PETITIONER:
KARNATAKA STATE PRIVATE COLLEGE STOP-GAPLECTURERS ASSOCIATIO
Vs.
RESPONDENT:
STATE OF KARNATAKA AND ORS.
DATE OF JUDGMENT29/01/1992
BENCH:
SAHAI, R.M. (J)
BENCH:
SAHAI, R.M. (J)
PANDIAN, S.R. (J)
KULDIP SINGH (J)
CITATION:
1992 AIR 677 1992 SCR (1) 397
1992 SCC (2) 29 JT 1992 (1) 373
1992 SCALE (1)198
ACT:
Service Law-Private Degree Aided Colleges-Teachers-
Karnataka Government's order dated 3rd October, 1982-
Provision for ad-hoc appointments and reappointments with
one day's break in service-Provision for payment of fixed
salary being ten rupees less than the minimum paid to
regular teachers-Validity of-Provision for one day's break
in service held ultra vires-Payment of fixed salary to
temporary teachers held orbitrary-Directions for continuing
services of temporary teachers, their regularisation and
payment of salary on par with regular teachers issued-
Practice of ad-hoc appointments deprecated.
HEADNOTE:
The Education and Youth Services Department of the
State of Karnataka issued an order dated 3rd October 1981
which provided two different methods of selection of
teachers in private aided degree colleges-one by Selection
Committee and another by Management. Under the order
appointments for more than three months could be made by a
selection committee whereas temporary appointments for less
than 3 months could be made by the Management and such
temporary appointments could be continued for a futher
period of not more than 3 months, with one day's break in
service. The Government order also provided that such
temporary teachers shall be paid fixed salary being ten
rupees less than the minimum payable to regular teachers.
The teachers temporarily appointed under the said order
accordingly continued in service for a long period but with
a break of a day or two every three months in their service.
Subsequently, they filed a writ petition in this Court
seeking regularisation of their services by invoking the
principle of equitable estoppel arising from implied
assurance due to their long continuance. It was contended
on behalf of the petitioners that; (i) since the State has
regularised the services of contract teachers and local
teachers appointed in Government or vocational colleges
they should also he extended similar treatment; and (ii)
payment of fixed salary instead of regular emoluments for
eight months in a year was discriminatory and arbitrary.
398
Allowing the petition, this Court,
HELD: 1. Provision of one day's break in service in the
Government order is deprecated and is struck down as ultra
vires. If the intention was to differentiate between
appointments for more than three months and others it was a
futile exercise. That was already achieved by providing two
different methods of selection one by Selection Committee
and other by Management. Distinction between appointment
against temporary and permanent vacancies are well known in
service law. It was unnecessary to make it appear crude.
If the purpose was to avoid any possible claim for
regularisation by the temporary teachers then it was acting
more like a private business house of narrow outlook than
government of a welfare State. Such provisions cannot
withstand the test of arbitrariness. [403 G; 402 A-B]
B.R. Parineeth & Ors. v. The State of Karnataka & Ors.
CMW 6232 of 1990 decided on 3.7.1990, referred to.
2. Order for payment of fixed salary to temporary
teachers is declared invalid. An appointment may be
temporary or permanent but the nature of work being same and
the temporary appointment may be due to exigency of service,
non-availability of permanent vacancy or as stop-gap
arrangement till the regular selection is completed, yet
there can be no justification for paying a teacher, so
appointed, a fixed salary by adopting a different method of
payment than a regular teacher. Fixation of such emoluments
is arbitrary and violative of Article 14 of the
Constitution. [403 G; 402 F-G]
2.1 Payment of nearly eight months' salary by resorting
to government order and, that too fixed amount, for the same
job which is performed by regular teachers is unfair and
unjust. Such injustice is abhorring to the constitutional
scheme. [403 A-B;]
3. The practice of management of not making regular
selection utmost within six months of occurrence of vacancy
is condemned. The helplessness expressed by the State that
the managements went on continuing such teachers without
holding regular selections despite orders of educational
authorities may be true but not convincing and sounds like
surrender in favour of private managements. [403 C, 402 E]
3.1 Managements shall take steps, whenever necessary,
to fill up permanent vacancies in accordance with rules.
