Case: P. GOPINATHAN PILLAI Vs. UNIVERSITY OF KERALA &amp; ORS

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 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 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 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 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. (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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]18. The judgment of the High Court does not mention any details of the establishment, nature and organisation of the Centre i.e. CACEE19. 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 Centre20. 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- 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 CACEE26. 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 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 StatutesEven 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 University32. 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 appellantThe 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 distinguishableThe 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 Education38. 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.