PETITIONER: PATNA UNIVERSITY & ANR. Vs. RESPONDENT: DR. (MRS.) AMITA TIWARI DATE OF JUDGMENT: 27/08/1997 BENCH: SUJATA V. MANOHAR, M. JAGANNADHA RAO ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
M. JAGANNADHA RAO, J.
This Civil Appeal has been preferred by the Patna
University and the Vice-Chancellor of the said University
against the judgment of the Patna High Court dated 24.4.1992
in CWJC No. 6824 of 1991 allowing Writ Petition filed by the
respondent and directing implementation of two orders of the
Chancellor of the University. The first order dated
18.9.1990 of the Chancellor directed the Patna University to
regularise the services of the respondent Writ Petitioner
“on compassionate grounds” while the second dated 22.6.1991
directed implementation of the direction contained in the
earlier letter of the Chancellor dated 18.9.1990.
The facts of the case are as follows:
The respondent holds a degree of B.Sc. (Home Science)
with specialisation in Foods an Nutrition from the
University of Udaipur and also an M.A.. in Sociology from
Patna university. (Later she also obtained a Ph.D from the
same university). In 1981, Patna Women’s College opened the
Department of Home Science. initially, the respondent was
working in Siddharth Mahila College. As per the statutes of
the university in force at that time, the qualification for
appointment as Lecturer was P.G. degree in Home Science or
in an “allied subject”. Respondent resigned her job and
applied to the Patna Women’s College as she had a P.G.
degree in an “allied subject”, vis. Sociology. The
respondent was appointed on 1.10.1982 on an “as-hoc” basis
to take up the P.G. Home Science Classes and the Principal
by letter No. 5\1983 dated 13.1.1983 requested the Vice-
Chancellor to permit the respondent to “engage” P.G. classes
on an adhoc basis and be paid per lecture. The Vice-
Chancellor, by letter No. 47 dated 25.1.1983 gave approval
and on that basis, the Education Department of the Govt. of
Bihar wrote to the Patna University on 24.2.1983 that
Governor has accorded sanction for two posts of lecturers on
adhoc and purely temporary basis and for paying an
honorarium of Rs.25/- per lecture subject to a maximum of
Rs. 1250/- p.m. The letter also stated:
“please take necessary steps for
regular appointment against these
posts immediately because the
aforesaid arrangement has been
approved only on purely temporary
basis.”
On 26.2.1983, the University informed the principal of
the Patna Women’s College that the respondent was “allowed
for engaging P.G. classes” on Rs. 25/- per lecture subject
to a maximum of Rs. 1250/- It was also stated;
“This is purely on ad hoc
arrangement till a regular
appointment is made in accordance
with the provisions of law”.
It is not in dispute that thereafter, statutes passed
by the University in 1983 (see para 9 of the Counter filed
in the High Court) prescribed post-graduate qualification in
Home Science (at least II class as the requisite
qualification for appointment as lecturer in Home Science.
unfortunately, the respondent did not possess a post-
graduate degree in Home Science. Possession of the Post
Graduate degree in Sociology, as an ‘allied subject’ did not
suffice.
It appears that the respondent represented for
regularisation and her case was referred to the Chancellor
through the letter dated 10.12.1986 of the Registrar, Patna
University. But the Chancellor stated he would “not
interfere” in the matter. This was conveyed by the Governor
to the registrar by letter PU-53/96 dated 20.12.1996 with
copy to the respondent.
Meanwhile, the respondent filed CWJC 5664/1986 and the
same was disposed of on 28.2.1987 by a Division Bench of the
High Court stating that the respondent could avail of
alternative remedies available to her.
After the communication of the rejection of the
representation of the respondent by the Chancellor as
communicated by the Govt. through letter dated 20.12.1986,
the respondent filed a fresh Writ petition CWJC 758/1987 for
regularisation and the same was dismissed on 2/10.3.1987 by
a Division Bench, stating as follows:
“Heard, learned counsel for the
writ petitioner as well as the
learned Advocate General. This
Writ application is dismissed in
limine.”
