1. The petitioner, who was the Director of Students Services of the University of Kerala, was forced to retire at the age of 55 years on the ground that the post of Director of Students Services is a non-teaching post. He filed this writ petition before attaining 55 years of age claiming that he is entitled to continue till the age of 60 years since the duties and functions of the post held by him answers the definition of 'teacher' in the Kerala University Act. But since this Court did not grant any stay as such, the petitioner was forced to retire at the age of 55 years. But, this Court directed that the retirement of the petitioner would be subject to the result of the writ petition. The writ petition is now coming up for final hearing.
2. The Government of India appointed the Kothari Commission for recommending measures for enhancing the standards of University education in the country. The petitioner submits that the post of Director of Students Services was one recommended by the Kothari Commission and the Kothari Commission also recommended the qualifications requisite for the post, which according to the petitioner, answers the definition of a teacher. The post of Director of Students Services is included in the schedule to Kerala First Ordinances 1978. In the Ordinances, it was included as a non-teaching post. The qualifications prescribed for the post was that applicable to a teaching post, namely Masters Degree with experience of teaching in a University or College for seven years and experience in organising approved students service activities at least three years. The petitioner would contend that the qualifications prescribed for the post themselves would show that the post is essentially a teaching post. The petitioner submits that as is evident from Ext.P22 experience certificate issued by the Registrar of the University of the Kerala detailing the duties and functions of the petitioner, the petitioner was in fact discharging the duties and functions, which would come within the definition of 'teacher' in the Kerala University Act. The petitioner further points out that the duties and functions narrated in Ext.P22 tallies with the duties and functions of the Director of Students Services of the Mahatma Gandhi University, which post has been included by that University in their service as a teaching post as is evident from Ext.P12 order of the Mahatma Gandhi University. The petitioner further points out that in Ext.P27 Division Bench decision of this Court, it has been accepted that coaches in Universities would answer the definition of teacher, insofar as they are imparting skill to students selected for particular category of game or athletics. According to the petitioner, the Director of Students Services is also imparting skills to students on various activities and therefore, the ratio of the said decision is applicable to the facts of this case. The petitioner also relies on Ext.P29 judgment of a Division Bench of this Court in W.A.No.180/1992, wherein the Division Bench held that the Director of Centre for Adult Education and Extension of the University of Kerala is a teaching post. The petitioner derives analogy from that decision to show that the Director of Students Services is a similar post and therefore, the Director of Students Services is also a teaching post. Therefore, according to the petitioner, the petitioner was actually holding a teaching post and consequently the petitioner was entitled to continue till the attaining 60 years of age insofar as the retirement age of teachers in the University of Kerala is 60 years.
3. A counter affidavit has been filed by the University, where they take the stand that the duties and functions of the post of Director of Students Services do not answer the definition of 'teacher'. According to them, although the Kothari Commission envisaged the post as an academic post, the University has not accepted the same as a teaching post. The respondents would take the stand that it is the prerogative of the University to decide as to whether the post is a teaching post or not and in this case, the University envisaged the post as a non-teaching post as is evident from the Ordinance, which describes the post of Director of Students Services as a non- teaching post. The Standing Counsel for the University takes me to the definitions of "teacher", "teacher of the University", "department" etc. in support of his contentions. According to him, as is evident from Ext.P22 itself, the petitioner is not discharging any duties of a teacher and as such the petitioner cannot claim that the petitioner was holding a post, which envisaged teaching duties. The learned Standing Counsel would further contend that Ext.R1(b) notification inviting applications for post of Director of Students Services, Ext.R1 (c), appointment order issued to the petitioner and Ext.R1(d) memo to the petitioner directing the petitioner to join duty as Director of Students Services specifically postulate the petitioner's appointment as a Director of Students Services in accordance with the Ordinances, which describes the post as a non-teaching post. After having accepted the appointment as a non-teaching post in accordance with the Ordinances, the petitioner cannot now turn around and contend that it is a teaching post is another contention of the respondents. On this point he relies on the decision of the Supreme Court in R.N. Gosain v.Yashpal Dhir [1992(4) SCC 683]. On these contentions, the learned Standing Counsel for the University would support the stand of the University that since the petitioner was not a 'teacher' as defined under the Act, the petitioner was liable to be retired from service at the age of 55 years and therefore, the petitioner is not entitled to any of the reliefs prayed for. The learned Standing Counsel would also contend that the duties and functions mentioned in Ext.P22 certificate are duties and functions in the nature of co- curricular activities, which would not come within the definition of 'teacher' and therefore, the petitioner is not a teacher. The learned Standing Counsel also relies on the decision of a Single Judge of this Court in Austin Joseph v. Cochin University of Science and Technology [2001(2) KLT 518], wherein the Director of Students Welfare of Cochin University of Science and Technology was accepted as a non-teaching post.
