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PETITIONER: DR. S.C./BHADWAL & ORS.

       Vs.

RESPONDENT: DR. S. R. MEHROTRA & ORS.

DATE OF JUDGMENT:       03/02/1998

BENCH: K. VENKATASWAMY, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Misra, J.      The aforesaid  three appeals  raise a  comman  question whether the  appointment of  the ’Evaluators’  and ’Research Associates’ as Lecturers in the Himachal Pradesh University, Shimla was  valid or  not? These  appeals, accordingly,  are being disposed  of by means of this common judgment. All the appellants in  Civil  Appeal  No.  13709/96  were  initially appointed as  Research Associates. Some of them have already been appointed  as Readers  whose case  is not  in issue  in these appeals.  They have  been working  a such for the last about nine  years. Since they were working for a long period the Executive  Council of  the aforesaid University by their resolution dated  16th January,  1986, declared the cadre of Research Associate  as wasting  cadre. hence  on  30th  May, 1986, by  another Resolution  stipulated that  they  may  be designated as  Lecturers. Their  suitability for the post of Lecturers  was  to  be  ascertained  through  the  statutory Selection  Committee   confining  the  selection  among  the incumbent  working  on  the  post  of  Research  Associates. Admittedly, all  the appellants  were  working  as  Research Associate when the said Resolutions were passed. Later, they appeared  before   such  selection  Committee  and,  on  its recommendation, were  appointed as  Lecturers  in  the  year 1986. Since then they are working as such.      The appellant  in C.A.  No. 13708/96,  namely, Dr. Abha Malhotra was  initially appointed  as Research  Associate on 22nd May,  1983, and  her selection  was through a Selection Committee  consisting  of  Dean  of  Art  Faculty  with  two outsiders and  two internal experts. She did her Ph.D in the year  1981   in  History.  She  was  appointed  as  research Associate in  the department of History as the said post was lying  vacant  and  her  appointment  was  approved  by  the Executive Council in the meeting held on 22nd May. 1933. The case of  the appellant is that Research Associate in various other departments  were approved by the Executive Council in its meeting  held on  29th July,  1982, and  25/26 November. 1983, which  is evident  from  the  Notification  dated  7th January, 1984.  The Executive  Council approved the creation of one  post in  each of  the beaching  department including

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History with  effect from  the date  of filling up the post. Thereafter to decide the status and future of the Evaluators and  Research   Associates,  the   Vice  Chancellor  of  the University appointed a Committee which gave its report which was  considered  by  the  Council  on  18th  January,  1986. Thereafter, on  30th May,  1986, vide Resolution on the same day it was decided to regularise the Evaluators and Research Associates  in  the  existing  designation  and  scale  with immediate effect  and it  was also decided that they were to be designated  as lecturers.  The appellant  appeared before the Selection  Committee on  24th November, 1986, and on its recommendation, was  appointed to  the post  of Lecturer. On 27th December,  1986, the  Executive  Council  approved  her selection and  on st  January, 1987,  the appointment letter was  received   and  finally  on  4th  February,  1987,  the appellant joined as Lecturer in History.      The appellant  in C.A.  No. 13707/96  [Dr. (Mrs.) Meera Massey  did   her  M.A.  in  Sociology  in  the  year  1973. Thereafter, she  passed M.Ed. in July 1975 for the aforesaid University. On  29th September,  1975, she  was appointed as Evaluator in  Sociology in the Directorate of Correspondence Courses in  the aforesaid University. In 1976 she did her M. Phil, in  Education and  stood first  in the  University and thus was  awarded gold  medal for  the same. In 1981 she got the degree  of PH.D.  in Education. In fact, she did both M. Phil, and  Ph.D. in  the  field  of  Education  while  being Evaluator as  aforesaid . The Executive Council as aforesaid on the  30th  May,  1986,  decided  to  regularise  all  the Evaluators with  immediate effect  for their  appointment on regular  basis  as  lecturers  selecting  them  through  the Statutory  Selection  Committee.  The  Statutory  Select  in Committee met  on 30th  October, 1986,  found the  appellant competent to be a Lecturer. The Executive Council thereafter in December  1986, on  the basis  of the observations of the Selection Committee,  appointed her as lecturer in Education in  the  directorate  of  correspondence  Courses.  On  20th February, 1987 she joined as lecturer. On 29th May, 1987 she was confirmed as such.      Dr. S.R.  Mehrotra, Professor  in  History  Department, respondent No.1  in all these appeals, filed a writ petition assailing the  appointments of  the aforesaid two appellants and Dr.  Shivraj Singh  who is  respondent No.  5  in  Civil Appeal No.  13709/96, as Lecturer both on the ground that it is contrary  to the  Resolution of the Executive Council and also against  the Ordinance  of the aforesaid University. In the  counter  affidavit  filed  by  the  university  it  was revealed  that   there  are  12  other  Research  Associates similarly situated  who had  been  appointed  as  lecturers. Whose appointments  in Civil  Appeal No.  13709/96 were also impleaded as  respondents and  their appointments  were also challenged on the ground of violation of ordinance No. 35.11 of the  University as they were also not appointed after due advertisement. The  High Court by means of impugned judgment quashed the  appointment of the aforesaid two appellants and Respondent  No.  5  both  on  the  ground  of  violation  of Ordinance 35.11  and favoritism  and other  illegalities and appointment of  remaining appellants  were quashed as it was in violation of Ordinance 35.11. thereafter, Review Petition was filed  by the  aforesaid University,  Dr. Abha Malhotra, the appellant,  and Shivraj Singh (Respondent No. 5) who was respondent No. 16 in the writ petition and all the remaining appellants in  Civil Appeal  No. 13709/96.  Dr. Meera Massey one of  the other  appellants did  not file  review  as  she already preferred  Special leave  Petition No. 5235/95 (C.A. 13707/96). Respondent  Nos. 4  and  15,  namely,  Shri  S.C.

