Dr. S.C. Bhadwal & Ors Vs. Dr. S. R. Mehrotra & Ors [1998] INSC
51 (3 February 1998)
K. Venkataswamy,
A.P. Misra Misra, J.
ACT:
HEAD NOTE:
The
aforesaid three appeals raise a comman question whether the appointment of the
'Evaluators' and 'Research Associates' as Lecturers in the Himachal Pradesh
University, Shimla was valid or not? These appeals, accordingly, are being
disposed of by means of this common judgment. All the appellants in Civil
Appeal No. 13709/96 were initially appointed as Research Associates. Some of
them have already been appointed as Readers whose case is not in issue in these
appeals. They have been working a such for the last about nine years. Since
they were working for a long period the Executive Council of the aforesaid
University by their resolution dated 16th January, 1986, declared the cadre of Research
Associate as wasting cadre. hence on 30th May, 1986, by another Resolution stipulated
that they may be designated as Lecturers. Their suitability for the post of
Lecturers was to be ascertained through the statutory Selection Committee
confining the selection among the incumbent working on the post of Research
Associates.
Admittedly,
all the appellants were working as Research Associate when the said Resolutions
were passed. Later, they appeared before such selection Committee and, on its
recommendation, were appointed as Lecturers in the year 1986. Since then they
are working as such.
The
appellant in C.A. No. 13708/96, namely, Dr. Abha Malhotra was initially
appointed as Research Associate on 22nd May, 1983, and her selection was through a
Selection Committee consisting of Dean of Art Faculty with two outsiders and
two internal experts. She did her Ph.D in the year 1981 in History. She was
appointed as research Associate in the department of History as the said post
was lying vacant and her appointment was approved by the Executive Council in
the meeting held on 22nd May. 1933. The case of the appellant is that Research
Associate in various other departments were approved by the Executive Council
in its meeting held on 29th July, 1982, and 25/26 November.
1983,
which is evident from the Notification dated 7th January, 1984. The Executive Council approved the creation of one post in
each of the beaching department including History with effect from the date of
filling up the post.
Thereafter
to decide the status and future of the Evaluators and Research Associates, the
Vice Chancellor of the University appointed a Committee which gave its report
which was considered by the Council on 18th January, 1986.
Thereafter,
on 30th May, 1986, vide Resolution on the same day it
was decided to regularise the Evaluators and Research Associates in the
existing designation and scale with immediate effect and it was also decided
that they were to be designated as lecturers. The appellant appeared before the
Selection Committee on 24th
November, 1986, and on
its recommendation, was appointed to the post of Lecturer. On 27th December, 1986, the Executive Council approved her
selection and on st January, 1987, the appointment letter was received and
finally on 4th
February, 1987, the
appellant joined as Lecturer in History.
The
appellant in C.A. No. 13707/96 [Dr. (Mrs.) Meera Massey did her M.A. in
Sociology in the year 1973.
Thereafter,
she passed M.Ed. in July 1975 for the aforesaid University. On 29th September, 1975, she was appointed as Evaluator in
Sociology in the Directorate of Correspondence Courses in the aforesaid
University. In 1976 she did her M. Phil, in Education and stood first in the
University and thus was awarded gold medal for the same. In 1981 she got the
degree of PH.D. in Education. In fact, she did both M.Phil, and Ph.D. in the
field of Education while being Evaluator as aforesaid . The Executive Council
as aforesaid on the
30th May, 1986,
decided to regularise all the Evaluators with immediate effect for their
appointment on regular basis as lecturers selecting them through the Statutory
Selection Committee. The Statutory Select in Committee met on 30th October, 1986, found the appellant competent to
be a Lecturer. The Executive Council thereafter in December 1986, on the basis
of the observations of the Selection Committee, appointed her as lecturer in
Education in the directorate of correspondence Courses. On 20th February, 1987 she joined as lecturer. On 29th May, 1987 she was confirmed as such.
Dr.
S.R. Mehrotra, Professor in History Department, respondent No.1 in all these
appeals, filed a writ petition assailing the appointments of the aforesaid two
appellants and Dr. Shivraj Singh who is respondent No. 5 in Civil Appeal No.
13709/96, as Lecturer both on the ground that it is contrary to the Resolution
of the Executive Council and also against the Ordinance of the aforesaid
University. In the counter affidavit filed by the university it was revealed
that there are 12 other Research Associates similarly situated who had been
appointed as lecturers.
