VEER KUNWAR SINGH UNIVERSITY AD HOC TEACHERS ASSOCIATION AND ORS. v. THE BIHAR STATE UNIVERSITY (C.C.) SERVICE COMMISSION AND ORS

Citation: [2007] 7 S.C.R. 396

Court: Supreme Court of India

Bench: S.B. SINHA, MARKANDEY KATJU

Case summary

VEER KUNWAR SINGH UNIVERSITY AD HOC TEACHERS ASSOCIATION AND ORS. v. THE BIHAR STATE UNIVERSITY (C.C.) SERVICE COMMISSION AND ORS.pdf

Judgment text

'. >.. VEER KUNWAR SINGH UNIVERSITY AD HOC IBACHERS ASSOCIATION AND ORS. v. TIIE BIHAR STAIB UNIVERSITY (C. C. ) SERVICE COMMISSION AND ORS. MAY 18, 2007 ... [S. B. SINHAANDMARKANDEYKATJU,JJ. ] "" Service Law: Appointment-Practice of appointing ad-hoc teachers in Universities deprecated-Held: Ifa Government ofa State or a University which is also a State within the meaning of Art. 12, despite repeated observations of the Superior Courts, continue to do so, such a practice must be condemned- Creation ofsanctionedposts is sine qua nonfor recruitment-Any appointment made in violation of the constitutional scheme of equality as adumbrated . ,. _ under Art. 14 as also in violation of the provisions of the relevant Act and .. the subordinate legislation framed thereunder would be wholly illegal and without jurisdiction-Bihar State University Act, 1976-ss. 57 & 58- Constitution of India, 1950--Arts. 12 & 14.

In various Universities in the State of Bihar, ad hoc teachers were being appointed without any sanction therefor. In 1989, the matter came up before \= the Supreme Court which deprecated the said practice and thereafter directed the Bihar University Service Commission to advertise the posts available. The Court also asked the Government to consider the workload in each University ,,, and sanction additional posts as may be required. The additional posts were ,. directed to be filled regularly either by direct recruitment or by promotion as per rules and not by ad hoc appointment. Further all the ad hoc teachers against sanctioned posts were asked to continue till selection was made by the University Service Commission. Subsequently in 1993 an advertisement was issued by the Bihar University Service Commission for appointment of teachers in different Universities. At that point of time, additional posts were not sanctioned. \,... ,...

Appellants-ad hoc teachers made representation before the Chancellor for regularization of their services and subsequently filed a writ petition before VEER. KUNWARSING! Ulll. ADHOCTEACHERSASSON. v. BlllARSTATEUNI. (C. C. )SERVIQ;COMMISSION 397 the High Court. The High Court noticed that the time frame prescribed by Supreme Court in the said judgment had not been adhered to and that the controversies raised before it did not give rise to any serious dispute in law, rather involved a careful balancing ofequities, with a view to give effect to the said judgment of the Supreme Court. In that situation, the parties agreed to consent, pursuant to which a consent order was passed by the High Court. In terms of the consent order, the vacant posts were to be identified by a Commith:e consisting of the Vice-Chancellors of the various Universities· concerned with a retired Judge as its Chairman and the finding of the Committee in this regard was to be final.

In appeals to this Court, it was contended by the Appellants that the High Court committed a manifest error in passing the impugned judgment, insofar . as by reason ofthe consent order, it neither could have modified the terms of the order passed by this Court, nor could it in contravention of the provisions ofthe Bihar State University Act, 1976 as also the statutes framed thereunder, appoint a committee of the Vice Chancellors in place and stead of the Bihar University Service Commission, which is a statutory body. . ,, Dismissing the appeals and the connected interlocutory applications, the Court HELD: 1. 1. In terms of the Section 57 of the Bihar State University Act, 1976, all sanctioned vacant posts were required to be filled up by candidates who were qualified therefor and who had been selected by the University Service Commission, which is a statutory body.