4. I have considered the rival contentions in detail. It is not disputed before me that the basis for creation of the post of Director of Students Services is the recommendation of the Kothari Commission. Ext.P10 is the extract from the report of the Kothari Commission dealing with the post of Director of Students Services. Paragraph 11.72 thereof gives the vision of the Commission as to what the Commission expected from the person holding the post and his duties and functions. The same reads thus:
"11. 72. Administration of Welfare Services. The advice, support and initiative of the vice- chancellor or principal are indispensable for an imaginative and effective programme of student welfare. But such work is so complex and many- sided that it needs a full-time dean of student welfare to look after its implementation. He should be an educationists with tact and vision trained specifically for the job and should be given sufficient status and authority to command respect and cooperation from the students and the staff. He should be expected to participate in academic work to the extent possible and regarded as a member of the academic community."
As is clear from the same, the Kothari Commission envisaged the post as a member of the academic community of the Universities. Ext.P11 is the extract from the Schedule to the Kerala University First Ordinance 1978, which lays down the qualifications prescribed for that post. The same reads thus:
Department of Youth Welfare Sl.No. Designation Scale of pay Age General Tech Method of nical recruitment 91 Director of 950-1450 Not Masters Degree I By recruitment Student Services above or II Class. based on inviting 45 years Experience of applications by teaching in a advertisement in University or a the paper College for 7 years. Experience in organizing approved student service activities for at least 3 years. Of course, in the Ordinances, admittedly, the same is describe as a non-teaching post. The petitioner has challenged the Ordinances also, insofar as the said post is included as a non- teaching post. Ext.P22 is the experience certificate issued to the petitioner by the Registrar of University of Kerala. The same reads thus:
"EXPERIENCE CERTIFICATE
This is to certify that Dr. M.N.C. Bose had been working as Director of Department Student Services in the University of Kerala in the pre revised scale of pay of Rs.16650-2200 with effect from 23.05.1994 AN to 31.05.2007 AN. He was also in charge of University Employment Information Guidance Bureau and Career Information Centre and Advisor of Foreign Students of the University of Kerala. Being a non-teaching post, the incumbent in the capacity of Director of student Service had undertaken the following activities:
a) Students Welfare Schemes like Student Group Personal Group Insurance Scheme, Poor Students Scholarship.
b) Giving guidance to the Kerala University Union in organizing of the Kerala University Youth Festival by giving training programme to students in the areas like literary, theater, music, dance and fine arts. As in-charge of the University Employment Information Guidance Bureau and Career Information Centre he had organized the following activities of the Bureau.
a) To register Post-Graduate degree holders in general streams and Professional degree holders for employment assistance as and when suitable opportunities arise.
b) To give employment information and advice to the University alumni.
c) To give information on various Courses of higher studies in India and abroad.
d) To collect and disseminate occupational information, information regarding scholarships, fellowships, training facilities, admission etc.
e) To collect and disseminate Career Guidance literature, Magazine etc, to help students in their Career Planning.
f) To render vocational guidance to the Students.
g) To collect, disseminate and provide information on Competitive examination conduced by the various recruitment agencies.
h) To prepare Employment Guidance Bulletin to help students in their educational and Vocational Planning.
i) To maintain career information room in the Bureau.
j) To organize Pre-examination coaching class for competitive examination. He had represented the University in the Indian Council for Cultural Relations, as the Advisor for the Foreign Students seeking admission and studying in the Kerala University. Being the Ex-officio member, he was the Vice-Chairman of Student's Council in the University. He was also a Member in the Board for "Adjudication of Students Grievances"
The same specifically states that it is a non-teaching post. But, the Registrar could not say otherwise because the Ordinance specifically prescribes the post as a non-teaching post. But, I am of opinion that the duties and functions mentioned therein includes duties and functions in the nature of teaching. In this connection, I must note that the Mahatma Gandhi University had also created the post of Director of Students Services as a teaching post. Ext.P23 contains the duties and functions of that post also. The same reads thus:
"The Syndicate of the University at its meeting held on 26.6.1993 considered the question of defining the duties and responsibilities attached to the post of Director of Student services of the University, along with the recommendations of the Standing Committee of the Syndicate on staff held on 22.6.1993 and Standing Committee of the Syndicate on Students Welfare and Discipline held on 23.6.1993. It has been resolved that the post of Director of Student Services be considered as a teaching post in the Cadre of Reader and that Director of Student Services be eligible for travel and research grants of the U.G.C, which are available for the teachers of the university. The Director of Student Services will have the status and powers of the Heads of the Academic Departments of the University. It has been further resolved that Director of Student Services shall exercise the following functions.
