Abdul Hakeem M.A. Vs Mahatma Gandhi University

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.2388-2389 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)NOs.4251-4252 OF 2018)

ABDUL HAKEEM M.A. & ORS. ……Appellants

VERSUS

MAHATMA GANDHI UNIVERSITY & ORS. ..…. Respondents

WITH

SPECIAL LEAVE PETITION (CIVIL)NOS. 4255-4256 OF 2018 (Jacob K. Daniel vs. Mahatma Gandhi University, Priyadarshini Hills & Anr.)

J U D G M E N T

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 the

Division Bench of the High Court of Kerala at Ernakulam (i) dated

20.11.2015 in Writ Appeal No.442 of 2014 arising from Original Petition

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

2 No.3818 of 2003 and (ii) dated 20.09.2017 in Review Petition No.151 of 2016

in Writ Appeal No.442 of 2014.

3. According to the appellants, they were appointed against substantive

posts created by the Resolution of the Syndicate of Mahatma Gandhi

University (‘the University’, for short) at AICTE1 scales of pay, through

selection processes which were in complete compliance of the provisions of

the concerned University Statutes; and, on completion of one year of service,

the University declared the appellants to have satisfactorily completed their

probation. But the University refused to implement pay revision to the

teachers so appointed including the appellants describing them as appointed

temporarily. This led to the filing of O.P. No.3818 of 2003 which was

allowed by the Single Judge of the High Court. The Division Bench in appeal

preferred by the University however set aside the decision of the Single Judge

and later, dismissed Review Petitions as well, leading to the filing of these

appeals by special leave.

4. The facts in brief are as under:

1All India Council for Technical Education

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

3 A. After having secured conditional approval from the AICTE on

31.05.1996, the Syndicate of the University in its meeting dated 06.07.1996

resolved to start B.Tech courses in certain disciplines. It was further resolved

to create posts of teachers at various levels in said disciplines. At the same

time, teachers for some of the subjects namely Geometrical drawing, Physics,

Chemistry, Mathematics and Humanities were to be engaged on contract/part-

time basis. The relevant portion of the Resolution was as under:

“Further resolved to create the following posts at AICTE scales of pay with AICTE qualifications, to be filled up through advertisement.

Sl. No.

Post Number Scale of Pay

(in Rs.) 1. Professor with specialization in

any one of the following branches: (Electrical & Electronics Engineering, Electronics & Communication Engineering, Polymer Engineering & Computer Science & Engineering)

1 4500- 7300/-

2. Professor (One each in Electronics & Communication Engineering, Polymer Engineering & Computer Science & Engineering)

3 4500- 7300/-

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

4

3. Lecturers (Two each in Electronics & Communication Engineering, Polymer Engineering, Computer Science & Engineering)

6 2200- 4000/-

4. Lecturer in Mathematics 1 2200- 4000/-

5. Workshop Foreman 1 1640- 2900/-

6. Trade Instructors (One each in Foundry, Fitting, Carpentry, Sheet metal, Machine shop)

5 975- 1660/-

7. Tradesman 5 825- 1250/-

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

1. Geometrical drawing 2. Physics 3. Chemistry 4. Mathematics 5. Humanities.”

B. Accordingly, an order was issued by the University on 10.07.1996

creating posts in terms of said Resolution. The order also dealt with teachers

to be appointed on contract/part-time basis in relation to 5 subjects mentioned

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

5 hereinabove. A Notification was issued on 15.07.1996 inviting applications in

prescribed form from qualified candidates inter alia for the posts of teachers

under the School of Technology and Applied Sciences in the University. It

mentioned that the qualifications for the posts would be same as for similar

posts in the Government Aided Engineering Colleges and communal

reservations as prescribed in the Statutes would be observed while filling up

the posts. Thereafter sanction was accorded by the Vice Chancellor on

03.09.1996 for constituting various screening/scrutinizing committees for

selection to the posts of Professors and Lecturers.

C. On 25.08.1997 an Order was passed by the University which referred to

the Resolution passed in the meeting of the Syndicate of the University held

on 05.08.1997 about creation of Teaching and Non-Teaching (Technical)

Posts for the University College of Engineering, Thodupuzha as under:

“O R D E R

The Director, School of Technology and Applied Sciences has reported the requirement of teaching and technical staff in view of the commencement of Second batch of B. Tech Courses in the University College of Engineering. The Principal, University College of Engineering has put forth the proposal for creating Teaching & Technical posts as per the AICTE norms

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

6 and workload for B. Tech. in Computer Science/ Electronics/Polymer Technology courses.