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Bhadwal and  Shri Ram  Sharma  in  the  writ  petition,  had neither filed  Review Petition  nor special  leave  Petition before this  Court. In  review the  High Court  deleted  the observation, that  Respondent No.  2 (Dr.  Abha Malhotra) is admittedly the  close relation of the Vice Chancellor of the University as  it  was  found  to  be  factually  incorrect. Neither ruin  the writ  petition such  allegations were made nor there  was any  material on  record from which such fact could be inferred. The said observation came on the basis of the submission  made by  counsel only.  However,  the  Court refused to  review other part of the judgment which held her (Dr. Abha  Malhotra) appointment as illegal and violative of Ordinance 35.  The High  Court held,  her appointment  as  a Research  Associate   in  the   department  of  History  was temporary stop  gap arrangement  on the basis of order dated 25th May, 1983. While post of Research Associate was created in the side department and notified on 7th January, 1984. It was further  held in  the absence  of filling  up  the  post created  vide  Notification  dated  7th  January,  1984,  in accordance with  the ordinance 35 of the First Ordinances of the Himachal  Pradesh University,  1973, her appointment was void and  hence could  not be given benefit of Resolution of the Executive  Council dated  16th January,  1986. So far as taking benefit  of para  4 of the Resolution dated 30th may, 1986 being  violative of  the  aforesaid  order,  cannot  be availed of  by her  as her  appointment as  lecturer on  the recommendations of  the Selection  Committee, is illegal. So far as  the review  by the University pertaining to the case of one of the aforesaid appellants. Dr. Meera Massey, it was held:-      " It  is rightly  observed that the      University failed  to place  before      the  Division  Bench  the  original      proceedings   of    the   Selection      Committee which  would have  put an      end to  the controversy whether she      was interviewed  for appointment as      Lecturer in  Education but from the      totality  of  material  on  record,      especially  the   resolution  dated      27th  December,   1986,  the   only      conclusion possible is that she was      not considered  and recommended  by      the   Selection    Committee    for      appointment    as    lecturer    in      Education   irrespective   of   her      possessing  the  qualification  and      experience for the said post may be      because   she    was   working   as      Evaluator  in  sociology  at    the      relevant time."      While considering the case of Shivraj Singh, Respondent No. 5,  in the  aforesaid appeal, in review it was held that since  he   was  appointed   as  Reader  by  way  of  direct recruitment in  the department  of public  Administration of the University  in March,  1989, the  decision of this Court will have  no effect.  So  far  as  the  appellants  in  the aforesaid Civil Appeal No. 13709/96 are concerned, it is not in dispute  that for  the first  time their  appointment was alleged to  be by  way of  promotion under  Ordinance  35.8, however, their review was also rejected.      Mr. Sunil  Gupta, learned counsel for the appellants in C.A. No. 13709/96, challenged the locus standing of Dr. S.R. Mehrotra who  filed the writ petition in the High Court. The arguments raised  before  the  high  Court  were  reiterated

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before us.  In addition,  reliance was placed in the case of Janata Dal Vs. H. S. Chowdhary and ors. (1994(4) SCC 305:      "  In   Gupta  Case   Bhagwati,  J.      emphatically pointed  out that  the      relaxation of  the  rule  of  loque      standing in  the field  of PIL does      not give any right to a busybody or      meddlesome interloper  to  approach      the court  under  the  guise  of  a      public interest  litigant.  He  has      also left  the  following  note  of      caution: (SCC p. 219, para 24)      But we  must be careful to see that      the  member   of  the  public,  who      approaches the  court in  cases  of      this kind,  is acting bona fide and      not for  personal gain  or  private      profit or  political motivation  or      other  oblique  consideration.  The      court must not allow its process to      be abused by politicians and others      to relay  legitimate administrative      action  or   to  gain  a  political      objective." (para 99)      "Sarkaria, J.  In Jasbha)  Motibhai      Desai V. Roshan Kumar expressed his      view that  the application  of  the      busybody should  be rejected at the      threshold in  the following  terms:      (SCC p. 683, para 37)      "It  will   be  seen  that  in  the      context of  locus stands  to  apply      for  a   writ  of   certiorari,  an      applicant may  ordinarily  fall  in      any of these categories (i) ’person      aggrieved’s (ii)  ’stranger’ "(iii)      houseboys or meddlesome interloper.      Persons in  the last  category  are      easily distinguishable  from  those      coming   under    the   first   two      categories. Such  persons interfere      in the  things which do not concert      them. They  masquerade as crusaders      for justice. They pretend to act in      the  name   of  pro  bono  publico,      though they have no interest of the      public or  even  of  their  own  to      protect.  They   indulge   in   the      pastime  of   meddling   with   the      judicial process either by force of      habit  or  from  improper  motives.      Often, they are actuate by a desire      to   win    notoriety   or    cheap      popularity:  while   the   ulterior      intent of  some applicants  in this      category  may   be  no   more  than      spoking     the      wheels      of      administration.  The   High   Court      should  do   well  to   reject  the      applications of  such busybodies at      the threshold." (par 104)      "K. N.  Singh, J.  speaking for the      Bench in  Subhash Kumar v. State of      Bihar has  expressed his opinion in      the following words: (SCC pp. 604 -

