Karnataka High Court
Smt. B. Suvarna Malini And Others vs Karnataka Administrative Tribunal, ... on 2 March, 1999
Equivalent citations: ILR1999KAR2179, 1999(6)KARLJ6
Author: Ashok Bhan
Bench: Ashok Bhan, S.R. Bannurmath
ORDER Ashok Bhan, J.
Prolonged and repeated bane of Service Jurisprudence of the State of Karnataka has been the appointment of ad hoc/part-time lecturers in the Government Aided Colleges/Government Independent Junior Colleges and their consequent absorption in service for the purpose of conferment of permanent status. Supreme Court of India in its judgment in Karnataka State Private College Stop-Gap Lecturers' Association v State of Karnataka and Others, pointed out as to how an individual problem after becoming the family problem goes on to become a malignant disease afflicting the society in general giving rise to the contending equities between the two groups of 'haves' and 'have nots': It was observed:
"2. Ad hoc appointments, a convenient way of entry usually from back-door, at times even in disregard of rules and regulations, are comparatively recent innovations to the service jurisprudence. They are individual problem to begin with, become a family problem with passage of time and end with human problem in Court of law. It is unjust and unfair to those who are lesser fortunate in society with little or no approach even though better qualified, more meritorious and well deserving. The infection is widespread in Government or semi-Government departments or State financed institutions. It arises either because the appointing authority resorts to it deliberately as a favour or to accommodate someone or for any extraneous reason ignoring the regular procedure provided for recruitment as a pretext under emergency measure or to avoid loss of work etc. or the rules or circulars issued by the department itself empower the authority to do so as a stop-gap arrangement. The former is an abuse of power. It is unpardonable. Even if it is found to have been resorted to as a genuine emergency measure the Courts should be reluctant to grant indulgence. Latter gives rise to equities which have bothered Courts every now and then. Malady appears to be widespread in educational institutions as provisions for temporary or ad hoc appointments have been exploited by the managements of private aided colleges to their advantage by filling it, on one hand, with persons of own choice, at times without following the procedure, and keeping the teachers exposed to threat of termination, on the other, with all evil consequences flowing out of it. Any institution run by State fund but managed privately is bound to suffer from such inherent drawbacks. In State of Karnataka it is basically State created problem due to defective rule and absence of any provision to effectively deal with such a situation".
It was pointed out by the Supreme Court that the problem is basically a State created problem which arises either because the Appointing Authority resorts to it deliberately as a favour or to accommodate someone or for any extraneous reason ignoring the regular procedure provided for recruitment as a pretext under emergency measure. Appointment on temporary/ad hoc basis have been exploited by the managements to do favours and give appointments to persons of their own choice without following the regular procedure provided for filling up the posts.
2. In spite of the above quoted observations of the Supreme Court, the State of Karnataka did not instruct itself well and repeated the mistake by publishing the draft rules called the Karnataka Education Department Service (Department of Collegiate Education Department) (Special) Rules, 1996 inviting objections from the public. Certain interested persons filed objections. Thereafter, the Government got published the final rules in the Official Gazette on 22nd of January, 1997 called as the Karnataka State Civil Services Rules (Absorption of Persons Working as Part-time lecturers in the Karnataka Education Department Service) (Department of Collegiate Education) (Special) Rules, 1996 (hereinafter called 'the Absorption Rules'). Relevant rules for the purpose of adjudication of the issues are:
"2(b) 'Part-time lecturer' means a person.-
(i) appointed in a Government First Grade College to discharge the residuary teaching workload, if any, left after distribution of such teaching workload to the regular lecturer;
(ii) who at the time of such appointment possessed Master's Degree with at least fifty-five per cent marks in the subject in which he was assigned to teach;
(iii) who has worked as such for not less than two academic years as on the last day of the academic year 1994-95:
Provided that persons belonging to S.C. and S.T. must have worked as such for not less than one academic year as on the last day of the academic year 1994-95:
Provided further that after his initial appointment as a part-time lecturer, there is no break in his service for reason he is directly responsible;
(iv) who had been working as such, during the academic year 1994-95; and
(v) who at the time of serving as a part-time lecturer or at the time of absorption under these rules, had no full time job, vocation and was or is not practising any trade or profession or calling;
(c) Other words and expressions used in these rules but not defined therein shall have the same meaning assigned to them in the Karnataka Civil Services (General Recruitment) Rules, 1977.
3. Absorption of part-time lecturer into Kamataka State Civil Services,--(1) Notwithstanding anything contained in the Kamataka Education Department Services (Collegiate Education Department Recruitment) Rules, 1964 and the Karnataka Civil Services (General Recruitment) Rules, 1977 or the rules of recruitment relating to recruitment of lecturers for Government First Grade Colleges made or deemed to have been made under the provisions of the Karnataka State Civil Services Act, 1978 (Karnataka Act 14 of 1990), part-time lecturers whose names have been notified by the State Government under sub-rule (2) shall be with effect from the date of such notification be absorbed in the category of posts of lecturer in the Karnataka Education Department Services (Department of Collegiate Education) in the scale of pay of Rs. 2,200-4,000:
Provided that appointment shall not be made under these rules against any post earmarked to be filled from among candidates belonging to the Scheduled Castes or the Scheduled Tribes under the Government Order allowing reservations, unless there are candidates belonging to these classes available from among the part-time lecturers to be absorbed; otherwise such posts shall be treated as backlog to be filled by process of special recruitment from among these classes.
(2) The State Government shall constitute one or more Committees consisting of such number of Members as it deems fit, for the purpose of recommending to the State Government, the names of eligible part-time lecturers for absorption. The State Government shall, on receipt of such recommendation notify the names so recommended by the Committee.
(3) The Committee shall determine its own procedure.
(4) The entire process of recommendation of names of eligible part-time lecturers and notifying such names shall, as far as may be completed before the first day of June, 1997.
(5) The inter se seniority of such part-time lecturers shall be determined on the basis of length of service as part-time lecturers and where length of service is same, seniority shall be determined on the basis of age, the older in age, being senior to a part-time lecturer who is younger in age".
Government issued a notification dated 17-11-1997 amending Rule 3 of the Absorption Rules retrospectively making it effective from 22nd January, 1997 providing that in sub-rule:
"(i) the words 'as and when vacancies arise' shall be inserted at the end;
(ii) after the first proviso, the following shall be inserted:
Provided further that appointment shall not be made under these rules against any post earmarked to be filled from among candidates belonging to any category of other Backward Classes under the Government orders providing for reservation unless candidates belonging to such category are available from among the part-time lecturers to be absorbed and the posts remaining vacant in any category of other Backward Classes for want of sufficient number of candidates belonging to such category from among the part-time lecturers shall be filled by direct recruitment".
3. In the State of Karnataka appointment of part-time lecturers has been in vogue since 1979. Method of appointment of part-time lecturers and allowance for workload for every one hour has undergone series of revisions since 1979. The object of appointment on part-time basis has been the utilization of services of unemployed qualified persons. As a rule the appointment of part-time lecturers is necessitated only when full time teaching staff is not adequate to cope up with the existing teaching workload or when there is no full time teaching staff in any subject. Since the appointments were being made without following any procedure whatsoever in the individual colleges, in the year 1983, a circular was issued by the Directorate of Collegiate Education on 30th September, 1983 to the effect that appointment of part-time lecturers must be canalized only through the Directorate of Collegiate Education and not through Principals or Heads of Departments. Similarly, Directorate of Collegiate Education issued another circular dated 23rd June, 1988 giving guidelines as to the appointment of part-time lecturers. In addition to the above circular, number of circulars were issued subsequently. The salient features of the circulars being:
"(a) Principals as being not empowered to appoint part-time lecturers.
(b) Principals should select eligible and suitable candidates with the assistance of concerned Heads of Departments and thereafter the names of selected persons to be forwarded to the Directorate of Collegiate Education for necessary appointment.
(c) Selected candidates can be taken to duty in the interest of smooth running of classes, if they are qualified and eligible pending issue of appointment order by the Directorate of Education.
(d) Part-time lecturers should not be assigned more than their maximum quota of teaching work under any circumstance even if they volunteer to take up more teaching work. Instead more part-time lecturers should be taken if there is excess teaching work.
(e) Appointment of part-time lecturers to be restricted to barest minimum.
(f) Not to appoint part-time lecturers where the excess workload is less than four hours and also against leave vacancies.
