State
of Karnataka & Anr Vs. B. Suvarna Malini
& Anr [2001] Insc 4 (4
January 2001)
G.B.Pattanaik,
B.N.Agarwal Pattanaik,J.
Appeal (civil) 15991 of 1999 Special Leave Petition (crl.)
44412-4431 of 2000
L.J
Delay
condoned.
eave
granted in Special Leave Petitions.
These
appeals by State of Karnataka as well as Karnataka Rajya Sarkari Prathama Darje
Collejugala Arekalika Upanyasakara Sangha, are directed against the judgment of
the Karnataka High Court, dismissing the writ petitions, filed against the
order of the Karnataka Administrative Tribunal. The tribunal entertained the
public interest litigation petition and struck down Rule 2(b)(iii) of the
Karnataka State Civil Services (Absorption of Persons working as Part Time
Lecturers in the Karnataka Education Department of College Education) Special
Rules, 1996 as well as the order dated 15.12.1997, essentially on the ground
that the stop-gap lecturers are back door entrants and their regularisation by
Rules is contrary to the law laid down by Supreme Court in several cases and it
affects the rights of regular entrants. Against the order of the tribunal, the
High Court being moved under Articles 226 and 227 of the Constitution and the
writ petitions having been dismissed, the present appeals have been preferred.
These
cases involve not only a question of law but also a human problem inasmuch as
these part time lecturers have served in different colleges for varying period
for ten to twenty years and, if they are not regularised and treated as regular
servants, then they will not be able to get themselves engaged anywhere else
and at the same time, their experience in teaching will be a great loss to the
student community. The part time lecturers had approached this court against
the dismissal of their applications by the Karnataka Administrative Tribunal by
way of filing special leave petitions, which were registered as SLP No. 4440-4454/1992
and 4321/1992. Those special leave petitions were disposed of by order dated
3.9.1992 and the Court came to the conclusion that on that date their exist 626
vacancies and the part time lecturers should be continued till regular
recruitment to fill up the posts is made and such part time lecturers would be
eligible to apply to the State Public Service Commission, whenever, the
vacancies are notified and applications are called for. The Court also took
note of the fact that the tribunal itself has given weight-age at 1% per year
of service as part time lecturers, depending upon the number of years of
service or 5%, whichever is less and also to enhance the maximum age limit upto
10 years in case of part time lecturers, possessing teaching experience and the
weightage is also to be taken into consideration at the time of recruitment.
Notwithstanding
the aforesaid observations of this Court, the State of Karnataka did not take
any further steps for filling up 626 vacancies, as a result of which, these
part time lecturers could not make applications for regular recruitment. They
again filed a writ petition under Article 32 in January, 1994, which was
registered as Writ Petition No.21/1994. In the said writ petition, they sought
for regularisation of their services. While, the matter was pending in this
Court, the State Government appointed a High Power Committee on 28th of
February, 1995 to examine the problem and the impasse and submit a report.
Taking into account the fact that the Sub-committee has been constituted to
consider the grievances of the part time lecturers, the writ petition was
disposed of by order dated 11.9.1995. The said order reads as follows:
It is
stated in the rejoinder affidavit that a sub-committee has been constituted by
the State Government to consider the grievances of the part time lecturers and
the cases of all such persons would be considered by the Sub-committee. The
Minister In-charge also seems to have made a statement to that effect on the
floor of the House.
If
that is so, it would be open to the petitioners to make a representation before
the sub-committee along with all other persons similarly situated. The writ
petition is accordingly dismissed.
On
consideration of the grievances made by the part time lecturers, the High Power
Committee submitted its report with the recommendation that the part time
lecturers could be regularised as one time measure, and the aforesaid
recommendation was more or less for solving the impasse on account of inaction
on the part of the State government in taking regular steps for filling up the
vacancies and the continuance of these part time lecturers, who have served for
fairly long period ranging from ten to twenty years.
The
State of Karnataka, approved the recommendation of the
High Power Committee and decided to frame Rules under the provisions of
Karnataka State Civil Services Act, 1978 for regularisation of these part time
lecturers.
It may
be noticed that the High Power Committee considered the problems of the part
time lecturers in great detail and bearing in mind the relevant decisions on
the question, made the recommendation for absorption of such part time
lecturers and while making such recommendations, the reserved quota in favour
of Scheduled Castes/Scheduled Tribes/other back-ward classes under Article
16(4) of the Constitution remained intact. The said Committee also recommended
that special recruitment rules will have to be framed by the State Government
in exercise of powers conferred on it by the Karnataka State Civil Services
Act, 1978 for the purpose of absorption. On the basis of the aforesaid recommendations
of the High Power Committee, the State Government framed draft rules called the
Karnataka Civil Services (Absorption of Persons working as Part Time Lecturers
with Karnataka Education Department Services)(Department of Collegiate
Education) (Special) Rules, 1996 [hereinafter referred to as the Absorption
Rules) in exercise of powers conferred under Section 3 read with Section 8 of
the Karnataka State Civil Services Act, 1978 [hereinafter referred to as 'the
Act]. Section 3(2)(b) of the Act mandates that the draft rules should be
forwarded to the Karnataka Public Service Commission for necessary
consultation, as provided under Article 320(3) of the Constitution. The draft
rules were notified in Gazette, inviting objections and then the same were sent
to the Public Service Commission for necessary consultation. On consideration
of all objections received and in consultation with the Public Service
Commission, the final absorption rules were published on 22nd of January, 1997.
