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CASE NO.: Appeal (civil) 27  of 2001.         Appeal (civil)  15991    of 1999        Special Leave Petition (crl.)   44412-4431    of 2000

PETITIONER: STATE OF KARNATAKA & ANR.

       Vs.

RESPONDENT: B.  SUVARNA MALINI AND ANR.

DATE OF JUDGMENT:       04/01/2001

BENCH: G.B.Pattanaik, B.N.Agarwal

JUDGMENT:

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     JUDGMENT

     PATTANAIK,J.

     Delay  condoned.   Leave  granted   in  Special  Leave Petitions.   These appeals by State of Karnataka as well  as Karnataka Rajya Sarkari Prathama Darje Collejugala Arekalika Upanyasakara  Sangha,  are directed against the judgment  of the  Karnataka  High Court, dismissing the  writ  petitions, filed  against  the  order of the  Karnataka  Administrative Tribunal.   The  tribunal  entertained the  public  interest litigation  petition  and struck down Rule 2(b)(iii) of  the Karnataka  State  Civil  Services   (Absorption  of  Persons working  as  Part Time Lecturers in the Karnataka  Education Department of College Education) Special Rules, 1996 as well as  the  order dated 15.12.1997, essentially on  the  ground that the stop-gap lecturers are back door entrants and their regularisation  by Rules is contrary to the law laid down by Supreme  Court in several cases and it affects the rights of regular  entrants.   Against the order of the tribunal,  the High  Court  being moved under Articles 226 and 227  of  the Constitution  and the writ petitions having been  dismissed, the present appeals have been preferred.

     These  cases  involve not only a question of  law  but also  a human problem inasmuch as these part time  lecturers have served in different colleges for varying period for ten to twenty years and, if they are not regularised and treated as  regular  servants,  then they will not be  able  to  get themselves engaged anywhere else and at the same time, their experience  in teaching will be a great loss to the  student community.   The  part  time lecturers had  approached  this court  against  the dismissal of their applications  by  the Karnataka  Administrative Tribunal by way of filing  special leave   petitions,   which  were   registered  as  SLP   No. 4440-4454/1992 and 4321/1992.  Those special leave petitions

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were  disposed of by order dated 3.9.1992 and the Court came to  the  conclusion  that  on  that  date  their  exist  626 vacancies  and  the part time lecturers should be  continued till  regular  recruitment to fill up the posts is made  and such  part time lecturers would be eligible to apply to  the State Public Service Commission, whenever, the vacancies are notified  and  applications are called for.  The Court  also took  note  of the fact that the tribunal itself  has  given weight-age at 1% per year of service as part time lecturers, depending  upon  the  number  of years  of  service  or  5%, whichever  is less and also to enhance the maximum age limit upto  10  years in case of part time  lecturers,  possessing teaching  experience  and the weightage is also to be  taken into   consideration   at    the    time   of   recruitment. Notwithstanding  the  aforesaid observations of this  Court, the  State  of Karnataka did not take any further steps  for filling  up 626 vacancies, as a result of which, these  part time  lecturers  could  not make  applications  for  regular recruitment.  They again filed a writ petition under Article 32  in January, 1994, which was registered as Writ  Petition No.21/1994.   In  the  said writ petition, they  sought  for regularisation  of  their services.  While, the  matter  was pending in this Court, the State Government appointed a High Power  Committee  on 28th of February, 1995 to  examine  the problem  and  the impasse and submit a report.  Taking  into account the fact that the Sub-committee has been constituted to  consider the grievances of the part time lecturers,  the writ petition was disposed of by order dated 11.9.1995.  The said order reads as follows:

     It  is  stated  in  the rejoinder  affidavit  that  a sub-committee  has been constituted by the State  Government to  consider  the grievances of the part time lecturers  and the  cases  of all such persons would be considered  by  the Sub-committee.   The  Minister In-charge also seems to  have made  a statement to that effect on the floor of the  House. If that is so, it would be open to the petitioners to make a representation before the sub-committee along with all other persons   similarly   situated.   The   writ   petition   is accordingly dismissed.