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    05, para 7)      "Public interest  litigation cannot      be invoked  by a  person or body of      persons to  if such petitions under      Article 32 are entertained it would      amount to  abuse of  process of the      Court, preventing  speedy remedy to      other genuine petitioners from this      Court. Personal  interest cannot be      enforced  through  the  process  of      this  Court  under  Article  32  of      interest     litigation.     Public      interest  litigation   contemplates      legal proceeding for vindication or      enforcement of  fundamental  rights      of a  group of persons or community      which are not able to enforce their      fundamental rights  on  account  of      their   incapacity,    poverty   or      ignorance of law. A person invoking      the  jurisdiction   of  this  Court      under Article 32 must approach this      Court for  the vindication  of  the      fundamental  rights   of   affected      persons and  not for the purpose of      vindication of  his personal grudge      or enmity.  It is  the duty of this      Court to  discourage such petitions      and to  ensure that  the course  of      justice  is   not   obstructed   or      polluted by  unscrupulous litigants      by   invoking   the   extraordinary      jurisdiction  of   this  Court  for      personal matters  under the garb of      the  public  interest  litigation."      (para 108)      Having considered  the submissions,  we do not find any of the  observations made  hereinbefore is applicable in the present case.  We find  Dr.  Mehrotra  has  filed  the  writ petition being concerned with the anomalies and illegalities in  the  procedure  adopted  by  the  University  in  making selection   and    regularising   the   various   posts   in contradiction to  the Acts,  statute and  Ordinances. He was aware fully  of all what was happening with full grip of all the materials.  Facts reveal  he was  genuinely concerned to rectify the  wrongs without  any personal  animosity against anyone. His  feelings were  bona fide,  being  professor  of History in  the same  University. He  had all  the  details, fully equipped  with facts  and the  law pertaining  to  the University. It was not for any personal gain. It was neither politically motivated  nor for publicity. The golden key for public interest  litigation was  delivered in  the land mark decision of  this Court  in S.P.  Gupta’s case (1981 (Suppl) SCC  87).   This  was   devised  for   increasing   citizens participation in  the judicial  process for making access to the judicial delivery system to such who could not otherwise reach court  for various reasons. But it is also true, since then this  Court repeatedly  has been  cautioning its misuse laying down  restrictions to scuttle out undesirable persons or body.  It is  in this context the above observations were made by this court as relied by the appellants but that very authority accords  approval for  filing such public interest litigation.      After having  elaborately explained      the concept  of  Pil,  the  learned

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    Judge held  that: (SCC p. 218, para      23)      "....  any  member  of  the  public      having  sufficient   interest   can      maintain  an  action  for  judicial      referees for  public injury arising      from breach  of public duty or from      violation of  some provision of the      Constitution or  the law  and  seek      enforcement of such public duty and      observance of  such  constitutional      or legal  maintaining the  rule  of      law,  furthering   the   cause   of      justice and  accelerating the  pace      of     realisation      of      the      constitutional objectives."      (para 92)      Of  course,   even  this   is  also  in  a  given  case restricted, laid  down in various decisions not necessary to refer here.      In view  of the  said legal  principle on  the facts of this case,  we do not find any merit to the challenge of the locus stands of Dr. Mehrotra.      The  High  Court  held  that  the  appointment  of  the Evaluators and  the  Research  Associates  on  the  post  of teachers could  only he  done through  direct recruitment by virtue of  Ordinance 35.11.  It can only be by advertisement which, admittedly,  was not  done hence their appointment as such i  illegal. Further  abolition or  creation of the post also could  not be  done without  the recommendation  of the Faculty concerned  and, in  turn, the  Academic Council  and that not having been done is violative of Ordinance 24.3(b).      In order  to appreciate  the contention it is necessary to refer  to the  relevant provision of the Himachal Pradesh University Statutes  (hereinafter referred  to as "Statute") and the  First Ordinance  of Himachal Pradesh University Act 1973. (hereinafter referred to as the ’Ordinances"). Section 2(15) defines teachers:-      "Teachers  means  teachers  of  the      University who  have been appointed      or  recognised   by  the   Academic      Council as  Professors, Readers and      lecturers   and    shall    include      Professors, Readers  and  Lecturers      and  Officers   appointed  to   man      research and extension education"      Relevant portion  of Statute  11 as  quoted here  under which defines the powers of the Executive Council : -      " Powers of the Executive Council :      Subject to  the provisions  of  the      Act, these Statutes and Ordinances,      the  Executive   Council  shall  in      addition  to   any  other   power’s      vested in  it, have  the  following      powers:      (i) to  create and  to appoint such      professors, Readers, Lecturers, and      other members  of the  teaching and      research staff as may be necessary,      on  the   recommendation   of   the      Selection  Committee,   constituted      for the  purpose and to provide for      the filling  of temporary vacancies      therein;      (ii)  to  fix  the  emoluments  and