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

S. No.

Name of Post No. of Posts

Scale of Pay

1 Lecturers in Electronics & Communication

Engineering

4 Rs.2200- 4000

2. Lecturers in Computer Science & Engineering

2 Rs.2200- 4000

3. Lecturers in Polymer Engineering

2 Rs.2200- 4000

4. Lecturers in Mechanical Engineering

2 Rs.2200- 4000

5. Lecturer in Mathematics 1 Rs.2200- 4000

6. Lecturer in Chemical Engineering

1 Rs.2200- 4000

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

7 S.No. Name of Post

Non-teaching posts No. of Posts

Scale of Pay

1 Workshop Instructor Gr.II

Electronics & Communication

Engineering

1 Rs.1400- 2300

2. Workshop Instructor Gr.II

Computer Science & Engineering

1 Rs.1400- 2300

3. Lab Instructor Gr.II Polymer Engineering

1 Rs.1400- 2300

4. Workshop Instructor Gr.II

Mechanical Engineering

1 Rs.1400- 2300

5. Lab Assistant/Tradesman

Chemical Engineering

1 Rs.825- 1250

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

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

Orders are issued accordingly.”

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

8 D. Some of the appellants were appointed as Lecturers pursuant to the

selection undertaken in terms of the Notification dated 15.07.1996, while

some were selected against the additional posts created in terms of the

Resolution dated 05.08.1997. By way of illustration, relevant portion of

Order dated 17.12.1997 passed by the University in case of appellant no.1

was as under:-

“O R D E R

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

Sri. M.A. Abdul Hakeem Manzilul Karam Thalandu P.O. Erattupetta – 686 580

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

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

Orders are issued accordingly.”

E. On 10.03.1998, the University issued another Notification inviting

applications for appointment of Teaching/Technical posts under the School of

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

9 Technology and Applied Sciences in the University. The posts were stated to

be transferable among four units of School of Technology and Applied

Sciences viz. University College of Engineering, Thodupuzha, Regional

Centres of School of Technology and Applied Sciences at Edappally,

Mannanam and Pathanamthitta. The posts were of Lecturers in Mechanical

Engineering, Chemical Engineering and Computer Science. In addition,

applications were also invited for three posts of Lecturers in Mathematics

which posts were on temporary basis for a period of three years but were

likely to be made permanent. Again, a Screening Committee was appointed,

after due sanction from the Vice Chancellor of the University, to short-list the

applications received for the posts of Lecturers. The appellants 2 and 4 were

selected in the selection process so undertaken as Lecturers in Computer

Science and Engineering and Mechanical Engineering respectively.

Thereafter, orders were issued by the University on 16.06.1999 in respect of

appellants 1 and 5 that they had satisfactorily completed 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 along with the appellants. On

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

10 18.05.2000 Government of Kerala issued an Order implementing revised

scales of pay for Teachers in Engineering Colleges in the State w.e.f.

01.01.1996 in accordance with the scheme recommended by the AICTE and

approved by the Government of India. An Order was thereafter issued by the

University on 23.03.2001 for implementing the UGC/AICTE pay revision to

the Teachers including the Teachers of University College of Engineering.

However, instead of making these pay revisions effective from 01.01.1996,

the effect was given from 01.01.2001. This Order further described the

Teachers of University College of Engineering as “Temporarily appointed for

a period of 3 or more years”.

G. Soon thereafter, the Principal of the University College of Engineering

informed the Registrar of the University on 18.04.2001 that the Teachers

appointed in the College were not temporary and their appointments were

governed by the provisions of the statutes of the University. The relevant

portion of the letter was as under:

“As per G.O. cited above as ref.(2) revised AICTE scales are implemented for the teachers of Engineering Colleges in the state with effect from 1.1.1996. In the U.O. cited above as ref (1) it is stated that AICTE pay revision is implemented for the teachers of University College of Engineering, Thodupuzha who are

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

11 appointed temporarily for a period of three or more years, with effect from 01.01.2001.