The matter was again pursued by the respondent. The
Principal of the College wrote a long letter to the Vice-
Chancellor on 29.4.1988 stating that the respondent was
working continuously from 1.10.1982 taking classes for the
P.G. students on posts sanctioned on 24.2.1982, that a
Committee consisting of Dr. S.P. Singh, Pro Vice-Chancellor,
the Registrar the Department of Home Science opined that the
respondent “fulfilled the statutory qualifications laid down
by the UGC and the State Government”, for appointment as a
lecturer; and that she had earlier resigned from the
Siddharth Mahila College and joined in this College in 1982.
It was stated that the essential qualifications for
appointment as a Lecturer were changed “in 1985” and that
the Chancellor may be requested by the Government to give
his concurrence for the appointment “as per old statutes
prevalent at the time of her appointment”.
It appears also that by a further letter dated
16.6.1988, the University again recommended her case to the
Chancellor. On 18.9.199, the Secretary to the Chancellor
communicated the order favourably issued by the Chancellor
in favour of the respondent. The said order reads:
“It is a fit case where the
services of Mrs. Tiwari should be
regularised on compassionate
grounds – order may accordingly be
issued.”
On 4.9.1991, the University requested the Chancellor to
let them know “as to under which statute the services of the
petitioner could be regularised.” (vide para 11 of the
counter affidavit in the High Court). The Chancellor
however, informed by letter dated 22.6.1991 that the
regularisation may be made as suggested in the University’s
letter dated 16.6.1988. Thereafter, it appears that the
University requested the Chancellor to review his earlier
orders.
When the question of regularisation was at the stage,
the respondent filed the present writ petition for
implementation of the letters of the Chancellor dated
18.9.1990 and 22.6.1991 and sough a direction for
regularisation. A Division Bench of the High Court allowed
the writ petition by judgment dated 24.4.1992 and directed
regularisation as per the orders of the Chancellor. Against
the said judgment, the University and vice-Chancellor have
preferred this appeal.
We have heard the submissions of the learned counsel
for the University and also of the Government of Bihar. We
have also heard the submissions of the learned counsel for
the respondent writ petitioner.
The point for consideration is: whether the
respondent’s services as Lecturer in home Science could be
directed to be regularised on the basis of the letters of
the Chancellor dated 18.9.1990 and 22.6.1991 and whether the
Chancellor’s directions could be brought within the
provisions of the Bihar State Universities Act 1976 or other
statutes of the Patna University?
It is true that when the respondent was “engaged’ on an
“ad hoc” basis to take up the post-graduate classes in Home
Science, the respondent perhaps satisfied the requirement of
the ‘statute’ in force at that time inasmuch as she was an
M.A. in Sociology apart from having a bachelor’s degree in
Home Science. It is also true that the respondent resigned
her job in the Siddharth College and joined the Patna
Women’s College on the basis of the statutes then in force.
But the fact remains that the approval granted by the
University on 24.2.1983 was for adhoc appointment only and
the orders of the Registrar dated 26.2.1983 also described
her appointment as purely “ad hoc” till regular appointments
were to be made.
It may however be noticed that as per the requirement
of the relevant provision of the Bihar State Universities
Act, 1976 namely, Section 56 read with the statutes, the
post had to be filled by and upon recommendation of the
Bihar Public Services Commission. Later, Commission for
constituent colleges was separately established. Inasmuch
as the respondent was not recruited by following the said
procedure, it was not possible to give her a regular
appointment to the post of Lecturer. In addition, the
statutes of the University which were passed after 1981,
provided that the essential qualification would be P.G.
degree in the subject concerned, i.e. Home Science. The
respondent was to having a P.G. degree in Home Science.
No doubt a statute was made on 16.11.1978 for
regularisation of certain teachers appointed before 1977 and
another statute was issued [letter No., 6 240 G.S. (1)] on
18.11.1980 for regularisation of teachers’ who had completed
24 months by 31.2.1980 and para 8 of that statute clarified
that those purely appointed on temporary basis and who were
on their pots on 19.11.1977 could be regularised. But the
respondent did not come under this category because her
appointment was on 1.10.1982. Non can she come within the
scope of a latter statute dated 29.1.1986 (B.S.U.-25/85-283-
G.S.(1), which permitted regularisation of those appointed
on a temporary basis on or before 28.2.1982 and who
possessed at least a second class Master’s Degree in the
subject. These statutes did not, take within their sweep, a
person like the respondent who was appointed on 1.10.1982.
Learned counsel for the respondent submitted that the
Chancellor’s orders could be brought within S.74 of the
Bihar State Universities, 1976 which provides for ‘Removal
of difficulties’. That section reads as follows:-
“S.74 – Removal of difficulties by
the Chancellor at the commencement
of this Act: If any difficulty
arises in respect of establishment
of the University, or in the first
implementation of the provisions of
this Act or Statutes or otherwise
the Chancellor may, cut any time,
before the Constitution of all the
authorities of the Universities, by
order consistent with the provision
of this Act and Statutes, as far as
possible, make any appointment or
perform any other function, which
seems necessary or proper for him
for the removal of the said
difficulty; and all such orders
shall take effect in the same
manner as by the said appointment
or function has been done in the
manner provided in the Act.”
Provided that before issuing such
an order, the Chancellor shall
elicit the opinion of the Vice-
Chancellor and of such appropriate
authority of the University, as may
have been constituted, on the
proposed order and give
considerations thereon.”
We are unable to see how S.74 can help. The said
provision deals with a situation before the constitution of
the authorities of the Universities and apart from the
limited scope of its application, consultation with the
Vice-Chancellor was also necessary. The present case does
not fall within the limited scope of S.74 nor is there any
finding that the Chancellor was feeling it necessary to pass
such an order under S.74. In any event, orders under S.74
must be consistent with the provisions of the Act and
statutes, as is expressly provided in that section. Hence
S. 74 is of no avail.
Reliance is also placed for the respondent on sub-
clauses 7(ii) of S.9 of the Bihar Universities Act, 1976.
That provision reads as follows;
“S. 9 (i) that Chancellor : The
Governor of Bihar shall be the
Chancellor
……………7(i)(………..(ii)
The Chancellor shall have the power
for issue directions to the
Universities in the administrative
or academic interest of the
Universities which the considers to
be necessary. The directions
issued by Chancellor shall be
implemented by the Vice-Chancellor,
Syndicate, senate and other bodies
of the University as the case may
be.
We are of the view that the case of the respondent
cannot be brought with sub-clause 7 (ii) of S. 9 of the Act
either. The orders in question are not passed in
administrative exigencies or in academic interest. The
orders of the Chancellor dated 18.9.1990 and 22.6.1991
directed that the respondent’s services as to be regularised
purely on ‘compassionate grounds’. In fact, in the same
section 9, sub-clause (4) says that the Chancellor may annul
any proceeding or order of the University which is not in
conformity with the Act, the statutes, Ordinances or
Regulations. In that setting, it is not possible to hold
that sub-clause 7(ii) of Section 9 would permit the
Chancellor to pass an order “in the administrative or
academic interest” if the order is to be in conflict with
the Act or Statutes. No provision has been brought to our
notice which permits the Chancellor to direct regularisation
of the services of a Lecturer on ‘compassionate grounds’. In
the present case the respondent was appointed on ad hoc
basis till regular appointments were to be made and regular
appointments required a qualification which the respondent
did not possess and further, regular appointment could not
be made except by consulting the relevant services
Commission.
The result is no doubt unfortunate but we are unable to
find any provision to sustain the orders of the Chancellor
dated 18.9.1990 and 22.6.1991. The High Court was,
therefore, not correct in directing the enforcement of these
orders. We accordingly allow the appeal, set aside the
judgment of the High court and dismiss the writ petition.
Orders passed by the University consequent to the judgment
of the High Court are also are also set aside. There shall
be no order as to costs.