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    define the duties and conditions of      service  of   professors,  Readers,      Lecturers and  other members of the      teaching and research staff;      Provided that  no action  shall  be      taken by  the Executive  Council in      respect   of    the   number,   the      qualifications and  the  emoluments      of teachers  otherwise  than  after      consideration        of         the      recommendations  of   the  Academic      Council:      Learned  counsel   referring  to   the  definition   of ’teachers’  contends   that  Research   Associates  and  the Evaluators will fall within the words:      "Officers appointed to man research      and extension  education", hence  a      teacher.      The Executive  Council have  power under Statute 11 (i) both to  create and  appoint members  of teaching  and  such research staff.  Further the  duties and  qualifications  of Research Associates  and Evaluators  are Similar  to that of Lecturer,  which  is  evident  from  the  advertisement  for appointment of  such Research  Associates.  Ordinance  35.53 prescribes  the  pay  scale  of  teachers  which  refers  to different pay  scales of  professors,  Readers.  principals, lecturers etc,  but does not include the pay scale of either Evaluators or  Research Associates.  Repealing this reliance of the  High Court  to exclude the Research Associates to be teacher, the  submission is this categorisation of pay scale in that Ordinance is not exhaustive and this cannot restrict the categories  of teachers  as envisaged  under the Act and the Statutes.  The Research  Associates and Evaluators being at the  lowest category  has a  lower  pay  scale  than  the Lecturers. The  Executive council,  in the  circumstances of this case,  resolved to  regularise their  appointments  and then to  appoint them  as  lecturers  after  each  incumbent passing the  scrutiny of  the Statutory Selection Committee. It is  said that the appointment to the posts of lecturer is not only  by direct  recruitment as provided under Ordinance 35.8. Both  Ordinances 35.8  and 35.11  (a) (b)  are  quoted hereunder :-      35.D   -    "Save   as    otherwise      specifically provided  in the  Act,      Statutes   or    Ordinances,    the      Executive  Council  shall  fix  the      minimum qualifications required for      each post or class of post and also      lay down  whether the post or class      are  to   be   filled   by   direct      recruitment or promotion or by both      an dif so in what proportion."      "35.11  (a)   Save   as   otherwise      provided  in   the   Statutes   the      appointment of  all  categories  of      employees  shall  be  made  by  the      competent authority  referred to in      35.7  on   the  recommendation   of      Selection Committees,  appointed by      the competent authority.      (b) Whenever  there is a vacancy to      be filled  by  direct  recruitment,      the post  in Category ’A’ or ’B’ or      Asstt.             Registrar/Asstt.      Engineer/Asst. Architect  or  above

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    shall be  advertised not  less than      three weeks in advance, in at least      one leading  daily newspaper, while      others  in  category  ’B’  and  ’C’      shall   be    advertised    through      Employement      Exchanges      and      affiliated  colleges   in  Himachal      Pradesh  and  applications  invited      there for.  The advertisement shall      clearly  mention   the  eligibility      qualifications and pay-scale of the      post.      It is  argued that though the Executive Council has not used the  word  promotion  but  through  its  Resolution  it directed the  Research Associate/Evaluators  to be appointed as lecturer in the higher grade which would constitute to be a case  of promotion.  Hence, for  such internal  candidates when the  Executive Council desired, their absorption by way of promotion was within the powers of the Executive Council. Hence, their  appointment would be valid under Statute 35.8. Further submitted  the only  pre- requisite for promotion to the post  of teachers  is that they fulfil the qualification of Lecturers  prescribed under  Ordinance 35.54 which is the minimum qualification  for appointment  as teachers  and  to face the  Selection committee  as provided  under  Ordinance 35.11(a) read  with Section 34 of the Act. The contention is that expression  ’absorption’ ’regularisation’,  adjustment’ etc. have  all been  used loosely  in the Resolutions of the Executive Council  dated 16th  January, 1986  and 30th  May, 1986, but,  in fact,  it is  in the context of promotion. In support that it is a case of Promotion reliance is placed in State of  Rajasthan vs.  Fateh Chand Soni (1996 (1) SCC 562) :-      "In  the  literal  sense  the  word      ’promote’ means  to  advance  to  a      higher position,  grade, or honour,      So    also     ’promotion’    means      ’advancement   or   preferment   in      honour, dignity,  rank,  or  grade,      ’promotion’ thus  not  only  covers      advancement to  higher position  or      rank but  also implies  advancement      to a  higher grade. The service law      also the  expression ’promotion has      been understood  in the wider Sense      and   it   has   been   held   that      ’promotion’  can  be  either  to  a      higher pay  scale or  to  a  higher      posts."      Jarsem Singh  & Anr.  Vs. State  of      Punjab & ors. (1994 (5) SCC 392) :-      "Promotion as  understood under the      service  law   jurisprudence  means      advancement in rank, grade or both.      Promotion is  always a Sten towards      advancement to  a higher  position,      grade or honour."      Director,  Central   Rice  Research      Institution Cuttack  and  Anr.  Vs.      Khetra Mohan  Das (  1994 Supp  (s)      SCC 595)      "Promotion   as    understood    in      ordinary Parlance  and  also  as  a      term  frequently   used  in   cases      involving service laws means that a