It may be noted that the teachers in the college are not temporary and it is stated in their appointment order that their appointment in the University is governed by the provisions in the 1991/1997 statutes of Mahatma Gandhi University. Hence revised AICTE scales of pay cannot be implemented in UCET based the U.O. cited above. It is therefore requested to consider the representation of teachers favourably and issue necessary orders at the earliest.”

H) The appellants represented to the Vice Chancellor of the University on

01.06.2001 followed by another representation on 06.05.2002 that they were

regular teachers of the University and were entitled to AICTE pay revisions

w.e.f. 01.01.1996. The appellants thereafter filed a Petition under Article 226

of the Constitution of India being O.P. (C)No.3818 of 2003 praying inter alia

for quashing of the Order dated 23.03.2001 and Resolutions passed in the

meeting of the Syndicate of the University insofar as the appellants were

treated as having been appointed temporarily.

I) While contesting the petition, the University filed four affidavits in reply

at different stages. The stand taken by the University was that the University

College of Engineering under the School of Technical and Applied Sciences

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

12 was a Self Financing Institution; for Self Financing Institution no grant was

received from the Government/All India Council; the income generated from

the Self Financing Institutions alone was utilized for infrastructure and

remuneration of the teaching and non-teaching staff; that there were 20

departments listed under the Statutes of the University and that Self Financing

Institutions were not part of that. It was further asserted that no service

conditions for teaching staff of Self Financing Institutions were formulated by

the Syndicate of the University and that the Statutes were applicable only in

respect of teachers of the University and not to the teachers of Self Financing

Institutions. In the affidavit filed in January 2007, it was asserted in

paragraph 19 as under:-

“19. The definition clause “teachers of the University” contained in the Mahatma Gandhi University Act 1985 only means teachers of departments maintained by the University under Chapter 42 of the Mahatma Gandhi University Statutes 1997. It cannot be interpreted to mean as a teacher of Self-Financing Institution. These institutions are not included in the Statute. It is pertinent to note that at the faming of Act, the Self Financing Institutions were not started by the Government of Kerala and Universities. The State Legislature has amended the Act 1985 (Vide Act 9 of 1995) and certain provisions were included in the case of unaided Colleges.”

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

13 In its affidavit filed in November, 2011, the University asserted that

on 05.08.1997 a meeting of the Statutory Finance Committee of the

University was held. In this meeting, while approving Budget estimates an

additional item was also considered, which was regarding creation of

teaching/non-teaching posts in University College of Engineering,

Thodupuzha. In said meeting, the recommendation was to create said posts

for a period of three years. However, the Resolution was not referred to in the

Order dated 25.08.1997 passed by the University and what was referred to

was the Resolution of the Syndicate of the University passed on 05.08.1997.

J) In affidavit in reply by State of Kerala, it was submitted that the

Government order issued in respect of pay revision was not applicable to

teachers by Self Financing Institutions; that no directions were issued by the

State regarding appointment of faculty in such Self Financing Institutions and

that the Government had no control over the management and fixation of

staff.

K) The aforesaid Writ Petition was allowed by Single Judge of the High

Court by judgment and order dated 08.01.2014. It was held that the Statutes

of the University contemplated only regular appointments; and that whenever

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

14 any appointments were supposed to be temporary the notifications made

specific reference in that behalf, whereas all the vacancies notified under

Notifications dated 15.07.1996 and 10.03.1998 were not stated to be

temporary. The Single Judge referred to Ext. P-26 which was copy of the

progress profile of the existing Technical Institution prepared by AICTE in

respect of the faculty including the appellants as:-

“13. Ext. P26 is the copy of the progress profile of the existing approved technical institutions. The same was prepared by AICTE. Ext.P26 contains Annexure-II, which gives the details of teaching faculties. There, all the petitioners were shown as permanent faculties. This would indicate that for the purpose of getting affiliation to AICTE, the respondent University has projected the petitioners as permanent employees.”

Allowing the writ petition the Single Judge directed:-

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

L) Aggrieved by the view taken by the Single Jude, the University filed

Writ Appeal No.442 of 2014 before the Division Bench of the High Court.

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

15 During the pendency of the appeal, in terms of the directives issued vide order

dated 01.02.2014, the University in its budget for the financial year 2015-

2016 included the income and expenditure of Self Financing Institutions in

the University fund. Same position was repeated for the next financial year

2016-2017.