Clause (a) ofsubsection (1) ofSection 58 ofthe said Act provides for appointment on temporary basis without following the procedure prescribed in Section 57 of the Act; but such appointments shall not exceed a period ofsix months. (Para 26) [406-G-H; 407-A-B) 1. 2. Any appointment made in violation ofthe constitutional scheme of equality as adumbrated under Article 14 ofthe Constitution as also in violation ofthe provisions ofthe Act and the subordinate legislations framed thereunder would be wholly illegal and without jurisdiction. [Para 27) (407-8-C) Secretary, State ofKarnataka and Ors. v. Umadevi (3) and Ors. , [2006) >- ; 4 sec 1, followed R. S. Garg v. State ofU. P. and Ors. , [2006) 6 SCC 430; Surinder Prasad Tiwari v. U. P. Rajya Krishi Utpadan Mandi Parishadand Ors. , (2006) 7 SCC 684; State ofMP. and Ors. v. La/it Kumar Verma, (2007) 1 SCC 573; Indian Drugs & Pharmaceuticals Ltd v.

Workmen, Indian Drugs & Pharmaceuticals Ltd, (2007] 1 SCC 408; Municipal Corporation, Jabalpur v. Om Prakash Dubey, (2007] 1 SCC 373; Accounts Officer (A&I), AP SRTC v. KV. Ramana and Ors. , (2007) 2 SCC 324; Punjab Water Supply & Sewerage Board v. Ranjodh Singh and Ors. etc. , (2007) 2 SCC 491; State ofPunjab and Ors. v. Lakhwinder Singh and Ors. , (200i) 2 SCC 502, Yamuna Shankar Sharma v. State ofRajasthan and Ors. , (2007) 2 SCC 611 and Post Master General, -" Kolkata & Ors. v. Tutu Das (Dutta) (2007) 6 SCALE 453, relied on. 2. 1. Creation of sanctioned posts is a sine qua non for recruitment to the post of lecturers. Adherence to the statutory provisions therefor is imperative in character. No doubt the qualification for holding the post of lecturer has since been changed in terms of the ordinance promulgated in the year 1993, but then the same was done as per the directions of the University Grants Commission.

The colleges whether constituent or recognized must have lecturers who are qualified to hold the post Qualification to hold the post of lecturer is fixed by the University Grants Commission. A University can ignore the directions ofthe University Grants Commission in this behalf only at its own peril and risk of derecognition. Neither i. t is permissible for a University to contravene the directions of the University Grant Commission nor is it permissible for a court oflaw to issue a direction contrary thereto. Evidently, the endeavour on the part of the appellants and interveners herein was to obtain a direction from this Court that their cases may be considered by a Public Service Commission or in its absence by the State or by the University on the basis ofa qualification held by them prior to 1993. No such direction at this point of time can be issued.

This Court will assume that the State and/or Universities had failed to adhere to the time frame fixed by this Court, but even ifa violation ofthis Court's order in that behalf had taken place, the same by itself would not lead to an inference that the respondents were stillto obey the order of this Court, despite the change in law, which had taken effect in this behalf. Such a direction cannot be given at this stage. [Para 35] [409-C-G] 2. 2. In a situation ofthis nature, when a subsequent event has occurred and when there exists a dispute as to whether order of this Court has substantially been complied with or not, it would not be proper to put the parties to the same position to which they were in 1989. [Para 37] [410-G-H; 411-A] VEERKUNWAASINGHUNlADHOCTEACHERSASSON. •·· BIHAllSTATEUNI. lC. C. )SERVICECOMMISSION 399 Secretary, State ofKarnataka and Ors. v. Umadevi, 3 and Ors. , (2006) 4 sec 1, followed. 3. The practice to appoint ad hoc teachers must be deprecated.

