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.