UTeachers
By Rohana Ratnayake, Senior Lecturer in Law, Faculty of Humanities and Social Sciences, Open University of Sri Lanka
The recent trade union action launched by the Federation of University Teachers Associations (FUTA) and the retaliatory measures taken by the Chairman of the University Grants Commission (UGC) and the Vice Chancellors of Universities who are also the part and parcel of the academic community, to suppress this trade union action have drawn the attention of general public towards the powers, duties and the functions of high ranking public officials involved in the administration of higher educational institutions. The validity or invalidity of the actions of these Public Authorities can be ascertained and measured by using, among other things, yardsticks, concepts and principles in Administrative Law.
The Universities Act No:16 of 1978 was introduced, inter alia, ‘to establish a University Grants Commission, to provide for the establishment, maintenance and administration of universities with their campuses and faculties, and other higher educational institutions; and for matters connected therewith or incidental thereto’. The objective of appointing a UGC was to carry out the planning and co-ordination of university education, the apportionment to Higher Educational Institutions of the funds voted by Parliament in respect of university education, the maintenance of academic standards in Higher Educational Institutions, the regulation of the administration of Higher Educational Institutions, the regulation of the admission of students to each Higher Educational Institution etc. In order to achieve this objective the UGC has been given wide powers by the Act inter alia, to inquire into the financial needs of each Higher Educational Institution; to make recommendations, from time to time, to the Minister as to the nature and amount of grants, out of public funds, which it is desirable or necessary to make to each Higher Educational Institution; to determine, from time to time, within the overall wage and salary policies of the Government, the quantum of remuneration that should be paid to different grades of the staff of the Higher Educational Institutions and the nature and extent of the other benefits that the staff should receive; to select students for Higher Educational institutions etc.
On a careful perusal of the provisions of the Universities Act one will find that the UGC has been given wide powers for the purpose of running higher educational institutions to cater to the higher educational needs of the general public. The UGC and all the State Universities established under the Act are dependent on public funds collected from the tax payers of this country. Hence the UGC and the State Universities are public institutions and the officials or public authorities in these institutions who are paid salaries out of public funds to run these state institutions, are expected to perform their duties objectively and to serve the masses. As H.W.R Wade, an eminent authority on Administrative Law points out ‘ every government authority which does some act which would otherwise be a wrong or which infringes a man’s liberty must be able to justify its action as authorized by law – and in nearly every case this will mean authorized by Act of Parliament’
The UGC had acted in accordance with the above mentioned power of determining the quantum of remuneration of University academics by appointing the Jiffry and Malik Ranasinghe Committee to recommend salary scales for University academics. Subsequently the recommendations made by this Committee was incorporated into a letter dated 13.08.2010 addressed to the Secretary to the President and the Secretary to the Ministry of Finance under the hand of the Secretary / Ministry of Higher Education recommending salary scales which the FUTA is asking now to be implemented. This letter was sent with the concurrence of the UGC Chairman, the Salaries and Cadre Commission, the Director General of Management Services Department, FUTA and the Secretary / Higher Education. Up to this point the UGC Chairman was, at least apparent as, acting bona fide in accordance with the powers granted to the Commission by the Universities Act. His actions, arguably exceeded his authority or became ultra vires when subjectivity on the part of the UGC Chairman crept in to the process i.e. when his subjective considerations took precedence over his legitimate duties. Whether a public officer acts in mala fide or bona fide can be determined with reference to the nature of his/her conduct, the words used by him/her and the tone of his/her speeches made in public. The UGC Chairman’s duty as regards the above mentioned event was to exercise the power of the UGC specified in s. 15 (iv) of the Act i.e. protect the interests of the academic community which he represents through the UGC and continue to support