Full Judgment Text
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CASE NO.:
Appeal (civil) 27 of 2001.
Appeal (civil) 15991 of 1999 Special Leave Petition (crl.) 44412-4431
of 2000
PETITIONER:
STATE OF KARNATAKA & ANR.
Vs.
RESPONDENT:
B. SUVARNA MALINI AND ANR.
DATE OF JUDGMENT: 04/01/2001
BENCH:
G.B.Pattanaik, B.N.Agarwal
JUDGMENT:
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JUDGMENT
PATTANAIK,J.
Delay condoned. Leave granted in Special Leave
Petitions. These appeals by State of Karnataka as well as
Karnataka Rajya Sarkari Prathama Darje Collejugala Arekalika
Upanyasakara Sangha, are directed against the judgment of
the Karnataka High Court, dismissing the writ petitions,
filed against the order of the Karnataka Administrative
Tribunal. The tribunal entertained the public interest
litigation petition and struck down Rule 2(b)(iii) of the
Karnataka State Civil Services (Absorption of Persons
working as Part Time Lecturers in the Karnataka Education
Department of College Education) Special Rules, 1996 as well
as the order dated 15.12.1997, essentially on the ground
that the stop-gap lecturers are back door entrants and their
regularisation by Rules is contrary to the law laid down by
Supreme Court in several cases and it affects the rights of
regular entrants. Against the order of the tribunal, the
High Court being moved under Articles 226 and 227 of the
Constitution and the writ petitions having been dismissed,
the present appeals have been preferred.
These cases involve not only a question of law but
also a human problem inasmuch as these part time lecturers
have served in different colleges for varying period for ten
to twenty years and, if they are not regularised and treated
as regular servants, then they will not be able to get
themselves engaged anywhere else and at the same time, their
experience in teaching will be a great loss to the student
community. The part time lecturers had approached this
court against the dismissal of their applications by the
Karnataka Administrative Tribunal by way of filing special
leave petitions, which were registered as SLP No.
4440-4454/1992 and 4321/1992. Those special leave petitions
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were disposed of by order dated 3.9.1992 and the Court came
to the conclusion that on that date their exist 626
vacancies and the part time lecturers should be continued
till regular recruitment to fill up the posts is made and
such part time lecturers would be eligible to apply to the
State Public Service Commission, whenever, the vacancies are
notified and applications are called for. The Court also
took note of the fact that the tribunal itself has given
weight-age at 1% per year of service as part time lecturers,
depending upon the number of years of service or 5%,
whichever is less and also to enhance the maximum age limit
upto 10 years in case of part time lecturers, possessing
teaching experience and the weightage is also to be taken
into consideration at the time of recruitment.
Notwithstanding the aforesaid observations of this Court,
the State of Karnataka did not take any further steps for
filling up 626 vacancies, as a result of which, these part
time lecturers could not make applications for regular
recruitment. They again filed a writ petition under Article
32 in January, 1994, which was registered as Writ Petition
No.21/1994. In the said writ petition, they sought for
regularisation of their services. While, the matter was
pending in this Court, the State Government appointed a High
Power Committee on 28th of February, 1995 to examine the
problem and the impasse and submit a report. Taking into
account the fact that the Sub-committee has been constituted
to consider the grievances of the part time lecturers, the
writ petition was disposed of by order dated 11.9.1995. The
said order reads as follows:
It is stated in the rejoinder affidavit that a
sub-committee has been constituted by the State Government
to consider the grievances of the part time lecturers and
the cases of all such persons would be considered by the
Sub-committee. The Minister In-charge also seems to have
made a statement to that effect on the floor of the House.
If that is so, it would be open to the petitioners to make a
representation before the sub-committee along with all other
persons similarly situated. The writ petition is
accordingly dismissed.
On consideration of the grievances made by the part
time lecturers, the High Power Committee submitted its
report with the recommendation that the part time lecturers
could be regularised as one time measure, and the aforesaid
recommendation was more or less for solving the impasse on
account of inaction on the part of the State government in
taking regular steps for filling up the vacancies and the
continuance of these part time lecturers, who have served
for fairly long period ranging from ten to twenty years.
The State of Karnataka, approved the recommendation of the
High Power Committee and decided to frame Rules under the
provisions of Karnataka State Civil Services Act, 1978 for
regularisation of these part time lecturers.
It may be noticed that the High Power Committee
considered the problems of the part time lecturers in great
detail and bearing in mind the relevant decisions on the
question, made the recommendation for absorption of such
part time lecturers and while making such recommendations,
the reserved quota in favour of Scheduled Castes/Scheduled
Tribes/other back-ward classes under Article 16(4) of the
Constitution remained intact. The said Committee also
recommended that special recruitment rules will have to be
framed by the State Government in exercise of powers
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conferred on it by the Karnataka State Civil Services Act,
1978 for the purpose of absorption. On the basis of the
aforesaid recommendations of the High Power Committee, the
State Government framed draft rules called the Karnataka
Civil Services (Absorption of Persons working as Part Time
Lecturers with Karnataka Education Department
Services)(Department of Collegiate Education) (Special)
Rules, 1996 [hereinafter referred to as the Absorption
Rules) in exercise of powers conferred under Section 3 read
with Section 8 of the Karnataka State Civil Services Act,
1978 [hereinafter referred to as ’the Act]. Section
3(2)(b) of the Act mandates that the draft rules should be
forwarded to the Karnataka Public Service Commission for
necessary consultation, as provided under Article 320(3) of
the Constitution. The draft rules were notified in Gazette,
inviting objections and then the same were sent to the
Public Service Commission for necessary consultation. On
consideration of all objections received and in consultation
with the Public Service Commission, the final absorption
rules were published on 22nd of January, 1997. The
Karnataka State Civil Services Act is an Act to regulate the
Recruitment and the conditions of Service of persons
appointed to Civil Services of the State of Karnataka and
posts in connection with the affairs of the State of
Karnataka. Section 3 authorises the State government to
make rules, regulating recruitment and the conditions of
service. Section 8 is the rule making power of the State
government to make rules to carry out the purposes of the
Act. Under Sub-section (3) of Section 8, every rule made
under the Act is required to be laid as soon as may be,
after it is made before each House of the State Legislature,
while it is in session for a total period of thirty days,
which may be comprised in one session or in two or more
successive sessions, and any modification in the rule, as
desired by the House, could be carried out or if both Houses
agree that the rule should not be made, in which case the
rule will not be effective and it is only when the House
agrees with or without any modification, then the rules
shall have the effect in such modified form. The absorption
rules being the rules made in exercise of powers under
Section 8 and the aforesaid requirement under sub-section(3)
of Section 8, having been duly complied with, the rule is
legislative in character and would have the force, as if the
State Legislature have framed the rules.
On the public interest litigation filed by some
intending candidates for the post of lecturer, the tribunal
struck down the absorption rules on the ground that it
violates Article 14 and seeks to legalise back-door
entrants, even at the cost of relaxation of the relevant
qualification and must be held to be contrary to several
decisions of this Court. Reliance has been placed on the
three Judge Bench Judgment of this Court in Ashwani Kumars
case, AIR 1997 SUPREME COURT 1628, where-under this Court
had indicated that an employee whose entry in service is
illegal being in total disregard of recruitment rules or
being not on existing vacancy, has no case for
regularisation and in any event, back-door entries for
filling up the vacancies have to be strictly avoided.
Mr. Kapil Sibal, the learned senior counsel,
appearing for the part time lecturers, submitted with
vehemence that the question of absorption through a
legislative measure was necessary because of inaction on the
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part of the State machinery in complying with the directions
of this Court dated 3.9.92 in special leave petition Nos.
