Full Judgment Text
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PETITIONER:
DR. S.C./BHADWAL & ORS.
Vs.
RESPONDENT:
DR. S. R. MEHROTRA & ORS.
DATE OF JUDGMENT: 03/02/1998
BENCH:
K. VENKATASWAMY, A.P. MISRA
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
Misra, J.
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
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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.
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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
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before us. In addition, reliance was placed in the case of
Janata Dal Vs. H. S. Chowdhary and ors. (1994(4) SCC 305:
" 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 -
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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
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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
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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
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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."
Jarsem Singh & Anr. Vs. State of
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
Institution Cuttack and Anr. Vs.
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
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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
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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
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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
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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
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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
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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
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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.
In Shainda Hasan Vs. State of Uttar Pradesh and Others
(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
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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.