Delay in filling
399
up the vacancies shall not entitle the management or
director to terminate the services of temporary teachers
except for adequate reasons. But it shall entitle the
government to take such steps including supersession of
management or stopping grants-in-aid if premitted under law
to compel the institutions to comply with the rules. [404 B]
4. Regularisation of services of teachers of Government
colleges by the State may not furnish, any basis for
petitioners to claim that the state may be directed to issue
similar order regularizing services of teachers of privately
managed colleges. All the same such policy decisions of
government in favour of one or the other set of employees
of sister department are bound to raise hope and
expectations in employees of other departments. Therefore,
it is incumbent on governments to be more circumspect in
taking such decisions. [404 E-G]
5. Ad-hoc appointments, a convenient way of entry
usually from backdoor, at times even in disregard of rules
and regulations, are comparatively recent innovation to the
service jurisprudence. The infection is widespread in
government or semi-government departments or State financed
institutions. 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 time 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. [400 G-H; 401 C-D]
6. In the circumstances of the case following
directions are issued:-
a) Any teacher appointed temporarily shall be
continued till the purpose for which he has been
appointed exhausts or if it is in waiting of
regular selection then till such selection is made;
[404 A]
b) Services of such temporary teachers who have
worked as such for three years, including the break
till today shall not be terminated. They shall be
absorbed as and when regular vacancies arise; [405
B]
400
c) If regular selections have been made the
government shall creat additional posts to
accommodate such selected candidates; [405 B]
d) From the date of judgment every temporary
teacher shall be paid salary as is admissible to
teachers appointed against permanent post. [405 D]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 873 of
1990.
(Under Article 32 of the Constitiution of India)
WITH
Contempt Petition No. 6 of 1991.
AND
Civil Appeal Nos. 309 to 373 of 1992.
R.K. Garg, Kapil Sibal, V. Lakshmi Narayanan, D.K. Garg
and P. Mahale for the Petitioners.
R.N. Narasimhamurthy, Kh. Nobin Singh and M. Veerappa
for the Respondents.
The Judgment of the Court was delivered by
R.M. SAHAI, J. Teachers appointed temporarily for
three months or less, by privately managed degree colleges
receiving cent per cent grant-in-aid, controlled
administratively and financially by the Educational
Department of the State of Karnataka, seek regularisation of
their services by invoking principle of equitable estoppel
arising from implied assurance due to their continuance, as
such, for years with a break of a day or two every three
months. Another basis for direction to regularise is
founded on denial of similar treatment by the State as has
been extended to contract teachers and local teachers
appointed in government or vocational colleges. Payment of
fixed salary instead of regular emoluments for eight months
in a year and that too for number of years is yet another
grievance.
Ad-hoc appointments, a convenient way of entry usually
from back-door, at times even in disregard of rules and
regulations, are comparatively recent innovation 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
401
widespread in government or semi-government departments of
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 provsions to effectively
deal with such a situation.
What is surprising is that till today the State has not
been able to bring out a comprehensive legislation on such
an important aspect as education and the appointment,
selection, promotion, transfer, payment of salary etc. of
teachers is regulated by government orders issued from time
to time. Since 1980 it is governed by an order issued by
Educational and Youth Services Department of the State of
Karnataka on 3rd October, 1981. Clause 5 of the Order reads
as under:
“Any appoinment for a period of three months or
less in a College shall be made, subject to
approval of the Director within one month from the
date of appointment by the Management or such
authority as the Management by Order, may specify
in that behalf. Such temporary appointments may,
however, be continued for a further period of not
more than three months, with one day’s break when
selection through the Selection Committee is likely
to take time. The Director may, for reasons to be
recorded in writing refuse approval for the said
appointment and the services of the person so
appointed shall be terminated forthwith.”