4440-4454/1992 and even before initiating framing of
absorption rules, the State Government have constituted a
special Committee to examine the problems of these part time
lecturers and suggest measures to be taken for ventilating
their grievances and said Committee had recommended for
absorption as a one time measure. According to Mr. Sibal,
therefore, this is not a clandestine regularisation of the
so-called back-door entrants, but solving a problem and an
impasse which was the creation of the inaction on the part
of the State machinery and, therefore, there could not be
any objection to such regularisation, so long as the
essential qualifications are not sacrificed. According to
Mr. Sibal, these part time lecturers have in fact
discharged the maximum work load in taking the courses of
study meant for the students and would otherwise loose their
livelihood, if their services are not regularised and the
legislative measures by way of enactment of absorption
rules, subserves the purpose and the tribunal as well as the
High Court committed error in striking down the said rules.
By referring to the requirement of the absorption rules, Mr.
Sibal also submitted that due care and caution has been
taken, so that unworthy and unqualified hands do not get
themselves absorbed and he further urged that if this Court
feels any further stipulation in that regard, the Court may
observe to that effect. The learned counsel also contended
that he is not advocating for absorption, generally of
untrained and unqualified persons but in the case in hand,
the absorption rules have been framed to meet a special and
peculiar situation and that too, after thoroughly examining
the pros and con by an expert Committee and consequently, it
stands on a different footing than an ordinary process of
absorption of back-door entrants and this perspective has
not been borne in mind by the tribunal or the High Court,
while striking down the provisions of the absorption rules.
We find considerable force in the aforesaid submission of
Mr. Sibal, appearing for these part time lecturers. Though
some of the intending applicants for the post of lecturer
had moved the tribunal by way of a public interest
litigation and had been arrayed as party respondents in
these appeals, but there had been no appearance on their
behalf and, therefore, the Court had not the advantage of
having the opposite view point and for this reason, we have
to scrutinize the so-called absorption rules in a great
detail. It may be stated that the State of Karnataka has
also preferred a special leave petition, which has been
tagged on to the present case, being SLP(civil) No.
15991/99 and the contentions raised in the said special
leave petition are similar to those raised by Mr. Sibal in
the special leave petitions filed on behalf of the part time
lecturers. It may also be noticed that the order of the
State Government dated 10.6.1998 as well as the assertion of
the State Government in the special leave petition filed in
this Court unequivocally indicates that there would be no
compromise with the prescribed qualification and,
necessarily, therefore, the part time lecturers, who would
get themselves absorbed under the Absorption Rules by
following the prescribed procedure, will have to pass the
N.E.T. test, fixed by the University Grants Commission,
within the period of three years, as provided in the
Government letter dated 10.6.98 and would not be entitled to
the scale of pay available for the regular qualified
teachers but would only get the State scale of pay provided
they possess the requisite qualification for the state
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scale. It is in these perspectives, we are examining the
validity of the Absorption Rules.
It is no doubt true that this Court in the case of
K.S.P. College Stop-Gap Lecturers Association vs. State of@@
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Karnataka, AIR 1992 SC 677, had indicated as to how
appointments made in disregard of rules and regulations and
then regularising the same by process of regularisation
rules or order has been unjust and unfair to those who are
lesser fortunate in society, even though they may be better
qualified, more meritorious and well deserving. The Court
also indicated its anxiety to find that the infection has
been widespread in Government or semi-government departments
and even used a word of caution that even if it is found to
have been resorted to as a genuine emergency measure, the
Courts should be reluctant to grant indulgence. It is
specifically indicated in the aforesaid case that in the
State of Karnataka, it is basically State created problem
due to defective rules and absence of any provision to
effectively deal with such a situation. It is this judgment
of the Court, which has weighed with the High Court in
upholding the orders of tribunal by striking down the
provisions of the Absorption Rules. As has been indicated
in the impugned judgment of the High Court that the
appointment of the part time lecturers in the State of
Karnataka is in vogue since 1979 and the object of
appointment on part time basis is the utilisation of
services of unemployed qualified persons and such part time
lecturers are appointed only when the full time teaching
staff is not adequate to cope up with the existing teaching
work load or when there is no full time teaching staff in
any subject.
