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Supreme Court of India
P. Gopinathan Pillai vs University Of Kerala . on 8 April, 2020Author: Ashok Bhushan
Bench: Ashok Bhushan, S. Ravindra Bhat
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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
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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
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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.
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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
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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
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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.
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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,
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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
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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:-
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*** *** ***
*** *** ***
”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
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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,
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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-
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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:
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“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
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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
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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.
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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
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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
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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.”
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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
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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
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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
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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
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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.
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(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.
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