If Government ofa State or a University which is also a State within the meaning of Article 12 of the Constitution of India, despite the repeated observations of the superior courts of the country, continue to do so, such a practice must be condemned. [Para 38) [411-A-B) 4. 1. Directions can be issued to the State to act within four-corners of the statute and to declare any action taken in contravention thereof to be a nullity; but it would not be permissible for this Court to go beyond the provisions of the statute and issue a direction that cases ofall the appellants must be considered irrespective of the fact as to whether their appointment even as ad hoc teachers was against a sanctioned post or they have been working against the non-sanctioned posts or not. (Para 39] (411-C] 4. 2. Even before the High Court it had been conceded that many teachers have been appointed on an ad hoc basis on non-sanctioned posts. One fails to understand how this could be validly done.

Those teachers who could compete with others having requisite qualification must be appointed by the University Service Commission in accordance with the provisions of the Bihar State Universities Act. Appellants may have the requisite qualification at the relevant point of time, but one must also consider that since then a large number of other persons must have acquired the requisite qualification for being appointed to the said posts, who cannot be deprived of their right to be considered for appointments along with other eligible candidates in terms of Article 14 of the Constitution. (Para 40) (411-D-E] 4. 3. The interest ofjustice would be subserved if it is directed that the Respondents in filling up ofthe vacant posts take into consideration the cases ofall those teachers also who have the requisite qualifications, upon relaxation ofage, if permissible by law along with other eligible candidates.

However, it would be open to the State of Bihar as also the concerned Universities to forthwith terminate the services of those teachers not working against sanctioned posts or who do not fulfill the requisite educational qualifications or whose services are otherwise not required. [Para 46) [412-G, H; 413-A, BJ B. S. Bajwa and Anr. v. State ofPunjab and Ors. , (1992) 2 SCC 523; Swami Krishnanand Govindanand v. MD. Oswal Hosiery (Regd), {2'J01J 3 SCC 39 and Employers in relation to Monoharbahal Colliery Calcutta v. KN. . , Mishra and Ors. , AIR (1975) SC 1632 referred to. >- CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1601-1602 of 2004. From the Final Judgment and Order dated 2. 2. 2000 and 23. 11. 2000 ofthe High Court ofJudicature at Patna in CWJC No. 4001of1995 and Civil Review No. 140 of2000. J. C. Gupta, P. S. Misra, Sr. Adv. Shrish Kumar Mishra, Salcet Singh, . >, Upendra Mishra, D. Jha, Niranjana Singh for the Appellants. H. L. Aggarwal, P. S. Mishra, Sr. Advs.

Vikram Braj K. Mishra, Apaqia Jha, Ujjwal K. Jha, Atul Jha, Naresh Kumar, Amit Kumar, P. Chandra Kumar Brij Nandan, J. K. Jha, Ashish Kumar, Syed Ali Ahmad, Syed Tanweer Ahmad, S. S. Banoyopadhyay, Mohd. Shah Nawaj Hasan, Shabana Saifi, Mohan Pandey, Vijay Kumar, Vishwajit Singh, Upendra Mishra, Rajeev Singh, Ravi Chandra Pralcash, Dhruv Kumar Jha, H. Tathagat, Sunita R. Singh, Shefali Jain, Gopal Singh, Anukul Raj, Rituraj Biswas, B. B. Singh (NP), Prem Sunder Jha, Deba Prasad Mukherjee, Ugra Shankar Prasad, Prashant Kumar, Manjula Gupta, P. B. Suresh (for Temple Law Firm) Gopal Prasad, A. N. Bardiyar, Bharat Sangal, ll. 4. J. 1 405 to time and cannot be treated as valid appointment. 8. That the Secretary, Higher Education vide his letter dated 9. 7. 2003 has also informed the University that the Govt. has complied the order dated 6. 12. 1989 as directed by the Hon'ble Supreme Court. " 22.

Our attention has also been drawn to the Counter Affidavit filed on behalf of the State of Bihar, some relevant paragraphs whereof are as under: "8. I say that in respect of this Hon'ble Court's direction at SI. No. 1 all the Universities were asked to report the available vacancies to the University Service Commission. "' ' 9. I say that in respect of this Hon'ble Court's direction at SI. No. 2 Universities of the State were requested vide Department letter No. 14/MI-021/89 MA-210 dated 15. 2. 1990 to send proposal for creation of additional posts according to the workload by 15th March, 1990. The Universities were reminded vide letter No. 427 dated 28. 4. 1990 and again vide letter No. 506 dated 5. 5. 1990. Many more reminders were also sent. In response to these letters, proposals were received from y -I Magadh, Ranchi and Bhagalpur Universities. Other Universities did not send any consolidated proposal for creation of additional posts in accordance with the workload.