(g) Services of part-time lecturers not to be replaced by another set of part-time lecturers till regular recruitments are made".
4. From a reading of the features narrated above it emerges that part-time lecturers were not appointed to a regular post after selection according to rules and they were appointed as part-time lecturers de hors the rules.
5. In exercise of powers conferred by sub-section (1) of Section 3 read with Section 8 of the Karnataka State Civil Services Act, 1978 (Kar-nataka Act No. 14 of 1990), Government of Karnataka published the rules called the Karnataka Education Department Services (Collegiate Education Department) (Special Recruitment) (Amendment) Rules, 1993 (for short, '1993 Rules') made applicable to fill up the vacancies of the posts of lecturers in the Collegiate Education Department; wherein, it defined the appointing authority as being Government of Karnataka and selection authority as being Karnataka Public Service Commission. Successful clearance of the National Education Test (for short, 'NET') provided by the Universities Grants Commission (UGC) was made essential qualification for making the appointment. Relevant Rules 3, 4, 5, 6 and 6(a) were:
"3. Qualification and age.--No person shall be eligible for recruitment under these rules unless he has,--
(a) (i) obtained a Master's Degree in the relevant subject with at least 55% marks or its equivalent grade;
(ii) been declared successful in the 'National Education Test' provided further, that candidates possessing Ph.D/M. Phil., are exempted from appearing for NET;
(b) attained the age of 21 years, but not have,--
(i) attained the age of forty years if he belongs to Scheduled Caste and Scheduled Tribe and Group 'A';
(ii) attained the age of thirty-eight years in case of candidates belonging to Groups 'B' and 'C';
(iii) attained the age of thirty-five years in the case of others:
Provided that in the case of candidates possessing teaching experience as lecturers, in any College affiliated to University by law in India including the candidates who have served as part-time lecturers in Government First Grade Colleges of the Department of Collegiate Education, the maximum age limit shall be enhanced by the number of years of such teaching experience subject to a maximum of five years.
4. Notification of vacancies.--Appointing Authority shall notify the vacancies under each subject to the Karnataka Public Service Commission which shall make the selection in accordance with these rules.
5. Inviting applications.--The Selection Authority shall call for applications in the prescribed form from eligible candidates by giving wide publicity in at least one leading Kannada Newspaper and one leading English Newspaper having wide circulation in the State
6. Eligibility of the candidates for interview.--The Selection Authority shall prepare a list of names of eligible candidates, arranged in the order of merit based on the percentage of marks secured in the Master's Degree in the relevant subject, and if two or more candidates have secured equal percentage of marks, the order of merit in respect of such candidates shall be fixed on the basis of their age, person or persons older in age being placed higher in the order of merit. From among the candidates whose names are included in such list, as far as may be, such number of candidates as is equal to four times the vacancies notified shall, in the order of merit, be eligible for interview:
Provided that if the required number of candidates belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes are not eligible for interview, then, notwithstanding anything contained in these rules such number of candidates as will make up the deficiency, belonging to such castes, tribes or classes selected in the order of merit among themselves from the list of names of candidates shall also be eligible for the interview.
6-A. Interview.--(1) The candidates eligible for interview under Rule 6 shall be called for an interview by the Selection Authority. It shall award marks to each such candidate on the basis of his performance in the interview. The maximum marks for the interview shall be fourteen awarded for the following traits, namely.-
(a) Personality : two marks
(b) Power of Expression :
three marks
(c) Smartness and Initiative :
three marks
(d) General Knowledge :
three marks
(e) Other traits including theknowledge of the subject which has a bearing on the job content of the post for which recruitment is being made :
three marks (2) The object of the interview shall be to assess suitability of the candidates for appointment to the post of lecturer".
6. Faced with the difficulty that in the 1993 Rules the selection was to be made by the Public Service Commission (for short, 'PSC') on the clearance of National Education Test (for short, 'NET') as provided by the University Grants Commission (for short, 'UGC') being the essential requisite which most of the working part-time lecturers did not possess, the Absorption Rules were enacted. Selection by the PSC and condition of passing the NET was dispensed with. Field of choice for selection was also restricted. Under the Absorption Rules, part-time lecturers who had been working as such during the academic year 1994-1995 and who at the time of appointment as part-time lecturer possessed a Master's Degree with at least 55% Marks in the subject in which he was assigned to teach and who at the time of serving as a part-time lecturer or at the time of absorption under these special rules had no full time job, vocation and was not or is not practising any trade or profession or calling are entitled to be regularised and absorbed in the category of posts of lecturers in the Karnataka Education Department Services (Department of Collegiate Education) in the scale of pay of Rs. 2,200-4,000/-. The rules also prescribed several other conditions like appointment of Screening Committees for the purposes of recommending to the State Government the names of eligible part-time lecturers for absorption; exclusion of period of part-time Service for the purposes of seniority and also provides that the initial basic pay of any absorbed part-time lecturer under these rules if he reports for duty as a lecturer shall be fixed at the minimum of the pay of category of post in which he is absorbed and the services rendered before the absorption shall not count for the purposes of seniority, leave or pension.
7. Certain persons (hereinafter referred to as the 'applicants' who were not part-time lecturers but were otherwise qualified and eligible for appointment to the post of lecturer challenged the Absorption Rules on various grounds. These applicants could be categorised either as the applicants who had qualified themselves to be appointed as a lecturer, but for the Absorption Rules, which deprived them of their being considered for appointment through regular appointment process as envisaged under the Karnataka Education Services (Special Recruitment) (Amendment) Rules, 1993 or who worked on part-time basis earlier in point of time, but, not for not less than two academic years as at the end of academic year 1994-95 or applicants working as part-time lecturers commencing from the academic year 1994 onwards.
8. Applicants before the Tribunal sought declaration that the Absorption Rules be struck down as being unconstitutional or arbitrary, discriminatory and violative of Articles 14, 15 and 16 of the Constitution of India. It was contended by them that the entire object of the impugned rules is to favour one class of persons, i.e., part-time lecturers working during the academic year 1994-95 and one year earlier while discriminating a major class of eligible candidates like the applicants who had been waiting for being considered for direct recruitment quota as lecturers in the Department of Education. The claim of the applicants being considered and legitimate expectation was belied by the State by not making selection of eligible candidates from the open market within the quota reserved for direct recruitment. The impugned rules seek to fill-up about 3,000 to 5,000 posts of lecturers in the Education Department en masse by resorting to regularisation of back-door entrance in gross violation of Articles 14, 15 and 16 of the Constitution of India and therefore liable to be declared ultra vires. That the applicants had filed objections to the draft rules published for regularisation contending that the rules totally violate the Cadre and Recruitment Rules and the provisions of the Constitution of India, providing right of opportunity and equality before law in the matter of recruitment. But the objections were brushed aside without even a mention of the same in the final rules except mechanically showing that the objections were considered. The objections really required to be upheld and the rules as finalised and published are liable to be quashed in its entirety, as the same promotes disharmony, dissatisfaction and frustration among the eligible and qualified candidates seeking appointment to the post of lecturers.
9. Their further attack was that the persons who have worked as part-time lecturers may require some semblance of sympathy, but the same cannot take the form of a largesse being conferred on them, overlooking the rights of other citizens and eligible candidates. While some relaxation could have been shown by providing them a percentage of weightage for having served as part-time lecturers, the action of the State now taken is totally de hors the rules made under Article 309 of the Constitution of India. Part-time lecturers referred to did not even satisfy the minimum eligibility condition of clearing NET as provided by UGC and accepted by the State which is a must for being appointed as lecturer. The State Government itself is estopped from not insisting upon the said test for regularisation while the same has been insisted upon in all earlier recruitments made from 1986 onwards strictly accepting the directions of the University Grants Commission; that the Universities in the State of Karnataka i.e., Mysore University and other Universities have been insisting on the passing of the eligibility tests for recruitment to the post of lecturers which contemplates the passing of eligibility tests for being recruited as lecturer. Similar insistence has also been made in all aided institutions and so also the reservation for SC/ST as per roaster has been strictly insisted upon by the State Government in the matter of appointments to the private aided institutions. The State Government cannot discriminate among the private educational institutions and the State Institutions. It cannot sacrifice the quality of the appointments in the State Government Colleges, while insisting upon the rigorous tests for the private aided institutions.