1. Serving as the Honorary Treasurer of the University Union.
2. Co-ordination of Student Unions in the University and affiliated colleges.
3. Serving as Cultural Co-ordinator for Inter University Youth Programmes sponsored by the Association of Indian Universities/other agencies.
4. Organising inter-collegiate and inter- university Youth Programmes.
5. Organising orientation Programmes for teachers on student Services.
6. Serving as liaison beetwen the student community and the University/Outside agencies.
7. Planning and executing Student Welfare Programme.
8.Convening of meetings in connection with Student Welfare.
9. Organising/promoting career guidance programmes.
10.Organising/promoting co-curricular programmes for students.
11. Doing academic work to the extent possible."
A comparison of Exts.P22 and P23 would go to show that the duties and functions prescribed for both are similar. In Ext.P22 it is also stated that it was the duty of the petitioner to organise the Kerala University Youth Festival by giving training Programme to students in the areas like literary, theatre, music, dance and fine arts. He is also expected to organize pre-examination coaching class for competitive examination. Of course, the learned Standing Counsel for the University would point out that the petitioner is not qualified to train students in the area of literary, theatre, music, dance and fine arts. I do not think that the University can take such a stand since the petitioner does possess all the qualifications prescribed for the post and the person holding that post admittedly is expected to discharge the functions mentioned in Ext.P22. Therefore, essentially the Director of Students Services is expected to discharge certain functions of imparting training to students in the areas like literary, theater, music, dance and fine arts and organising coaching classes for competitive examination. Apart from that, the other functions detailed in Ext.P22 does relate to training students in various establishments for the wellbeing of the student community. In Ext.P27 judgment in W.A.No.2175/1999, a Division Bench of this Court considered the question as to whether a coach is a teacher and held thus in paragraph 10 onwards.
"10. The dictionary meaning of the word "coach" in Oxford Dictionary is "instructor, teacher, trainer, tutor", in its noun form. In its verb form it includes guide, instruct, teach, train. When we come to the meaning of teacher in the same dictionary, we see that "teacher" means "adviser, coach, counselor, demonstrator, educator, governess, guide, guru, instructor, lecturer etc. etc." In its verbal form, it means giving systematic information, instruction or training to (person) subject to skill. So even if one gives instructions in a skill, he is a teacher.
11. The petitioners were appointed as coaches to impart skill to the students selected for a particular category of game or athletic. They are appointed, even admittedly in the counter affidavit, to train the selected students. Necessarily, the duty that is enjoined on the coaches is to impart lessons in particular game or athletic and to train the students and to develop their skill so that they bring laurel to the University and to equip them to compete and win matches. Therefore, going by the definition contained in Section 2 (28) read with Section 2 (27), it has to be construed that, the coaches are appointed to impart instructions. Necessarily, such category comes within the definition of "teacher".
12. Ordinances are framed by the University as empowered under Section 36 of the Calicut University Act. The said section reads as follows:
'Subject to the provisions of this Act and the Statutes, the Syndicate shall have power to make Ordinances providing for all or any of the following matters, namely:-
(a) the levy of fees in colleges and in other institutions, by the University;
(b) the residence and discipline of students;
(c) the work load and pattern of teaching staff in colleges.
(d) the fixation of the scales of pay of various posts in the University and the terms and conditions of service of officers of the University; and
(e) all other matters which by this Act or the Statutes are to be, or may be provided for by the Ordinances.' Thus any Ordinance framed shall be subject to the provisions in the Act. In other words, any provision contained in the Ordinance cannot run contra to any of the provisions in the Act. The Schedule, a relevant provision in the Ordinance, categorise "coaches" into non- teaching category. We have already held that coaches come within the definition of teacher or teacher of the University as the case may be in terms of the Act. When in terms of the Act coaches are teachers, by making a provision in the Ordinance, such teachers cannot be categorised as members of non- teaching staff. The definition is contained in the plenary legislation, whereas the exclusion comes in subordinate legislation brought in as empowered by the plenary legislation. Necessarily, the plenary legislation will prevail over the subordinate legislation and whatever stated in the subordinate legislation contrary to the parent legislation, shall have no enforceability and has to be declared ultra vires. In the result, the prayer sought for by the appellants in that regard has to be allowed.