     On  consideration  of the grievances made by the  part time  lecturers,  the  High Power  Committee  submitted  its report  with the recommendation that the part time lecturers could  be regularised as one time measure, and the aforesaid recommendation  was more or less for solving the impasse  on account  of inaction on the part of the State government  in taking  regular  steps for filling up the vacancies and  the continuance  of  these part time lecturers, who have  served for  fairly  long period ranging from ten to  twenty  years. The  State of Karnataka, approved the recommendation of  the High  Power  Committee and decided to frame Rules under  the provisions  of Karnataka State Civil Services Act, 1978  for regularisation of these part time lecturers.

     It  may  be  noticed  that the  High  Power  Committee considered  the problems of the part time lecturers in great detail  and  bearing in mind the relevant decisions  on  the question,  made  the recommendation for absorption  of  such part  time lecturers and while making such  recommendations, the  reserved quota in favour of Scheduled  Castes/Scheduled Tribes/other  back-ward  classes under Article 16(4) of  the Constitution  remained  intact.   The  said  Committee  also recommended  that special recruitment rules will have to  be framed  by  the  State  Government  in  exercise  of  powers

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conferred  on it by the Karnataka State Civil Services  Act, 1978  for  the purpose of absorption.  On the basis  of  the aforesaid  recommendations of the High Power Committee,  the State  Government  framed draft rules called  the  Karnataka Civil  Services (Absorption of Persons working as Part  Time Lecturers    with     Karnataka      Education    Department Services)(Department  of  Collegiate   Education)  (Special) Rules,  1996  [hereinafter  referred to as  the  Absorption Rules) in exercise of powers conferred under Section 3 read with  Section  8 of the Karnataka State Civil Services  Act, 1978  [hereinafter  referred  to  as  ’the  Act].   Section 3(2)(b)  of the Act mandates that the draft rules should  be forwarded  to  the Karnataka Public Service  Commission  for necessary  consultation, as provided under Article 320(3) of the Constitution.  The draft rules were notified in Gazette, inviting  objections  and  then the same were  sent  to  the Public  Service  Commission for necessary consultation.   On consideration of all objections received and in consultation with  the  Public Service Commission, the  final  absorption rules  were  published  on  22nd   of  January,  1997.   The Karnataka State Civil Services Act is an Act to regulate the Recruitment  and  the  conditions  of  Service  of   persons appointed  to  Civil Services of the State of Karnataka  and posts  in  connection  with  the affairs  of  the  State  of Karnataka.   Section  3 authorises the State  government  to make  rules,  regulating recruitment and the  conditions  of service.   Section  8 is the rule making power of the  State government  to  make rules to carry out the purposes of  the Act.   Under  Sub-section (3) of Section 8, every rule  made under  the  Act  is required to be laid as soon as  may  be, after it is made before each House of the State Legislature, while  it  is in session for a total period of thirty  days, which  may  be  comprised in one session or in two  or  more successive  sessions,  and any modification in the rule,  as desired by the House, could be carried out or if both Houses agree  that  the rule should not be made, in which case  the rule  will  not be effective and it is only when  the  House agrees  with  or  without any modification, then  the  rules shall have the effect in such modified form.  The absorption rules  being  the  rules made in exercise  of  powers  under Section 8 and the aforesaid requirement under sub-section(3) of  Section  8, having been duly complied with, the rule  is legislative in character and would have the force, as if the State Legislature have framed the rules.

     On  the  public  interest  litigation  filed  by  some intending  candidates for the post of lecturer, the tribunal struck  down  the  absorption rules on the  ground  that  it violates   Article  14  and   seeks  to  legalise  back-door entrants,  even  at the cost of relaxation of  the  relevant qualification  and  must be held to be contrary  to  several decisions  of  this Court.  Reliance has been placed on  the three  Judge Bench Judgment of this Court in Ashwani Kumars case,  AIR  1997 SUPREME COURT 1628, where-under this  Court had  indicated  that an employee whose entry in  service  is illegal  being  in total disregard of recruitment  rules  or being   not   on  existing  vacancy,   has   no   case   for regularisation  and  in  any event,  back-door  entries  for filling up the vacancies have to be strictly avoided.