the contents in the above mentioned letter which was prepared with his official concurrence . But his subjective ideas on the salary issue, emanated presumably from his alignment with the Government caused him to change his position and act contrary to what he did through Jiffry and Malik Ranasinghe Committee and above mentioned letter. Without stopping at this, the Chairman UGC went on to make every endeavor in collaboration with the Government not to grant any salary increase to University academics. It is a fundamental principle in Administrative Law that a Public Authority like the UGC Chairman has no right to put into action his personal views in the exercise of his assigned duties. He was appointed to act objectively i.e. to perform the duties assigned to him by the Universities Act and he can not use the position of the UGC Chairmanship as a base to implement his personal views. If he does so, he exceeds his limits and renders his actions ultra vires and therefore null and void. There are many Sri Lankan cases such as David v. Abdul Cader and J.B. Textiles Industries v. Minister of Finance and Planning which had held that actions of Public Authorities tainted with mala fide are null and void. Further it should be clearly understood that the UGC Chairman is also estopped by operation of law from denying what he has said and what he has done. The concept of legitimate expectation widely recognized in Administrative Law has been blatantly violated by the UGC Chairman when he refuses to fulfill the promise he made together with his superior officers like the Secretary to the Ministry of Higher Education
It is a cardinal principle in Administrative Law that delegated legislation which are inconsistent with the enabling Act have no force of law. In other words instructions issued by a Public Authority by circulars have no validity if it is violative of the original Parliamentary Act. The Universities Act in its section 51 (2) says that ‘the Head of a Department shall, subject to the provisions of any appropriate Instrument, hold office for a period of three years reckoned from the date of his appointment and shall, unless removed from office, be eligible for reappointment’ Section 51 (3) provides for the appointment of another member of the department as a Head of Department when the existing Head of Department resigns or unable to perform the duties for a period exceeding three months. Other than these provisions there are no previously laid down instructions regulating this aspect.
Almost all Heads of Department of Universities in accordance with the decision of the FUTA tendered their resignations on 9th May 2011. Wide publicity had been given to this decision of FUTA more than one month before the start of the trade union action. The UGC having observed stark silence on the advance notices issued by the FUTA regarding impending trade union action, suddenly woke up from its slumber on 3rd May 2011 and issued a circular No:956 stating that Heads of Departments should give 3 months advance notice regarding their resignations and such resignations are not valid until they are accepted by the Council of the respective University. It further stated that Heads of Departments who had resigned will not be eligible for re-appointment. This circular completely violates the provisions of the Universities Act as it prohibits one which has been permitted by the enabling Act. The invalidity of the circular is further substantiated by the mala fide on the part of the UGC Chairman in issuing instructions just 6 days before the mass resignations on 9th May 2011. If the UGC Chairman was acting with good intentions, he should have issued this circular 3 months before giving sufficient time for Heads of Departments to give due notice of resignations. UGC Chairman was not performing his duties in terms of objectives of the Universities Act. He has clearly misunderstood his role under the provisions of the Act and opted for a direct confrontation with University academics. This confrontational attitude was shown again when he attempted to stop the payment of salary to academics. However the Committee of Vice Chancellors and Directors (CVCD) preferred to act in accordance with the law and decided to pay the salary of academics in May 2011.
UGC Chairman had issued the above mentioned circular in the face of a Supreme Court determination on the Universities (Amendment) Bill (Determination No:SC SD 5/99) that a proposed amendment to the Universities Act compelling Heads of Departments and Deans who resign their posts to continue to function until a new Head of Department or Dean is appointed is unconstitutional. The court held that these purported provisions are violative of Articles 12(1) and 14 (1)(g) of the Constitution of 1978. The UGC Chairman has issued the impugned circular No: 956 against the clear decision of the Supreme Court made in 1999.
