Pachhunga University College and Another vs North Eastern Hill University and Others

D. Biswas, J.—This petition has been filed by the Pachhunga University College Teachers'' Association represented by its President for issue of a rule directing the North Eastern Hill University, for short NEHU, for preparation and publication of a common seniority list of all the teachers of the NEHU including the teachers of Pachhunga University College at Aizawl which has been taken over by the NEHU.

I have heard Mr. K.P. Pathak, the learned senior counsel for the petitioner Association and Mr. S. Sailo, the learned counsel for the respondents.

Shri Palhak, the learned senior counsel, submitted that the Pachhunga University College is a college taken over and maintained by the NEHU as provided in Section 2(e) of the North Eastern Hill University Act 1973 and as such, the teachers of the Pachhunga University College for short College have also acquired the status as the teachers of the NEHU. Therefore. Shri Pathak argued, the NEHU authority is bound to prepare and publish a common seniority list of all the teachers including the teachers of the Pachhunga College Shri Sailo, the learned counsel for the respondents, however, argued at length to refute the contentions of the petitioner Association mainly on the ground that the teachers of the College cannot be placed at par with the teachers of the NEHU because of recruitment made by different authorities on different eligibility criteria.

Here a review of the background of the case seems necessary. The NEHU was established as per provisions of the North Eastern Hill University Act, 1973. After about 6 years on 19th April, 1979 as per enabling provisions of the above Act of 1973, an agreement was entered into between the President of India, represented by the Lieutenant Governor of Mizoram (then a Union Territory), and by NEHU whereupon the College at Aizawl was taken over by the NEHU. After taking over the teaching staff of the College was divided into two categories, namely - Lecturers and Readers with the stipulation that 1/6th of the total number of teachers as existed would be in the category of Readers as per the norms of University Grants Commission. The terms of agreement also include absorption of the teachers of the College in the service of the NEHU. The members of the administrative staff, it was agreed, would be given appropriate scales of pay as payable to the corresponding staff in the NEHU. The grievances of the petitioner Association is that though some of its members were selected and appointed by the NEHU and posted in different campuses and institutions within the territorial jurisdiction of the NEHU, yet they are being treated with discrimination. According to them, they are essentially teachers of the NEHU and therefore, there cannot be any reason for maintaining a separate seniority list for them. Hence, this petition.

Section 2(e) of the North Eastern University Act, 1973 defines ''college'' and Section 2(q) defines the term ''teachers of the University''.

The definitions are quoted below:

"Section 2 (e)

''College'' means a College maintained by, or admitted to the privileges of the University; and

Section 2 (q)

Teachers'' of the University'' means Professors, Readers, Lecturers and such other persons as may be appointed for imparting instruction or conducting research in the University or in any College or institution maintained by the University and are designated as teachers by the Ordinances".

It would appear from the above definitions that the teachers of a College maintained by the University shall also he regarded as teachers of the University'' it they are so designated by the Ordinance. Section 5 of the Act provides for the powers of the University. Clause (15) of Section 5 reads as follows:

"Clause (15) of Section 5.

To admit to its privileges Colleges and Institutions not maintained by the University; to withdraw all or any of those privileges in accordance with such conditions as may be prescribed by the Statutes : and to recognise Halls not maintained by the University and to withdraw any such recognition."

The words ''not maintained by the University'' clarify that only those college and institutions which are not maintained by the University may be admitted to its privileges. The Statues of the University framed in pursuance of the provisions of Section 25(1) deal with service conditions besides appointment, removal etc. Statute 13(2) (ii) provides for appointment of Professors. Readers, Lecturers and other academic stall and Principals of Colleges and Institutions maintained by the University on the recommendation of the Selection committee constituted for the purpose. This provision further shows that the powers of appointment of Professors. Headers, Lecturers and other academic staff are vested with the Executive council for the Colleges and Institutions maintained by the University. Statute 26 provides for preparation of seniority lists. Petitioner Association''s case is that since the College is being maintained by the University and they have been absorbed in the service of the University with effect from the appointed day i.e., 9.4.1979, they are entitled to find berth in the common seniority list alongwith the teachers of the University. Careful scrutiny of the provisions of Statute 26(2) would show that seniority lists are to be maintained in respect of each class of persons to whom the provisions of the Statute apply. Statute 25(1) provides that all the teachers of the University shall, in the absence of any agreement to the contrary, be governed by the term and conditions of service as specified in this Statute, The Ordinance and the Regulations made.

It would appear from the provisions of the Statute quoted above, the term ''teachers of the University'' would also include the teachers of a College maintained by the NEHU. Whether the College in question is being maintained by the NEHU has to be decided from the intention of the authorities reflected in the agreement dated 19th April 1979. It would, therefore, be necessary to quote hereinbelow the relevant clauses from the Deed of Agreement:

"And whereas the Jurisdiction of the University extends to the States of Meghalaya, Nagaland and the Union Territories of Arunachal Pradesh and Mizoram (vide Section 1(2) of North Eastern Hill University Act, 1973, hereinafter referred to as the Act);

And whereas the University has expressed the possibility and desirability of having a constituent college at, Aizawl as a pace-setting institution and also a University Campus for opening University departments at Aizawl to meet the aspirations and the logs felt need of the people of Mizoram;

And whereas the Government also desires to have a constituent college of the University being maintained in the capital of Mizoram in pursuance of Resolution No. 4 dated 26th September, 1975 of the Mizoram Legislative Assembly:

And whereas the Government and the University have after a series of discussions and deliberations, arrived at a mutual Agreement on the terms and conditions hereinafter appearing;

Now, therefore, this Deed witnesseth as follows:-

In this Agreement -

(a) "Appointment Dale" means the date of making Pachhunga College a University college of the University.

