Full Judgment Text
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CASE NO.:
Appeal (civil) 1601-1602 of 2004
PETITIONER:
Veer Kunwar Singh University Ad hoc Teachers Association & Others
RESPONDENT:
The Bihar State University (C.C.) Service Commission & Others
DATE OF JUDGMENT: 18/05/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
S.B. SINHA, J. :
1. These appeals are directed against a judgment and order dated
02.02.2000 passed by a Division Bench of the Patna High Court disposing of
the writ applications filed by the appellants herein on consent as also an
order dated 23.11.2000 passed by another Bench of the said Court refusing
to review the said order.
2. Appellant No. 1 is an Association of ad hoc teachers appointed in
various colleges affiliated to Veer Kunwar Singh University.
3. The affairs of all the Universities situated in the State of Bihar
including that of Appellant No.1-University admittedly are governed by the
provisions of the Bihar State University Act, 1976.
4. Ad hoc appointments indisputably were made by various Universities
in the State of Bihar. Ad hoc teachers of Ranchi University had filed writ
applications for regularization of their services, which were dismissed by the
Patna High Court by a judgment and order dated 22.05.1989. A special
leave petition was filed thereagainst, which was marked as Special Leave
Petition (Civil) No. 11078 of 1989. A writ petition was also filed before this
Court, which was marked as Writ Petition No. 65 of 1989 inter alia, for a
direction to the University to take steps to sanction posts against which ad
hoc teachers were working for regularization of their services. An order of
status quo was granted.
5. The writ petition as also the special leave petition were taken up for
hearing by this Court together. By a judgment and order dated 06.12.1989,
the said writ petition and special leave petition were disposed of. We would
refer to the purport of the order of this Court, a little later.
6. However, we may notice that allegedly during the pendency of the
said matter before this Court Magadh University which was the predecessor
of Appellant No.1-University had sent its proposal for creation of 1467
additional posts of lecturers to the Government, which included 426
additional posts which were required for Appellant No.1-University, which
was a part of Magadh University at the relevant time. State of Bihar and the
University, however, have a different story to tell.
7. This Court by reason of the said judgment dated 06.12.1989, inter
alia, noticed the unsatisfactory situation created by repeated appointments of
ad hoc teachers. This Court deprecated the common practice purported to be
existing in some of the colleges of Bihar to appoint ad hoc teachers at the
instance of/or without reference to the Vice Chancellor and even without any
sanction therefor. It was held that appointments of ad hoc teacher like
employees were neither good for Universities nor for students.
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8. We may notice that the petitioners therein, inter alia, contended that
adequate number of posts should be sanctioned so as to conform to the ratio
of teachers and students. This Court in its judgment directed :
"(i) The University Service Commission shall
advertise the posts available for direct recruitment
within four months.
(ii) The Government shall consider the workload in
each University and sanction such additional posts
that may be required, within the said period. Such
additional posts shall also be filled regularly either
by direct recruitment or by promotion as per rules
and not by ad hoc appointment.
(iii) The University/Government shall relax the
maximum age prescribed for direct recruitment of
teachers to the extent of service rendered by
persons as ad hoc teachers.
(iv) All the ad hoc teachers in service on February 10,
1989 against sanctioned posts shall continue till
selection is made by the University Service
Commission and they shall be paid in terms agreed
for the period in which they actually worked.
(v) Other ad hoc teachers who have worked till that
day must also be paid.
(vi) The payment shall be made within one month."
9. It is not in dispute that on an allegation that the said order had not
been complied with, a contempt petition was also filed before this Court.
As would be noticed hereinafter, this Court discharged the rule issued
against the contemnor.
10. Appellant No.1-University was created in the year 1992. On or about
23.11.1993, an advertisement was issued by the Bihar State University
(Constituent Colleges) Service Commission for appointment of teachers in
different Universities. Allegedly, at that point of time, additional posts were
not sanctioned. It is furthermore not in dispute that ad hoc teachers made a
representation before the Chancellor for regularization of their services. The
University Service Commission had also issued a corrigendum in the said
advertisement asking the candidates to appear in the Bihar Eligibility Test
(BET) for appointment of teachers in different Universities/Constituent
Colleges.
11. A writ petition was filed before the Patna High Court by the
Federation of the University Ad hoc Teachers Associations of Bihar, which
was marked as CWJC No. 4001 of 1995. One Dr. Umesh Prasad Singh also
filed a writ petition, which was marked as CWJC No. 4138 of 1993. A
Division Bench of the Patna High Court took notice of the said judgment of
this Court and furthermore noticed that all ad hoc teachers were allowed the
benefit of continuation till final selection was made by the University
Service Commission irrespective of the fact as to whether they were
appointed against the sanctioned posts or not. It also noticed that
unfortunately the time frame prescribed by the Supreme Court had not been
adhered to. It was noticed that having regard to an ordinance that was
issued in the year 1993 followed by Act 17 of 1993 as also amendment
thereto in the year 1995 by way of an ordinance followed by Act 12 of 1995
prescribing additional eligibility conditions such as passing Bihar Eligibility
Test or the National Eligibility Test, and in the alternative, holding of Ph. D
or M. Phil Degree had been laid down for recruitment to the said posts. It
was in the aforementioned premise that another advertisement was issued by
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different Universities and about 1374 candidates were ultimately selected for
appointment and in fact were appointed.
