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CASE NO.: Appeal (civil)  1601-1602 of 2004

PETITIONER: Veer Kunwar Singh University Ad hoc Teachers Association & Others

RESPONDENT: The Bihar State University (C.C.) Service Commission & Others

DATE OF JUDGMENT: 18/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  

S.B. SINHA, J. :

1.      These appeals are directed against a judgment and order dated  02.02.2000 passed by a Division Bench of the Patna High Court disposing of  the writ applications filed by the appellants herein on consent as also an  order dated 23.11.2000 passed by another Bench of the said Court refusing  to review the  said order.

2.      Appellant No. 1 is an Association of ad hoc teachers appointed in  various colleges affiliated to Veer Kunwar Singh University.   

3.      The affairs of all the Universities situated in the State of Bihar  including that of Appellant No.1-University admittedly are governed  by the  provisions of the Bihar State University Act, 1976.   

4.      Ad hoc appointments indisputably were made by various Universities  in the State of Bihar.   Ad hoc teachers of Ranchi University had filed writ  applications for regularization of their services, which were dismissed by the  Patna High Court by a judgment and order dated 22.05.1989.  A special  leave petition was filed thereagainst, which was marked as Special Leave  Petition (Civil) No. 11078 of 1989.  A writ petition was also filed before this  Court, which was marked as Writ Petition No. 65 of 1989 inter alia,  for a  direction to the University to take steps to sanction posts against which ad  hoc teachers were working for regularization of their services.  An order of  status quo was granted.

5.      The writ petition as also the special leave petition were taken up for  hearing by this Court together.  By a judgment and order dated 06.12.1989,  the said writ petition and special leave petition were disposed of.  We would  refer to the purport of the order of this Court, a little later.   

6.      However, we may notice that allegedly during the pendency of the  said matter before this Court Magadh University which was the predecessor  of Appellant No.1-University had sent its proposal for creation of 1467  additional posts of lecturers to the Government, which included 426  additional posts which were required for Appellant No.1-University, which  was a part of Magadh University at the relevant time.  State of Bihar and the  University, however, have a different story to tell.  

7.      This Court by reason of the said judgment dated 06.12.1989, inter  alia, noticed the unsatisfactory situation created by repeated appointments of  ad hoc teachers.  This Court deprecated the common practice purported to be  existing in some of the colleges of Bihar to appoint ad hoc teachers at the  instance of/or without reference to the Vice Chancellor and even without any  sanction therefor.  It was held that appointments of ad hoc teacher like  employees were neither good for Universities nor for students.

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8.      We may notice that the petitioners therein, inter alia, contended that  adequate number of posts should be sanctioned so as to conform to the ratio  of teachers and students.  This Court in its judgment directed :

"(i)    The University Service Commission shall  advertise the posts available for direct recruitment  within four months.

(ii)    The Government shall consider the workload in  each University and sanction such additional posts  that may be required, within the said period.  Such  additional posts shall also be filled regularly either  by direct recruitment or by promotion as per rules  and not by ad hoc appointment.

(iii)   The University/Government shall relax the  maximum age prescribed for direct recruitment of  teachers to the extent of service rendered by  persons as ad hoc teachers.

(iv)    All the ad hoc teachers in service on February 10,  1989 against sanctioned posts shall continue till  selection is made by the University Service  Commission and they shall be paid in terms agreed  for the period in which they actually worked.

(v)     Other ad hoc teachers who have worked till that  day must also be paid.

(vi)    The payment shall be made within one month."

9.      It is not in dispute that on an allegation that the said order had not  been complied with,  a contempt petition was also filed before this Court.   As would be noticed hereinafter, this Court discharged the rule issued  against the contemnor.  

10.     Appellant No.1-University was created in the year 1992.  On or about  23.11.1993, an advertisement was issued by the Bihar State University  (Constituent Colleges) Service Commission for appointment of teachers in  different Universities.  Allegedly, at that point of time, additional posts were  not sanctioned.  It is furthermore not in dispute that ad hoc teachers made a  representation before the Chancellor for regularization of their services.  The  University Service Commission had also issued a corrigendum in the said  advertisement asking the candidates to appear in the Bihar Eligibility Test  (BET) for appointment of teachers in different Universities/Constituent  Colleges.   

11.     A writ petition was filed before the Patna High Court by the  Federation of the University Ad hoc Teachers Associations of Bihar, which  was marked as CWJC No. 4001 of 1995.  One Dr. Umesh Prasad Singh also  filed a writ petition, which was marked as CWJC No. 4138 of 1993.  A  Division Bench of the Patna High Court took notice of the said judgment of  this Court and furthermore noticed that all ad hoc teachers were allowed the  benefit of continuation till final selection was made by the University  Service Commission irrespective of the fact as to whether they were  appointed against the sanctioned posts or not.  It also noticed that  unfortunately the time frame prescribed by the Supreme Court had not been  adhered to.  It was noticed that  having regard to an ordinance that was  issued in the year 1993 followed by Act 17 of 1993 as also amendment  thereto in the year 1995 by way of an ordinance followed by Act 12 of 1995  prescribing additional eligibility conditions such as passing Bihar Eligibility  Test or the National Eligibility Test, and in the alternative, holding of Ph. D  or M. Phil Degree had been laid down for recruitment to the said posts.  It  was in the aforementioned premise that another advertisement was issued by

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different Universities and about 1374 candidates were ultimately selected for  appointment and in fact were appointed.   