10. Their next point of attack was that several part-time lecturers have been working against a single post. For example: in practical subjects the workload is 20 hours per week where as in other subjects it is 16 hours. This workload could be divided amongst two lecturers. But in reality more than three to four lecturers have been teaching the same subject in a single post. Therefore, large scale mismanagement and fraud is likely to be committed. The post in question is a Class I Group 'B' post, for which the selection has to be made by the State Public Service Commission. Without taking these posts out of the purview of the Public Service Commission, the appointments were being made by incompetent persons and by the Principal from amongst their favourites on the basis of extraneous consideration. That without taking the post from the purview of the Public Service Commission as provided under Article 320 of the Constitution of India, authorising the State Government to make the appointments was unconstitutional and arbitrary.
11. Stand taken by the State Government before the Tribunal was that the Appointing Authority to the posts of lecturers is the State Government. Since the year 1979 the appointment of part-time lecturers is in vogue. That in the beginning of the academic year depending upon the strength of students joining the various classes/courses, the workload to be shouldered by the existing staff would be determined. It varied every year. As per requirement, taking into consideration the existing teaching staff and the additional work, the Department of Collegiate Education seeks permission to appoint lecturers on part-time basis. After obtaining permission from the Government the Department of Collegiate Education used to issue circular laying down the mode of appointment of lecturers on part-time basis. Since the year 1979 from time to time depending upon the need, qualified and eligible candidates have been appointed as part-time lecturers. The Principal of the concerned college with the assistance of the Head of the Department after selecting qualified and eligible candidates used to send necessary proposals to the Department of Collegiate Education for approval of appointment. The qualification required to appoint a candidate as part-time lecturer is that he should possess at least Second Class Master Degree in the concerned subject. The part-time lecturers appointed during the academic year used to be relieved on the appointment of full time lecturers or the last working day of the academic year. In view of the acute shortage of lecturers depending upon the need and after being satisfied with regard to prescribed qualifications, the part-time lecturers were appointed. Since this process continued from since the year 1979 onwards, the Government took a policy decision to absorb part-time lecturers who had put in 2 years of service as on the last day of academic year 1994-95. The Absorption Rules have been framed in exercise of the powers conferred under sub-section (1) of Section 3 read with Section 8 of the Karnataka State Civil Services Act, 1978.
12. It was also contended that the candidates who are sought to be appointed now from part-time lecturers are Master's Degree holders. The minimum qualification prescribed for their appointment is that they should possess a Master Degree in the concerned subject. Since 1991 onwards, the direct recruitment to the post of lecturers has taken place twice and about 982 lecturers have been appointed by direct recruitment. Because of the exigencies of administration and the need of the situation, part-time lecturers had been appointed after taking into consideration their eligibility and suitability and they have been serving from the last so many years. The State Government has taken policy decision to absorb the persons who were working as part-time lecturers for a period of two academic years as on the last date of the academic year 1994-95 and in the case of SC/ST who has worked as such for not less than one year as on the last date of the academic year 1994-95, possessing at least 55% of marks in the subject concerned, has been provided. The cut off date given as on the last date of the academic year 1994-95 is the policy decision of the Government and the same is reasonable and justified. In order to comply with the constitutional mandate under Article 16 and other provisions, a concession has been given to the persons belonging to SC/STs. It has been further submitted that after taking into consideration the service rendered by a part-time lecturer and to avoid unnecessary hardship to the persons who have served for last so many years, the Government has taken a policy decision to absorb these part-time lecturers as per the impugned rules. It was submitted that the candidates who are to be appointed by direct recruitment and the persons who are already working as part-time lecturers and are likely to be absorbed in accordance with the Absorption Rules will not form the same class. They form two different classes. The lecturers, who are to be appointed by direct recruitment, do not have any teaching experience, whereas the part-time lecturers going to be absorbed in the impugned rules have already served as lecturers and they have gained experience. In view of this, the applicants who were yet not appointed and the part-time lecturers who are already in service form two separate classes and the applicants cannot complain of the violation of Articles 14 and 16 of the Constitution of India. The applicants and the part-time lecturers could not be treated as equals. Generally it was stated that the grounds urged by the applicants were not sustainable in law.
13. Apart from the statement of objections filed by the State Government certain part-time lecturers who had got themselves impleaded by making applications under Order 1, Rule 10 of the CPC also filed their statement. In general the stand taken was the same as that of the State Government.
14. The Karnataka Administrative Tribunal (for short, 'the Tribunal') accepted the contentions of the applicants and struck down the rules being arbitrary and discriminatory and thus violative of Articles 14, 15 and 16 of the Constitution of India. It was held that recruitment should be made by way of direct recruitment through the prescribed agency except in exceptional circumstances where exigency of circumstances may call for ad hoc or temporary appointment. The temporary or ad hoc appointment should be replaced by regular selection and not by absorbing ad hoc employees. Ad hoc employees should compete along with others under the regular selection. That once the consideration of equity in the face of statutory rules is accepted then eligible and qualified persons would suffer as they would not get any chance for appointment resulting in selection of persons lesser in merit. They would get preference in the matter of appointment merely on the ground of equity and compassion. It would amount to denial of equity to all eligible persons. Waiving of the condition of passing NET test was held to be bad in law.
15. Aggrieved by the order of the Tribunal, the State of Karnataka as well as the part-time lecturers have filed these writ petitions challenging the order of the Tribunal. Some of the part-time lecturers who were not parties before the Tribunal have also filed the writ petitions challenging the order of the Tribunal seeking permission of the Court to permit them to challenge the same. Some of the part-time lecturers who were not eligible under the Absorption Rules for being absorbed and had filed an application before the Tribunal have also filed the petitions contending that in case the writ petitions are allowed, then the Absorption Rules insofar as they discriminate in fixing an arbitrary cut off date be struck down and they be considered as eligible for appointment.
16. As common questions of law and fact arises in these petitions which are directed against the common order passed by the Tribunal, we dispose them of by a Single order for the sake of convenience.
17. On behalf of the State of Karnataka the arguments were addressed by Sri S. Vijayashankar, Advocate General and on behalf of the part-time lecturers, the petitions were argued by Sri R.N. Narasimha Murthy, Senior Advocate, Sri Rajgopal and Sri M.R. Naik, Advocates. The arguments are noticed in the merit of order in which they were addressed before us. On behalf of the respondents, the arguments were addressed by Sri H.S. Jois, Senior Advocate.
18. Opening the arguments Sri Narasimhamurthy, argued that the part-time lecturers have rendered service for a number of years. Regu-larisation of service of temporary or persons appointed on stop-gap arrangement is not unknown to law and in fact the Courts after taking into consideration the equities and the human problems involved have permitted the regularisation of the services of employees appointed on a temporary basis or as a stop-gap arrangement. In some cases the Courts have given positive directions for regularisation of services of such employees. Based on this submission it was argued by him that the lecturers who were appointed on part-time basis and have rendered service for a number of years were entitled to protection under Articles 14 and 16 of the Constitution of India. The State owed an obligation to absorb them in service and in discharge of the same a policy decision was taken to absorb them in service waiving the condition of passing NET and going through the process of selection by PSC.
19. Learned Advocate General appearing for the State of Karnataka in addition to the submission made by Mr. Narasimha Murthy, argued that part-time lecturers were already discharging the duties of the lecturers and it is not a case of fresh recruitment or appointment. It is a case of absorption of part-time lecturers who were already working and by so doing only the status of permanency has been conferred upon them. As it was not a case of fresh recruitment the necessity of routing the appointments through the PSC was not required. In any case, the Absorption Rules before its adaptation were sent to the PSC and the obligation of the State was to consult the PSC for framing the rules which has been complied with. Further, it would be deemed that the posts of lecturers against which the part-time lecturers were being absorbed were taken out of the purview of the Karnataka PSC. It was further submitted by him that as the part-time lecturers were already in service prior to the adaptation of the guidelines set by the UGC of passing the NET, it was not necessary for them to pass the NET examination before they could be absorbed in the service. UGC Regulations of 1991 which were adopted by State of Karnataka would have no application to the part-time lecturers who were already in service. That equals were not being treated as unequals as the part-time lecturers formed a different class by themselves which was based on intelligible differentia having nexus to the object of giving permanency to the part-time lecturers who were already working as such.
