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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

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    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

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    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

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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

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    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.