Whose
appointments in Civil Appeal No. 13709/96 were also impleaded as respondents
and their appointments were also challenged on the ground of violation of
ordinance No. 35.11 of the University as they were also not appointed after due
advertisement. The High Court by means of impugned judgment quashed the
appointment of the aforesaid two appellants and Respondent No. 5 both on the
ground of violation of Ordinance 35.11 and favoritism and other illegalities
and appointment of remaining appellants were quashed as it was in violation of
Ordinance 35.11. thereafter, Review Petition was filed by the aforesaid
University, Dr. Abha Malhotra, the appellant, and Shivraj Singh (Respondent No.
5) who was respondent No. 16 in the writ petition and all the remaining
appellants in Civil Appeal No. 13709/96. Dr. Meera Massey one of the other
appellants did not file review as she already preferred Special leave Petition
No. 5235/95 (C.A.13707/96). Respondent Nos. 4 and 15, namely, Shri S.C. Bhadwal
and Shri Ram Sharma in the writ petition, had neither filed Review Petition nor
special leave Petition before this Court. In review the High Court deleted the
observation, that Respondent No. 2 (Dr. Abha Malhotra) is admittedly the close
relation of the Vice Chancellor of the University as it was found to be
factually incorrect.
Neither
ruin the writ petition such allegations were made nor there was any material on
record from which such fact could be inferred. The said observation came on the
basis of the submission made by counsel only. However, the Court refused to
review other part of the judgment which held her (Dr. Abha Malhotra)
appointment as illegal and violative of Ordinance 35. The High Court held, her
appointment as a Research Associate in the department of History was temporary
stop gap arrangement on the basis of order dated 25th May, 1983. While post of Research Associate was created in the side
department and notified on 7th January, 1984.
It was further held in the absence of filling up the post created vide
Notification dated 7th January, 1984, in accordance with the ordinance 35 of
the First Ordinances of the Himachal Pradesh University, 1973, her appointment
was void and hence could not be given benefit of Resolution of the Executive
Council dated 16th January, 1986. So far as taking benefit of para 4 of the
Resolution dated 30th may, 1986 being violative of the aforesaid order, cannot
be availed of by her as her appointment as lecturer on the recommendations of
the Selection Committee, is illegal. So far as the review by the University
pertaining to the case of one of the aforesaid appellants. Dr. Meera Massey, it
was held:- " It is rightly observed that the University failed to place
before the Division Bench the original proceedings of the Selection Committee
which would have put an end to the controversy whether she was interviewed for
appointment as Lecturer in Education but from the totality of material on
record, especially the resolution dated 27th December, 1986, the only
conclusion possible is that she was not considered and recommended by the
Selection Committee for appointment as lecturer in Education irrespective of
her possessing the qualification and experience for the said post may be
because she was working as Evaluator in sociology at the relevant time."
While considering the case of Shivraj Singh, Respondent No. 5, in the aforesaid
appeal, in review it was held that since he was appointed as Reader by way of
direct recruitment in the department of public Administration of the University
in March, 1989, the decision of this Court will have no effect. So far as the
appellants in the aforesaid Civil Appeal No. 13709/96 are concerned, it is not
in dispute that for the first time their appointment was alleged to be by way
of promotion under Ordinance 35.8, however, their review was also rejected.
Mr.
Sunil Gupta, learned counsel for the appellants in C.A. No. 13709/96,
challenged the locus standing of Dr. S.R. Mehrotra who filed the writ petition
in the High Court. The arguments raised before the high Court were reiterated
before us. In addition, reliance was placed in the case of " In Gupta Case
Bhagwati, J. emphatically pointed out that the relaxation of the rule of loque
standing in the field of PIL does not give any right to a busybody or
meddlesome interloper to approach the court under the guise of a public
interest litigant. He has also left the following note of caution: (SCC p. 219,
para 24) But we must be careful to see that the member of the public, who
approaches the court in cases of this kind, is acting bona fide and not for
personal gain or private profit or political motivation or other oblique
consideration. The court must not allow its process to be abused by politicians
and others to relay legitimate administrative action or to gain a political
objective." (para 99) "Sarkaria, J. In Jasbha) Motibhai Desai V. Roshan
Kumar expressed his view that the application of the busybody should be
rejected at the threshold in the following terms:
(SCC
p. 683, para 37) "It will be seen that in the context of locus stands to
apply for a writ of certiorari, an applicant may ordinarily fall in any of
these categories
(i)
'person aggrieved's
(ii) 'stranger'
"
(iii) houseboys
or meddlesome interloper.
