AHMEDABAD KELAVANI TRUST Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Turmoil in the academic world consequent upon the introduction of the new pattern of education both at the instance of the management teachers and incidentally the Government has found its echo in this group of petitions Though the point involved is very narrow clear and precise the matter has been argued on a much wider canvass most ably but it has caused us no small concern and anxiety in reaching a correct appropriate and legal solution. The question raised in each of these petitions is common and therefore a few facts of a representative nature may be drawn from the first petition namely Special Civil Appli cation No. 955 of 1977.

(2.) This petition is filed by the Ahmedabad Kelavani Trust and one Shri Rasiklal C. Shah claiming to be the Managing Trustee of the trust questioning the constitutional validity of what has been euphamistically described as guidelines issued by the Government of Gujarat as per its Resolution in Education Department dated 12th April 1977 by which the Colleges in Ahmedabad were provided with guidelines for first adjudging the number of teachers who would be surplus methodology of arriving at who would be surplus and in respect of whom protection extended by the Resolution of the Government of Gujarat dated 7th March 1977 would be applicable. In order to fall in line with the pattern of education all over India and with a view to streamlining the administration of Univer sities in Gujarat a committee was appointed under the Chairmanship of Mr. S. N. Dungerkeri Registrar of the Bombay University for a number of years and the then Vice Chancellor of Marathawada University. This Committee submitted a report and in order to give effect to the recom mendations of this committee extensive amendments were carried out in the Gujarat University Act 1949 The Government thereafter appointed a committee headed by the Secretary Education Department Government of Gujarat to suggest ways and means of introducing the new pattern of education and on the report of the Secretary decision was arrived at to introduce the new pattern of education effective from the academic year 1976 Briefly stated the new pattern of education is that the education from 1st to 7th Standard would be treated as primary from 8th to 10th Standard would be treated as secondary education and 11th and 12th Higher Secondary and three years of degree course to be conducted by the University. It is briefly known as 10+2+3. On the decision having been taken to introduce Higher Secondary Education 11 Standard class as required by this pattern was introduced from June 1976 for the academic year 197677. As a corollary 12th Standard had to be introduced from the academic year 197778 effective from June 1977. The direct consequence of this introduction of the new pattern of the education is that Pre University class would be abolished. Largest number of students used to be admitted to PreUniversity class and on the abolition of PreUniversity class in the colleges there was bound to be considerable fall in number of students attending colleges consequently resulting in teachers in the Colleges becoming surplus. They had to be provided some alternative employment but their employment with the College would come to an end though they may be protected in some other manner; there was a feeling of insecurity in the academic world. Government of Gujarat by its Reso lution dated 7th March 1977 provided that the College teachers who are rendered surplus as a result of reduction discontinuance of PreUniversity classes should be provided with alternative employment in teaching posts in the higher secondary schools. It was further directed that the Govern ment had also decided that the existing emoluments and payscales of such surplus college teachers should be protected on their absorption in higher secondary schools. In effect the Government undertook to protect not only payscales of surplus college teachers who would be provided alternative employment in higher secondary schools but by protecting pay also a sort of continuity of service was also protected. But the resul tant situation had to be dealt with. There was bound to be surplus teachers in colleges because Ordinance 120A provides for requisite number of teachers who could be employed by the college. That of course is minimum . But any appointment above minimum would not be admissible for grant and below minimum the University would not permit because it is a condition of affiliation. Once PreUniversity classes were required to be abolished teachers were bound to be surplus. Colleges themselves made up their mind as to who should be surplus. An enquiry was made on 11th November 1976 by the Director of Education from the Principals of various colleges to inform him the number of PreUniversity classes which were to be closed and the number of teachers likely to be rendered surplus from June 1977. In the meantime it appears that colleges started serving notices on teachers who according to their light would be surplus inform ing them that service will be terminated by the end of the next academic term. On 20th January 1977 the Director of Education addressed a communication to the Vice Chancellor of the Gujarat University that Government was contemplating a scheme for finding out alternative employment for the teachers who are likely to be rendered surplus and therefore requested the Vice Chancellor to write to the Principals of the colleges not to issue termination notices and if any such notice was given the Principals may be requested to withdraw the same. Thereafter came the Government decision referred to above granting protection in payscales yet the formula by which number of surplus teachers was to be worked out was not issued till 15th March 1977 and therefore again college managements started serving notices of termination to teachers who according to their understanding would be surplus. Government issued guidelines on 12th April 1977. By the guidelines Government directed that the number of teachers to be declared surplus will be decided by the management of colleges on the basis of the regulations laid down by the concerned University in force on 7th March 1977 It further provided that where a trust or a registered society is running a number of colleges the seniority of a teacher in these colleges should be. determined from the date he joined any one or the colleges under the management of the trust or society as the case may be irres pective of the fact that the teacher concerned was transferred to a college other than the one which he initially joined. 1t was also provided that where the trust or a registered society is running only one college the seniority of a teacher should be determined from the date he joined the college where he was serving on the relevant date. Further limb of the guidelines was that in view of the fact that before introduction of the University Grants Commission (U. G. C. for short) salary scales (Fifth Five Year Plan) with effect from 1st January 1973 there were three categories of teaching posts in the affiliated colleges. They were: (i) Professors (ii) Lecturers and (iii) Tutors/Demonstrators. It was provided in the guidelines that in declaring the teachers surplus categories of professors and lecturers should be considered together and Professor should be considered senior to Lecturer. In the event two persons have same length of service in the same category it was provided that a teacher younger in age would be considered surplus. Management of colleges were directed to furnish list of surplus teachers both to the Director of Education and the concerned District Education Officer in the district; and if any teacher was aggrieved in this behalf he can represent in writing to the Director of Education. It is this resolution of the Government which is impugned in this group of petitions on various grounds. To conclude the narration of facts it must be stated that even with these guidelines before them the petitioning college managements in this group of petitions stuck to their decision about who would be surplus and proceeded to give effect to the termination notices. In some cases teachers so adversely affected approached the Director of Education as provided in paragraph (v) of the guidelines and Director of Education in each case examined the decision of the management whether it was consistent with the guidelines or was not in conformity with it and if it was not found in conformity with it the decision was set aside. It is at this stage that the managements of various colleges filed present petitions.

(3.) Mr. S. M. Shah learned advocate who appeared for the petitioner in Special Civil Application No. 1098 of 1977 led on behalf of the peti tioners. He canvassed the following points for our consideration : (1) Relationship between college management and the teachers of affiliated colleges is that of employer and employee and it is governed by the terms of contract of employment. Sublimbs of the submission were: