Allahabad High Court
Dr. Sangita Srivastava vs University Of Allahabad And Ors. on 22 May, 2002
Equivalent citations: 2002(3)AWC2088, (2002)3UPLBEC2502
Author: M. Katju
Bench: M. Katju, Rakesh Tiwari
JUDGMENT M. Katju, J.
1. This petition has been filed praying for a mandamus directing the respondents to regularise the service of the petitioner as lecturer in Home Science in the Allahabad University under Section 31 (3) (c) of the U. P. State Universities Act.
2. Heard learned counsel for the parties.
3. In paragraph 3 of the writ petition, it is alleged that there is a department of Home Science in the Allahabad University in which there are two sanctioned posts of lecturers and one post of Reader. As regards the posts of lecturer in Home Science, one fell vacant in June, 1989 on the retirement of Mrs. S. Tiwari and the other post fell vacant in June, 1991 on the retirement of Mrs. Rohini Bhatt. It is further stated that one post of Reader in Home Science is lying vacant since 1985 after the retirement of Dr. Radha Pant.
4. In paragraph 5 of the writ petition, it is alleged that one post of lecturer in Home Science which fell vacant in June, 1989 was advertised vide advertisement No. 6 of 1989 but unfortunately, the Selection Committee did not meet. After one more vacancy arose, both the posts of lecturer in Home Science were advertised in 1991. Thereafter in June, 1993, two posts of permanent lecturer in Home Science were again advertised vide advertisement No. 6 of 1993 without considering the claim of the petitioner for regularisation under Section 31 (3) (c) of the Act. Again the posts were advertised in 1999 ignoring the claim of the petitioner for regularisation but the selection was deferred due to the Chancellor's order regarding the petitioner's claim for regularisation. It is alleged that all the posts in Home Science are still lying vacant and selections were not held despite these advertisements. In the absence of any regular staff member in the discipline of Home Science, the petitioner and one Dr. Meena Darbari were called to teach as Guest Lecturer. The petitioner is continuously teaching since September, 1989 and Dr. Meena Darbari since 1991 as Guest Lecturers. The petitioner has applied against all the aforesaid advertisements despite her claim for regularisation. The petitioner has possessed necessary qualification for appointment as lecturer in Home Science vide Annexure-1 to the writ petition (which is her bio-data).
5. In paragraph 7 of the writ petition, it is alleged that the petitioner has been teaching Home Science to B.Sc. Home Science students right from September 1989.
She has also been discharging all other functions of regular lecturer, e.g., setting question papers, examining answer books, working as internal and external examiner of practical examinations, doing invigilation work, etc. Although her designation is Guest Lecturer but she has been discharging all the duties of regular lecturer.
6. In paragraphs 8 and 9 of the writ petition, it is alleged that the petitioner has been sharing the entire workload of teaching three year degree course of B.Sc. The teaching load on the petitioner all along has been more than 18 periods/lectures per week which is more than the normal prescribed workload of regular lecturers. The University continued to give admission to students of B.Sc. Home Science throughout. There are more than 100 students studying in the three years B.Sc. Home Science degree course in each session. The guest teachers including the petitioner were paid a nominal remuneration of Rs. 60 per lecture like a bonded labour awaiting regularisation. She has been teaching for more than a decade and it is alleged that the University still continues to exploit her by taking her service without paying the bare minimum suited to the dignity of a lecturer. The petitioner has made several representations to the University for regularisation but to no avail.
7. In paragraph 10 of the writ petition, it is alleged that the University set up a Committee consisting of some senior teachers of the University for looking into the grievance of the petitioner and other guest lecturers. This Committee submitted its report holding that these teachers have status of ad hoc teachers and that they were entitled to continue teaching till regularly selected candidates were not appointed, and recommended that these teachers should be paid Rs. 5,000 per month. True copy of the report of the Committee is Annexure-2 to the writ petition. That report has been accepted and approved by the Executive Council in its meeting on 7.5.1999 and the petitioner was paid a consolidated salary of Rs. 5,000 per month from 1.4.1998. True copy of the resolution of the Executive Council dated 7.5.1999 is Annexure-3 to the writ petition. True copy of the letter of the Registrar of the University dated 8.7.1999 in this connection is Annexure-4 to the writ petition.