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    person already  holding a  position      would have  a promotion  if  he  is      appointed  to  another  post  which      satisfies   either   of   the   two      conditions namely  that the new pot      is in a higher category of the same      service  or   that  the   new  post      carries higher  grade in  the  same      service or class."      On  the  other  hand,  Dr.  Mehrotra  submitted,  under Section 22(4)  of the Act read with proviso to Section 11(i) - (ii)  of the  Statutes and  24.3(b) (ii)  and 24.5  of the Ordinances, require that no teaching or research post can be created in  the University  unless and  until a  proposal to that affect  has been  made to  the Executive Council by the Faculty concerned through the Academic Council. By virtue of 11 (i)  and 17  of the  Statutes read  with 35.11 (a) of the Ordinances,  no  appointment  to  a  teaching  post  in  the University can  be made  by the  Executive Council  save and except  on   the  recommendation   of  Selection   Committee constituted by  the Competent  authority. He  submitted that Hon’ble High  Court rightly  held selection  for  a  teacher should only  the under  Section 35.11(b)  of t he Ordinances which requires  prior advertisement  at least is one leading daily newspaper.  So far as appellants Dr. Abha Malhotra and Dr. Meera Massey are concerned, he reiterated his submission as before  High Court,  that their  appointments  were  also illegal and  is nullity  as they were appointed in violation of Section 35.11 (b) of the University Ordinances and on the posts which did not exist.      It is  relevant at  this stage to refer to the stand of the  University,   the  relevant   portion  of  the  counter affidavit filed  by it  to the  amended writ petition in the High court is reproduced below :-      " Para  1 :  In reply to this para,      it is submitted that simply because      the  petitioner   is   working   as      Professor  in   the  Department  of      History, in  the  Himachal  Pradesh      university that  does not  give him      any right  or cause to maintain the      present petition  as  submitted  in      the  preliminary  objections  above      and as  such the  petition  is  not      maintainable  and  deserves  to  be      dismissed."      "Para 2.  ..... The  action of  the      University  is  absolutely  in  the      interest   of    the   institution,      students and  the teachers  working      against  certain  assignments/posts      which were not considered fit to be      continued  by  the  University  and      these  teachers  had  been  working      against  these  assignments  for  a      pretty long  time, it  was not only      reasonable but  also in consequence      with  the   principle  of   equity.      Justice and  fair play  that  their      real status  in the  University was      recognised  and   they  no   longer      remained under suspense as to their      future.     These     appointments,      therefore,  are  absolutely  legal,      valid, equitable  as well as in the

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    interest of  justice and  cannot be      quashed on any principle."      " Para  5 &  6 ....   The Executive      Council took  a decision  that  the      category   of   Evaluators/Research      Associates  will   be  a  vanishing      cadre and  the incumbents  of these      assignments   be   considered   for      regularisation  of   the  post   of      Lecturers and  their  cases  routed      through  the   Statutory  Selection      Committee for the Purpose. The same      was done and these appointments are      by      way      of      regulation      ................ The University can      appoint  a   teacher   on   special      stipulations - conditions which may      not be in accordance with he normal      made of  appointment as  alleged by      the petitioner"      This shows  regularisation, appointment  as teacher  to these Research  Associates/Evaluators was  because they were working as  such for  a long  time  and  hence  for  equity, justice and fair play it was reasonable to do this.      The relevant Executive Council resolutions No. 20 dated 16 January, 1986 and No. 33 dated 30th may, 1986 as referred and  incorporated   in  this   counted  affidavit  are  also reproduced below :-      "Resolution  No.   20  dated   16th      January,    1986.    The    Council      considered  the   report   of   the      committee constituted  by the voice      Chancellor and decided as Under:      1. That  the Research Associateship      should be a wasting/Vanishing cadre      and that  no future  appointment of      Research Associates  be made in any      Department/wing of the University.      2.  That   the  existing   Research      Associates who  have been appointed      in various Department/wings against      regular/vacant available  positions      of lecturers,  may  be  allowed  to      continue as such till the vacancies      are filled  on regular  basis after      due advertisement etc.      3. For  those  Research  Associates      who have been appointed against the      positions created  by the Executive      Council       for        individual      departments/wing, they  be  allowed      to continue  till their  permancent      absorption   through    a   regular      selection committee against regular      position   of   lecturer   in   the      different departments/wings. As and      when any  of them  secures  regular      appointments  in  any  position  of      leaves  the   university  the  said      position  of   the  said   Research      Associate  shall   stand  abolished      with immediate  effect. No  further      recruitment in  this cadre  will be      made henceforth.      4. The Council further decided that