It is the responsibility of a Chief Executive Officer of a Public institution like the UGC to give correct figures relating to his institution and giving wrong figures and facts for the purpose of misleading the general public is unacceptable. The antagonistic attitude of the UGC Chairman is well exemplified when he gave totally incorrect and wrong figures relating to salaries paid to University academics in an interview given by him to a journalist in the Sunday Landakeepa on 15th May 2011. At this interview he has submitted details relating to salary drawn by academics. According to the figures given by him, a Grade I Senior Lecturer draws a total salary of Rs:83053.13. However the actual position is that a Grade I Senior Lecturer who is on the maximum of the salary scale received only Rs:70990.63 as gross salary for the month of May 2011 and not Rs:83053.13 as incorrectly given by the UGC Chairman. The so called 25% research allowance that he claims to have been paid to all academics was not paid to all academics and Probationary Lecturers are excluded. It was not an allowance added to the salary of all academics as other allowances such as 25% academic allowance, 6.5% of academic allowance, 5% of budget allowance and cost of allowance of Rs:5250/-. It is an allowance which is given for a period of two years for only a section of the academic community and also to research officers in other State institutions who are totally outsiders to the University system. When the Chief Executive Officer of a State Institution provides distorted information to the general public to justify his position, it leads to erosion of the public confidence on the statistics and information supplied by that institution. The bitter truth is that University academics received at the budget 2010 only an increase of 11.25% which includes the 5% salary increase given to all government employees. This meager increase became ineffective when the Universities started from May 2011 deducting more than Rs:1000 from the salaries of academics as taxes introduced by the budget 2010.
It is interesting to note that the Government by appointing as a member of the UGC a former high ranking officer of the FUTA who covertly colluded with the government against the interests of his own brethren, has signaled to the current leadership of the academic community that those who betray their struggle have good carrier prospects under the present regime. A question arises as to whether the loyalties exhibited through betrayals take precedence over merit and academic credentials in appointing members to an important policy making body like the University Grants Commission.
Now we will turn to the Universities. All Vice Chancellors are part of the University academic community. As Chief Executive Officers of the Universities they are required to act objectively in the performance of their duties. After completing a maximum period of 6 years service as the Vice Chancellors they are, unless retired, expected to return to their substantive posts in their respective Departments of Study in the Faculty to be greeted or jeered by their colleagues in the Faculty depending on the type of conduct exhibited by such Vice Chancellors in the performance of duties while holding their office. However the conduct of some of the Vice Chancellors show that they are not bent on implementing the Universities Act or creating a culture of good governance. Some of them have in their endeavor to bring normalcy to Universities intentionally or unintentionally violated the Constitutional provisions, financial, establishment and examination procedures and resorted to unethical practices. It was very unfortunate that even some of the Vice Chancellors joined the UGC Chairman in confirming his misleading statements. The Vice Chancellor of a University in total violation of the fundamental right to freedom of speech, assembly, association and right to form a trade union enshrined in Article 14 (1) (a), (b),(c), and (d) of the Constitution, prevented the office bearers of the FUTA from using the University premises for holding a press conference to promote their trade union action. Mala fide on the part of this particular Vice Chancellor was very clear when this Chief Executive Officer of the University had immediately taken steps to stop the payment of Head’s allowance once the Heads of that University tendered their resignations. The same Vice Chancellor had previously prohibited holding of a meeting to be addressed by a well known Rights Activist in the University campus.