Persons
in the last category are easily distinguishable from those coming under the
first two categories. Such persons interfere in the things which do not concert
them. They masquerade as crusaders for justice. They pretend to act in the name
of pro bono publico, though they have no interest of the public or even of
their own to protect. They indulge in the pastime of meddling with the judicial
process either by force of habit or from improper motives.
Often,
they are actuate by a desire to win notoriety or cheap popularity: while the
ulterior intent of some applicants in this category may be no more than spoking
the wheels of administration. The High Court should do well to reject the
applications of such busybodies at the threshold." (par 104) "K. N.
Singh, J. speaking for the Bench in Subhash Kumar v. State of Bihar has
expressed his opinion in the following words: (SCC pp. 604 - 05, para 7)
"Public interest litigation cannot be invoked by a person or body of
persons to if such petitions under Article 32 are entertained it would amount
to abuse of process of the Court, preventing speedy remedy to other genuine
petitioners from this Court. Personal interest cannot be enforced through the
process of this Court under Article 32 of interest litigation. Public interest
litigation contemplates legal proceeding for vindication or enforcement of
fundamental rights of a group of persons or community which are not able to
enforce their fundamental rights on account of their incapacity, poverty or
ignorance of law. A person invoking the jurisdiction of this Court under
Article 32 must approach this Court for the vindication of the fundamental
rights of affected persons and not for the purpose of vindication of his
personal grudge or enmity. It is the duty of this Court to discourage such
petitions and to ensure that the course of justice is not obstructed or
polluted by unscrupulous litigants by invoking the extraordinary jurisdiction
of this Court for personal matters under the garb of the public interest
litigation." (para 108) Having considered the submissions, we do not find
any of the observations made hereinbefore is applicable in the present case. We
find Dr. Mehrotra has filed the writ petition being concerned with the
anomalies and illegalities in the procedure adopted by the University in making
selection and regularising the various posts in contradiction to the Acts,
statute and Ordinances. He was aware fully of all what was happening with full
grip of all the materials. Facts reveal he was genuinely concerned to rectify
the wrongs without any personal animosity against anyone. His feelings were
bona fide, being professor of History in the same University. He had all the
details, fully equipped with facts and the law pertaining to the University. It
was not for any personal gain. It was neither politically motivated nor for
publicity. The golden key for public interest litigation was delivered in the
land mark decision of this Court in S.P. Gupta's case (1981 (Suppl) SCC 87).
This was devised for increasing citizens participation in the judicial process
for making access to the judicial delivery system to such who could not
otherwise reach court for various reasons. But it is also true, since then this
Court repeatedly has been cautioning its misuse laying down restrictions to
scuttle out undesirable persons or body. It is in this context the above
observations were made by this court as relied by the appellants but that very
authority accords approval for filing such public interest litigation.
After
having elaborately explained the concept of Pil, the learned Judge held that:
(SCC p. 218, para 23) ".... any member of the public having sufficient
interest can maintain an action for judicial referees for public injury arising
from breach of public duty or from violation of some provision of the
Constitution or the law and seek enforcement of such public duty and observance
of such constitutional or legal maintaining the rule of law, furthering the
cause of justice and accelerating the pace of realisation of the constitutional
objectives." (para 92) Of course, even this is also in a given case
restricted, laid down in various decisions not necessary to refer here.
In
view of the said legal principle on the facts of this case, we do not find any
merit to the challenge of the locus stands of Dr. Mehrotra.
The
High Court held that the appointment of the Evaluators and the Research
Associates on the post of teachers could only he done through direct
recruitment by virtue of Ordinance 35.11. It can only be by advertisement
which, admittedly, was not done hence their appointment as such i illegal.
Further abolition or creation of the post also could not be done without the
recommendation of the Faculty concerned and, in turn, the Academic Council and
that not having been done is violative of Ordinance 24.3(b).