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    the   following    facilities    be      provided to  the existing  Research      Associates    working     in    the      Directorate    of    Correspondence      Courses.      (a)  They   shall  be   allowed  to      contribute towards the contributory      provident fund  with usual share of      University  contribution   as   per      rules.      (b)  They   shall  be   allowed  to      participate      in       different      sumposia/seminars/summer institutes      connected  with   that   particular      subject.      (c)  They  shall  be  provided  the      medical facilities  as provided  to      other employees of the University.      The council  also, decided that the      same   committee    as   has   been      constituted by  the Vice Chancellor      in respect  of Research Associates,      will consider and examine the issue      of   evaluators    alongwith    the      question  whether,  the  evaluators      are teachers or not, and submit its      report to the Executive Council."      Executive Council Resolution No. 33      dated 30th May, 1986:      "The  Executive   Council  after  a      detailed discussion on the issue of      evaluators and  Research Associates      (as  per   item  No.  34),  In  the      context   of       their   academic      qualifications  nature  of  duties,      academic     and     administrative      implications. Vis-a-vis service put      in the  University by most of them,      and  the   recommendation  of   the      committee   constituted    by   the      Executive  Council  earlier  to  go      into the matter, decided as under:      1. That all Evaluators and Research      associates be  regularsied in their      existing designation/post and scale      with immediate effect.      2. Their  suitability towards their      appointment   as    Lecturers    be      ascertained   by    the   Statutory      Selection  Committee  before  which      only the  present incumbents  would      appear and  compete,  if  necessary      amongst themselves.  Those  who  do      not get  selected will  continue as      such till their appointment against      regular posts of Lecturers.      3. All service benefits will accrue      to them  as in  the case of regular      employees of the University.      4.    Research    Associates    and      Evaluators   be    designated    as      lecturers. Their  services will  be      regularised  after  undergoing  the      formality of  selection through the      Statutory Selection  Committee.  In

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    case any  vacancy  of  lecturer  is      vacant  in  any  department/Evening      College/Directorate              of      Correspondence Courses,  they  will      be adjusted against such posts.      5. No  future appointment, adhoc or      otherwise will  be made as Research      Associates  in  any  department  or      Evaluators in  the  Directorate  of      Correspondence Courses."      In view  of the  aforesaid stand of the University, the Evaluators and  Research Associates  were required  only  to face   the   Statutory   Selection   Committee   for   their regularisation as lecturers.      Learned counsel  for  Dr.  Abha  malhotra  adopted  the arguments of  learned counsel  for the  appellant  in  Civil Appeal No.  13709/96. He  clarified only  difference of  her case was  the wrong  allegation against  her  that  she  was related to  the Vice  Chancellor which  in review,  the High Court defected.  Similarly, the  other appellant  Dr.  Meera Massey also  adopted the Submission of the aforesaid learned counsel in her appeal.      Having  heard  learned  counsel  for  the  parties  and perused the  affidavits, we  find there  is no Resolution of the  Executive   Council  which   specifically  spells   out appellants promotion.  It is  also not  in dispute  that the appellants, either as Research Associates or Evaluators were withdrawing pay  much below  that of  Lecturer. It  is  also admitted that  they were  performing the  duties of teachers and taking  classes. It  is also  not in  dispute that their appointments initially  were temporary  and was  so till the regular appointment  to the post of Lecturers in made. It is also not in dispute that the post of Research Associates and Evaluators are  not referred  to in  the  Act,  Statutes  or Ordinances. Ordinance 35.8 empowers the Executive Council to fix the  minimum qualifications  for each  post or  class of post and also to lay down whether the post or class of posts are to be filled up by direct recruitment or promotion or by bot .  Ordinance 35.11(b)  refers that whenever a vacancy is to be  filled up by direct recruitment, the post in category ’A’ and  ’B’ .     Shall be through advertisement specifying the minimum  eligible qualification.  It is also not dispute that these  posts since  long time  are only being filled by direct recruitment  under the  said provision  and till  the present disputed case no case to the contrary was brought to our notice.  From the  Stand of  the University  it is clear that  the   University  felt  that  since  these  appellants continued to  teach as  Research Associates/Evaluators for a long time,  hence on  the principle  of equity,  justice and fair play,  their real  status of  teachers  be  recognized. Hence, the Executive Council took the decision to regularise their appointments  as teacher.  From the counter affidavit, as reproduced  above, the  stand of  the University  is that they have  appointed these  teachers on special stipulations conditions  which   is  apart   from  the   normal  mode  of appointment. This is how the University has tried to justify these appointments,  i.e., on  special circumstances  and on the principle of equity, justice and fir play, not under any specific provision  of Statute, Ordinance etc. If this be so how could  this be  the appointments by way of promotion. if University resolved  to promote,  there was no difficulty to say so  instead to take shelter of ’equity’ justice and fair play and  justify it under special stipulated condition. The Resolution of  the Executive  Council Clearly  depicts  that initially when the First Resolution dated 16th January, 1986

