” means a Kerala University Department of Study and/or Research or a Department functioning for a specific purpose maintenance at the cost of the Kerala University Fund;”

15. Chapter 3 of the Statutes deals with “Teachers of

the University”. 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 and the Statutes’ issued thereunder, the Kerala Service Rules, the Kerala State and Subordinate Service Rules, and the Kerala Government Servant’s Conduct Rules for the time being in force as amended from time to time shall mutatis mutandis apply to the teachers of the University, with such modifications as the context may require and the expression “Government” in those Rules shall be construed as a reference to the “University”.

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

16. The Kerala University First Ordinances, 1978,

Chapter XVII deals with scales of pay, qualification

etc. of various posts in the University. The Schedule 9

to the Ordinances contains details of all the posts

in the University including the posts in different

Departments, Institutes, Colleges.

17. The appellant admittedly was appointed in CACEE

with effect from 26.12.1989 which received the

sanction of the University by letter dated

01.02.1990. Letter dated 01.02.1990 has been brought

on the record as Annexure-P-2. The Order dated

01.02.1990 reads:

“ORDER

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

1.Dr. V. Reghu - Assistant Director

2.Smt. A.R. Supriya - Assistant Director

3.Sri.P. Gopinathan Pillai - Project Officer

4.Sri. K. Mohandas - Project Officer

Sanction has therefore been accorded by the Vice Chancellor to:-

10 *** *** ***

*** *** ***

”All the above appointments are made against the posts at the Centre for Adult Education and Extension created temporarily till 31.03.1990 coming under Point No.16 of the new 20 point programme relating to eradication of illiteracy and spread of Universal Elementary Education.

K.M. MATHEW DEPUTY REGISTRAR (Admn-1)”

18. The judgment of the High Court does not mention

any details of 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 of Centre have been

elaborately pleaded. Paragraphs 5 and 6 of the

counter-affidavit which are relevant for the present

case are as follows:

“5. It is submitted that Centre for Adult continuing Education and Extension (CACEE) in which the petitioner was an employee is not a Department or Institution instituted by Kerala University Authorities viz, the Senate, Syndicate or any other statutory body under the provisions of the aforesaid 11

Act or Statutes. But the CACEE is one of the many schemes sponsored by outside funding agencies like UGC.

6. The Centre for Adult continuing Education and Extension (hereinafter referred as CACEE) is not a Department or an institution or even a Study Centre instituted under the Kerala University Act, Statutes or Regulations. CACEE was only one among the schemes sponsored and functioning by way of funding from outside agencies like the UGC. Initially CACEE was started on a temporary basis as a planned Scheme established by the Government of India, for the purpose of eradicating illiteracy in the society and was operative till 31.03.1997.

Thereafter no agency had come forward to sponsor the scheme. All members, including the staff were under the threat of termination from service. In such circumstances, the Syndicate of the Respondents taking into account the despair of the staff, took a lenient view and resolved 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 the Kerala University, by the Scheme. The Syndicate further resolved that the salary for the staff of CACEE would be paid out of the fund remitted to the University, and in return, the University would render all the Administrative work of CACEE, without any overhead charges or fee. As per the terms of the Scheme, the staff therein, were to retire at the age of

56. The service conditions, of a member under the Kerala University Service, are governed by the Kerala University Act, 12

Statutes and Ordinances. All members under the Kerala University service are appointed against posts instituted as per the Kerala University Act, Rules and Regulations. Facts being so, the staff under CACEE, are not governed by the Kerala University Act. Ordinance, and Statutes as they are not members under the Kerala University Service.”

19. Although rejoinder-affidavit has been filed by

the appellant to the above counter-affidavit of the

University but neither there is any reply to the

counter-affidavit nor details mentioned in paragraphs

5 and 6 of the counter-affidavit regarding nature of

the establishment of the Centre has been refuted. We,

thus, proceed to rely on the pleadings made in the

counter-affidavit regarding the establishment and the

nature of the Centre.

20. The Centre i.e. CACEE came to be established on

temporary basis as planned Scheme established by the

Government of India for the purpose of eradicating

illiteracy. The University Grants Commission also

funded the Centre and as pleaded in the counter- 13

affidavit after 31.03.1997 no Agency having come

forward to sponsor the Scheme the Syndicate of the

University resolved to restructure CACEE as a Self-

Supporting Centre. The University has undertaken to

render all the Administrative work of CACEE.

21. The Schedule to the First Ordinances, 1978 of

the Kerala University contains designations of all

posts of University including teaching and non-

teaching posts in various Departments and Centres

like University, Service and Instructions Centres,

Computer Centre, English Language Teaching Centre but

posts in CACEE are not included in the Schedule of

the Ordinances which obviously indicates that posts

in Centre are not posts in the University. Chapter 3

of the Statutes of the University specifically

provides for the Institution of Posts. Statute 1

under Chapter 3 is as follows:

14

“1. Institution of Posts.- The Senate shall be competent to institute Professorships, Readerships, Lecturerships, and such other teaching and research posts required by the University on the motion of the Syndicate and/or on the proposals of the Academic Council 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

are not the posts instituted by the Syndicate and not

the posts of the University.