In
order to appreciate the contention it is necessary to refer to the relevant
provision of the Himachal Pradesh University Statutes (hereinafter referred to
as "Statute") and the First Ordinance of Himachal Pradesh University
Act 1973. (hereinafter referred to as the 'Ordinances"). Section 2(15)
defines teachers:- "Teachers means teachers of the University who have
been appointed or recognised by the Academic Council as Professors, Readers and
lecturers and shall include Professors, Readers and Lecturers and Officers
appointed to man research and extension education" Relevant portion of
Statute 11 as quoted here under which defines the powers of the Executive Council
: - " Powers of the Executive Council :
Subject
to the provisions of the Act, these Statutes and Ordinances, the Executive
Council shall in addition to any other power's vested in it, have the following
powers:
(i) to
create and to appoint such professors, Readers, Lecturers, and other members of
the teaching and research staff as may be necessary, on the recommendation of
the Selection Committee, constituted for the purpose and to provide for the
filling of temporary vacancies therein;
(ii) to
fix the emoluments and define the duties and conditions of service of
professors, Readers, Lecturers and other members of the teaching and research
staff;
Provided
that no action shall be taken by the Executive Council in respect of the
number, the qualifications and the emoluments of teachers otherwise than after
consideration of the recommendations of the Academic Council:
Learned
counsel referring to the definition of 'teachers' contends that Research
Associates and the Evaluators will fall within the words:
"Officers
appointed to man research and extension education", hence a teacher.
The
Executive Council have power under Statute 11 (i) both to create and appoint
members of teaching and such research staff. Further the duties and
qualifications of Research Associates and Evaluators are Similar to that of
Lecturer, which is evident from the advertisement for appointment of such
Research Associates. Ordinance 35.53 prescribes the pay scale of teachers which
refers to different pay scales of professors, Readers. principals, lecturers
etc, but does not include the pay scale of either Evaluators or Research
Associates. Repealing this reliance of the High Court to exclude the Research
Associates to be teacher, the submission is this categorisation of pay scale in
that Ordinance is not exhaustive and this cannot restrict the categories of
teachers as envisaged under the Act and the Statutes. The Research Associates
and Evaluators being at the lowest category has a lower pay scale than the
Lecturers. The Executive council, in the circumstances of this case, resolved
to regularise their appointments and then to appoint them as lecturers after
each incumbent passing the scrutiny of the Statutory Selection Committee.
It is
said that the appointment to the posts of lecturer is not only by direct
recruitment as provided under Ordinance 35.8. Both Ordinances 35.8 and 35.11
(a) (b) are quoted hereunder :- 35.D - "Save as otherwise specifically
provided in the Act, Statutes or Ordinances, the Executive Council shall fix
the minimum qualifications required for each post or class of post and also lay
down whether the post or class are to be filled by direct recruitment or
promotion or by both an dif so in what proportion." "35.11
(a)
Save as otherwise provided in the Statutes the appointment of all categories of
employees shall be made by the competent authority referred to in 35.7 on the
recommendation of Selection Committees, appointed by the competent authority.
(b)
Whenever there is a vacancy to be filled by direct recruitment, the post in
Category 'A' or 'B' or Asstt. Registrar/Asstt. Engineer/Asst. Architect or
above shall be advertised not less than three weeks in advance, in at least one
leading daily newspaper, while others in category 'B' and 'C' shall be
advertised through Employement Exchanges and affiliated colleges in Himachal
Pradesh and applications invited there for. The advertisement shall clearly
mention the eligibility qualifications and pay-scale of the post.
It is
argued that though the Executive Council has not used the word promotion but
through its Resolution it directed the Research Associate/Evaluators to be
appointed as lecturer in the higher grade which would constitute to be a case
of promotion. Hence, for such internal candidates when the Executive Council
desired, their absorption by way of promotion was within the powers of the
Executive Council.
Hence,
their appointment would be valid under Statute 35.8.
Further
submitted the only pre- requisite for promotion to the post of teachers is that
they fulfil the qualification of Lecturers prescribed under Ordinance 35.54
which is the minimum qualification for appointment as teachers and to face the
Selection committee as provided under Ordinance 35.11(a) read with Section 34
of the Act. The contention is that expression 'absorption' 'regularisation',
adjustment' etc. have all been used loosely in the Resolutions of the Executive
Council dated 16th January, 1986 and 30th May, 1986, but, in fact, it is in the
context of promotion. In support that it is a case of Promotion reliance is
placed in State of Rajasthan vs. Fateh Chand Soni (1996 (1) SCC 562) :-
"In the literal sense the word 'promote' means to advance to a higher
position, grade, or honour, So also 'promotion' means 'advancement or
preferment in honour, dignity, rank, or grade, 'promotion' thus not only covers
advancement to higher position or rank but also implies advancement to a higher
grade. The service law also the expression 'promotion has been understood in
the wider Sense and it has been held that 'promotion' can be either to a higher
pay scale or to a higher posts." Punjab & ors. (1994 (5) SCC 392) :- "Promotion as understood under
the service law jurisprudence means advancement in rank, grade or both.