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was passed  the thinking  of the  University was  different. They  resolved,   Research  Associates   were  wasting   and vanishing cadre,  no such  future appointment  he  made  but those  already  appointed  to  the  various  departments  be permitted to  continue on  the regular/vacant available post of Lecturers  till the vacancies are filled on regular basis after due  advertisement, it  further  resolved  even  those Research Associates,  who were  appointed against  the  post created by  the Executive Council, be also continued till be permanent absorption  through a regular selection committee. The Executive  Committee till  this time was not thinking of any  special   stipulation’s  conditions  but  to  let  them continue till  regular selection  takes place nor it thought to promote  them. It  seems on  30th May,  1986 the  Council resolved that  all such  persons  be  regularised  in  their existing  designation   with  immediate   effect  and  their suitability for  appointment  as  Lecturer  be  through  the Statutory Selection  Committee. In  fact even those who were not to  be selected  through Statutory  Selection  Committee their continuance was also secured as the Resolution further stated "those  who do not get selected will continue as such till their  appointment against regular posts of Lecturers". The Resolution  also records  that "their  services will  be regularised after  undergoing  the  formality  of  selection through the Statutory Selection Committee."      The question  arises why  this special  stipulation was resorted to by the University when they could have filled up the post  of lecturers on a regular basis in accordance with the existing  Ordinance. Is  it not,  the university sat for number of  years to  fill the  vacancies of Lecturers at the cost  of  students  and  permitted  adhocism  and  stop  gap arrangement for a long time to being in articulated sympathy to justify special stipulated condition. Even if one has all the minimum  qualification for a higher grade post and is on a much lower grade of scale of pay, it is never desirable to regularise such  persons as  standard of  selection criteria for both is bound to be different even scrutiny of selection and  sphere   of  competition  is  bound  to  be  different. Regularisation  excludes  large  number  of  very  competent persons who  if given  opportunity was  available would have applied. It  is a  slackness inertness may be in some cases, to which  we are  not adjudicating, for favouring particular person. This  leads to  a situation as the present case viz. the sympathy and in---- drawing principle of equity, justice and fair  play to  regularise adhocism, justifying merely on eligibility criteria.  Selection of teacher has not to be on minimum eligibility but best available from a larger sphere. Nor from the limited sphere of adhoc or stop gap appointees. This affects  teaching standard  of university and output of student-at-large. In  fact adhocism  in any class of service may be  class IV, is deprecated but in our opinion it should never  be  a  principle  in  the  cases  of  appointment  of Teachers,  Readers   and  Professors.   Ordinance  35.8   as aforesaid empowers the Executive Council to lay down whether the post  or class  of posts  are to  be filled up by direct recruitment or promotion. In the present case, the Executive Council has not resolved to fill up the post of Lecturers by way of promotion but to treat the incumbents already working therein to  be regularised.  Even if  it has power, it never resolved   as    such.,   There   is   distinction   between regularisation  and  promotion.  Regularisation  means,  one which is  already working  doing or has done something which law did  not permit  but  the  same  is  being  regularised, treated to  be done  in accordance  with law,  treat one  as such. Hence  in such  cases regularisation cannot be said to

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be a  promotion as contemplated under the Ordinance 35.8. In para four  of the  Executive Council  Resolution dated  30th May,  1986  the  Research  Associates  and  Evaluators  were resolved to  be treated  as Lecturer. Here University did it by itself  without even following the procedure of promotion as  noticed   and  in   the   same   breath   directed   for regularisation. Could this be said to be desirable?      It is not pleasant to think that as high an institution as University has to regularise something under cover of his own fault.  The post  of Research  Associates/ Evaluators is not provided  as aforesaid under Act. Statute or Ordinances. It is  vanishing cadre,  it was  only created  in  1984  and resolved to end in 1986. Hence it is not necessary to record the finding  that they  are teachers  within the  meaning of Section 2  (15) of  the Act.  Even if it is accepted as such they will  also be  held to be covered by category ’A’ which includes teachers  as per  Ordinance 35.53  and then to such the selection  and  appointment  could  only  have  been  by advertisement by  virtue of  Ordinance 35.11  (b).  However, their appointment  as Research  Associate/Evaluator is not a matter of Challenge.      University imparts  education which  lays foundation of wisdom. Future  hopes and  aspiration of the country depends on this  education, hence proper and disciplined functioning of the  educational institutions  should be the hallmark. If the laws  and principles  are eroded by such institutions it not only pollutes its functioning deteriorating its standard but also  exhibits to  its own  students the  wrong  channel adopted. If that be so, how such institutions, could produce good citizens.  It is the educational institutions which are the future  hopes of  this country. It lays the seed for the foundation of  morality, either  and discipline. If there is any  erosion   or  descending   by  those  who  control  the activities all  expectations and hopes are destroyed. If the institutions perform  dedicated and sincere service with the highest morality  it would  not only  uplift many  but bring back even  limping society  to  its  normalcy.  As  we  have already recorded  above from  the stand of University itself that this  was done  as a  special stipulation circumstances not in  accordance with  the normal  mode of appointment, we depreciate this  and record  that in  future such  situation should not  be brought  in for  taking such decisions at the cost of recognised regular selection of teachers.      It  is   pertinent  to  refer  to  the  Report  of  the University Education  Commission  (December  1948  -  August 1949) popularly  known as  the Report  of the  Radhakrishnan Commission, Vol, I. (1949), p. 79.      " We  must  reiterate  our  warning      against  the   growth  of   certain      tendencies which are uphealthy. One      is  inbreeding.   Universities  are      more and  more inclined  to recruit      their staff  from among  their  own      students  and  teachers.  Secondly,      there  is  negligence  in  applying      criteria of  merit in the selection      of  their   lecturers.  The   first      breeds  narrow   parochialism   and      leads to  stagnation. The second is      dangerous  because   it  encourages      favouritism, depreciates  the value      of the work whole atmosphere of the      University,  for  the  Lecturer  of      today is  Reader and  Professor  of      tomorrow.      For       University