M) The Writ Appeal was allowed by the Division Bench on 20.11.2015. It

was concluded that the appellants were not teachers of the University within

the meaning of Section 2(30) of Mahatma Gandhi University Act, 1985; that

they were not governed by Chapter III of the University Statutes and the

source of funds to meet the entire expenditure of the Self Financing

Institutions was the funds generated by such Financial Institutions out of the

fees collected from the students. The Division Bench observed that mere

statement that that the appellants would be governed by the University

Statutes would not confer any benefit upon the appellants and that the

University could not be compelled to treat the appellants on par with teachers

of the University. The Division Bench however recorded the statement of the

Counsel for the University that the University was prepared to grant benefits

of pay revision to the appellants with effect from 01.01.1996.

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

16 N) The appellants filed Review Petition No.151 of 2016 in the High Court

against aforesaid Order dated 20.11.2015. During the pendency of this

review petition, while dealing with challenge on behalf of the University

against the decision of a Single Judge of the High Court granting relief to

some other teachers from the same Self Financing Institution, Writ Appeal

No.727 of 2011 preferred by the University and other connected matters were

dismissed by Division Bench of the High Court on 07.12.2016. It was

observed:-

“19. It is the admitted case of the University, that an establishment of the Self Financing Institutions, it had issued notifications inviting applications for appointment of teaching staff. The first of such advertisement is Ext.P1 dated 20.12.1993 in W.A.727/11 and it was followed by several other notifications. Ext.P1, like all other notifications, contained the qualifications to be satisfied by the candidates. In pursuance to the notification, the eligible applicants were considered and subjected to a Selection process, which resulted in the select lists already referred to as Exts.P22(a) and (b). The Syndicate approved the select lists and recommended the candidates for appointment. It was on that basis the first respondent in W.A. 727/11 was appointed by Annexure-I order, dated 21.04.1995. Contesting respondents in the other writ appeals and the petitioners in W.P.(C)2148/11 also entered service.”

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

17 O) The challenge to the decision of the Division Bench dated 07.12.2016 in

Writ Appeal No.727 of 2011 and other connected matters by the University in

Special Leave Petitions (Diary No.10974 of 2017 and other connected

matters) was rejected by this Court on 03.07.2017.

P) Review petition No.151 of 2016 was thereafter taken up for

consideration. The High Court did not find any error calling for interference

and the Review Petition was dismissed by order dated 20.09.2017.

5. The appellants, being aggrieved are challenging correctness of the

aforesaid judgment and orders passed by the Division Bench on 20.11.2015

and 20.09.2017. In its affidavit in reply filed in this Court, the stand taken by

the University is as under:

“It is submitted that just because some of the provisions have been made applicable, does not mean that Petitioners have bene appointed as regular/permanent employees of University. Those provisions have been made applicable to maintain the transparency and efficiency as at that point of time there were no rules & regulations governing the self financing institutions. The post against which the Petitioners were appointed, were the post against which the Petitioners were appointed, were the post under “School of Technology Applied Sciences” which is the self financing institution. The post under those institutions are temporary in nature, as the same are not created after obtaining the consent from the Govt. which was must for the University. Applicability of the Rules and regulation of the university to

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

18 the self financing institution which has been affiliated with the university by itself doesn’t lead to the conclusion that the teachers appointed for the self financing institution are the permanent teachers of the University”.

6. We have heard Dr. Gopakumaran Nair, learned Senior Advocate who led

the arguments on behalf of the appellants and Mr. Siddharth Luthra, learned

Senior Advocate for the University and Mr. G. Prakash, learned Advocate for

the State of Kerala. It was submitted by the appellants that their appointments

were against substantive posts which were created after requisite Resolutions

were passed by the University; and that at no stage the appellants were

intimated that their appointments were for a temporary period. Reliance was

placed on the decision of the Division Bench of the High Court in Writ

Appeal No.727 of 2011 which decision was affirmed by this Court, where a

diametrically opposite view was accepted. On the other hand, the University

reiterated its stand which was consistently taken all through, including in the

reply filed in this Court. However, no explanation was offered in respect of

the decision in Writ Appeal No.727 of 2011 and as to how both these lines of

decisions could be reconciled. In the written submissions filed on behalf of

the appellants, apart from reiterating the submissions advanced in the High

Court, the document submitted by the University while seeking extension of

approval granted by the AICTE for the college, for the academic year 2018-

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

19 2019, was also placed on record. Written submissions were also filed by the

University which inter alia placed minutes of the meeting of the Syndicate

held on 22.12.1995 on record in which the decision to set-up Self Financing

schools in various subjects was taken. According to the minutes, each school

under the Self Financing scheme was to be a viable unit.