Appointments for more than three months is to be by a
regularly constituted selection committee under clause 4 of
the order. But if is for three months or less than the
appointment could be made by the
402
Management under clause 5 subject to approval by the
Director. It could be continued for further period of three
months if there was delay in regular appointment. But the
direction to re-appoint with one day’s break is not
understandable. If the intention was to differentiate
between appointments for more than three months and others
it was a futile exercise. That had already been achieved by
providing two different methods of selection one by
Selection Committee and ohter by Management. Distinction
between appointment against temporary and permanent
vacancies are well known in service law. It was unnecessary
to make it appear crude. If the purpose was to avoid any
possible claim for regularisation by the temporary teachers
then it was acting more like a private business house of
narrow outlook than government of a welfare State. Such
provisions cannot withstand the test of arbitrariness. That
is why the High Court, while disposing of CMW 6232 of 1990 –
B.R. Parineeth & Ors. v. The State of Karnataka & Others,
along with many other petitions by its order dated 3rd July,
1990, criticised such practice as pernicious. The rule
making authority lost sight of fact that such policy was
likely to give dominance to vested interests who leave no
opportunity to exploit the educated youth who have to
survive even at cost of one meal a day. That is apparent
from continuance of these teachers for 8 to 10 years with
sword of termination hanging on their head ready to strike
every three months at the instance of either the management
or the Director. Provision of stop-gap appointments might
have been well intended and may be necessary as well but
their improper use results in abuse. And that is what has
happened on a large scale. The helplessness expressed by
the State in the counter-affidavit that the managements went
on continuing such teachers without holding regular
selections despite orders of educational authorities may be
true but not convincing. It sounds like surrender in favour
of private managements.
Another obnoxious part is the emoluments that have been
paid to the temporary teachers. The order provides that the
teacher shall be paid a fixed salary which is ten rupees
less than the minimum payable to regular employee. This
method of payment is again beyond comprehension. An
appointment may be temporary or permanent but the nature of
work being same and the temporary appointment may be due to
exigency of service, non-availability of permanent vacancy
or as stop-gap arrangement till the regular selection is
completed, yet there can be no justification for paying a
teacher, so appointed a fixed salary by adopting a different
method of payment than a regular teacher. Fixation of such
emoluments is arbitrary and violative of Article 14 of the
Constitution. The evil inherent in it is that apart from
the teachers being at the beck and call of the management
are in danger of being exploited as has been done by the
management
403
committees of State of Karnataka who have utilized the
services of these teachers for 8 to 10 years by paying a
meagre salary when probably during this period if they
would have been paid according to the salary payable to a
regular teacher they would have been getting much more.
Payment of nearly eight months’ salary, by resorting to
clause 5, and, that too fixed amount, for the same job which
is performed by regular teachers is unfair and unjust. A
temporary or ad-hoc employee may not have a claim to become
permanent without facing selection or being absorded in
accordance with rules but no discrimination can be made for
same job on basis of method of recruitment. Such injustice
is abhorring to the constitutional scheme.
While deprecating direction by the government to break
service for a day or two and paying fixed salary to
temporary employees we must condemn the practice of
management of not making regular selection utmost within six
months of occurrence of vacancy. Nor the helplessness of
government can be appreciated as expressed in the counter
affidavit that despite orders the management continued with
it. If the government could not take effective measure
either by superseding the management or stopping grant-in-
aid then either it was working under pressure from
Management of the private aided institutions or it was
itself interested in continuing such unfortunate state of
affairs. In either case the equities have been created
because of doing of state itself, therefore, it should
resolve it. One such method was adopted by the High Court
in invididual petitions filed by the teachers by directing
the Director of Education to hold selection. In pursuance
of it some of the teachers have been regularised. But
substantial number still remain due to State’s going back on
its agreement before the court by creating obstacles in
implementation of the order. Many of them who have have
faced selection and have secured higher marks and are in
zone of selection are being denied the benefit because it is
claimed that such regularisation would be contrary to
reservation policy of the State. The policy is under
challenge in another proceedings in the Court. Without
entering into validity of the policy which according to
petitioner results in cent per cent reservation we are of
opinion that such practice should be put an end to,
therefore, following directions are necessary to be issued:
(1) Provision in clause 5 of one day’s break in
service is struck down as ultra vires.