20. Mr. Naik, appearing for some of the part-time lecturers who would not qualify for absorption under the Absorption Rules because of the cut off date prescribed under the Absorption Rules argued that the cut off date given in the Absorption Rules was discriminatory. The object of the Absorption Rules was to absorb the part-time lecturers and fixing an arbitrary cut off date for absorption of those lecturers who were working as on the last date of academic year 1994-95 is arbitrary as it would defeat the very purpose for which the Absorption Rules were framed. According to him all those lecturers who were already serving as part-time lecturers should have been absorbed.
21. As against this Mr. Jois appearing for the respondent has strenuously argued that the Absorption Rules are violative of Articles 14 and 16 of the Constitution of India. Equals are being treated as unequals. Equal opportunity for being considered has been denied to the eligible candidates without justification. There is no reasonable classification based on intelligible differentia having nexus to the object to be achieved. The Absorption Rules are discriminatory as major class of eligible candidates who had been waiting for being considered in direct recruitment in the Department of Education have been left out of consideration. The impugned rules seek to fill up about 3,000 to 5,000 lecturers in Education Department en masse by resorting to Absorp-tion/Regularisation of back-door entrants in gross violation of Articles 14, 16 and 21 of the Constitution of India. That part-time lecturers were not holding a post as in the Service Rules there is no post of a part-time lecturer. Services rendered as part-time lecturers cannot be a relevant consideration for grouping them as a separate group, because they were never in service. The part-time lecturers sought to be absorbed/regularised did not possess the requisite qualification of passing NET examination as provided by the UGC which has been accepted and adopted by the State of Karnataka. That there could be no deemed consultation with the Public Service Commission or deemed taking the posts out of the purview of the Public Service Commission because under Article 320 of the Constitution of India the State Government is required to consult the Public Service Commission before making recruitment to the service unless the posts had been taken specifically out of the purview of the Public Service Commission under the proviso to Article 320 of the Constitution of India.
22. After attaining independence, we the people of India adopted Parlimentary democracy to govern ourselves. To achieve the ideal of good governance a written Constitution was adopted providing therein the constitution of three wings of governance i.e., Legislature, Executive and the Judiciary, assigning respective fields of operation for them. To ensure impartial conduct of elections to the legislature an independent body like the Election Commission was provided. Similarly, an independent judiciary in which the executive has no influence at all has been provided. A political executive drawn from the legislature was provided for laying down the policies. To aid and advise the political executive a bureaucratic executive in the form of Civil Services was provided. To ensure that the Civil Services act independently certain basic protection like the framing of rules for recruitment and condition of service of persons serving the Union or a State (refer to Article 309); tenure of office of persons serving the Union or a State (Article 310); No person who is a member of a civil service of the Union or an All-India Service or a Civil Service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed (Article 311), were enacted. To ensure that selection is made on merits without extraneous influences and to provide equal opportunities of being considered to the eligible candidates independent bodies like the Union Public Service and the PSC were required to be created under Article 315 of the Constitution. Article 320 states the functions to be performed by the Public Service Commission. The same reads:
"320. Functions of Public Service Commissions.--(1) It shall be the duty of the Union and the State Public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively.
(2) It shall also be the duty of the Union Public Service Commission, if requested by any two or more State so to do, to assist those States in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required.
(3) The Union Public Service Commission or the State Public Service Commission, as the case may be shall be consulted-
(a) on all matters relating to methods of recruitment to civil services and for civil posts;
(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;
(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;
(d) on any claim by or in respect of a person who is serving or has served under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of India, or, as the case may be, out of the Consolidated Fund of the State;
(e) on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity and any question as to the amount of any such award, and it shall be the duty of a Public Service Commission to advise on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor of the State, may refer to them:
Provided that the President as respects the All-India Services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.
(4) Nothing in clause (3) shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in clause (4) of Article 16 may be made or as respects the manner in which effect may be given to the provisions of Article 335.
(5) All regulations made under the proviso to clause (3) by the President or the Governor of a State shall be laid for not less than fourteen days before each House of Parliament or the House or each House of the Legislature of the State, as the case may be, as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as both Houses of Parliament or the House or both Houses of the Legislature of the State may make during the session in which they are so laid".
Under Clause 3(a) of this Article Union Public Service Commission was required to be consulted on all matters relating to methods of recruitment to civil services and for civil posts etc., and it has been made the duty of the Public Service Commission to advise on any matter so referred to them. Under proviso to this Article the President in respect of the All-India Services and also in respect of other services and posts in connection with the affairs of the Union, and the Governor, in respect of other services and posts in connection with the affairs of a State, can make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a PSC to be consulted.
23. It was not disputed before us that as per regulations framed under Article 320 by the State the posts of lecturers in colleges have not been taken out of the purview of PSC. To put it in a positive form PSC was required to be consulted for making appointments to the posts of lecturers. Once the post is put under the purview of the PSC then the selection has to be through PSC only and the appointments can be made from the selection made by the PSC in order of their merit determined by it. A candidate cannot as a matter of right claim that the Government must accept the recommendation of the Commission but if the vacancy is to be filled then it has to be from amongst the selected candidates adhering to the order of merit. The State cannot take out the post from the purview of the PSC by providing in the rules of recruitment framed under Article 309 that selection shall be made by an agency other than the PSC as has been done in the present case. There cannot be a deemed exclusion of the post from the purview of the Public Service Commission as has been contended before us by the Advocate General.
24. In Jatinder Kumar and Others v State of Punjab and Others, the Supreme Court has explained the purport of selection through Public Service Commission. The relevant observations are reflected in paragraph 12, which reads:
"The establishment of an independent body like Public Service Commission is to ensure selection of best available persons for appointment in a post to avoid arbitrariness and nepotism in the matter of appointment. It is constituted by persons of high ability, varied experience and of undisputed integrity and further assisted by experts on the subject. It is true that they are appointed by Government but once they are appointed their independence is secured by various provisions of the Constitution. Whenever the Government is required to make an appointment to a high public office it is required to consult the Public Service Commission. The selection has to be made by the Commission and the Government has to fill up the posts by appointing those selected and recommended by the Commission adhering to the order of merit in the list of candidates sent by the Public Service Commission. The selection by the Commission, however, is only a recommendation of the Commission and the final authority for appointment is the Government. The Government may accept the recommendation or may decline to accept the same. But if it chooses not to accept the recommendation of the Commission the Constitution enjoins the Government to place on the table of the Legislative Assembly its reasons and report for. doing so. Thus, the Government is made answerable to the House for any departure vide Article 323 of the Constitution. This, however, does not clothe the appellants with any such right. They cannot claim as of right that the Government must accept the recommendation of the Commission. If, however, the vacancy is to be filled up, the Government has to make appointment strictly adhering to the order of merit as recommended by the Public Service Commission. It cannot disturb the order of merit according to its own sweet will except for other good reasons viz., bad conduct or character. The Government also cannot appoint a person whose name does not appear in the list. But it is open to the Government to decide how many appointments will be made. The process for selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus. We are supported in our view by the two earlier decisions of this Court in A.N.D. Silva v Union of India and State of Haryana v Subash Chander Marwaha. The contention of Mr. Anthony to the contrary cannot be accepted".
As per this judgment whenever the requirement is to make appointment to a high Public Office it is required to consult the Public Service Commission and the selection has to be made by the Public Service Commission and the Government has to fill up the posts by appointing those selected and recommended by the Commission adhering to the order of merit in the list of candidates sent by the Public Service Commission. The process of consultation with the Public Service Commission would not be deemed to have been complied with under Article 320 only because the Absorption Rules were sent to the PSC before its adoption. We had asked the Advocate General to produce before us the Government file in which the objections raised by the Karnataka PSC to the Absorption Rules were considered. The same was not produced in spite of the assurance given by the Advocate General. The process of consultation with the PSC for selection to a post which is within the purview of the PSC can be only when the PSC is associated with the selection process and not otherwise. It is true that the final authority rests with the Government either to accept or decline to accept the recommendation of the PSC, but if it chooses not to accept the recommendation of the Commission the Constitution under Article 323 enjoins upon the Government to place on the table of the Legislative Assembly its reasons and report for doing so. Thus the executive has been made answerable to the Legislature for not accepting the recommendations made by the PSC. In view of the mandate of the Constitution provided in Chapter II beginning with Article 315 in part XIV of the Constitution, no appointment to a post can be made which is in the purview of PSC without its recommendation. Contention raised by the Advocate General that there was a deemed consultation with the PSC as the Absorption Rules were sent to the PSC or that the posts were deemed to be taken out of the purview of the PSC cannot be accepted.