12. Before the High Court, contention of the appellants, inter alia, was
that as thousands of posts were still lying vacant which were to be filled up
within the time frame set by this Court, which if had been adhered to in
letter and true spirit, the appellants would have been found eligible therefor.
According to the learned Judges the controversies raised before it did not
give rise to any serious dispute in law, rather involved a careful balancing of
equities, with a view to give effect to the judgment and order of the Supreme
Court.
13. In that situation when the learned counsel for the petitioners therein as
also the learned Advocate General agreed to a consent order, the same was
accepted by the High Court finding it to be fair and equitable. One of the
terms of the consent order is as under :
(ii) The vacant posts shall be identified by a committee
consisting of the Vice-Chancellors of the various
Universities concerned with Hon’ble Mr. Justice S.
Sarwar Ali (retired) as its Chairman and the Secretary,
Higher Education as its Member Secretary. Within a
period of four months from today, the vacant posts as on
the relevant date i.e. 30th May, 1990 shall be identified by
this committee. The finding of the committee on this
question shall be final and shall not be challenged by any
one in any proceeding."
14. Appellants were not satisfied therewith. They filed an application for
review which by reason of an order dated 23.11.2000 has been dismissed.
15. Appellants are, thus, before us.
16. Various interlocutory applications by different persons have also been
filed, but it is not necessary to deal therewith separately.
17. Mr. P.S. Misra, learned Senior Counsel appearing on behalf of the
appellants, inter alia, would submit that the High Court committed a
manifest error in passing the impugned judgment and order dated
02.02.2000 and refusing to review its order, insofar as by reason of the
consent order, it neither could have modified the terms of the order passed
by this Court, nor could it in contravention of the provisions of the Bihar
State University Act 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.
18. It was urged that the State has taken recourse to supperssio veri
inasmuch in its affidavit it had reduced the number of sanctioned vacant
posts only to 55, despite the fact that there are materials on records to show
that there were 289 vacant posts in Magadh University, 249 posts in Ranchi
University and 292 posts in Bhagalpur University.
19. The learned counsel would submit that that the order passed by this
Court was binding on the parties and the time frame set therein was required
to be strictly adhered to. No additional financial burden, the learned counsel
would contend, shall be placed on the exchequer if the directions of this
Court are followed and thereby only the students will be benefitted.
20. It was, however, very fairly stated before us that both the University
Service Commission and the College Service Commission have since been
abolished and, therefore, this Court should issue a direction to the State of
Bihar or the Selection Committee to fill up the vacancies by constituting the
selection committee, as may be found necessary.
21. Mr. Gopal Singh, learned counsel appearing on behalf of the State of
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Bihar, on the other hand, has drawn our attention to the statements made in
the Counter Affidavit filed on behalf of Respondent Nos. 3 and 4 and
affirmed by one Qamar Ahsan, Registrar of Appellant No.1-University,
which are in the following terms :
"6. That it is submitted that the University has already
identified the vacant sanctioned post in different
colleges and sent to the University Service
Commission for advertisement and
recommendation. Pursuant to the recommendation
of the commission appointments were made in the
years 1996 and 2003.
7. That the ad hoc teachers appointed without
authority of law may be treated as contractual
agreement and payment was made on per class
basis. Such appointment was made merely on
agreement without the consent of the University
which was made from time 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 Sl. 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 Sl. 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 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 xxx
12. I 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
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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
of contempt on 23.9.1991.
xxx 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."
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 learned 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. (1) 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 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 (1) of Section 58 of the 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 of six months.
27. It is now a well-settled principle of law that any appointment made in
violation of the constitutional scheme of equality as adumbrated under
Article 14 of the Constitution of India as also in violation of the provisions
of the Act and the subordinate legislations framed thereunder would be
wholly illegal and without jurisdiction. It has been so held by a Constitution
Bench of this Court in Secretary, State of Karnataka and Others v. Umadevi
(3) and Others [(2006) 4 SCC 1].
28. The ratio of the said decision has since been followed in a large
number of cases, e.g. R.S. Garg v. State of U.P. and Others [(2006) 6 SCC
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430], Surinder Prasad Tiwari v. U.P. Rajya Krishi Utpadan Mandi Parishad
and Others [(2006) 7 SCC 684], State of M.P. and Others v. Lalit 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. K.V. Ramana and Others [(2007) 2
SCC 324], Punjab Water Supply & Sewerage Board v. Ranjodh Singh and
Others etc. [(2007) 2 SCC 491], State of Punjab and Others v. Lakhwinder
Singh and Others [(2007) 2 SCC 502], Yamuna Shankar Sharma v. State of
Rajasthan and Others [(2007) 2 SCC 611], and Post Master General, Kolkata
& Others v. Tutu Das (Dutta) [2007 (6) SCALE 453].