The Karnataka State Civil Services Act is an Act to regulate the Recruitment
and the conditions of Service of persons appointed to Civil Services of the
State of Karnataka and posts in connection with the
affairs of the State of Karnataka. Section 3 authorises the State
government to make rules, regulating recruitment and the conditions of service.
Section 8 is the rule making power of the State government to make rules to
carry out the purposes of the Act. Under Sub-section (3) of Section 8, every
rule made under the Act is required to be laid as soon as may be, after it is
made before each House of the State Legislature, while it is in session for a
total period of thirty days, which may be comprised in one session or in two or
more successive sessions, and any modification in the rule, as desired by the
House, could be carried out or if both Houses agree that the rule should not be
made, in which case the rule will not be effective and it is only when the
House agrees with or without any modification, then the rules shall have the
effect in such modified form. The absorption rules being the rules made in
exercise of powers under Section 8 and the aforesaid requirement under
sub-section(3) of Section 8, having been duly complied with, the rule is
legislative in character and would have the force, as if the State Legislature
have framed the rules.
On the
public interest litigation filed by some intending candidates for the post of
lecturer, the tribunal struck down the absorption rules on the ground that it
violates Article 14 and seeks to legalise back-door entrants, even at the cost
of relaxation of the relevant qualification and must be held to be contrary to
several decisions of this Court. Reliance has been placed on the three Judge
Bench Judgment of this Court in Ashwani Kumars case, AIR 1997 SUPREME COURT
1628, where-under this Court had indicated that an employee whose entry in
service is illegal being in total disregard of recruitment rules or being not
on existing vacancy, has no case for regularisation and in any event, back-door
entries for filling up the vacancies have to be strictly avoided.
Mr. Kapil
Sibal, the learned senior counsel, appearing for the part time lecturers,
submitted with vehemence that the question of absorption through a legislative
measure was necessary because of inaction on the part of the State machinery in
complying with the directions of this Court dated 3.9.92 in special leave
petition Nos. 4440-4454/1992 and even before initiating framing of absorption
rules, the State Government have constituted a special Committee to examine the
problems of these part time lecturers and suggest measures to be taken for
ventilating their grievances and said Committee had recommended for absorption
as a one time measure. According to Mr. Sibal, therefore, this is not a
clandestine regularisation of the so-called back-door entrants, but solving a
problem and an impasse which was the creation of the inaction on the part of
the State machinery and, therefore, there could not be any objection to such regularisation,
so long as the essential qualifications are not sacrificed. According to Mr. Sibal,
these part time lecturers have in fact discharged the maximum work load in
taking the courses of study meant for the students and would otherwise loose
their livelihood, if their services are not regularised and the legislative
measures by way of enactment of absorption rules, subserves the purpose and the
tribunal as well as the High Court committed error in striking down the said
rules.
By
referring to the requirement of the absorption rules, Mr. Sibal also submitted
that due care and caution has been taken, so that unworthy and unqualified
hands do not get themselves absorbed and he further urged that if this Court
feels any further stipulation in that regard, the Court may observe to that
effect. The learned counsel also contended that he is not advocating for
absorption, generally of untrained and unqualified persons but in the case in
hand, the absorption rules have been framed to meet a special and peculiar
situation and that too, after thoroughly examining the pros and con by an
expert Committee and consequently, it stands on a different footing than an
ordinary process of absorption of back-door entrants and this perspective has
not been borne in mind by the tribunal or the High Court, while striking down
the provisions of the absorption rules.
We
find considerable force in the aforesaid submission of Mr. Sibal, appearing for
these part time lecturers. Though some of the intending applicants for the post
of lecturer had moved the tribunal by way of a public interest litigation and
had been arrayed as party respondents in these appeals, but there had been no
appearance on their behalf and, therefore, the Court had not the advantage of
having the opposite view point and for this reason, we have to scrutinize the
so-called absorption rules in a great detail. It may be stated that the State
of Karnataka has also preferred a special leave petition, which has been tagged
on to the present case, being SLP(civil) No. 15991/99 and the contentions
raised in the said special leave petition are similar to those raised by Mr. Sibal
in the special leave petitions filed on behalf of the part time lecturers. It
may also be noticed that the order of the State Government dated 10.6.1998 as
well as the assertion of the State Government in the special leave petition
filed in this Court unequivocally indicates that there would be no compromise
with the prescribed qualification and, necessarily, therefore, the part time
lecturers, who would get themselves absorbed under the Absorption Rules by
following the prescribed procedure, will have to pass the N.E.T. test, fixed by
the University Grants Commission, within the period of three years, as provided
in the Government letter dated 10.6.98 and would not be entitled to the scale
of pay available for the regular qualified teachers but would only get the
State scale of pay provided they possess the requisite qualification for the
state scale. It is in these perspectives, we are examining the validity of the
Absorption Rules.
