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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.

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                                                  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

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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

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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

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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

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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

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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