29. The legal position obtaining in this behalf is not in dispute. The
question which, however, falls for consideration is as to whether the State of
Bihar or the Universities constituted within the State of Bihar were bound to
act in terms of the judgment of this Court.
30. There cannot be any doubt whatsoever that the judgment of this Court
must be respected by all concerned including those who were not parties
thereto, in view of the provisions contained in Articles 141, 142 and 144 of
the Constitution of India. If the time frame fixed by this Court for
complying with this Court’s order was not adhered to, a proceeding under
the Contempt of Courts Act was maintainable.
31. We have noticed hereinbefore, the stand of the State of Bihar.
According to it, the orders of this Court had been complied with and only 55
posts are lying vacant. We have also noticed hereinbefore that the contempt
notice issued by this Court has also been discharged. There exists a dispute
with regard to the actual number of vacancies.
32. The Respondent-University, according to the State of Bihar did not
make any recommendation for creating any additional posts of teachers
having regard to the teacher-student ratio. In the affidavits, the State and
the Respondent-University clearly stated that there were only 55 vacant
posts. Order of this Court did not say that for filling up the vacancies of one
university, ad hoc teachers appointed in other universities should be
considered.
33. However, in the Rejoinder Affidavit to the Counter Affidavit, it is
stated :
"10. That in reply to para 9 of the counter affidavit, it
is most respectfully submitted that in response to
the letters written by the respondent no. 5 and 6
seeking proposal for creation of additional posts,
according to the workload the Ranchi, Magadh and
Bhagalpur Universities sent their respective
proposal for the creation of 6447 posts of teachers.
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.
11. That in reply to para 10 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 of the Hon’ble
Court are being complied with. It is further
submitted that under various Universities in
various colleges various departments have been
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opened. However, for want of regular
appointments various colleges are being run by the
ad hoc teachers since 1982.
xxx xxx xxx
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 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 of only 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 of 6447 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 Public 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 if a 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. Narayanappa, R.N. Nanjundappa
and B.N. Nagarajan and referred to in para 15 above, of
duly qualified persons in duly sanctioned vacant posts
might have been made and the employees have continued
to work for ten years or more but without the intervention
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
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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 to
put the parties to the same position to which they were in 1989.
38. The practice to appoint ad hoc teachers must be deprecated. If a
Government of a 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.
39. 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 of all 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.
40. We may at this stage notice that even before the High Court it had
been conceded that many teachers have been appointed on an ad hoc basis
on non-sanctioned posts. We fail 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 we 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 of India.
41. We, therefore, are of the opinion that having regard to the legal
position obtaining, it is not possible to agree with the submissions of Mr.
Misra. It may be that the High Court should not have constituted a
committee but then constitution of a committee was directed with consent.
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By consent the statutory provisions cannot be violated. By consent
jurisdiction cannot also be conferred. Here, however, is a case where parties
consented to find out the actual number of additional posts which were
required for the benefit of the students. However, in view of the order
proposed to be passed, we may not enter into the said question.
42. In B.S. Bajwa and Another v. State of Punjab and Others [(1992) 2
SCC 523], to which our attention was drawn by Mr. Misra, this Court held :
"6. Obviously on this conclusion alone the writ petition
should have been dismissed by setting aside the judgment
of the Single Judge allowing the LPA without any caveat.
However, the Division Bench, after reaching the above
conclusion, proceeded to grant the benefit of a much
earlier date, namely, 6-4-1964 as the date of appointment
on the basis of a concession of the Additional Advocate
General made therein without considering the effect of
the same or of taking into account the inconsistency with
its earlier finding. We have no doubt that the concession
on this point, being one of law, it cannot bind the State
and, therefore, it was open to the State to withdraw as it
has been done by filing a review petition in the High
Court itself\005"
43. In Swami Krishnanand Govindanand v. M.D. Oswal Hosiery (Regd.)
[(2002) 3 SCC 39], this Court observed :
"4. The learned counsel next contended that the
statement of the learned counsel for the respondent
should be treated as a compromise as the Court granted
five years’ time to the respondent for vacating the suit
premises. In our view, this contention has to be rejected.
The compromise like a contract postulates consensus
between two parties. A statement of a counsel conceding
the grounds of eviction and seeking some time for the
respondent to vacate the premises, cannot be termed a
compromise."
44. We may, however, notice that in Employers in relation to
Monoharbahal Colliery Calcutta v. K.N. Mishra and Others [AIR 1975 SC
1632] , the power of an advocate to make concession on behalf of his client
as envisaged under Order III of the Code of Civil Procedure has been
recognized. There are only certain exception thereto, e.g. when such consent
is against law or otherwise not binding on the parties.
45. We, however, are of the opinion that it is not necessary for us to go
into the said question.
46. We, therefore, are of the opinion that the interest of justice would be
subserved if it is directed that the respondents herein in filling up of the
vacant posts must take into consideration the cases of all those teachers also
who have the requisite qualifications, upon relaxation of age, if permissible
by law along with other eligible candidates. We may, however, direct that 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.
47. The appeals and connected interlocutory applications are dismissed
with the aforementioned observations. In the facts and circumstances of the
case, however, there shall be no order as to costs.