8. A representation was made by the petitioner and Dr. Meena Darbari to the Chancellor under Section 68 of the Act against the decision of the Executive Council, and the Chancellor by his order dated 3.6.2000 directed the University to place the matter relating to petitioner and Dr. Meena Darbari before the Executive Council of the University for taking a decision under Section 33 (3) (c). True copy of the order of the Chancellor is Annexure-5 to the writ petition. The petitioner submitted a copy of this order before the Vice-Chancellor along with her application dated 15.6.2000 requesting for regular appointment vide Annexure-6 to the writ petition. The Executive Council thereupon took a decision that the Vice Chancellor may verify the eligibility of the petitioner and Dr. Meena Darbari. True copy of the resolution of the Executive Council dated 19.6.2000 is quoted in paragraph 15 of the writ petition. It is alleged in paragraph 16 of the writ petition that the consensus of the Executive Council in its meeting dated 19.6.2000 may be well understood by the cancellation of the Selection Committee for the appointment of lecturers in Home Science scheduled for 7.7.2000. The petitioner submitted her testimonials for verification. However, the Executive Council thereafter took no decision in the matter and the same remained pending till 4.5.2002, when the claim was rejected vide Annexure-C.A. 4.
9. It has been submitted in paragraph 21 of the writ petition that the petitioner's case is fully covered by Section 31 (3) (c) of the Act and hence she is entitled for regularisation, particularly since she is teaching for more than 12 years and has been doing all work of regular lecturers. The petitioner has been denied the benefit of equal pay for equal work. She has also qualified NET examination vide Annexure-10 to the writ petition.
10. A counter-affidavit has been filed. In paragraph 3A of the counter-affidavit, it is stated that the petitioner was never given any appointment letter nor has faced any selection committee. On account of shortage of permanent teacher, some teachers have been appointed on contract basis from year to year. In paragraph 3D, it is stated that these appointments have not been made against any substantive vacancy and they are without facing any selection committee' or advertisement. Their engagements have been made on the basis of the recommendations of the Dean/Head of Department. It is further stated that a teacher has to face a selection committee as per Section 31 of the Act. The petitioner did her Ph.D. in 1996 and she completed her NET examination only in 2001. In paragraphs 3L to 3N, it is stated that in pursuance of the direction of the Chancellor, the Executive Council authorised the Vice Chancellor to get the petitioner's eligibility examined, vide Annexures-C.A. 1 and C.A. 2. The Vice Chancellor thereupon constituted a Committee which submitted its report vide Annexure-C.A. 3. On the basis of this report, the Executive Council by its resolution dated 4.5.2002 rejected the petitioner's claim for regularisation vide Annexure-C.A. 4. In paragraph 7 of the counter-affidavit, it is stated that a Committee constituted by the Vice Chancellor found that the petitioner does not fulfill the essential qualification under Section 31 (3) (c). In paragraph 9 of the counter-affidavit, the allegations in paragraph 7 of the writ petition that the petitioner has been doing all the work of regular lecturer has been denied, and it is alleged that the Guest teachers had only to take classes.
11. In the rejoinder-affidavit, it is stated that the Vice-Chancellor, the Dean of Faculty of Science, the Head of the Department and also the Finance Officer of the University gave their concurrence/approval of the appointment of the petitioner. True copy of the petitioner's appointment letter is Annexure-R.A. 1 to the rejoinder-affidavit. In paragraph 3 (b) of the rejoinder-affidavit, it is stated that the Vice Chancellor can make appointment in cases of urgency under Section 13 (6), and since the post was lying vacant, the petitioner's appointment was made, as there was not a single regular teacher in the Home Science Department. It is denied that the appointment was contractual. The averment relating to the contractual averment is contrary to the report of the High Power Committee dated 13.2.1999 which was approved by the Executive Council on 7.5.1999. The regularisation under Section 31 (3) (c) is in respect of teachers who have not faced selection committee. The Vice Chancellor has power to appoint in cases of urgency under Section 13 (6). This power was operative till 22.11.1991, and the petitioners' appointment was prior to that date. The U.G.C. relaxed the requirement of NET in the case of teacher having Ph.D., degree by its Regulation of 1998. In paragraph 16 of the rejoinder-affidavit, it is stated that the Committee did not give any notice or opportunity of hearing to the petitioner and thus its report is ex parte and biased. The petitioner came to know of the report only through the counter-affidavit and it was not furnished to the petitioner before it was placed before the Executive Council. The Executive Council also did not issue notice to the petitioner. The requirement of Ph.D. is always optional. The documents showing the petitioner's working as regular lecturer are collectively Annexure-R.A. 7. Regular selection has not been made for 13 years.