Therefore, it was presumed that they did not have requirement for additional posts of teachers. 10. I say that on the basis of workload 55 additional posts have been sanctioned for three concerned Universities. The concurrence of Government for sanctioning these posts has been communicated to the concerned Universities to enable them to send requisition to University Selection Committee. xxx xxx 12. l say that in respect of direction given at S. No. 4, 5 & 6, the Universities were asked to comply. A contempt petition no. 145/91 was filed in this Hon 'ble Court for not complying with the order of this Hon 'ble Court dated 6. 12. 1989. The State Government filed an affidavit in the contempt petition and produced advertisement for 98 posts including 55 addtitional sanctioned posts for Ranchi, Bhagalpur and Magadh Universities and this Hon'ble Court discharged the rule ofcontempt on 23. 9. 1991. xxx xxx 16.

That the present petitioners of this Special Leave Petition have been claiming that they are ad hoc teachers of Veer Kunwar Singh University which had been bifurcated from Magadh University. That in case of Magadh University, the Department of higher education had given concurrence in creation of additional posts in some _subjects on the basis of workload. It is also important to point that it was found that there had been already excess posts in many subjects on ... the basis of workload. So this finding and creation of additional posts applying equally to the Veer Kunwar Singh University which had been part of Magadh University during 1989 to 1991. " I 23. It was submitted that an advertisement had been issued in the year 1997, for filling up the 55 sanctioned vacant posts.

Our attention has also been drawn to the fact that rule in the contempt proceeding, which was issued had been discharged by this Court upon satisfying itself that there had been a substantial compliance of this Court's order. 24. The leam~d counsel would contend that in terms of the provisions '" of the Bihar University Act and the statutes framed thereunder, vacancies must be filled up in accordance with law and in view of the fact that the appellants had been appointed in violation of the provisions of the said Act as also the statutes framed thereunder, their appointments were illegal. 25. Applicability of the provisions of the Act and the statutes framed thereunder in the matter of recruitment to the post of teachers in constituent and affiliated colleges is not in dispute. Section 57 of the said Act reads as under: "57.

(I) Subject to the provisions of this Act and the statutes, the '~ Bihar State University (Constituent Colleges) Service Commission shall, as far as may be, perform, in respect of appointment to the post of teachers and officers (other than Vice-Chancellor, Province-Chancellor and the Dean of faculty) of the University the same functions as are assigned to the State Public Service Commission in respect of the State Services under Article 320 of the Constitution of India. " 26. In terms of the aforementioned provisions, thus, all sanctioned y---i.. vacant posts were required to be filled up by candidates who were qualified therefor and who had been selected by the University Service Commission, which is a statutory body. Clause (a) of sub-section (I) of Section 58 of the \'EERKL1''\I'AR Sl! nal posts, according to the workload the Ranchi, Magadh and Bhagalpur Universities sent their respective proposal for the creation of6447 posts ofteachers.

It is most respectfully submitted that out of 6447 posts, the Magadh University sent a proposal for creation of 1467 posts. After the Division of Magadh University, out of 1467, 424 posts came to the share of Veer Kunwar Singh University. l l. That in reply to para I0 of the counter affidavit, it is most respectfully submitted that the creation and advertisement of 55 vacancies only as against the proposal for creation of 6444 posts by no stretch of imagination can be said to be the compliance of the directions given by the court. Such statement has been made simply to mislead this Hon'ble Court by projecting that the order ofthe Hon'ble Court are being complied with_, It is further submitted that under various Universities in various colleges various departments have been opened. However, for want of regular appointments various colleges are being run by the ad hoc teachers since 1982. 13.