     Mr.    Kapil  Sibal,  the   learned  senior   counsel, appearing  for  the  part  time  lecturers,  submitted  with vehemence   that  the  question  of  absorption  through   a legislative measure was necessary because of inaction on the

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part of the State machinery in complying with the directions of  this  Court dated 3.9.92 in special leave petition  Nos. 4440-4454/1992  and  even  before   initiating  framing   of absorption  rules,  the State Government have constituted  a special Committee to examine the problems of these part time lecturers  and suggest measures to be taken for  ventilating their  grievances  and  said Committee had  recommended  for absorption  as a one time measure.  According to Mr.  Sibal, therefore,  this is not a clandestine regularisation of  the so-called  back-door entrants, but solving a problem and  an impasse  which was the creation of the inaction on the  part of  the  State machinery and, therefore, there could not  be any  objection  to  such  regularisation,  so  long  as  the essential  qualifications are not sacrificed.  According  to Mr.   Sibal,  these  part  time   lecturers  have  in   fact discharged  the  maximum work load in taking the courses  of study meant for the students and would otherwise loose their livelihood,  if  their services are not regularised and  the legislative  measures  by  way of  enactment  of  absorption rules, subserves the purpose and the tribunal as well as the High  Court committed error in striking down the said rules. By referring to the requirement of the absorption rules, Mr. Sibal  also  submitted  that due care and caution  has  been taken,  so  that unworthy and unqualified hands do  not  get themselves  absorbed and he further urged that if this Court feels  any further stipulation in that regard, the Court may observe  to that effect.  The learned counsel also contended that  he  is  not advocating for  absorption,  generally  of untrained  and unqualified persons but in the case in  hand, the  absorption rules have been framed to meet a special and peculiar  situation and that too, after thoroughly examining the pros and con by an expert Committee and consequently, it stands  on  a different footing than an ordinary process  of absorption  of  back-door entrants and this perspective  has not  been  borne in mind by the tribunal or the High  Court, while  striking down the provisions of the absorption rules. We  find  considerable force in the aforesaid submission  of Mr.  Sibal, appearing for these part time lecturers.  Though some  of  the intending applicants for the post of  lecturer had  moved  the  tribunal  by   way  of  a  public  interest litigation  and  had  been arrayed as party  respondents  in these  appeals,  but there had been no appearance  on  their behalf  and,  therefore, the Court had not the advantage  of having  the opposite view point and for this reason, we have to  scrutinize  the  so-called absorption rules in  a  great detail.   It  may be stated that the State of Karnataka  has also  preferred  a  special leave petition, which  has  been tagged  on  to  the  present   case,  being  SLP(civil)  No. 15991/99  and  the  contentions raised in the  said  special leave  petition are similar to those raised by Mr.  Sibal in the special leave petitions filed on behalf of the part time lecturers.   It  may also be noticed that the order  of  the State Government dated 10.6.1998 as well as the assertion of the  State Government in the special leave petition filed in this  Court  unequivocally indicates that there would be  no compromise   with   the    prescribed   qualification   and, necessarily,  therefore, the part time lecturers, who  would get  themselves  absorbed  under  the  Absorption  Rules  by following  the  prescribed procedure, will have to pass  the N.E.T.   test,  fixed by the University  Grants  Commission, within  the  period  of  three years,  as  provided  in  the Government letter dated 10.6.98 and would not be entitled to the  scale  of  pay  available  for  the  regular  qualified teachers  but would only get the State scale of pay provided they  possess  the  requisite qualification  for  the  state

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scale.   It  is in these perspectives, we are examining  the validity of the Absorption Rules.

     It  is  no doubt true that this Court in the  case  of K.S.P.  College Stop-Gap Lecturers Association vs.  State of@@         JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Karnataka,  AIR  1992  SC  677,  had  indicated  as  to  how appointments  made in disregard of rules and regulations and then  regularising  the  same by process  of  regularisation rules  or order has been unjust and unfair to those who  are lesser  fortunate in society, even though they may be better qualified,  more meritorious and well deserving.  The  Court also  indicated  its anxiety to find that the infection  has been widespread in Government or semi-government departments and  even used a word of caution that even if it is found to have  been  resorted to as a genuine emergency measure,  the Courts  should  be  reluctant to grant  indulgence.   It  is specifically  indicated  in the aforesaid case that  in  the State  of  Karnataka, it is basically State created  problem due  to  defective  rules and absence of  any  provision  to effectively deal with such a situation.  It is this judgment of  the  Court,  which has weighed with the  High  Court  in upholding  the  orders  of  tribunal by  striking  down  the provisions  of the Absorption Rules.  As has been  indicated in  the  impugned  judgment  of  the  High  Court  that  the appointment  of  the  part time lecturers in  the  State  of Karnataka  is  in  vogue  since   1979  and  the  object  of appointment  on  part  time  basis  is  the  utilisation  of services  of unemployed qualified persons and such part time lecturers  are  appointed only when the full  time  teaching staff  is not adequate to cope up with the existing teaching work  load  or when there is no full time teaching staff  in any subject.