(b) "University College" means Pachhunga University College, Aizawl.

(c) "University Department" means Postgraduates Teaching Departments.

On and from the nineteenth April 1979, Pachhunga College, Aizawl becomes upgraded to the status of a University College of the University.".

It would appear from above that with a view to having a constituent College at Aizawl. Pachhunga University College was taken over as per Resolution No. 4 adopted in the Legislative Assembly on 26th September, 1975. The term to have a constituent college of the University being maintained in the capital of Mizoram'' clearly indicates that for all purposes it was intend to be maintained in the NEHU. Therefore, the teachers of the College on and from the appointed clay, i.e., 19th April, 1979, acquired the status of the teachers of the University. Clause 2 of the Agreement quoted above shows that the College was upgraded and given the status of a University College. This means the taking over of the College by the NEHU on and from 19th April, 1979 is complete. This conclusion is inevitable in view of the definition of the teachers of the University'' as is available in Section 2(q), Whether Ordinances have been promulgated or not designating the teachers of the College as such will not make any difference for the purpose of adjudication of the dispute since the teachers appear to have a right vested in them.

Now let us look at Clause 4 of the Agreement. It reads as follows:-

"4. All the teaching and administrative staff of Pachhunga College who have been recruited and appointed on the recommendation of Assam Public Service; Commission and or a Selection Committee constituted by the Government will be absorbed in the service of the University with effect from the appointed date. Each teaching and non-teaching staff may, however, opt for the service of the Government within a period of one year from the appointed date. Once an option is exercised it shall be treated as final. The University shall not insist on M.Phil degree or Ph.D degree for the teaching staff who have already completed five years of service under Government and those who have not completed five years of service will be given a chance to obtain M.Phil or Ph.D degree on a priority basis within a period of five years from the appointed date. The University will take responsibility to provide them facilities for the improvement/study programme."

The above Clause shows that only those teachers of the Pachhunga University College recruited and appointed on the recommendation of the Assam Public Service Commission and or a Selection Committee constituted by the Government will be absorbed in the service of the University with effect from 19th April, 1979 on certain conditions. The Clause further stipulates that the University shall not insist on M.Phil or Ph.D degree for the teachers who have completed 5 (five) years of service under the Government obviously on or before the appointed date, and the teachers sho have not completed five years of service will be given a chance to obtain M.Phil or Ph.D degree. A careful scrutiny of the various Clauses of the Agreement lead to the inevitable conclusion that the teachers of the College have been intended to be absorbed in the service of the University on and from the appointed day and lor all purposes, they will have to lie regarded as teachers of the University. This conclusion is of course, subject to the stipulations reserved in Clause-4 of the Agreement.

The Agreement does not provide for a separate seniority list. In the absence of any provision to the contrary, as provided in Statute 25. seniority of the absorbed teachers will have to be determined in accordance with the provisions of the Statute. Since the teachers of the Pachhunga University College are held to he the teachers of the University, they would obviously be entitled to get berth in the seniority list of the Lecturers of the University. In the instant case the employer not being the same, the seniority of the teachers of this College will naturally have to be computed on and from the appointed day, past services rendered under a different employer having no relevance. The Act of 1973 and the Statutes framed thereunder nowhere provide for a separate seniority list for the teachers of a College maintained by the University. There is also no Clause in the Agreement to show that a separate seniority list will be prepared and maintained for the teachers of the College by the University, Therefore, the interpretation of law and the terms of the Agreement clearly suggest that the teachers of the College have a right to be in the common seniority list. Once the teachers of a College maintained by the NEHU are absorbed in the services of the University, their service conditions will be governed by the Statute. Ordinances and Regulations like other employees of the University. It would be discriminatory to treat them as a separate class.

Mr. Sailo referring to the provisions of Clause-5 of the Agreement submitted that the conditions incorporated therein indicate that on and from the appointed day there would be two categories of teachers namely, Lecturers and Readers in the College and this according to him, suggests that the teachers of the College would be entitled to promotion up to the level of readers. This restriction makes out a case for treating the teacher of the College constituting a separate and distinct cadre within the service cadre of the University. This argument in my opinion runs counter to the concept of absorption without any contrary stipulation in the Agreement, the terms of Clause-5 are apparently relatable to the Management of the faculty of the college and it cannot be; construed as a rider on the rights of the teachers who are absorbed in the services of the University.

The "University authority prepared a sepal ale seniority list (Annexure-III), which prompted the teachers of the College to file this writ petition. From this list it appears that the teachers named in serial No. 1 to 7 have had completed five years of service before the appointed day. Therefore, there cannot be any objection to admit them to the common seniority list. In so far is the teachers named in Serial No. 8 to 54 are concerned, the authorities will have to examine whether they have obtained M. Phil or Ph.D degree as is required under Clause-4 of the Agreement. Only those teachers who fulfil the above stipulation will also have a right for placement in the common seniority list. Furthermore, the Ordinance designating them as teacher so the University as contemplated in Section 2(q) will have to be promulgated to give full effect to the terms and conditions of the Agreement.

In the result the writ petition is disposed of with a direction to the respondents to re-examine the matter in the light of the observations made in the judgment, especially in para 13 and pass appropriate orders giving placement to the eligible teachers of the College in the common seniority list. The exercise in this direction be undertaken and completed preferably within a period of two months from today. No order as to costs.