25. A distinction has been made between appointments to classes III and IV vis-a-vis the appointments to classes I and II for regularisation of services. Admittedly, the posts of lecturers are class II posts and the appointments had to be made through PSC. Supreme Court in Union of India v Dr. Gyan Prakash Singh, held that doctors appointed on ad hoc basis and taken charge after October 1, 1984 have no automatic right for confirmation and they have to take their chance by appearing before the PSC for recruitment. Contention of the Counsel for the employee that the employee being found unfit by the UPSC is immaterial, as he was entitled to the regularisation of his services on the strength of number of years put in by him on ad hoc or temporary basis, was not accepted. It was held that the post being under the purview of the Union Public Service Commission, the employee had to be found fit by the UPSC.
26. In J and K Public Service Commission and Others v Dr. Narinder Mohan and Others, the Supreme Court considered after reviewing the entire case law on the subject held that the Supreme Court did not intend to lay down as a general rule that in every appointment on ad hoc basis if continued for a long period, the rules of recruitment should be relaxed and the appointment by regularisation be made. While setting aside the order passed by the High Court ordering regularisation of the services of employees, on review of the case law, it was held:
"This Court in Dr. A.K. Jain v Union of India gave directions under Article 142 to regularise the services of the ad hoc doctors appointed on or before October 1, 1984. It is a direction under Article 142 on the peculiar facts and circumstances therein. Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the PSC to consider the cases of the respondents. Article 142 Power is confided only to this Court. The ratio in Dr. P.P.C. Rawani v Union of India is also not an authority under Article 141, Therein the orders issued by this Court under Article 32 of the Constitution to regularise the ad hoc appointments had become final. When contempt petition was filed for non-implementation, the Union had come forward with an application expressing its difficulty to give effect to the orders of this Court. In that behalf, while appreciating the difficulties expressed by the Union in implementation, this Court gave further direction to implement the order issued under Article 32 of the Constitution. Therefore, it is more in the nature of an execution and not a ratio under Article 141. In Union of India v Dr. Gyan Prakash Singh, this Court by a Bench of three Judges considered the effect of the order in A.K. Jain's case, supra, and held that the doctors appointed on ad hoc basis and taken charge after October 1, 1984 have no automatic right for confirmation and they have to take their chance by appearing before the PSC for recruitment. In H.C. Puttaswamy v Hon'ble Chief Justice of Karnataka, this Court while holding that the appointment to the posts of clerk etc., in the subordinate Courts in Karnataka State without consultation of the PSC are not valid appointments, exercising the power under Article 142, directed that their appointments as a regular, on humanitarian grounds, since they have put in more than 10 years' service. It is to be noted that the recruitment was only for clerical grade (Class III post) and it is not a ratio under Article 141. In State of Haryana v Piara Singh, this Court noted that the normal rule is recruitment through the prescribed agency but due to administrative exigencies, an ad hoc or temporary appointment may be made. In such a situation, this Court held that efforts should always be made to replace such ad hoc or temporary employees by regularly selected employees, as early as possible. The temporary employees also would get liberty to compete along with others for regular selection but if he is not selected he must give way to the regularly selected candidates. Appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc or temporary employee. Ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee. He must be replaced only by regularly selected employee. The ad hoc appointment should not be a device to circumvent the rule of reservation. If a temporary or ad hoc employee continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. It is to be remembered that in that case, the appointments are only to Class III or Class IV post and the selection made was by subordinate selection committee. Therefore, this Court did not appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee continued for long period, the rules of recruitment should be relaxed and the appointment by regularisation be made. Thus considered, we have no hesitation to hold that the direction of the Division Bench is clearly illegal and the learned Single Judge is right in directing the State Government to notify the vacancies to the PSC and the PSC should advertise and make recruitment of the candidates in accordance with the rules.
It is difficult to accept the contention of Sri Rao to adopt the chain system of recruitment by notifying each year's vacancies and for recruitment of the candidates found eligible for the respective years. It would be fraught with grave consequences. It is settled law that the Government need not immediately notify vacancies as soon as they arise. It is open, as early as possible, to inform the vacancies existing or anticipated to the PSC for recruitment and that every eligible person is entitled to apply for and to be considered of his claim for recruitment provided he satisfies the prescribed requisite qualifications. Pegging the recruitment in chain system would deprive all the eligible candidates as on date of inviting application for recruitment offending Articles 14 and 16".
27. In Ashwani Kumar v State of Bihar, Bench of three Judges held that the regularisation can be ordered only if the initial entry of such an employee was made against an available sanctioned vacancy by following the rules and regulations governing such entry. Where the initial entry was found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment, then the regularisation of the services could not be granted. It was observed:
"In this connection it is pertinent to note that question of regularisation in any service including any Government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily wage basis by a competent authority and are continued from time to time and if it is found that the concerned incumbents have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the Institution which employs them, a time may come in service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularise them so that the concerned employees can give their best by being assured security of tenure. But this would require one pre-condition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularisation may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by competent authority and the irregular in-
itial appointment may be regularised and security of tenure may be made available to the concerned incumbent. But even in such a case the initial entry must not bo found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment. In any case back door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion for regularising the appointment of an employee whose initial entry itself is tainted and is in total breach of requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could even be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularising such an illegal entrant would ever survive for consideration, however competent the recruiting agency may be. The appellants fall in this latter class of cases. They had no case for regularisa-tion and whatever purported regularisation was effected in their favour remained an exercise in futility. Learned Counsel for the appellants, therefore, could not justifiably fall back upon the orders of regularisation passed in their favour by Dr. Mallick. Even otherwise for regularising such employees well established procedure had to be followed. In the present case it was totally bypassed. In this connection we may profitably refer to Government order dated 3lst December, 1986 to which our attention was invited by learned Counsel for the appellants. The said Government order is found in the additional documents submitted in C.A. Nos. 10758-59 of 1995 at Annexure-IV. Secretary to Government of Bihar, Health Department, by communication dated 31-12-1986 had informed all Regional Deputy Directors, Health Services; Tuberculosis Civil Surgeon-cum-Chief Medical Officer; and other concerned authorities in connection with the compliance and implementation of the orders passed and instructions issued by Deputy Director (Tuberculosis), Bihar, Patna under the Tuberculosis Control Programme covered under the 20-Point Programme. It was stated in the said communication that steps will be taken to fill up sanctioned Third and Fourth Grade posts as soon as possible according to the prescribed procedure and all possible effort should be made to achieve the fixed targets in a planned and phased manner. Even this letter clearly indicates that the posts had to be filled up by following the prescribed procedure. Despite all these communications neither the initial appointments nor the confirmations were done by following the prescribed procedure. On the contrary all efforts were made to by-pass the recruitment procedure known to law which resulted in clear violation of Articles 14 and 16(1) of the Constitution of India both at the initial stage as well as at the stage of confirmation of these illegal entrants. The so-called regularisations and confirmations could not be relied on as shields to cover up initial illegal and void actions or to perpetuate the corrupt methods by which these 6,000 initial entrants were drafted in the Scheme by Dr. Mallick. For all these reasons therefore, it is not possible to agree with the contention of learned Counsel for the appellants that in any case the confirmations given to these employees gave them sufficient cloak of protection against future termination from services. On the contrary all the cobwebs created by Dr. Mallick by bringing in this army of 6,000 employees under the Scheme had got to be cleared lock, stock and barrel so that public confidence in Government administration would not get shattered and arbitrary actions would not get sanctified".
28. In the present case appointment to the post of lecturers could be made through PSC. Appointments to the post of part-time lecturers was not made against the sanctioned posts meant for them. Concerned Principal of the College with the assistance of the Head of the Department after selecting qualified and eligible candidates used to send necessary proposals to the Department of Collegiate Education for approval of appointment. On approval by the Department of Collegiate Education part-time lecturers were appointed and they used to be relieved on the last working day of the academic year and reappointed the next year if available and found to be suitable. There was no centralised agency for making selections. Part-time lecturers were appointed on the recommendation made by the Principals of the individual colleges in consultation with the Heads of Department of the concerned subject. Their appointment was for that college only and these teachers were not selected on consideration of their merit from the public in general. These part-time lecturers were appointed not against a sanctioned post through process of selection through some centralised agency. The services rendered by them under the circumstances could not be regularised by absorbing them in the service.