That in reply to para 12 of the counter affidavit, it is most respectfully submitted that on 23. 09. 1991 the respondents 5 and 6 projected before this Hon'ble Court that in compliance of the VEERKl'J\"W. 'Jl SINGH u1'1. ADHOCTEACHERS ASSON. ,. BIHAA 51ATEL1'1 tC. C l SERVICECOMMISSION fS. B Sl1'liA I. I 409 direction of this Hon'ble Court, they have already started taking steps. It is reiterated that as against the proposal for creation of 6447 posts sent by the Universities, creation ofonly 55 posts, by no stretch of imagination can be said to be the compliance of the judgment of this Hon'ble Court. It is most respectfully submitted that at the time of hearing of the Hon 'ble Court when the fact of proposal for creation of6447 posts was brought to the notice, the statement was made that it was only a beginning and further post would be created and filled in. " 34. It is neither possible nor advisable to go into the aforementioned disputed questions of fact.

The stand of the University is clear from the affidavit affirmed by its Registrar. Without anything more it is not possible to reject the averments made therein. 35. Creation of sanctioned posts is a sine qua non for recruitment to the post of lecturers. Adherence to the statutory provisions therefor is imperative in character. No doubt the qualification for holding the post of lecturer has since been changed in terms of the ordinance promulgated in the year 1993, but then the same was done as per the directions of the University Grants Commission. The colleges whether constituent or recognized must have lecturers who are qualified to hold the post. Qualification to hold the post of lecturer is fixed by the University Grants Commission. A University can ignore the directions of the University Grants Commission in this behalf only at its own peril and risk of derecognition.

Neither it is permissible for a University to contravene the directions of the University Grant Commission nor, in our opinion, is it permissible for a court of law to issue a direction contrary thereto. Evidently, the endeavour on the part of the appellants and interveners herein was to obtain a direction from this Court that their cases may be considered by a Publi1: Service Commission or in its absence by the State or by the University on the basis of a qualification held by them prior to 1993. In our opinion, no such direction at this point of time can be issued. We will assume that the State and/or Universities had failed to adhere to the time frame fixed by this Court, but even ifa violation of this Court's order in that behalf had taken place, the same by itself would not lead to an inference that the respondents were still to obey the order of this Court, despite the change in law, which had taken effect in this behalf.

Such a direction cannot be given at this stage in view of the decision of the Constitution Bench of this Court in Umadevi (supra), wherein it was directed : "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S. V Naravanappa, R. N. Nanjundappa and B. N. Nagarajan and referred to/i;; para 15 above, of duly qualified persons in duly sanctfoned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervel)tion of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment.

In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. 54.

It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents. " 36. It may be, as was submitted by the learned Senior Counsel, that ad hoc teachers have been working for the last 20 years or more, but it is also beyond any dispute that they had been doing so pursuant to orders passed by this Court or by the High Court from time to time. Even this Court in its order dated 06. 12. 1989 had issued such a direction. But for the orders of the superior courts, their services would have been terminated by the University. 37. There has been a sea change in the legal position in view of the· decision in Umadevi (supra) and a large number of decisions of this Court following it.

In a situation of this nature, when a subsequent event has occurred and when there exists a dispute as to whether order of this Court has substantially been complied with or not, it would not be proper for us VEERK! Jl,'WARSINGH L. ,. ,1. ADHOCTEAOIERS ASSON. "· BIHARSTAlC L'l'. l. '\\'AR SINGHLl). 1. Al>HOClEAO! ERS ASSON. •. BlllARSfATEUWl(C. C. )SERI/ICECOMMISSIONts. B. SINHA, l. J 413 would be open to the State of Bihar as also the concerned Universities to A forthwith terminate the services of those teachers not working against sanctioned posts or who do not fulfill the requisite educational qualifications or whose services are otherwise not required. 47. The appeals and connec;_ted interlocutory applications are dismissed with the aforementioned observations. In the facts and circumstances of the B case, however, there shall be no order as to costs. B. B. B. Appeals and l. A. S. dismissed.