12. From the admitted facts, it is obvious that there are three sanctioned posts, two of lecturers and one of Reader in Home Science, in the University. These posts are lying vacant for a long period. The petitioner has an excellent academic record. She is first class first in B.Sc. and M.Sc. obtaining 72% and 76% marks respectively. She has done Ph.D. in 1996. The curriculum bio-data application is Annexure-R.A. 6 to the rejoinder-affidavit. She has been continuously teaching for the last 12 years since 17.9.1989 after consultation with the Vice Chancellor, the Dean, Faculty of Science and the Head of Department vide Annexure-R.A. 1. She is doing teaching work and all other assignments of regular lecturer vide Annexure-R.A.7. Although advertisements were issued by the University to fill up these posts but the selection committee never met.
13. Section 31 (3) (c) was inserted in the Act by U. P. Act No. 1 of 1992 whereby the teachers appointed without selection committee prior to 30.6.1991 and continuously working till 22.11.1991 were entitled to get regularisation. Section 31 (3) (c) states :
"Any teacher of the University who was appointed as lecturer on or before June 30, 1991, without reference to the Selection Committee by way of a short term arrangement in accordance with the provisions for the time being in force for such appointment, may be given substantive appointment by the Executive Council, if any substantive vacancy of the same cadre and grade in the same department is available on November 22. 1991, if such teacher--
(i) is serving as such on November 22, 1991, continuously since such initial appointment by way of short term arrangement :
(ii) possessed on November 22, 1991, the qualifications required for regular appointment to the post under the provisions of the relevant Statues in force on the date of the initial appointment ;
(iii) has been found suitable for regular appointment by the Executive Council.
A teacher appointed by way of short term arrangement as aforesaid who does not get a substantive appointment under this clause shall cease to hold such post on such date as the Executive Council may specify."
14. There is no dispute regarding the working of the petitioner on the relevant dates and also regarding the vacancies existing on 22.11.1991. The petitioner was appointed as Guest Lecturer in 1989 vide Annexure-R.A. 1 to the rejoinder-affidavit and the Executive Council itself admitted that the appointment of the petitioner was ad hoc in nature vide Annexures-2 and 3 to the writ petition. No document has been filed before this Court by the respondent to show that the petitioner's appointment was contractual. On the material before us, it is evident that the petitioner was doing all the work of lecturer, and hence in our opinion was entitled to the pay scale of lecturer on the principle of equal pay for equal work.
15. A Division Bench of this Court in Vashistha Narain Pandey v. Chancellor, 2002 UPLBEC 620, held that the petitioner possessing requisite qualification appointed on honorarium and working on the relevant dates is entitled to regularisation as there was no difference between a teacher on fixed honorarium and a teacher on salary basis. There are only three kinds of teachers viz., Professor, Reader and Lecturer. Even if the petitioner belongs to the lowest category she has to be regarded at least as a lecturer. Against this Judgment S.L.P. was filed in the Supreme Court vide S.L.P. No. 4538 of 2002 which was disposed off by the Supreme Court on 8.3.2002 with the observation that the only modification called for in the High Court judgment is that the regularisatton of the respondent should be with effect from the date of the High Court's order. Thus, the Supreme Court has upheld the High Court's judgment.
16. In Dr. Sudhakar Malviya v. B. H. U. and Ors., 1999 ALJ 185, it was held by a Division Bench of this Court that the principle of equal pay for equal work is applicable to a teacher in the University particularly when he is allowed to continue for years. It was further held that the University in such a case cannot plead lack of qualification.
17. In Rabi Narain Mohapatra v. State of Orissa, AIR 1991 SC 1286, it was observed that where a teacher was appointed and had been working for almost four years with short breaks, and the managing committee had been utilising his services afterwards, though there was no approval by the Educational Authorities, and his services were never terminated on ground of inefficiency or misconduct, he was entitled to be regularised.
18. In Vinay Kumar v. State of Punjab and Ors., AIR 1994 SC 265, it was held that part time lecturers working for more hours every day as compared to regularly appointed lecturers are entitled to minimum pay scale prescribed for regularly appointed lecturers.
19. In our opinion, the stand of the respondent that the petitioner did not possess the minimum qualification at the time of initial appointment and on 22.11.1991 appears to be incorrect as according to the University Statute 11.01 (7) as on 17.9.1989, the requirement of Ph.D. was optional and any candidate appointed could obtain the said degree within five years. The advertisement issued in 1991 by the University vide Annexure-R.A. 2 for filling up the two posts of Home Science required only M.Sc. with 55% minimum marks and good academic record. The petitioner possessed the said qualification vide Annexure-R.A. 6. NET was made compulsory only after 1991 when regulations were framed by the U.G.C. The University adopted the same only subsequently and only in the advertisement issued in 1995 was NET required vide Annexure-R.A. 4. The petitioner was awarded Ph.D. in 1996 and cleared NET in 2001. The U.G.C. vide its 1998 Regulation has made NET optional for Ph.D. Moreover, the Calcutta High Court in Writ Petition No. 12593 (W) of 2000, Narayan Chandra Jana v. Union of India, decided on 28.9.2001, has struck down the NET requirements and we respectfully agree with the Judgment of the Calcutta High Court. It was urged by the respondent's counsel that the decision of the Calcutta High Court will not be applicable in U. P. as here the NET requirement is by the University Statutes. This argument is based on a misconception. The University statute is based on the U.G.C. guidelines, and since the U.G.C. guidelines have been struck down by the Calcutta High Court, the very basis of the Statute has gone, and it too becomes arbitrary, and is illegal.