13. When we do so, necessarily, the petitioners/appellants have to be treated as teachers. When they are teachers, it shall have to be declared that they can continue until the age of superannuation as are applicable to the teachers viz. 60 years as per the First Statute.
14. In this regard, it is profitable to refer to the decision of the Supreme Court in 1997 SC 3433. Para 10 of the report reads as follows:
'From the aforesaid affidavit, it is clear that a Physical Director has multifarious duties. He not only arranges games and sports for the students every evening and looks after the procurement of sports material and the maintenance of the grounds but also arranges inter-class and inter-college tournaments and accompanies the students team when they go for the inter-University tournaments. For that purpose, it is one of his important duties to guide them about the rules of the various games and sports. It is well known that different games and sports have different rules and practices and unless the students are guided about the said rules, and practices they will not be able to play the games and participate in the sports in a proper manner. Further, in our view, it is inherent in the duties of a Physical Director that he imparts to the students various skills and techniques of these games and sports. There are large number of indoor and outdoor games in which the students have to be trained. Therefore, he has to teach them several skills and the techniques of these games apart from the rules applicable to these games.'
This enables us to reinforce our finding as above. On the other hand, the judgment in W.A.No.91/87 cannot have application in this case as in that judgment, the vires of exclusion of coaches has not been challenged or considered.
As the appeals thus succeed, necessarily, the retiral benefits of those who had retired shall be computed as if they had validly and lawfully continued till the age of 60 years. The appellant in W.A.No.2174/99 shall have the right to continue until he attains the age of 60 years. Writ appeals are allowed as above. The retiral benefits wherever payable shall be worked out and paid expeditiously, within four months from the date of receipt of a copy of this judgment."
The ratio of that decision, according to me, would support all the contentions of the petitioner, insofar as the Director of Students Services is expected to impart some kind of skills in the students directly or indirectly. In view of the same, I am of opinion that the reliance by the Standing Counsel for the University on the decision in Austin Joseph's case (supra) is not of much relevance. That was a case of Director of Students Welfare. I am also of opinion that the duties and functions of the post of Director of Students Welfare referred to in that judgment are not similar to those referred to in Ext.P22. Therefore, I am of opinion that the said decision cannot be an authority for deciding the question as to whether the post of Director of Students Services is a teacher or not. "Teacher" is defined in Section 2(2) of the Kerala University Act, which reads thus:
"'teacher' means a principal, professor, associate professor, assistant professor, reader, lecturer, instructor, or such other person imparting instructions or supervising research in any of the colleges or recognised institutions and whose appointment has been approved by the University."
I am of opinion that going by the duties and functions of the Director of Students Services, that post would answer 'such other persons imparting instructions' included in the definition of teacher. I do not think that as argued by the learned Standing Counsel for the University a teacher must be one imparting instructions in a course of study or research. The definition does not say so. Any person imparting instructions is a teacher as per the definition. I am of opinion that in view of the above discussion, the post of Director of Students Services should be one which is designed to impart instructions to students of the Universities.
5. The contention of the Standing Counsel that after accepting the job as per the Ordinances, which stipulates that the same is a non-teaching post, the petitioner cannot challenge the same. If the Ordinances wrongly classifies a post as a non-teaching post, the petitioner is certainly entitled to challenge the same notwithstanding the fact that he has accepted a post described in the Ordinances as a non-teaching post, if the same is in fact a teaching post. The reliance on R.N. Gosain's case (supra) in support of the said proposition is misplaced because it deals with a totally different fact situation and the ratio of that decision does not apply to the facts of this case.
6. In the above circumstances, I am of opinion that the petitioner was a teacher of the University of Kerala and was therefore, entitled to be continued in service till the age of 60 years, insofar as admittedly the age of retirement of teachers is 60 years. Of course, the petitioner has not yet attained the age of 60 years. But, If I am to direct reinstatement of the petitioner to allow him to continue till he attains the age of 60 years, necessarily, the incumbent of the post will have to be displaced for no fault of his. I am not inclined to order the same at this point of time. But I am inclined to give an equitable relief to the petitioner. The petitioner shall be treated as a teacher, who continued in service till the age of 60 years for retirement benefits and he shall be paid retirement benefits by fixing his pay as on the date he attains the age of 60 years. He shall be paid retirement benefits on the basis of that fixation of pay on attaining the age of 60 years adding increments, pay revision etc. which accrued during the 5 years he was kept out of service. The petitioner will not be entitled to any other monetary benefits other than retirement benefits fixed as directed above.
The writ petition is allowed as above.