Promotion
is always a Sten towards advancement to a higher position, grade or honour."
Director, Central Rice Research Khetra Mohan Das ( 1994 Supp (s) SCC 595)
"Promotion as understood in ordinary Parlance and also as a term
frequently used in cases involving service laws means that a person already holding
a position would have a promotion if he is appointed to another post which
satisfies either of the two conditions namely that the new pot is in a higher
category of the same service or that the new post carries higher grade in the
same service or class." On the other hand, Dr. Mehrotra submitted, under
Section 22(4) of the Act read with proviso to Section 11(i) - (ii) of the
Statutes and 24.3(b) (ii) and 24.5 of the Ordinances, require that no teaching
or research post can be created in the University unless and until a proposal
to that affect has been made to the Executive Council by the Faculty concerned
through the Academic Council. By virtue of 11 (i) and 17 of the Statutes read
with 35.11 (a) of the Ordinances, no appointment to a teaching post in the
University can be made by the Executive Council save and except on the
recommendation of Selection Committee constituted by the Competent authority.
He submitted that Hon'ble High Court rightly held selection for a teacher
should only the under Section 35.11(b) of t he Ordinances which requires prior
advertisement at least is one leading daily newspaper. So far as appellants Dr.
Abha Malhotra and Dr. Meera Massey are concerned, he reiterated his submission
as before High Court, that their appointments were also illegal and is nullity
as they were appointed in violation of Section 35.11 (b) of the University
Ordinances and on the posts which did not exist.
It is
relevant at this stage to refer to the stand of the University, the relevant
portion of the counter affidavit filed by it to the amended writ petition in
the High court is reproduced below :- " Para 1 : In reply to this para, it
is submitted that simply because the petitioner is working as Professor in the
Department of History, in the Himachal Pradesh university that does not give
him any right or cause to maintain the present petition as submitted in the
preliminary objections above and as such the petition is not maintainable and
deserves to be dismissed." "Para
2. ..... The action of the University is absolutely in the interest of the
institution, students and the teachers working against certain
assignments/posts which were not considered fit to be continued by the
University and these teachers had been working against these assignments for a
pretty long time, it was not only reasonable but also in consequence with the
principle of equity.
Justice
and fair play that their real status in the University was recognised and they
no longer remained under suspense as to their future. These appointments,
therefore, are absolutely legal, valid, equitable as well as in the interest of
justice and cannot be quashed on any principle." " Para 5 & 6 .... The Executive Council took a decision
that the category of Evaluators/Research Associates will be a vanishing cadre
and the incumbents of these assignments be considered for regularisation of the
post of Lecturers and their cases routed through the Statutory Selection
Committee for the Purpose. The same was done and these appointments are by way
of regulation ................ The University can appoint a teacher on special
stipulations - conditions which may not be in accordance with he normal made of
appointment as alleged by the petitioner" This shows regularisation,
appointment as teacher to these Research Associates/Evaluators was because they
were working as such for a long time and hence for equity, justice and fair
play it was reasonable to do this.
The
relevant Executive Council resolutions No. 20 dated 16 January, 1986 and No. 33
dated 30th may, 1986 as referred and incorporated in this counted affidavit are
also reproduced below :- "Resolution No. 20 dated 16th January, 1986. The
Council considered the report of the committee constituted by the voice
Chancellor and decided as Under:
1.
That the Research Associateship should be a wasting/Vanishing cadre and that no
future appointment of Research Associates be made in any Department/wing of the
University.
2.
That the existing Research Associates who have been appointed in various
Department/wings against regular/vacant available positions of lecturers, may
be allowed to continue as such till the vacancies are filled on regular basis
after due advertisement etc.
3. For
those Research Associates who have been appointed against the positions created
by the Executive Council for individual departments/wing, they be allowed to
continue till their permancent absorption through a regular selection committee
against regular position of lecturer in the different departments/wings. As and
when any of them secures regular appointments in any position of leaves the
university the said position of the said Research Associate shall stand
abolished with immediate effect. No further recruitment in this cadre will be
made henceforth.
4. The
Council further decided that the following facilities be provided to the
existing Research Associates working in the Directorate of Correspondence
Courses.
(a)
They shall be allowed to contribute towards the contributory provident fund
with usual share of University contribution as per rules.