29. Under Article 14 equality of opportunity is being considered. PSCs were formed solely with a view to ensure smooth and efficient running of the Republican Government and provide equal opportunity to all eligible candidates of being considered on merit. If that was not the view, there was no need for creating the PSC. When a democratic form of Government is established, many political parties dominate the field and they develop undesirable methods for recruitment in the services. PSC were created solely with a view to avoid such method. The Commission, when the post is within its purview, has to be consulted in the process of selection and appointment could be made from out of the recommendation made by the PSC in the order of merit determined by it. The Government of the day cannot be allowed to by-pass the process of selection by the PSC by framing rules under Article 309 of the Constitution providing that the selection to gazetted post shall be made otherwise than PSC.
30. Mr. Vijayashankar, learned Advocate General relying upon the observations made by the Supreme Court in State of Uttar Pradesh v Manbodhan Lal Srivastava , which judgment has been followed in the subsequent judgments of the Supreme Court in Major U.R. Bhatt v Union of India and Jatinder Kumar's case, supra, argued that the consultation with the PSC was not mandatory and non-compliance of the provisions of Article 320(3)(c) would not afford a cause of action to the civil servant to come to the Court of law. It was argued that in view of the rule laid down by the Supreme Court in this judgment the omission to consult the PSC is not fatal to the appointment made. We do not agree with this proposition. The rule laid down in the Supreme Court judgment would not be applicable to the facts of the present case. There the question was whether a Public Servant can come forward and say that action was taken against him without consulting the PSC which would render the order of punishment passed against him bad in law. In this context, the Supreme Court held that it would not afford a cause of action to a Government Servant to come to the Court of law contending that consultation with the PSC is mandatory. It was held that it was not mandatory to consult the PSC. But in this case the factual position is totally different. The posts which have not been taken out of the purview of the PSC under proviso to Article 320 of the Constitution are sought to be filled without notifying the vacancies to the PSC by framing rules under Article 309 of the Constitution by creating other agencies to make the selection. Article 320(3)(a) requires the consultation with the PSC relating to methods of recruitment and the methods of recruitment would include the selection process as well. The posts which are within the purview of PSC cannot be filled without notifying the vacancies to the PSC and obtaining its recommendations. Any appointment made to the contrary by framing rules under Article 309 of the Constitution shall be bad in law. Any other view would negate the very purpose of enacting Article 320 in the Constitution and leave field open to the political parties in power for evolving undesirable methods for recruitment to the services.
31. No doubt Supreme Court in several cases including Rabinarayan Mohapatra v State of Orissa, Prabodh Verma v State of Uttar Pradesh, Dr. (Mrs.) Sushma Sharma v State of Rajasthan and Others, All Manipur Regular Posts Vacancies Substitute Teachers' Association v State of Manipur, Daily Rated Casual Labour Employed under P and T Department through Bhartiya Dak Tar Mazdoor Manch v Union of India and Dharwad District P.W.D. Literate Daily Wages Employees Association v State of Karnataka, has held that where appointments are made on ad hoc or daily wage basis by the competent authority be continued from time to time for a long duration the incumbent employee being otherwise eligible and their services are otherwise required by the institution which employs them, then they have either been directed to be regularised or a direction has been issued by the Court to regularise their services. In some of these cases directions have been issued by the Supreme Court under Article 142 of the Constitution of India which is not available to the High Courts. They were either Class III or Class IV post. Regular procedure for appointment according to the eligibility or fitness criteria by the PSC has not been given a go by in any of the judgments as has been sought to be done in the present case.
32. It is well-settled that as a rule, appointment through the PSC should be strictly on the basis of open invitation of applications and merits. No other mode of appointment or any other considerations is permissible. Neither the Government nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. Normal rule is to make recruitment through prescribed agency but exigencies of administration may sometimes call for ad hoc or temporary appointment which should be replaced by regularly selected employees and ad hoc employees have to compete along with others for regular selection. Having made the rules it is not open for the authorities to fall back upon its general powers to regularise part-time appointments, thus depriving of other eligible persons from their right of being considered. By virtue of appointment on ad hoc basis it is not open to them to make appointment overlooking the statutory rules governing cadre recruitment process. Mode of selection is through the PSC and without taking the posts out of the purview of the Public Service Commission, the required appointment to the post of lecturers could not be made under the garb of absorbing or regularising the services of part-time lecturers who had not been selected and appointed against a specified vacancy.
33. Appointment on ad hoc and temporary basis is an appointment against a vacancy in the service but the appointment of a part-time lecturer does not fall in the same category. They are free to take any other job during their spare time. Contention of Mr. Vijayashankar that the part-time lecturers were already in service and by Absorption Rules only the status of permanency is being conferred upon them, cannot be accepted. In our view they were never in Government service. According to Section 2(b) of the Absorption Rules part-time lecturer is a person who is appointed in a Government First Grade College to discharge the residuary teaching workload, if any, left after distribution of such teaching workload to the regular lecturer. It clearly shows that the part-time lecturers were not holding a post under the State.
34. Next point which falls for determination is as to whether the passing of the test prescribed by the University Grants Commission (Qualifications Required of a Person to be Appointed to the Teaching Staff of University and Institutions Affiliated to it) Regulations, 1991 (for short, 'Regulations of 1991') are mandatory or directory and what is the effect of giving appointment to a candidate who has not passed the NET. It is an admitted position before us that the State of Karnataka has adopted UGC scales of pay to the teachers in the First Grade (Degree) College, and those aided by Government as per the Grant-in-Aid Code under the Directorate of Collegiate Education with effect from 1-1-1986. It is also an admitted position that the State of Karnataka and the various Universities in Karnataka have accepted the passing of NET as an essential qualification for giving appointment to the post of a lecturer. Effect of giving appointment to the part-time lecturers who have not passed the NET may not detain us for long as this question stands concluded by the judgment of the Apex Court in University of Delhi v Raj Singh , the Supreme Court explained in detail various provisions of UGC Act and its regulations and its efficacy in the regulation and prescription of standards for appointment.
35. Raj Singh had applied for the post of lecturer in three colleges affiliated to the Delhi University but had not been called for an interview. He filed a writ petition before the Delhi High Court averring that the Delhi University ought to have mentioned in the advertisement that candidates should have passed the test prescribed by the Regulations of 1991 and the candidates who had not passed the test would not be called for interview. It was contended on behalf of the Delhi University that (i) that the Regulations were recommendatory or advisory in nature and not mandatory; (ii) that the power of the UGC under Section 26(1)(e) to define qualifications did not include the power to create a new qualification, rather it enabled the UGC only to specify some from existing qualifications awarded by the Universities. That the test prescribed by the said regulations did not fall within the term 'qualifications' used in Section 26(1)(e) as the definition of 'qualification' given in Section 12-A(1)(d) applied to Section 26(1)(e) as well; and (iii) that reading Entries 63 and 66 of List I of the Constitution of India harmoniously, the operation of Entry 66 was to be confined to institutions of higher education other than those mentioned in Entry 63 and that Section 2(f) of the UGC Act defining 'University' had to be construed accordingly. Objections raised by the Delhi University were overruled by the Delhi High Court and the University was directed to select lecturers for appointment in itself and its affiliated colleges strictly in accordance with the Regulations of 1999 framed by the UGC. Delhi University filed an appeal before the Supreme Court of India. In paragraphs 21 and 22 Supreme Court analysed the Regulations of 1991 and the requirement of prescribing standard of appointment to the post of lecturers. The same reads:
"We now turn to analyse the said regulations. They are made applicable to a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, every institution, including a constituent or an affiliated college recognised by the UGC in consultation with the University concerned, and every institution deemed to be a University. The said Regulations are thus intended to have the widest possible application, as indeed they must have if they are to serve the purpose intended, namely to ensure that all applicants for the post of lecturer, from whichever University they may have procured the minimum qualificatory degree, must establish that they possess the proficiency required for lecturers in all Universities in the country. This is what Clause 2 of the said Regulations mandates, thus:
'No person shall be appointed to a teaching post in University in a subject if he does not fulfil the requirements as to the qualifications for the appropriate subject as provided in Schedule 1'.