From time to time, the Government have also been
issuing instructions for canalizing the method of
appointment and directing that even part time lecturers
could be appointed through the Directorate of Collegiate
Education and not otherwise. The Directorate of Collegiate
Education also has been issuing circulars indicating the
guidelines. The reasons which weighed with the High Court
to sustain striking down of the Absorption Rules are that
the so-called part time lecturers had not been appointed
after a process of selection in accordance with the
prescribed rules but on the other hand, their appointment is
de hors the rules. Further such candidates are not
scrutinized by the Public Service Commission and they do not
possess the N.E.T. test, as provided by the University
Grants Commission, which is one of the essential requisites
for recruitment under the statutory Recruitment Rules of
1993.
From the materials on record, it appears that the
State government has been regulating the mode of appointment@@
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of part time lecturers and it is not correct that there has@@
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been no process of selection before such appointment of part
time lecturers. Even though the selection had not been made
by the Public Service Commission, but yet there was a
process of selection and it further appears that unqualified
people were not been appointed as part time lecturers. Part
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time lecturers having been formed a class by themselves and
for some reason or the other, they having been deprived of
the benefits of the earlier directions of this Court on
account of inaction on the part of the State Government, the
matter was reexamined by a Committee of experts as to how
best, the services of these part time lecturers can be
utilised and at the same time, there will be no dilution in
the quality of teaching nor there can be any infraction in
the minimum qualification, necessary for appointment as a
lecturer. The concept of equality before the law does not
involve the idea of absolute equality among human beings
which is a physical impossibility. All that Article 14
guarantees is a similarity of treatment contra-distinguished
from identical treatment. Equality before law means that
among equals the law should be equal and should be equally
administered and that the likes should be treated alike.
Equality before the law does not mean that things which are
different shall be treated as though, they are the same. It
of-course means denial of any special privilege by reason of
birth, creed or the like. The legislature as well as the
executive government, while dealing with diverse problems
arising out of an infinite variety of human relations must
of necessity, have the power of making special laws, to
attain any particular object and to achieve that object, it
must have the power of selection or classification of
persons and things upon which such laws are to operate.
Mere differentiation or inequality of treatment does not per
se amount to discrimination. When the Absorption Rules are
examined from the aforesaid stand point and when we consider
the circumstances under which the said rules were made to
solve a human problem and that the rules made were put to
objection to the general public and even the Public Service
Commission was consulted and finally was before the State
Legislature to have their concurrence, we are of the
considered opinion that the High Court committed error in
striking down the rules on the ground that it is
discriminatory. When this Court deprecates the
regularisation and absorption, when it comes to the
conclusion that such regularisation and absorption has
become a common method of allowing back door entries and
then regularising such entry, it is not that in every case,
the Court would be justified in striking down the process of
absorption or regularisation, more so when such absorption
has been made as a legislative measure and that also as a
one time measure, and at the same time insisting upon the
essential qualifications to be duly complied with, by the
persons intended to be absorbed on regular basis. In the
aforesaid premises, we have no hesitation to come to the
conclusion that the tribunal as well as the High Court
committed serious error in striking down the impugned
absorption rules. We, therefore, set aside the judgment of
the tribunal and the High Court and allow these appeals.
While we hold the absorption rules to be valid, we would
further direct that the State Government must insist upon
the candidates to pass the N.E.T. test, as required by the
University Grants Commission within the period of three
years and it is only on passing of such test, the absorbed
employees will be entitled to the scale of pay, available
for the regular qualified lecturers. Failure on their part
to pass the N.E.T. test would debar them from being
absorbed and regularised.
These appeals are allowed with the aforesaid
observations and directions.
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