(2) Orders for payment of fixed salary to
temporary teachers is declared invalid. But it
shall operate prospectively. A teacher appointed
temporarily shall be paid the salary that is
admissible to any teacher appointed regularly.
404
(3) Any teacher appointed temporarily shall be
continued till the purpose for which he has been
appointed exhausts or if it is in waiting of
regular selection then till such selection is made.
(4) Management shall take steps, whenever
necessary, to fill up permanent vacancies in
accordance with rules. Delay in filling up the
vacancies shall not entitle the management or
Director to terminate the services of temporary
teachers except for adequate reasons. But it shall
entitle the government to take such steps including
supersession of management or stopping grants-in-
aid if permitted under law to compel the
institutions to comply with the rules.
So far these petitioners and teachers similarly
situated are concerned, it could not be disputed that many
of those teachers who appeared for selection in pursuance of
the High Court order secured sufficiently high marks but
they could not be regularised because the vacancies are said
to be reserved. But what has been lost sight of is that
petitioners are seeking regularisation on posts on which
they have been working and not fresh appointments,
therefore, they could not be denied benefit of the High
Court’s order specially when no such difficulty was pointed
out and it was on agreement by the respondents that the
order was passed. No material has been brought on record to
show that any action was taken prior to decision by the High
Court against any institution for not following the
reservation policy. To deny therefore the benefit of
selection held on agreement by the respondents is being
unjust to such selectees. Further the State of Karnataka
appears to have been regularising services of adhoc
teachers. Till now it has regularised services of contract
lecturers, local candidates, University
lecturers,Engineering colleges, lecturers etc. It may not
furnish, any basis for petitioners to claim that the State
may be directed to issue similar order regularsing services
of teachers of privately managed colleges. All the same
such policy decisions of government in favour of one or the
other set of employees of sister department are bound to
raise hopes and expectations in employees of other
departments. That is why it is incumbent on governments to
be more circumspect in taking such decisions. The
petitioners may not be able to build up any challenge on
discrimination as employees of government colleges and
private colleges may not belong to the same class yet their
claim cannot be negatived on the respondents’ stand in the
counter affidavit that the regularisation of temporary
teachers who have not faced selection shall impair
educational standard without explaining the effect of
regularisation of temporary teachers of University and even
technical colleges. Such being the unfortunate state of
affairs this Court is left with no option but to issue
following directions to respondents for not honoring its
com-
405
mitments before the High court and acting contrary to the
spirit of the order, and also due to failure of governemt in
remaining vigilant against private management of the college
by issuing timely directions and taking effective steps for
enforcing the rules:
(1) Services of such temporary teachers who have worked
as such for three years, including the break till
today shall not be terminated. They shall be
absorbed as and when regular vacancies arise.
(2) If regular selections have been made the governemt
shall create additional posts to accommodate such
selected candidates.
(3) The teachers who have undergone the process of
selection under the directions of the High Court
and have been appointed because of the reservation
policy of the Government be regularly appointed by
creating additional posts.
(4) From the date of judgment every temporary teacher
shall be paid salary as is admissible to teachers
appointed against permanent post.
(5) Such teachers shall be continued in service even
during vacations.
For these reasons this petition succeeds and is
allowed. The direction is issued to respondents in the
terms indicated above.
Civil Appeal Nos. 309-373 of 1992 arising out of SLP
(Civil) Nos. 13131-95 of 1990 challenging the order of High
Court in CMW 6232 of 1990 decided on 3rd July, 1990 is
disposed of accordingly.
Contempt Petition No. 6 of 1991 alleging violation of
status quo order granted in W.P. (Civil) No. 873 of 1990
need not be decided. It is directed to be filed.
The petitioners shall be entitled to their cost from
the State of Karnataka.
T.N.A. Petition allowed.
406