University academics want more pay and want to strike. After the UGC put strikers on no-pay, the Federation of University Teachers’ Associations or FUTA has a clever trick. They will not strike but relinquish all voluntary extra duties like being department heads, student counselors and so on.
They would conduct lectures but without heads no one can time table lecturers, handle exams or even channel orders from a VC or Dean. The university will be crippled. The letters of resignation were to be handed in on May 5, effective May 9.
Then on May 3, Chairman of the UGC who really was not Chairman on that date, issued Circular 956 which after citing irrelevant articles of the Universities Act stated that a resignation must be with three months’ notice and anyone resigning would be ineligible for reappointment ever. In fact there is nothing like that in the Act.
The circular is dubious. The UGC was appointed for a five year term which came to a close on 18 March 2011. It would appear that a new Commission was suddenly appointed on May 5, 2011 after issues arose over the validity of these circulars and the dangers of there being no Commission during a strike became clear. The date of appointment of the new UGC is being fudged to safeguard the Circulars by making no announcement about the new UGC. But it is not possible to claim a meeting of the UGC on May 3 or even earlier dates when there was no UGC but Circulars were issued purporting to be Commission Circulars. For there are regular UGC employees who would have witnessed such Commission meetings if they had taken place.
The Universities Act carefully makes provisions for VCs being unavailable. In the matter of a UGC Chairman or member, there are provisions in the Act for acting appointments when there is a vacancy during the five year term of the UGC. But the situation up to May 5 of non-appointment of a new UGC upon the expiry of the five year term was never envisaged. Section 5(3) of the Act reads:
(3) If the Chairman, Vice-Chairman, or other member of the Commission, is, by reason of illness or other infirmity or absence from Sri Lanka or other cause, temporarily unable to perform the duties of his office, the President may appoint another member to act for such Chairman or Vice-Chairman, or a fit person to act in the place of such other member, as the case may be.
This situation up to May 5 was not a “temporary” inability to perform duties because a temporary situation goes away and there was no guarantee that any of the present members would have been reappointed. Further, their terms of office having expired, there was no “Chairman, Vice Chairman or other member of the Commission” to speak of. Therefore the President had to appoint a new Commission and it was not possible to make temporary arrangements. Until a new Commission was appointed, therefore, there was no Commission even though the former Commission or its Chairman may be purporting to be in charge.
As such Circular 956 and any other Circulars purportedly promulgated after March 18, 2011 and before May 5 is invalid and has no standing or force in law.
We note two further things. First on the previous Chairman signing Circular 956 as Chairman, UGC. He was not the Chairman on that date. The Circular therefore may be deemed a forgery.
Second, a circular has to be approved by the Commission. The Chairman has no authority to issue a circular on his own. As there was no Commission, there can be no new circular during the hiatus. We believe this is why the usual statement in all circulars on the number and date of the Commission meeting where the circular was promulgated are missing from Circular 956. For there having been no Commission, there could have been no meeting of the Commission.
We believe that Circular 956 is a fraud and a tool to scare FUTA. The resignation letters have therefore been handed in on May 5 as planned with only a few unions affiliated to the SLFP/PA not cooperating. The fear is that the UGC with all the resources of the state will proceed to implement the unlawful Circular 956.
The UGC is there to uphold the law, especially the Universities Act. But it is flouting the provisions of the very Act that gives it life.
This article is a summary of a memo dated May 5, 2011 from a University of Jaffna Teachers’ union, FUTA and emails between FUTA and its affiliated unions.