It is
no doubt true that this Court in the case of K.S.P. College Stop-Gap Lecturers
Association vs. State of@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
Karnataka, AIR 1992 SC 677, had indicated as to how appointments made in
disregard of rules and regulations and then regularising the same by process of
regularisation rules or order has been unjust and unfair to those who are
lesser fortunate in society, even though they may be better qualified, more
meritorious and well deserving. The Court also indicated its anxiety to find
that the infection has been widespread in Government or semi-government
departments and even used a word of caution that even if it is found to have
been resorted to as a genuine emergency measure, the Courts should be reluctant
to grant indulgence. It is specifically indicated in the aforesaid case that in
the State of Karnataka, it is basically State created
problem due to defective rules and absence of any provision to effectively deal
with such a situation. It is this judgment of the Court, which has weighed with
the High Court in upholding the orders of tribunal by striking down the
provisions of the Absorption Rules. As has been indicated in the impugned
judgment of the High Court that the appointment of the part time lecturers in
the State of Karnataka is in vogue since 1979 and the object of appointment on
part time basis is the utilisation of services of unemployed qualified persons
and such part time lecturers are appointed only when the full time teaching
staff is not adequate to cope up with the existing teaching work load or when
there is no full time teaching staff in any subject.
From
time to time, the Government have also been issuing instructions for canalizing
the method of appointment and directing that even part time lecturers could be
appointed through the Directorate of Collegiate Education and not otherwise.
The Directorate of Collegiate Education also has been issuing circulars
indicating the guidelines. The reasons which weighed with the High Court to
sustain striking down of the Absorption Rules are that the so-called part time
lecturers had not been appointed after a process of selection in accordance
with the prescribed rules but on the other hand, their appointment is de hors
the rules. Further such candidates are not scrutinized by the Public Service
Commission and they do not possess the N.E.T. test, as provided by the
University Grants Commission, which is one of the essential requisites for
recruitment under the statutory Recruitment Rules of 1993.
From
the materials on record, it appears that the State government has been
regulating the mode of appointment@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ of part time lecturers
and it is not correct that there has@@ JJ been no process of selection before
such appointment of part time lecturers. Even though the selection had not been
made by the Public Service Commission, but yet there was a process of selection
and it further appears that unqualified people were not been appointed as part
time lecturers. Part time lecturers having been formed a class by themselves
and for some reason or the other, they having been deprived of the benefits of
the earlier directions of this Court on account of inaction on the part of the
State Government, the matter was reexamined by a Committee of experts as to how
best, the services of these part time lecturers can be utilised and at the same
time, there will be no dilution in the quality of teaching nor there can be any
infraction in the minimum qualification, necessary for appointment as a
lecturer. The concept of equality before the law does not involve the idea of
absolute equality among human beings which is a physical impossibility. All
that Article 14 guarantees is a similarity of treatment contra-distinguished
from identical treatment. Equality before law means that among equals the law
should be equal and should be equally administered and that the likes should be
treated alike.
Equality
before the law does not mean that things which are different shall be treated
as though, they are the same. It of-course means denial of any special
privilege by reason of birth, creed or the like. The legislature as well as the
executive government, while dealing with diverse problems arising out of an
infinite variety of human relations must of necessity, have the power of making
special laws, to attain any particular object and to achieve that object, it
must have the power of selection or classification of persons and things upon
which such laws are to operate.
Mere
differentiation or inequality of treatment does not per se amount to
discrimination. When the Absorption Rules are examined from the aforesaid stand
point and when we consider the circumstances under which the said rules were
made to solve a human problem and that the rules made were put to objection to
the general public and even the Public Service Commission was consulted and
finally was before the State Legislature to have their concurrence, we are of
the considered opinion that the High Court committed error in striking down the
rules on the ground that it is discriminatory. When this Court deprecates the regularisation
and absorption, when it comes to the conclusion that such regularisation and
absorption has become a common method of allowing back door entries and then regularising
such entry, it is not that in every case, the Court would be justified in
striking down the process of absorption or regularisation, more so when such
absorption has been made as a legislative measure and that also as a one time
measure, and at the same time insisting upon the essential qualifications to be
duly complied with, by the persons intended to be absorbed on regular basis. In
the aforesaid premises, we have no hesitation to come to the conclusion that
the tribunal as well as the High Court committed serious error in striking down
the impugned absorption rules. We, therefore, set aside the judgment of the
tribunal and the High Court and allow these appeals.
While
we hold the absorption rules to be valid, we would further direct that the
State Government must insist upon the candidates to pass the N.E.T. test, as
required by the University Grants Commission within the period of three years
and it is only on passing of such test, the absorbed employees will be entitled
to the scale of pay, available for the regular qualified lecturers. Failure on
their part to pass the N.E.T. test would debar them from being absorbed and regularised.
These
appeals are allowed with the aforesaid observations and directions.
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