The first proviso to Clause 2 permits relaxation in the prescribed qualifications by a University provided it is made with the prior approval of the UGC. This is because the said Regulations, made under the provisions of Section 26(1)(e), define the qualifications that are ordinarily and not invariably required of a lecturer. The second proviso to clause 2 makes the application of the said Regulations prospective, Clause 3 of the said Regulations provides for the consequence of the failure of a University to comply with the recommendation made in Clause 2 in the same terms as are set out in Section 14 of the UGC Act. The provisions of Clause 2 of the said Regulations are, therefore, recommendatory in character. It would be open to a University to comply with the provisions of Clause 2 by employing as lecturers only such persons as fulfil the requirements as to qualifications for the appropriate subject provided in the Schedule to the said Regulations. It would also be open, in specific cases, for the University to seek the prior approval of the UGC to relax these requirements. Yet again, it would be open to the University not to comply with the provisions of Clause 2, in which case, in the event that it failed to satisfy the UGC that it had done so for good cause, it would lose its grant from the UGC. The said Regulations do not impinge upon the power of the University to select its teachers. The University may still select its lecturers by written test and interview or either. Successful candidates at the basic eligibility test prescribed by the said Regulations are awarded no marks or ranks and, therefore, all who have cleared it stand at the same level. There is, therefore, no element of selection in the process. The University's autonomy is not entrenched upon by the said Regulations.
Mr. Rao was at pains to tell us that there were men and women in the field of education who possessed far higher qualifications than the minimum prescribed for lecturers who were willing to join the Delhi University as lecturers but would be deterred from doing so by reason of the test prescribed by the Regulations. We have no doubt that there must be highly qualified men and women in the country who, to serve their chosen field, would be willing to become lecturers. We have no doubt that they would appreciate the sound objective of the said regulations and would, therefore, not consider it infra, dig to appear at and clear the test prescribed thereby. We have also no doubt that in the case of eminently qualified men and women the UGC would not hesitate to grant prior approval to the relaxation of the requirement of clearing the test".
The importance of possessing NET for the post of lecturer was explained in paragraph 20 which reads:
"The ambit of Entry 66 has already been the subject of the decisions of this Court in the cases of the Gujarat University and the Osmania University. The UGC Act is enacted under the provisions of Entry 66 to carry out the objective thereof. Its short title, in fact, reproduced the words of Entry 66. The principal function of the UGC is set out in the opening words of Section 12, thus:
'It shall be the general duty of the Commission to take. . all such steps as it may think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities...' It is very important to note that a duty is cast upon the Commission to take 'all such steps as it may think fit. . . for the determination and maintenance of standards of teaching*. These are very wide-ranging powers. Such powers, in our view, would comprehend the power to require those who possess the educational qualifications required for holding the post of lecturer in Universities and colleges to appear for a written test, the passing of which would establish that they possess the minimal proficiency for holding such post. The need for such test is demonstrated by the reports of the Commissions and committees of educationists referred to above which take note of the disparities in the standards of education in the various Universities in the country. It is patent that the holder of a postgraduate degree from one University is not necessarily of the same standard as the holder of the same postgraduate degree from another University. That is the rationale of the test prescribed by the said Regulations. It falls squarely within the scope of Entry 66 and the UGC Act inasmuch as it is intended to co-ordinate standards and the UGC is armed with the power to take all such steps as it may think fit in this behalf. For performing its general duty and its other functions under the UGC Act, the UGC is invested with the powers specified in the various clauses of Section 12. These include the power to recommend to a University the measures necessary for the improvement of University education and to advise in respect of the action to be taken for the purpose of implementing such recommendation [clause (d)]. The UGC is also invested with the power to perform such other functions as may be prescribed or as may be deemed necessary by it for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of such functions [clause (j)]. These two clauses are also wide enough to empower the UGC to frame the said Regulations. By reason of Section 14, the UGC is authorised to withhold from a University its grant if the University fails within a reasonable time to comply with its recommendation, but it is required to do so only after taking into consideration the cause, if any, shown by the University for such failure. Section 26 authorises the UGC to make regulations consistent with the UGC Act and the rules made thereunder, inter alia, defining the qualifications that should ordinarily be required for any person to be appointed to the teaching staff of a University, having regard to the branch of education in which he is expected to give instruction [clause (e) of sub-section (1)]; and regulating the maintenance of standards and the co-ordination of work or facilities in Universities [clause (g)]. We have no doubt that the word 'defining' means setting out precisely or specifically. The word 'qualifications', as used in clause (e), is of wide amplitude and would include the requirement of passing a basic eligibility test prescribed by the UGC. The word 'qualifications' in clause (e) is certainly wider than the word 'qualification' defined in Section 12-A(1)(d), which in expressly stated terms is a definition that applies only to the provisions of Section 12-A, were this definition of qualification, as meaning a degree or any other qualification awarded by a University, to have been intended to apply throughout the Act, it would have found place in the definition section, namely, Section 2".
On analysis of Regulation 3 of the Regulations of 1991 which is reproduced above, Supreme Court clarified the direction issued by the Delhi High Court in paragraph 24 of the judgment in the following terms:
"It is now appropriate to clarify the direction that the Delhi High Court issued in allowing the writ petition. It held that the notification dated 19-9-1991, by which the said Regulations were published, was valid and mandatory and the Delhi University was obliged under law to comply therewith. The Delhi University was directed to select lecturers for itself and its affiliated and subordinate colleges strictly in accordance with the notification. Put shortly, the Delhi University is mandated to comply with the said Regulations. As analysed above, therefore, the Delhi University may appoint as a lecturer in itself and its affiliated colleges one who has cleared the test prescribed by the said Regulations; or it may seek prior approval for the relaxation of this requirement in a specific case; or it may appoint as lecturer one who does not meet this requirement without having first obtained the UGC's approval, in which event it would, if it failed to show cause for its failure to abide by the said Regulations to the satisfaction of the UGC, forfeit its grant from the UGC. If, however, it did show cause to the satisfaction of the UGC, it not only would not forfeit its grant but the appointment made without obtaining the UGC's prior approval would stand regularised".
36. The State of Karnataka has accepted the Regulations of 1991 and has made passing of NET as essential qualification for appointment to the post of lecturers. During the course of arguments Advocate General reaffirmed that State of Karnataka was committed to follow the Regulations framed by the UGC and not to give appointment to any candidate as lecturer who has not passed the NET. In view of the observations made by the Supreme Court in paragraph 24 of its judgment in Raj Singh's case, supra, and the statement made by the Advocate General we hold that the State of Karnataka may appoint as lecturer in the Government colleges or its affiliated colleges one who has cleared the test prescribed under the Regulations of 1991, or it may seek prior approval for relaxation in a specific case; or it may appoint one who does not meet this requirement without first obtaining the UGC's approval, in which event it would, if it failed to show cause for its failure to abide by the said Regulations to the satisfaction of the UGC, forfeit its grant from the UGC. In case it shows cause to the satisfaction of the UGC, it would not forfeit its grant and the appointment made without obtaining UGC's prior approval would stand regularised.
37. All the Universities in the State of Karnataka have been insisting upon the passing of NET for the recruitment to the post of lecturers. Similar insistence has also been made in all aided institutions. The State Government is estopped from not insisting upon the passing of NET for appointment to the post of lecturers in the Government Colleges under the garb of regularising or absorbing the part-time lecturers while insisting upon the same in all other privately managed Government aided colleges and the various Universities functioning in the State. This would be discriminatory in nature specially when the Advocate General after taking instructions from the Government reaffirmed before us that the State of Karnataka was committed to follow the Regulations framed by UGC and not to give appointment as lecturer who bas not passed the NET. The State Government cannot discriminate among the private educational institutions and the State institutions and cannot sacrifice the quality of the appointments in the State Government Colleges, while insisting the rigorous tests for the private aided institutions.