(b)
They shall be allowed to participate in different sumposia/seminars/summer
institutes connected with that particular subject.
(c)
They shall be provided the medical facilities as provided to other employees of
the University.
The
council also, decided that the same committee as has been constituted by the
Vice Chancellor in respect of Research Associates, will consider and examine
the issue of evaluators alongwith the question whether, the evaluators are
teachers or not, and submit its report to the Executive Council."
Executive Council Resolution No. 33 dated 30th May, 1986:
"The
Executive Council after a detailed discussion on the issue of evaluators and
Research Associates (as per item No. 34), In the context of their academic
qualifications nature of duties, academic and administrative implications. Vis-a-vis
service put in the University by most of them, and the recommendation of the
committee constituted by the Executive Council earlier to go into the matter,
decided as under:
1.
That all Evaluators and Research associates be regularsied in their existing
designation/post and scale with immediate effect.
2.
Their suitability towards their appointment as Lecturers be ascertained by the
Statutory Selection Committee before which only the present incumbents would
appear and compete, if necessary amongst themselves. Those who do not get
selected will continue as such till their appointment against regular posts of
Lecturers.
3. All
service benefits will accrue to them as in the case of regular employees of the
University.
4.
Research Associates and Evaluators be designated as lecturers. Their services
will be regularised after undergoing the formality of selection through the
Statutory Selection Committee. In case any vacancy of lecturer is vacant in any
department/Evening College/Directorate of Correspondence Courses, they will be
adjusted against such posts.
5. No
future appointment, adhoc or otherwise will be made as Research Associates in
any department or Evaluators in the Directorate of Correspondence
Courses." In view of the aforesaid stand of the University, the Evaluators
and Research Associates were required only to face the Statutory Selection
Committee for their regularisation as lecturers.
Learned
counsel for Dr. Abha malhotra adopted the arguments of learned counsel for the
appellant in Civil Appeal No. 13709/96. He clarified only difference of her
case was the wrong allegation against her that she was related to the Vice
Chancellor which in review, the High Court defected. Similarly, the other
appellant Dr. Meera Massey also adopted the Submission of the aforesaid learned
counsel in her appeal.
Having
heard learned counsel for the parties and perused the affidavits, we find there
is no Resolution of the Executive Council which specifically spells out appellants
promotion. It is also not in dispute that the appellants, either as Research
Associates or Evaluators were withdrawing pay much below that of Lecturer. It
is also admitted that they were performing the duties of teachers and taking classes.
It is also not in dispute that their appointments initially were temporary and
was so till the regular appointment to the post of Lecturers in made. It is
also not in dispute that the post of Research Associates and Evaluators are not
referred to in the Act, Statutes or Ordinances. Ordinance 35.8 empowers the
Executive Council to fix the minimum qualifications for each post or class of
post and also to lay down whether the post or class of posts are to be filled
up by direct recruitment or promotion or by bot . Ordinance 35.11(b) refers
that whenever a vacancy is to be filled up by direct recruitment, the post in
category 'A' and 'B' . Shall be through advertisement specifying the minimum
eligible qualification. It is also not dispute that these posts since long time
are only being filled by direct recruitment under the said provision and till
the present disputed case no case to the contrary was brought to our notice.
From the Stand of the University it is clear that the University felt that
since these appellants continued to teach as Research Associates/Evaluators for
a long time, hence on the principle of equity, justice and fair play, their
real status of teachers be recognized.
Hence,
the Executive Council took the decision to regularise their appointments as
teacher. From the counter affidavit, as reproduced above, the stand of the
University is that they have appointed these teachers on special stipulations
conditions which is apart from the normal mode of appointment. This is how the
University has tried to justify these appointments, i.e., on special
circumstances and on the principle of equity, justice and fir play, not under
any specific provision of Statute, Ordinance etc. If this be so how could this
be the appointments by way of promotion. if University resolved to promote,
there was no difficulty to say so instead to take shelter of 'equity' justice
and fair play and justify it under special stipulated condition. The Resolution
of the Executive Council Clearly depicts that initially when the First
Resolution dated 16th January, 1986 was passed the thinking of the University
was different.
They
resolved, Research Associates were wasting and vanishing cadre, no such future
appointment he made but those already appointed to the various departments be
permitted to continue on the regular/vacant available post of Lecturers till
the vacancies are filled on regular basis after due advertisement, it further
resolved even those Research Associates, who were appointed against the post
created by the Executive Council, be also continued till be permanent
absorption through a regular selection committee.