20. In our opinion, since the University has taken continuous work for more than 12 years from the petitioner, it cannot reject the claim of the petitioner on -the ground of qualification (although this ground itself is misconceived and incorrect) when she has gained such vast experience. This view gets support from the numerous Supreme Court decisions referred to in this judgment.
21. In Bhagwati Prasad v. Delhi Municipal Corporation, AIR 1990 SC 371, it was observed that once the appointment was made as daily wage worker and the petitioner worked for considerable length of time, it would be hard and harsh to deny him confirmation on the ground that he lacks the prescribed educational qualification. Hence in view of this decision also, the petitioner is entitled for regularisation.
22. In Karnataka State Put. College Stop Gap Lecturers Association v. State of Karnataka, AIR 1992 SC 677, it was held that temporary teachers who have worked for three years should be absorbed and should be paid salary equal to regular teachers.
23. In P.C. Agarwal v. State of U. P., 1993 (2) AWC 787 : 1993 (1) UPLBEC 718, it was held that regularisation of service cannot be denied when the petitioners have rendered service on ad hoc basis against substantive vacancies for 10 to 18 years and this considerable period cannot be washed away. The same view was taken in Jacob M. Puthuprambil v. Kerala Water Authority, AIR 1990 SC 2228.
24. The allegations in paragraphs 7, 8 and 9 of the writ petition that the petitioner has been doing all the work of regular lecturer, e.g., taking classes, setting papers, examining copies, invigilation, etc, have been replied to in paragraphs 9, 10 and 11 of the counter-affidavit. In paragraph 9 of the counter-affidavit, it is stated that the allegations in paragraph 7 of the writ petition are false, and the guest lecturers are required to only take classes. In paragraph 21 to the rejoinder-affidavit, the petitioner has replied to the allegation in paragraph 9 of the counter-affidavit, and has annexed a bunch of documents (Annexure-R.A. 7) to show that she has not only been taking classes since 1989 but has also been setting papers for the examinations, correcting answer copies, conducting examinations invigilation work, etc. In view of these documents, we are of the opinion that the petitioner's contentions in paras 7, 8 and 9 of the writ petition are correct and the respondent's reply is false. We are sorry to note that the counter-affidavit has been filed by the Registrar of the University, a senior officer, who was not expected to make such false averments.
25. We are hence clearly of the opinion that the petitioner has been continuously working since September, 1989 and has been doing all the work of regular lecturer, and in fact doing more work than a regular lecturer as her workload is more (vide para 8 of the writ petition) which allegation has not been denied in paragraph 10 of the counter-affidavit.
26. In the report of the Committee dated 2.5.2002 (Annexure-C.A. 2) the petitioner's claim has been considered in para 10 of the same. It has been firstly stated therein that the petitioner's claim for regularisation is time barred. We have not been shown any law which makes the claim time-barred. Hence, this view is clearly incorrect. It has then been observed in the report that the petitioner does not come under the definition of 'teacher'.
27. In this connection, it may be mentioned that 'teacher' has been denned in Section 2 (18) of the U. P. State Universities Act as follows :
"Teacher means a person employed for imparting instruction or guiding or conducting research in the University."
28. Thus, the definition of teacher has nothing to do with the emoluments a person is getting. The petitioner was certainly imparting instruction in the University since 1989, and hence she is certainly a teacher as defined in the Act. Moreover, this point is really covered by the Division Bench decision of this Court in Vashistha Narain Pandey's case (supra), which has been upheld by the Supreme Court.