7. In the backdrop of the facts as aforesaid, the instant matter can

broadly be classified under four segments: -

a) The stand taken by the University prior to the Order dated

23.03.2001 under which pay revisions to the teachers were given from

01.01.2001 instead of from 01.01.1996 and which described the teachers

of University College of Engineering as “temporarily appointment for a

period of three years or more”,

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

c) The stand taken by the University before authorities like AICTE

and later in submission of budget proposals, and

d) The mutually inconsistent views held by two Division Benches in

case of teachers of the same institution.

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

20 8. The first document on record is the Resolution of the Syndicate dated

06.07.1996 whereunder it was resolved to create posts of teachers at various

levels in engineering disciplines for starting B. Tech courses. The Resolution

clearly indicated that the posts of Professors and Lecturers in various

branches of Engineering were without any qualification whereas by the same

Resolution, posts of teachers in certain subjects like Geometrical drawing,

Physics, Chemistry, Mathematics and Humanities were to be filled on

contractual or part time basis. The Order issued by the University on

10.07.1996 was in tune with the Resolution dated 06.07.1996. The

Notification issued thereafter inviting applications from qualified candidates

for posts of teachers was also consistent with earlier Resolution and the Order

issued by the University. The sanction accorded by the Vice Chancellor for

constituting screening or scrutinizing Committees for selection was also in

same spirit. Thus, at no stage, the posts of teachers in engineering disciplines

were referred to or described as contractual or on part time basis. Same

thought was carried in Resolution passed by the Syndicate in the Meeting held

on 05.08.1997 for creating additional posts in engineering disciplines. The

order dated 25.08.1997 passed by the University was again a reflection of the

Resolution passed by the Syndicate on 05.08.1997. The appellants were

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

21 appointed pursuant to selection undertaken in terms of Notification dated

15.07.1996 or Resolution dated 05.08.1997. Their appointment orders did not

mention anything that the appointments were contractual or on part time

basis. The appointment orders in fact stated that the appointment would be

governed by the provisions of the University Statutes. The subsequent

Notification dated 10.03.1998 inviting applications for further additional posts

was also in the same light. All these documents unequivocally suggest that

the appointments of the appellants were not on contractual basis or for a

limited period of time. Whenever appointments were to be for limited

duration or on contractual basis, a clear stipulation was always made in the

concerned Resolution or Notification. The facts on record indicate that the

appointments of the appellants were on permanent basis and that they were

appointed through regular selection process. The appellants are right in

submitting that their appointments were on substantive basis and not on

contractual basis 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 extended the

benefits of the Kerala Government Pay Revision, 1997 to the Non-Teaching

(Technical) staff. The Order issued by the Government of Kerala on

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

22 18.05.2000 for implementing revised scales of pay for teachers in Engineering

Colleges in the State contemplated extension of revision in line with the

recommendations of AICTE as approved by the Government of India with

effect from 01.01.1996. Though similar benefits were extended by the

University to the teachers of University College of Engineering, the benefits

were restricted and the effect was given from 01.01.2001 instead of

01.01.1996. No reason is available on record why such benefit was restricted

and the only explanation offered is that the teachers of University College of

Engineering were temporarily appointed for a period of three years or more.

As the facts in the first segment indicate that the appointments of the

appellants were not temporary and that they were appointed against

substantive posts, which were created pursuant to resolutions passed by the

concerned authorities, there was no reason to limit the scope of extension of

benefits. Even the Principal of the University College of Engineering in letter

dated 18.04.2001 voiced a concern that the teachers in the College were not

temporary and that they would otherwise be entitled to the extension of some

financial benefits. His letter in that behalf is quite eloquent. The steps taken

and the stand adopted thereafter by the University is on the premise that the

University College of Engineering under the School of Technical and Applied

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

23 Sciences was a Self Financing Institution which was not getting any grants

from the Government/All India Council and that it was not part of 20

Departments listed under the Statutes of the University. There is nothing on

record to indicate that when the School of Technical and Applied Sciences

was set up there was any resolution or decision by the University or its

competent bodies to set up such School of Technical and Applied Sciences as

a separate Institution. The University had secured conditional approval from

the AICTE on 31.05.1996 and had thereafter caused steps to be taken for

creation of posts and appointment of teachers against said posts. The

University cannot dissociate itself and claim said University college of

Engineering under the School of Technical and Applied Sciences to be

otherwise than part of the University.