23. We come to the definition of Teacher as defined

in Section 2 of the Kerala University Act, 1974.

Section 2(27) provides as:

“2(27) “teacher” means a principal, professor, associate professor, assistant professor, reader, lecturer, instructor, or such other person imparting instruction or supervising research in any of the colleges or recognised institutions and whose appointment has been approved by the University;”

24. The condition precedent is that such person 15

should be imparting instruction or supervising

research in any of the Colleges of the recognised

institutions. Section 2(28) reads as:

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

25. College and recognised institution have been

defined in Section 2(7) and 2(19) as follows:

“2(7). “college” means an institution maintained by, or affiliated to the University, in which instruction is provided in accordance with the provisions of the Statutes, Ordinances and Regulations;

2(19). “recognised institution” means an institution for research or special studies, other than an affiliated college recognised as such by the University;”

26. The Centre is not a College within the meaning

of Section 2(7) since as per the pleadings of the

University, Centre is neither maintained nor

affiliated to the University. There are no materials

on record also to indicate that the Centre is an

institution recognised by the University within the 16

meaning of Section 2(19). It is true that the Centre

is 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 a

person employed as Teacher in any institution

maintained by the University. The High Court in the

impugned judgment has held that the appellant was

never employed as Teacher hence he is not covered by

Section 2(28). From the pleadings on the record and

the materials which are brought on the record it is

apparent that the appellant is not covered by

definition of Teacher or the Teacher of the

University under Section 2(27) and 2(28) of the

Kerala University Act, 1974. When the appellant does

not fulfil the requirement of definition of Teacher

or Teacher of University, he cannot claim

applicability of Statute 10 of Chapter 3 of the

Statutes.

17

27. Much emphasis has been laid down by the learned

counsel for the appellant on different certificates

issued by the Centre where it has been mentioned that

the appellant is imparting instruction in various

courses like Post Graduate Diploma in Extension and

Field Outreach, Diploma in Non-Formal Education,

Master of Human Resource Management and PG

Certificate Courses etc. Even if it is assumed that

the appellant is imparting instruction in different

courses in the Centre that itself cannot make the

appellant Teacher within the meaning of Section 2(27)

and 2(28). The appellant having never been appointed

as Teacher he is not covered by the definition of

Teacher of the University.

28. Now we need to notice various judgments of the

Kerala High Court which have been relied by the

learned counsel for the appellant in support of his

case. The first judgment which has been relied by the 18

learned counsel for the appellant and has also been

relied in subsequent judgments of the Kerala High

Court itself is a Division Bench judgment in

C.A.No.180 of 1992D decided on 20.07.2000 in Dr. K.

Sivadasan Pillai vs. The University of Kerala and

others. Dr. Pillai was working as a Reader in the

Department of Education of the University of Kerala

whereafter he was appointed as Director of the Centre

i.e. CACEE. The writ petition filed by Dr. Pillai was

dismissed hence the appeal was filed. The Division

Bench granted interim stay under which Dr. Sivadasan

was continued in the post and retired at the age of

60 years. The Division Bench in its decision made

following observation in paragraph 2 of the judgment:

“2…………The appellant/petitioner was a Reader in the University. Thereafter he was selected and appointed as the Director of Centre for Adult Education and Extension. The Pro-Vice Chancellor of the University had given a certificate, Annexure IX, wherein it is stated that appellant/petitioner, Director, Centre for 19

Adult Education and Extension, University of Kerala, was teaching students of Post Masters Diploma in Adult Education and Continuing Education while he was the Pro- Vice-Chancellor of the University. Several other documents were also produced by the appellant/petitioner to show that he was holding the post of teaching as a Director in the Adult Education Department. It is contended that appellant/petitioner did not produce these documents in the original petition because there was no such counter by the University.”

29. Dr, Sivadasan worked as Reader in the University

and finally continued till 60 years because as Reader

he was admittedly worked as a Teacher of the

University. It appears that before he attained the

age of 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 continue till

the age of 60 years with all retiral benefits. The

conclusion of the High Court itself was to the

following effect:

“3……………The documents produced by the petitioner shows that he was holding the post of Teacher while he was working as Director in the Centre for Adult Education and Extension.” 20

30. The above case, thus, was a case where the

appellant was holding a Teaching post in the

University and thereafter, he was appointed as

Director and had rightly held by the High Court to

continue him till 60 years.