The Vice Chancellor of another University tried his best to get back resigned former Heads of Departments by summoning meetings after meetings. Having identified the vulnerability of a relatively new and young Head of a Department, the Vice Chancellor had pressurized her to accept the post again on the threat that he would appoint as Head of Department another Lecturer of the Department who is not acceptable to the majority in the Department and had asked her to convey this message to other members of the Department and to advise them not to bring any problems to him thereafter. This type of conduct of a Vice Chancellor does not further good governance in Universities. The Vice Chancellors have been given authority to appoint Heads of Departments not to create dissent and problems within the Departments but to ensure that Departments function smoothly. The same Vice Chancellor, probably under pressure from above, had issued a letter modifying the conditions stipulated in the Finance Ministry circular for the payment of 25% research allowance. A Vice Chancellor has no authority to amend the contents of a circular issued by the Finance Ministry as it involves payment of money. Another Vice Chancellor of a University after the trade union action was launched, had added an advance against the 25% research allowance to the salary of some academics without any request being made by them apparently with the motive of persuading them to give up the trade union action or showing the others that a 36.25% salary increase has already been granted to academics by the University. This Vice Chancellor too had violated provisions of the circular of the Ministry of Finance as the payment of the allowance require fulfillment of certain conditions. Some of these conditions were the evidence of research carried out, being a holder of a post of Lecturer and above and a request from the academic concerned to make this payment. Payment of the allowance to some academics to lure them to give up trade union action amounts to bribing public officials.
It appears that some Vice Chancellors in their desperation to run the institution without any disruption had acted beyond their powers and violated established examination procedures. One Vice Chancellor has instructed all Deans of his University to disregard certain provisions in the Examination Manual and release results by holding panels of examiners without Heads of Departments. He may have done this with good intentions. This action amounts to a blatant violation of the Examination procedure and has also set an alarming precedence which will seriously undermine the credibility of awards made by universities. The examination process is arguably the most sacrosanct activity in a university. It would be a crime similar to, if not more serious than rape, if the Vice-Chancellor of a university is able to arbitrarily determine how and to whom a degree or any other awards should be made.
It is the Head of the Department who is answerable to the Dean, Faculty Board, the Senate and the Vice Chancellor regarding results of an examination. It is the Head of the Department who starts the examination process and his/her involvement in the examination process runs throughout from the moment examiners are appointed upto and in some cases even beyond the point of releasing of results. Without a Head of a Department nobody is there to take responsibility regarding the validity and legality of the examination results. The Vice Chancellor alone can not amend the examination procedure bypassing important bodies such as the Faculty Board and the Senate. If the Vice Chancellor thinks that it is expedient and justifiable to change the procedure, the normal procedure of amending examination manual has to be followed and the approval of the Senate which is the highest academic body of the University has to be compulsorily obtained. Even such modifications to the Examination procedure cannot be made from time to time to suit the changing situations. The validity of results of examinations will be a serious issue if they are released without participation of one of the most important stakeholders of the total examination process.
In deference to some duty minded Vice Chancellors, their intentions not to transgress their limits should be appreciated. One Vice Chancellor summoned a discussion with the senior staff of a Department of Study with a view to exploring the possibility of releasing results of a particular programme of study. When the undesirability of releasing results without the involvement of a Head of Department who is to take the responsibility for the results and the adverse repercussions involved in such an arbitrary action was explained to him, he accepted the valid arguments of staff and decided not to pursue the unlawful procedure. Avoiding confrontations with staff who are their colleagues in the same University is in the interest of the University and promotes cordial relationships with each other.
Having observed the recent conduct of the UGC Chairman and some of the Vice Chancellors who, for the first time in the history of Universities in Sri Lanka, misused their positions as Chief Executive Officers of the Universities and campaigned for the election of the President at the last Presidential election in 2010 and for the 18th Amendment in 2011 to remove limitations on the Presidential term of office, nobody can expect a neutral stance from these Public Authorities. However it should be clearly noted and plainly stated that none of the previously mentioned actions of some of the Vice Chancellors are intra vires or within the powers given to them by s. 29 of the Universities Act. The desire to get re-appointed to the present position or any other position in government service and enjoy benefits and perks attached to these positions might have made the UGC Chairman and the Vice Chancellors to degrade themselves to the level of party supporters and violate provisions in the Act which regulates their conduct. It is very sad to note that now the autonomy of the Universities is only a concept relegated to the past. Will the Universities be able to reap gold by cultivating peanuts?
Rohana Ratnayake, Senior Lecturer in Law, Faculty of Humanities and Social Sciences, Open University of Sri Lanka