     From  time  to  time, the Government  have  also  been issuing   instructions   for  canalizing   the   method   of appointment  and  directing  that even part  time  lecturers could  be  appointed through the Directorate  of  Collegiate Education  and not otherwise.  The Directorate of Collegiate Education  also  has been issuing circulars  indicating  the guidelines.   The reasons which weighed with the High  Court to  sustain  striking down of the Absorption Rules are  that the  so-called  part time lecturers had not  been  appointed after  a  process  of  selection   in  accordance  with  the prescribed rules but on the other hand, their appointment is de  hors  the  rules.   Further   such  candidates  are  not scrutinized by the Public Service Commission and they do not possess  the  N.E.T.   test, as provided by  the  University Grants  Commission, which is one of the essential requisites for  recruitment  under the statutory Recruitment  Rules  of 1993.

     From  the  materials  on record, it appears  that  the State government has been regulating the mode of appointment@@       JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ of  part time lecturers and it is not correct that there has@@ JJ been no process of selection before such appointment of part time lecturers.  Even though the selection had not been made by  the  Public  Service  Commission, but yet  there  was  a process of selection and it further appears that unqualified people were not been appointed as part time lecturers.  Part

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time  lecturers having been formed a class by themselves and for  some reason or the other, they having been deprived  of the  benefits  of  the earlier directions of this  Court  on account of inaction on the part of the State Government, the matter  was  reexamined by a Committee of experts as to  how best,  the  services  of these part time  lecturers  can  be utilised  and at the same time, there will be no dilution in the  quality of teaching nor there can be any infraction  in the  minimum  qualification, necessary for appointment as  a lecturer.   The concept of equality before the law does  not involve  the  idea of absolute equality among  human  beings which  is  a  physical impossibility.  All that  Article  14 guarantees is a similarity of treatment contra-distinguished from  identical  treatment.  Equality before law means  that among  equals the law should be equal and should be  equally administered  and  that the likes should be  treated  alike. Equality  before the law does not mean that things which are different shall be treated as though, they are the same.  It of-course means denial of any special privilege by reason of birth,  creed  or the like.  The legislature as well as  the executive  government,  while dealing with diverse  problems arising  out of an infinite variety of human relations  must of  necessity,  have  the power of making special  laws,  to attain  any particular object and to achieve that object, it must  have  the  power  of selection  or  classification  of persons  and  things  upon which such laws are  to  operate. Mere differentiation or inequality of treatment does not per se  amount to discrimination.  When the Absorption Rules are examined from the aforesaid stand point and when we consider the  circumstances  under which the said rules were made  to solve  a  human problem and that the rules made were put  to objection  to the general public and even the Public Service Commission  was  consulted and finally was before the  State Legislature  to  have  their  concurrence,  we  are  of  the considered  opinion  that the High Court committed error  in striking   down  the  rules  on   the  ground  that  it   is discriminatory.     When   this     Court   deprecates   the regularisation   and  absorption,  when  it  comes  to   the conclusion  that  such  regularisation  and  absorption  has become  a  common method of allowing back door  entries  and then  regularising such entry, it is not that in every case, the Court would be justified in striking down the process of absorption  or regularisation, more so when such  absorption has  been  made as a legislative measure and that also as  a one  time  measure, and at the same time insisting upon  the essential  qualifications  to be duly complied with, by  the persons  intended  to be absorbed on regular basis.  In  the aforesaid  premises,  we have no hesitation to come  to  the conclusion  that  the  tribunal as well as  the  High  Court committed  serious  error  in  striking  down  the  impugned absorption  rules.  We, therefore, set aside the judgment of the  tribunal  and the High Court and allow  these  appeals. While  we  hold the absorption rules to be valid,  we  would further  direct  that the State Government must insist  upon the  candidates to pass the N.E.T.  test, as required by the University  Grants  Commission  within the period  of  three years  and it is only on passing of such test, the  absorbed employees  will  be entitled to the scale of pay,  available for  the regular qualified lecturers.  Failure on their part to  pass  the  N.E.T.   test would  debar  them  from  being absorbed and regularised.

     These   appeals  are  allowed   with   the   aforesaid observations and directions.

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