31. The next judgment relied by the counsel for the

appellant is the judgment of Kerala High Court dated

14.06.2005 in W.P.(C) No.3141 of 2004(Y), Dr. B.

Vijayakumar vs. The University of Kerala and others.

In the above case the writ-petitioner was also

working as Director, and reliance was placed on the

judgment in Writ Appeal No.180 of 1992. The learned

Single Judge relying on the Division Bench judgment

in Dr. Sivadasan Pillai allowed the writ petition. In

paragraph 3 of the judgment learned Single Judge

himself has observed as follows:

“3. The Learned Counsel for the University would submit that the said Dr. K. Sivadasan Pillai was retaining his lien in the Department of Education and therefore his case cannot be treated at par with that of the petitioner. When a Division Bench of this Court categorically holds that the post of Director in CACEE is the post of a teacher and therefore the incumbent is 21

entitled to continue till he attains the age of 60 years, then I need not look any further to hold that the petitioner also is holding the post of teacher and therefore entitled to continue till he attains 60 years of age. Therefore, I have absolutely no hesitation in holding that the petitioner 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 age of 60 years. It is declared so. The petitioner will be entitled to all consequential benefits. The Writ Petition is allowed as above but without no order as to costs.”

32. Learned Single Judge although noted the

distinguishing feature of case of Dr. Pillai that he

had lien in the Department of Education, but without

adverting to the distinguish facts of Division Bench

judgment and without adverting as to how the writ

petitioner was a Teacher within the meaning of Kerala

University Act, the writ petition was allowed. The

above judgment of the learned Single Judge having

mechanically followed the Division Bench judgment in

W.A.No.180 of 1992 cannot come to the rescue of the

appellant.

33. Another judgment relied by the appellant is the

judgment of the Kerala High Court dated 14.02.2006 in 22

Writ Petition (C) No.25669 of 2004(E) in Dr. V. Reghu

vs. The University of Kerala and another. Learned

Single Judge in the above case also relying on the

Division Bench judgment in W.A. No.180 of 1992 filed

by Dr.K. Sivadasan Pillai has made the following

observation in paragraph 8:

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

34. Learned Single Judge has, thus, relied on the

claim of the writ petitioner that while discharging

the duty of Assistant Director the petitioner has

been imparting instruction at the Centre. How only by

imparting instruction the petitioner had become

Teacher within the meaning of Section 2(27) and 2(28)

was neither been dealt with nor considered.

35. Another case which has been relied by the

appellant is judgment dated 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 23

petitioner was working as Director of Students

Services which was a non-teaching post as per

Ordinances of the University which fact was noticed

in paragraph 2 of the judgment. Learned Single Judge

proceeded to held that while working as Director of

Students Services the writ petitioner as per duties

and functions was imparting instruction. The said

case has no relevance in the facts of the present

case since the post of Students Services was

admittedly post within the University whereas the

none of the posts in Centre is included in the

Ordinances hence the said case is clearly

distinguishable.

36. Learned counsel for the appellant has also relied

on the judgment of this Court in S. Ramamohana Rao

vs. A.P. Agricultural University and another, 1997

(8) SCC 350. In the above case the appellant was

working as a Director of Physical Director in the

Bapatla Agricultural College. The appellant was

initially appointed as Physical Director in

Agricultural College which was a Government College

which College stood transferred to the Andhra Pradesh 24

University, when it was formed, the services of the

appellant stood transferred to the Agricultural

University and he continued to work as Director in

the said University. This Court noted the definition

of Teacher in the University Statutes and came to the

conclusion that Physical Director is also Teacher

within the meaning of Section 2(n) of the Andhra

Pradesh Agricultural University Act, 1963. The said

judgment has no bearing in the present case since

admittedly the appellant in the said case was working

in the University as Director of Physical Education.

37. We may also notice one of the letters dated

31.10.2014 brought on record as Annexure-P-17 to the

petition which is a communication by the Government

of Kerala according sanction for merging the Centre

for Adult, Continuing Education & Extension which is

to the following effect:

“ORDER

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

25 (By order of the Governor) Dr. K.M. ABRAHAM Additional Chief Secretary.”

38. As per the Government letter Centre has been

merged with Institute of Distance Education, what are

the consequences of merger of Centre with Institute

of Distance Education have neither been explained by

the appellant nor there are any material to come to

the conclusion that by such merger the Centre shall

become Centre maintained by the University. The above

letter of the Government also supports our conclusion

that Centre is not maintained by the University and

it is Self-Financing Centre. The said letter also in

no manner supports the case of the appellant as the

claim of the appellant as raised in this appeal.

39. In view of the foregoing discussion, we do not

find any merit in the appeal which is dismissed

accordingly.

......................J. ( ASHOK BHUSHAN )

......................J. ( M.R. SHAH ) New Delhi, April 08, 2020.