The
Executive Committee till this time was not thinking of any special
stipulation's conditions but to let them continue till regular selection takes
place nor it thought to promote them. It seems on 30th May, 1986 the Council
resolved that all such persons be regularised in their existing designation
with immediate effect and their suitability for appointment as Lecturer be
through the Statutory Selection Committee. In fact even those who were not to
be selected through Statutory Selection Committee their continuance was also
secured as the Resolution further stated "those who do not get selected
will continue as such till their appointment against regular posts of
Lecturers".
The
Resolution also records that "their services will be regularised after
undergoing the formality of selection through the Statutory Selection
Committee." The question arises why this special stipulation was resorted
to by the University when they could have filled up the post of lecturers on a
regular basis in accordance with the existing Ordinance. Is it not, the
university sat for number of years to fill the vacancies of Lecturers at the
cost of students and permitted adhocism and stop gap arrangement for a long
time to being in articulated sympathy to justify special stipulated condition.
Even if one has all the minimum qualification for a higher grade post and is on
a much lower grade of scale of pay, it is never desirable to regularise such
persons as standard of selection criteria for both is bound to be different
even scrutiny of selection and sphere of competition is bound to be different.
Regularisation
excludes large number of very competent persons who if given opportunity was
available would have applied. It is a slackness inertness may be in some cases,
to which we are not adjudicating, for favouring particular person. This leads
to a situation as the present case viz.
the
sympathy and in---- drawing principle of equity, justice and fair play to regularise
adhocism, justifying merely on eligibility criteria. Selection of teacher has
not to be on minimum eligibility but best available from a larger sphere.
Nor
from the limited sphere of adhoc or stop gap appointees.
This
affects teaching standard of university and output of student-at-large. In fact
adhocism in any class of service may be class IV, is deprecated but in our
opinion it should never be a principle in the cases of appointment of Teachers,
Readers and Professors. Ordinance 35.8 as aforesaid empowers the Executive
Council to lay down whether the post or class of posts are to be filled up by
direct recruitment or promotion. In the present case, the Executive Council has
not resolved to fill up the post of Lecturers by way of promotion but to treat
the incumbents already working therein to be regularised. Even if it has power,
it never resolved as such., There is distinction between regularisation and
promotion. Regularisation means, one which is already working doing or has done
something which law did not permit but the same is being regularised, treated
to be done in accordance with law, treat one as such. Hence in such cases regularisation
cannot be said to be a promotion as contemplated under the Ordinance 35.8. In para
four of the Executive Council Resolution dated 30th May, 1986 the Research Associates and Evaluators were resolved to be
treated as Lecturer. Here University did it by itself without even following the procedure of
promotion as noticed and in the same breath directed for regularisation. Could
this be said to be desirable? It is not pleasant to think that as high an
institution as University has to regularise something under cover of his own
fault. The post of Research Associates/ Evaluators is not provided as aforesaid
under Act. Statute or Ordinances.
It is
vanishing cadre, it was only created in 1984 and resolved to end in 1986. Hence
it is not necessary to record the finding that they are teachers within the
meaning of Section 2 (15) of the Act. Even if it is accepted as such they will
also be held to be covered by category 'A' which includes teachers as per
Ordinance 35.53 and then to such the selection and appointment could only have
been by advertisement by virtue of Ordinance 35.11 (b). However, their
appointment as Research Associate/Evaluator is not a matter of Challenge.
University
imparts education which lays foundation of wisdom. Future hopes and aspiration
of the country depends on this education, hence proper and disciplined
functioning of the educational institutions should be the hallmark. If the laws
and principles are eroded by such institutions it not only pollutes its
functioning deteriorating its standard but also exhibits to its own students
the wrong channel adopted. If that be so, how such institutions, could produce
good citizens. It is the educational institutions which are the future hopes of
this country. It lays the seed for the foundation of morality, either and
discipline. If there is any erosion or descending by those who control the
activities all expectations and hopes are destroyed. If the institutions
perform dedicated and sincere service with the highest morality it would not
only uplift many but bring back even limping society to its normalcy. As we
have already recorded above from the stand of University itself that this was
done as a special stipulation circumstances not in accordance with the normal
mode of appointment, we depreciate this and record that in future such
situation should not be brought in for taking such decisions at the cost of recognised
regular selection of teachers.