38. Another argument raised on behalf of the respondents is that the State of Karnataka apart from filling the existing vacancy under the garb of Absorption Rules is trying to fill up unspecified number of vacancies for future as well thereby depriving the eligible candidates the opportunity for being considered for future as well. Number of posts to be filled by absorption of the part-time lecturers under the Absorption Rules has not been specified. In the application filed before the Tribunal by the respondent it was alleged that the State seeks to fill up 3,000 to 5,000 posts of lecturers in the Education Department en masse by resorting to regularisation of services of back door entrants in gross violation of Articles 14 and 16 of the Constitution of India. In the reply filed before the Tribunal, there is no specific denial of this fact. Even before us it is not stated as to how many posts are sought to be filled up under these rules. To the oral query made by the Court also no satisfactory answer was given. Under Rule 3(2) of the Absorption Rules, State Government has been authorised to constitute one or more Committees consisting of such number of Members as it deems fit, for the purpose of recommending to the State Government, the names of eligible part-time lecturers for absorption. The State shall on receipt on such recommendation notify the names so recommended by the Committee. Under Rule 3(1) part-time lecturers whose names have been notified by the State Government under sub-rule (2) will be absorbed with effect from the date of such notification in the category of posts of lecturers as and when vacancies arise. On a reading of Rule 3(1) and 3(2) together, it is evident that on receipt of the recommendations from the Committees constituted to make the selections, the Government shall notify the names recommended and the recommendees would be absorbed as lecturers as and when vacancies arise. The words 'as and when vacancies arise' were introduced in Rule 3(1) by a subsequent amendment dated 17-11-1997 made effective from the enforcement of the original rules from 22nd January, 1997. It is clear that the State Government proposed to fill up not only the existing unspecified vacancies but also the future vacancies which may arise from the select list of part-time lecturers as and when the vacancies arise, thereby denying the opportunity to the eligible candidates of being considered for undefined future which is totally arbitrary and therefore violative of Article 14 of the Constitution of India.
In E.P. Royappa v State of Tamil Nadu , adding a new dimension to Article 14 of the Constitution it was held by the Supreme Court that arbitrary action of the State would amount to violation of equality clause of Articles 14 and 16 of the Constitution of India. Relevant observations of the Supreme Court in paragraph 85 of judgment are:
"Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14 and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the ante-chamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16".
39. Part-time lecturers do not form a separate class as they were not borne on the State cadre. They could not be treated as a separate class as they were taken as part-time lecturers to meet a temporary need till the required appointments in accordance with the procedure prescribed were made. Absorption of the part-time lecturers without going into the process of regular selection and the NET as prescribed by the UGC and accepted by the State Government is not based on any intelligible differentia having nexus with the object to be achieved. It is well-settled in service jurisprudence as a rule, appointment in the public service should be made strictly on the basis of open invitation of applications and merits. Neither the Government nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. Part-time lecturers had not been appointed against the existing vacancies. No hope had been held out to them that they would be absorbed against regular vacancies in future. Well established and normal rule is to make recruitment by the prescribed agency but exigencies of administration may sometimes call for ad hoc or temporary appointment which should be replaced by regularly selected employees and the ad hoc employees must compete along with others for regular selection. Once such rules have been framed then the appointments must be in accordance with the rules. Having made the rules, it is not open to fall back to regularise the services of part-time lecturers. To tide over unforeseen exigencies power to make part-time appointments may be visualised and at times the Courts have given positive directions to regularise the services of temporary/ad hoc employees as they had continued in service for a number of years and might have become ineligible for future employment due to over-age or some other equally valid reason. But this could not be made an excuse for not making the appointments on regular basis for a number of years and thereafter absorbing the part-time lecturers under the garb of regularising their services treating them as a separate class by relaxing the minimum qualification or not going through the process of regular selection. Once the consideration of equity in the face of statutory rules is accepted then eligible and qualified persons would be sufferers as they would not get any chance to be considered for appointment. Result would be that persons lesser in merit who do not possess the requisite qualification as well, would get preference in the matter of appointment merely on the ground of equity and compassion. It is not always safe to bend the arms of law only for adjusting equity. They are not entitled to be absorbed against regular posts without notifying the vacancies to the PSC.
40. Noticing that the Courts were either approving the schemes prepared by the authorities to regularise the services of temporary employees who had put in number of years or that the Courts gave directions to regularise the services of ad hoc/temporary employees who had put in number of years on compassionate and equitable grounds, the authorities instead of making the recruitment through the PSC or the subordinate- Selection Boards have started making appointments on temporary basis through back-door method by giving appointment on temporary basis which are then allowed to continue for a number of years and ultimately regularise them by framing a scheme. Ulterior motives and designs of the authorities become evident when we notice that now more and more appointments are being made on ad hoc/temporary basis as of rule which is neither to meet the temporary need or an administrative exigency of a short duration. This method is being adopted to avoid the selection by the independent bodies for ulterior motives to extend the benefit of appointments to the favourites with or without consideration. This trend has to be checkmated specially when the appointments have been made not out of a sudden and emergent administrative exigency of a small duration but as a matter of course. There is no excuse for not making the regular selections through prescribed agency for a number of years in spite of knowing the imperative need of making the appointments to cope with the work for which the vacancies have already been created under the Service Rules. We do not see any rationality in the action of the State Government in letting the appointment of part-time lecturers continue for a number of years knowing fully well that required vacancies are existing which were required to be filled up to cope with the work of imparting the education to the students. Action of the State is thus held to be arbitrary and violative of Articles 14 and 16 on this account as well as it has resulted in denying the opportunity to the eligible candidates for being considered for appointment by an independent agency not only against the existing vacancy but for the vacancies which may arise in future as well.
41. In Dr. Surinder Singh Jamwal v State of Jammu and Kashmir, the Supreme Court set aside the action of the State of Jammu and Kashmir regularising the services of persons who had put m service for a number of years. It was held:
"The controversy raised in this case is squarely covered by the judgment of this Court reported in J and K Public Service Commission v Dr. Narinder Mohan, . It is not in dispute that the appellants were recruited on ad hoc basis and have been continuing as such. It is their contention that since they had put in more than 13 years of service they are entitled to regularisation of service and approached the High Court for direction to regularise their services. The High Court has followed the ratio in the above judgment and dismissed the petition. In the light of the judgment of this Court the settled legal position now is that the recruitment to the service should be governed by the appropriate statutory rules. Under the rules the regular recruitment to the posts shall be made by the Public Service Commission. Consequently, the ad hoc appointments would be only temporary appointments de hors the rules, pending regular recruitment without conferring any right to regularisation of service. This Court in Narinder Mohan's case, supra, had given the following directions:
'Accordingly, we set aside the directions issued by the Division Bench of the High Court and confirm those of the Single Judge and direct the State Government of the J and K to notify the vacancies to the PSC which would process and complete the selection, as early as possible, within a period of six months from the date of the receipt of this order. The State Government should on receipt of the recommendation, make appointments in the order mentioned in the selection list within a period of two months thereafter. Since the respondents have been continuing as ad hoc doctors, they shall continue till the regularly selected candidates are appointed. They are also entitled to apply for selection. In case any of the respondents are barred by age, the State Government is directed to consider the cases for necessary relaxation under Rule 9(3) of the age and qualification. If any of the respondents are not selected, the ad hoc appointment shall stand terminated with the appointment of the selected candidate. The direction sought for by Dr. Vinay Rampal cannot be given. His appeal is accordingly dismissed and the State appeal is also dismissed. The appeals of the PSC are accordingly allowed but in the circumstances parties are directed to bear their own costs' ".
42. In Probodh Verma's case, supra, the Supreme Court explained the ambit of Article 14 of the Constitution. Relevant observations at paragraph 40 are:
"Article 14 of the Constitution forbids the State to deny to any person equality before the law or the equal protection of the laws within the territory of India. While Article 14 applies to all persons within the territory of India, Article 16 applies only to citizens of India. Clause (1) in Article 16 guarantees equality for all citizens in matters relating to employment or appointment to any office under the State. Thus, Article 16 is an instance of the application of the general rule of equality laid down in Article 14, with special reference to the opportunity for appointment and employment under the Government (see Banarsi Dass v State of Uttar Pradesh, ). Today, the Government is the largest employer in the country and employment or appointment to an office under it is a valuable right possessed by citizens. Article 14, however, docs not forbid classification. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the territory of India irrespective of differences of circumstances. It only means that all persons similarly circumstanced should be treated alike and there should be no discrimination between one person and another if as regards the subject-matter of the legislation, their position is substantially the same. By the process of classification, the State has the power to determine who should be regarded as a class for the purposes of legislation and in relation to a law enacted on a particular subject. The classification to be valid, however, must not be arbitrary but must be rational. It must not only be baaed on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable nexus or relation to the object of the legislation. In order to pass the test, two conditions have to be fulfilled, namely: (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) the differentia must have a rational nexus or relation to the object sought to be achieved by the legislation [see in re The Special Courts Bill, 1978, ]".
43. For the reasons stated above, we do not find any merit in the writ petitions and dismiss the same. The order of Tribunal is upheld and the Absorption Rules are held to be bad in law being arbitrary and violative of Articles 14 and 16 of the Constitution of India. No costs.