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    appointments  there  should  be  no      criteria other  than that  of merit      ......"      Similarly another  report  of  the  Committee  on  some problems  of   University  Administration,  1964  (1967)  is reproduced below :      The most  important factor  in  the      field of  higher education  is  the      type  of   person  entrusted   with      teaching.   Teaching    cannot   be      improved     without      competent      teachers.....  The   most  critical      problem facing  the universities is      the   winding    supply   of   good      teachers. ....  The Supply  of  the      right  type  of  teachers  assumes,      therefore,  a  vital  role  in  the      educational  advancement   of   the      Country. We,  therefore,  recommend      that teachers  should  be  selected      purely on  the basis of their merit      through    regularly    constituted      selection committees on which there      should be outside exist.      These reports  have been  given few decades back but in spite of  long passage  of time the suggestions and guidance still holds  good. But  we find  this still not been applied dissolving all the efforts of these commissions. It needs no direction when  laws of the universities are framed it is to be adhered  to viz.  Act. Statutes  and Ordinances. Even for regularisation there  has  to  be  if  any  the  law  to  be prescribed  certainly   not  on   parity  with  the  general principle  of  law  of  Industrial  workmen  or  class  IVth employees, casual  or daily  worker. it is an appointment of teacher. Whenever vacancies of teachers arise they should be promptly filled  up by  following the procedure as laid down under the University Laws, lest students suffer.      However, we  find that  all the  appellants  have  been regularised as  teacher and  appointed as Lecturers approved by the Executive Council since 1986 more than 11 years back. Respondent No.  1 Dr.  Mehrotra very  fairly states  he  has nothing against  these appellants.  They are  all  competent teachers fully  qualified to  the appointed as such. We feel setting aside  and disturbing  their appointments  now would create great  turmoil and  would affect  the teaching in the University and,  in turn,  the students at large even to the appellants also, who in the hope continued for long. We feel it would  not be  appropriate on the facts and circumstances of this case to set aside their appointments as teacher.      In Shainda  Hasan Vs. State of Uttar Pradesh and Others (1990 (8)  SCC 48)  it was  a case  where appointment of the Principal was  held to  be illegal but since she was working in the college for 16 years it was felt to be unjust to make her leave the post, hence in spite of that she was permitted to continue.      However, we  want to  make it  clear this  approval  of their continuing  on the posts of lectures, in view of their working for  such a  long period  should not be treated as a precedent. This had been done of the facts and circumstances of this case. Through this judgment we want to make it clear that every  institution especially  the  universities  while making    appointment  of  lecturers  should  not  create  a situation so that they have to condones their own illegality by regularisation.  They should  act promptly  by filling up such vacancies  in accordance  with law.  Their appointments

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should be  strictly on  merit as they are fibre and strength of the University on which future generation depends.      so far  as the  case of  appellant Dr.  Meera Massey is concerned, the  contention by  Dr. Mehrotra  is that she was not even  approved by  the Statutory Selection Committee, as it did  not select her as a Lecturer in Education as she was only Evaluator  in Sociology. Since the University failed to place the  original proceeding  of the  Selection  Committee which would  have put  an end to the controversy whether she was  interviewed   for  her   appointment  as   Lecturer  in Education, Inference  was drawn  by the  High Court  in  the absence of  original  records  produced  that  she  was  not considered and  recommended by  the Selection  Committee for appointment as  Lecturer in  Education.  Through  there  was observation of  her competence  as Lecturer.  However, since the qualification  of the  appellant Dr.  Meera Massey to be appointed as  Lecturer in  Education is  not disputed as she passed M.Ed.  examination in July, 1975, M.Phil in Education form this  very University  and stood first and awarded gold medal and  later did  even Ph.  D. in  Education while being Evaluator. The  dispute, if  any is  whether  the  Selection Committee  approved   her   for   Bociology   or   Education notwithstanding the  findings  of  the  High  court  in  the situation as  aforesaid, we  feel for the same reason as she has also been working for a very long period approved by the Executive Council  we are  not disturbing her appointment as Lecturer on the facts and circumstances of this Case.      For the  aforesaid  reasons  though  we  deprecate  the situation which  was brought  in  by  the  University  which created a  situation for special stipulation, deviating from the normal  mode, but  in view of what we have said above we uphold appellants appointments as Lecturers. Accordingly all the  three   appeals  are   allowed   with   the   aforesaid observations.  Cost on the parties.