It is
pertinent to refer to the Report of the University Education Commission
(December 1948 - August 1949) popularly known as the Report of the Radhakrishnan
Commission, Vol, I. (1949), p. 79.
"We
must reiterate our warning against the growth of certain tendencies which are
uphealthy. One is inbreeding. Universities are more and more inclined to
recruit their staff from among their own students and teachers. Secondly, there
is negligence in applying criteria of merit in the selection of their
lecturers. The first breeds narrow parochialism and leads to stagnation. The
second is dangerous because it encourages favouritism, depreciates the value of
the work whole atmosphere of the University, for the Lecturer of today is
Reader and Professor of tomorrow. For University appointments there should be
no criteria other than that of merit ......" Similarly another report of
the Committee on some problems of University Administration, 1964 (1967) is
reproduced below :
The
most important factor in the field of higher education is the type of person
entrusted with teaching. Teaching cannot be improved without competent
teachers..... The most critical problem facing the universities is the winding
supply of good teachers. .... The Supply of the right type of teachers assumes,
therefore, a vital role in the educational advancement of the Country. We,
therefore, recommend that teachers should be selected purely on the basis of
their merit through regularly constituted selection committees on which there
should be outside exist.
These
reports have been given few decades back but in spite of long passage of time
the suggestions and guidance still holds good. But we find this still not been
applied dissolving all the efforts of these commissions. It needs no direction
when laws of the universities are framed it is to be adhered to viz. Act. Statutes
and Ordinances. Even for regularisation there has to be if any the law to be
prescribed certainly not on parity with the general principle of law of
Industrial workmen or class IVth employees, casual or daily worker. it is an
appointment of teacher. Whenever vacancies of teachers arise they should be
promptly filled up by following the procedure as laid down under the University
Laws, lest students suffer.
However,
we find that all the appellants have been regularised as teacher and appointed
as Lecturers approved by the Executive Council since 1986 more than 11 years
back.
Respondent
No. 1 Dr. Mehrotra very fairly states he has nothing against these appellants.
They are all competent teachers fully qualified to the appointed as such. We
feel setting aside and disturbing their appointments now would create great
turmoil and would affect the teaching in the University and, in turn, the
students at large even to the appellants also, who in the hope continued for
long. We feel it would not be appropriate on the facts and circumstances of
this case to set aside their appointments as teacher.
(1990
(8) SCC 48) it was a case where appointment of the Principal was held to be
illegal but since she was working in the college for 16 years it was felt to be
unjust to make her leave the post, hence in spite of that she was permitted to
continue.
However,
we want to make it clear this approval of their continuing on the posts of
lectures, in view of their working for such a long period should not be treated
as a precedent. This had been done of the facts and circumstances of this case.
Through this judgment we want to make it clear that every institution
especially the universities while making appointment of lecturers should not
create a situation so that they have to condones their own illegality by regularisation.
They should act promptly by filling up such vacancies in accordance with law.
Their appointments should be strictly on merit as they are fibre and strength
of the University on which future generation depends.
so far
as the case of appellant Dr. Meera Massey is concerned, the contention by Dr. Mehrotra
is that she was not even approved by the Statutory Selection Committee, as it
did not select her as a Lecturer in Education as she was only Evaluator in
Sociology. Since the University failed to place the original proceeding of the
Selection Committee which would have put an end to the controversy whether she
was interviewed for her appointment as Lecturer in Education, Inference was
drawn by the High Court in the absence of original records produced that she
was not considered and recommended by the Selection Committee for appointment
as Lecturer in Education. Through there was observation of her competence as
Lecturer. However, since the qualification of the appellant Dr. Meera Massey to
be appointed as Lecturer in Education is not disputed as she passed M.Ed.
examination in July, 1975, M.Phil in Education form this very University and
stood first and awarded gold medal and later did even Ph. D. in Education while
being Evaluator. The dispute, if any is whether the Selection Committee
approved her for Bociology or Education notwithstanding the findings of the
High court in the situation as aforesaid, we feel for the same reason as she
has also been working for a very long period approved by the Executive Council
we are not disturbing her appointment as Lecturer on the facts and
circumstances of this Case.
For
the aforesaid reasons though we deprecate the situation which was brought in by
the University which created a situation for special stipulation, deviating
from the normal mode, but in view of what we have said above we uphold
appellants appointments as Lecturers. Accordingly all the three appeals are
allowed with the aforesaid observations. Cost on the parties.
Back