29. It was then mentioned in the Committee's report dated 22.11.1991 that the petitioner was not qualified as she did not have Ph.D. or NET on that date. We have already discussed this aspect in the earlier part of this judgment, and have observed that the stand of the respondents, and of the Committee, is not correct since, in our opinion, the petitioner was fully qualified on 22.11.1991. At any event, she is entitled to the benefit of the decisions in Dr. Sudhakar Malviya's case, Rabi Narain Mohapatra's case, Vijay Kumar's case, Bhagwati Prasad's case, Karnataka State Pvt. College Stop Gap Lecturer's Association case and P. C. Agarwal's case referred to above. Hence even assuming, without admitting, that on 22.11.1991, the petitioner was not qualified, she will get the benefit of the above decisions since she has worked continuously for 12 years doing all the work (in fact more) of regular lecturer. Hence, even de hors Section 31 (3) (c), the petitioner is entitled to regularisation in view of the above decisions.
30. We may, however, also consider the matter from the point of view of Section 31 (3) (c). We have already observed that the petitioner fulfils the conditions in Sub-clauses (i) and (ii) of the above provision. The question is about Sub-clause (iii) which requires that he (or she) should be found suitable for regular appointment by the Executive Council. The Executive Council by its resolution dated 4.5.2002 has rejected the petitioner's claim, relying on the report of the Committee dated 2.5.2002 (Annexure-C.A. 3). We have already observed that the Committee's report is incorrect and based on misconceptions. Hence, we quash the said report dated 2.5.2002 as well as the Executive Council's resolution dated 4.5.2002 (Annexure-C.A. 4). The question is now what is to be done? We could have remanded the matter to the Executive Council, but the Executive Council having already disclosed its mind, a remand would be an exercise in futility. No doubt Clause (iii) of Section 31 (3) (c) states that the opinion regarding suitability should be of the Executive Council. But here we find that the Executive Council has only relied on the report of a Committee which is totally incorrect and misconceived. A remand to the Executive Council would entail further delay and harassment for the petitioner as the Executive Council would attain set up a Committee and we cannot say what would happen thereafter.
31. In our opinion, if a statute requires that a decision on a matter is to be taken by a certain authority, and if that authority does not take the decision on relevant considerations or totally misdirects itself, and the objective material on the basis of which such decision is to be taken is before the Court, then the Court, in certain exceptional circumstances, can itself take that decision instead of remanding the matter to the authority, particularly when such remand would entail further delay and hardship. This proposition gets support from the decision of the Supreme Court in B.C. Chaturvedi v. Union of India. 1995 (6) SCC 749, where it was held (in para 18) that although ordinarily it is for the authority concerned to decide the punishment of an employee found guilty, in exceptional circumstances the High Court itself can impose the punishment.
32. In the State of Bihar v. Dr. Braj Kumar Mishra and Ors., 1999 (9) SCC 546, the Supreme Court observed (in paragraph 7) :
"It is true that normally the Court, in exercise of its power under Article 226/227 of the Constitution of India, after quashing the impugned order should remand the matter to the authority concerned particularly when such authority consists of experts for deciding the issue afresh in accordance with the direction issued and the law laid down by it but in specified cases, as the instant case, nothing prevented the Court from issuing directions when all the facts were admitted regarding the eligibility of respondent No. 1 and his possessing the requisite qualifications. Remand to the authorities would have been merely a ritual and ceremonial. Keeping in mind the lapses attributable to the Commission which had failed to take appropriate action despite recommendation made in favour of respondent 1, the learned single Judge as also the Division Bench of the High Court felt it necessary to declare respondent No. 1 promoted with effect from 1.2.1985. We do not find any illegality or error of jurisdiction."
33. In the present case, all the objective material for deciding the petitioner's suitability is before the Court. Her academic qualifications are before us. She has got first class first in B.Sc. and M.Sc. She has taught and done other work of regular lecturer for 12 years continuously, including the work of taking classes (in fact she has done more work than regular lecturers vide paragraph 8 of the writ petition, setting papers, examining answer copies, conducting examinations, etc. She has done Ph.D. and NET, even though these were not essential. There is no allegation in the counter-affidavit that her work was not satisfactory during these 12 years.
34. Ordinarily, suitability is to be judged by the Executive Council and not by this Court. But what are we to do when the Executive Council acts in a patently unfair manner, as it has done in this case? This Court is a Court of Justice. No doubt it has to do justice based on law, but the Court will interpret law in a way that leads to justice and not injustice.
35. On the facts of this case, and in view of the fact that the Executive Council has acted on irrelevant considerations and has misdirected itself, and since a remand to it would lead to further delay and harassment of the petitioner, we ourselves have Judged the petitioner's suitability and we find her suitable to be appointed as regular lecturer, and we hold that she fulfils all the requirements of Section 31 (3) (c) of the Act.
36. In the circumstances, a mandamus is issued to the respondents to regularise the petitioner as lecturer in Home Science forthwith and pay her salary of regular lecturer. The petition is allowed. No order as to costs.