BIJAMMA THOMAS Vs. MAHATMA GANDHI UNIVERSITY

JUDGEMENT

(1.) The problem presented in this writ petition is inexorable in the wake of liberalization in education sector. When source of fund is depleted, the policy of the Government in educational sector was to allow private sector participation to fill up the role of the Government in discharging the duties as providers of education. The Government also devised other mechanisms to discharge those functions. That was how the State allowed the Universities created under a Statute to establish these Self Financing Institutions (hereinafter, "S.F.Insts.") in the State. These S.F.Insts. were to be run on self generated funds collected by way of fees from students, without any financial aid from the Government or other funding agency. The salary/remuneration and other expenses of these institutions were to be met from the income generated from the fees collected from the students. Since S.F.Insts. had turned financially unviable and it was legally and technically not possible to continue its conductance without affiliating it to the respective Universities constituted for the same, all the S.F.Insts. formerly run by the Mahatma Gandhi University (hereinafter, the "University"), were entrusted to a society named Centre for Professional and Advanced Studies (CPAS). A situation has arisen as to the conditions of service of teaching staff engaged in the S.F.Insts., consequent upon handing over the S.F.Insts. run by the University.

(2.) The petitioners in all these writ petitions are engaged by University as teachers and instructors (hereinafter they are collectively referred to as "teachers" for convenience) in various S.F.Insts./Universities. Some of them were working in the S.F.Insts., for more than two decades and they were drawing the scale of pay applicable to UGC teachers. The principal issue in these writ petitions is in regard to the status of teachers in S.F.Insts. Some of the petitioners also raised a challenge against handing over S.F.Insts. to CPAS. A few petitioners accepted their transfer to CPAS, and they only question the legality of the special rules framed by CPAS by reducing their pay. They also claim U.G.C. scale of pay. They also pray service conditions to be protected. Status of an employee of the University is claimed to challenge their disengagement by the University. All these issues will have to be decided after adverting to the brief facts of the case.

(3.) The University was established by the Act of the State Legislature in the year 1985. The University set up S.F.Insts. to run various programmes in Medicine, Technology & Applied Sciences, Communication & Journalism, Library & Information Sciences, Applied Life Sciences, Arts & Commerce and Teacher Education. Schools and sub-centres were established under Self Financing structure. Section 2(29) of the Mahatma Gandhi University Act, 1985 (hereinafter, the "Act") defines "teacher" as a person imparting instruction or supervising research in any of the colleges or recognised institutions and whose appointment has been approved by the University. Section 2(30) defines "teacher of the University" as a person employed as a teacher in any institution maintained by the University. Chapter VII of the Act refers to the Financial source of the University and also the University Fund. It also states that funds earmarked for a purpose shall not be diverted without prior approval of the Government. The proviso to Statute 1 of Chapter 3 of the Mahatma Gandhi University Statutes, 1997 (hereinafter, the "Statutes") states that the Syndicate shall institute no teaching or research post without the previous approval of the Government if it involves expenditure in excess of the budgetary provision. Section 59 of Chapter VIII of the Act states that appointments to the posts eligible to receive the salary from the Government shall be made only against posts sanctioned by the Government. Thus, it is clear that those appointments as referred in Section 59 require prior sanction from the Government. Interestingly, S.F.Insts. were established by the University without framing service conditions as applicable to teaching and non-teaching staff. The University made appointments in S.F.Insts. by following the procedure applicable in the Act and Statutes. Appointments to the S.F.Insts. might have been made by the Syndicate based on enabling power under Section 23(viii) of Chapter IV of the Act. Provisions in Section 23 of the Act do not distinguish between the power of the Syndicate in making appointments in the post sanctioned by the Government and in S.F.Insts. No prior sanction is required from the Government in making appointments in S.F.Insts. All other statutory provisions required for selection and procedure for appointing teachers, in fact, are to cover such appointments in post sanctioned by the Government and such procedure cannot be read in isolation of mandate of Section 59 of the Act. The University also appears to have followed reservation in making such appointments. All other service conditions as applicable to the University teachers, who are appointed to the post sanctioned by the Government were also followed in the matter of appointment of teachers in S.F.Insts. Their period of probation was also declared in the light of the University provisions. The Univesity also followed the statutory provisions prescribed in the matter of granting leave to teachers in S.F.Insts. Special Rules were formulated governing service conditions of teachers in S.F.Insts in the year 2010. The Special Rules categorised teaching staff into four; (i) temporary, (ii) Contract, (iii) Guest and, (iv) external Guest. It also refers to the "teachers" of S.F.Insts as teachers, who are paid from the Self Financing Fund of the University. It had not conceived any permanent faculty. It also states that the teachers and employees cannot claim compensation on termination from service and service is not a pensionable service. It further stipulates the age of retirement as 56 years. Rules have no statutory character in as much as that it has not undergone any other procedure for adoption in the University as applicable to regular University teachers. There is also a challenge regarding the Special Rules framed by CPAS in some of the writ petitions. The petitioners also would submit that the Special Rules had not seen the light of the day till the disengagement notice was issued.