10. We now move to the third segment. It is interesting to note that even

after such stand was taken by the University in the year 2001, in its

communications with AICTE, at every stage the faculty position in said

College of Engineering was always referred to and described as permanent

faculty. Progress Profile of the existing Technical Institution prepared by

AICTE which was referred to by the Single Judge is very clear that the

appellants were shown to be part of permanent faculty and were projected to

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

24 be permanent employees of the University. It would not therefore be proper

on part of the University to brand the very same faculty to be on contractual

basis or for a limited duration of time. It is also a matter of record that during

the budget for financial years 2015-2016 and 2016-2017, the income and

expenditure of Self Financing Institutions were included in the University

Fund and thus the Self Financing Institutions were within the fold of the

University.

11. The facts as culled out in these three segments, point only in one

direction that the appellants were appointed against substantive posts and

were always treated to be on permanent basis. At no stage were they

informed either through any Resolution or through any individual

communication that their appointments were temporary or contractual basis.

The only document which purportedly supports the stand taken by the

University is the Resolution of the statutory Finance Committee of the

University held on 05.08.1997. This Resolution was brought on record only

in the year 2011 through an affidavit of the University. According to this

Resolution, the item was taken as an additional item on the Agenda while

approving Budget Estimates and the Committee had recommended to create

the posts “for a period of three years”. Ironically, on the same day a

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

25 Resolution was passed by the Syndicate of the University about creation of

teaching and non-teaching (technical) posts for the University College of

Engineering. It is the Resolution of the Syndicate which is referred in the

order passed by the University on 25.08.1997 and not the Resolution of the

statutory Finance Committee. The Order dated 25.08.1997 also did not

qualify the posts to be limited for three years. Similarly, the document

placed on record through written submissions, i.e. the Resolution of the

Syndicate of the University passed in the meeting dated 22.12.1995 would

again have no bearing. That was a Resolution passed when the AICTE

approval was not yet granted. What is material to consider are the steps taken

by the University after the approval was granted, when the posts were created,

applications from the concerned candidates were invited and individual

appointments were made. Those steps do not indicate any qualification or

restriction insofar as the terms of employment were concerned. We, therefore,

do not find anything on record which could substantiate the stand taken by the

University.

12. Lastly, we must notice a peculiar feature of the matter that even after

the Division Bench had ruled against the appellants in the present matter and

while their review was pending before the Division Bench, in separately

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

26 instituted proceedings, the Division Bench of the same High Court had

accepted similar challenge raised by some other teachers from the same Self

Financing Institution and by its order dated 07.12.2016 had ruled in their

favour. The order dated 07.12.2016 was affirmed by this Court and Special

Leave Petitions were therefrom dismissed. We have not proceeded only on

the fact that the decision of the 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 through the record in its entirety, which record, in our view, points

completely in the direction of the appellants and in their favour. We have

therefore no hesitation in accepting the contentions of the appellants.

13. We, therefore, allow these appeals set aside the judgment and orders

under appeal and restore the order dated 08.01.2014 passed by the Single

Judge in O.P.(Civil) No.3818 of 2013.

14. No costs.

Special Leave Petition (Civil)Nos. 4255-4256 of 2018 (Jacob K Daniel vs. Mahatma Gandhi University, Priyadarshini Hills & Anr.)

Since the written submissions filed by the University show that the

appointment order of the petitioner had clearly stipulated the appointment to

SLP(C)No.4251-4252 of 2018 Abdul Hakeem M.A. & Ors. Vs. Mahatma Gandhi University & Ors.

27 be temporary, we segregate this matter and direct that it be listed before the

appropriate court in due course.

………..…..……..……J. (Uday Umesh Lalit)

..………….……………J. (Indira Banerjee)

New Delhi, February 28, 2019.

ABDUL HAKEEM M.A. Vs MAHATMA GANDHI UNIVERSITY

ABDUL HAKEEM M.A. Vs MAHATMA GANDHI UNIVERSITY