12.     Before the High Court, contention of the appellants, inter alia, was  that as thousands of posts were still lying vacant which were to be filled up  within the time frame set  by this Court, which if  had been adhered to in  letter and true spirit, the appellants would have been found eligible therefor.   According to the learned Judges the controversies raised before it did not  give rise to any serious dispute in law, rather involved a careful balancing of  equities, with a view to give effect to the judgment and order of the Supreme  Court.         

13.     In that situation when the learned counsel for the petitioners therein as  also the learned Advocate General agreed to a consent order, the same was  accepted by the High Court finding it to be fair and equitable.  One of the  terms of the consent order is as under :

(ii)    The vacant posts shall be identified by a committee  consisting of the Vice-Chancellors of the various  Universities concerned with Hon’ble Mr. Justice S.  Sarwar Ali (retired) as its Chairman and the Secretary,  Higher Education as its Member Secretary.  Within a  period of four months from today, the vacant posts as on  the relevant date i.e. 30th May, 1990 shall be identified by  this committee.  The finding of the committee on this  question shall be final and shall not be challenged by any  one in any proceeding."   

14.     Appellants were  not satisfied therewith.  They filed an application for  review which by reason of an order dated 23.11.2000 has been dismissed.

15.     Appellants are, thus, before us.

16.     Various interlocutory applications by different persons have also been  filed, but it is not necessary to deal therewith separately.            17.     Mr. P.S. Misra, learned Senior Counsel appearing on behalf of the  appellants, inter alia,  would submit that the High Court committed a  manifest error in passing the impugned judgment and order dated  02.02.2000 and refusing to review its order, insofar as by reason of the  consent order, it neither could have modified the terms of the order passed  by this Court, nor could it in contravention of the provisions of the Bihar  State University Act as also the statutes framed thereunder, appoint a  committee of the Vice Chancellors in place and stead of the Bihar University  Service Commission, which is a statutory body.   

18.     It was urged that the State has taken recourse to supperssio veri  inasmuch in its affidavit it had reduced the number of sanctioned vacant  posts only to 55, despite the fact that there are materials on records to show  that there were 289 vacant posts in Magadh University, 249 posts in  Ranchi  University and 292 posts in Bhagalpur University.

19.     The learned counsel would submit that that the order passed by this  Court was binding on the parties and the time frame set therein was required  to be strictly adhered to.  No additional financial burden, the learned counsel  would contend, shall be placed on the exchequer if the directions of this  Court are followed and thereby only the students will be benefitted.   

20.     It was, however, very fairly stated before us that both the University  Service Commission and the College Service Commission have since been  abolished and, therefore, this Court should issue a direction to the State of  Bihar or the Selection Committee to fill up the vacancies by constituting the  selection committee, as may be found necessary.

21.     Mr. Gopal Singh, learned counsel appearing on behalf of the State of

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Bihar, on the other hand, has drawn our attention to the statements made in  the Counter Affidavit filed on behalf of Respondent Nos. 3 and 4 and  affirmed by one Qamar Ahsan, Registrar of Appellant No.1-University,  which are in the following terms :

"6.     That it is submitted that the University has already  identified the vacant sanctioned post in different  colleges and sent to the University Service  Commission for advertisement and  recommendation.  Pursuant to the recommendation  of the commission appointments were made in the  years 1996 and 2003.

7.      That the ad hoc teachers appointed without  authority of law may be treated as contractual  agreement and payment was made on per class  basis.  Such appointment was made merely on  agreement without the consent of the University  which was made from time to time and cannot be  treated as valid appointment.

8.      That the Secretary, Higher Education vide his  letter dated 9.7.2003 has also informed the  University that the Govt. has complied the order  dated 6.12.1989 as directed by the Hon’ble  Supreme Court."      

22.     Our attention has also been drawn to the Counter Affidavit filed on  behalf  of  the State of Bihar,  some relevant paragraphs whereof are as  under :                  "8.     I say that in respect of this Hon’ble Court’s  direction at Sl. No. 1 all the Universities were asked to  report the available vacancies to the University Service  Commission.                                                          9.      I say that in respect of this Hon’ble Court’s  direction at Sl. No. 2 Universities of the State were  requested vide Department letter No. 14/MI-021/89  MA-210 dated 15.2.1990 to send proposal for creation  of additional posts according to the workload by 15th  March, 1990.  The Universities were reminded vide  letter No. 427 dated 28.4.1990 and again vide letter No.  506 dated 5.5.1990.  Many more reminders were also  sent.  In response to these letters, proposals were  received from Magadh, Ranchi and Bhagalpur  Universities.  Other Universities did not send any  consolidated proposal for creation of additional posts in  accordance with the workload.  Therefore, it was  presumed that they did not have requirement for  additional posts of teachers.          10.     I say that on the basis of workload 55 additional  posts have been sanctioned for three concerned  Universities.  The concurrence of Government for  sanctioning these posts has been communicated to the  concerned Universities to enable them to send  requisition to University Selection Committee.         xxx                     xxx                     xxx 12.     I say that in respect of direction given at S. No. 4,  5 & 6, the Universities were asked to comply.  A  contempt petition no. 145/91 was filed in this Hon’ble  Court for not complying with the order of this Hon’ble  Court dated 6.12.1989.  The State Government filed an

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affidavit in the contempt petition and produced  advertisement for 98 posts including 55 addtitional  sanctioned posts for Ranchi, Bhagalpur and Magadh  Universities and this Hon’ble Court discharged the rule  of contempt on 23.9.1991.         xxx                     xxx                     xxx 16.     That the present petitioners of this Special Leave  Petition have been claiming that they are ad hoc  teachers of Veer Kunwar Singh University which had  been bifurcated from Magadh University.  That in case  of Magadh University, the Department of higher  education had given concurrence in creation of  additional posts in some subjects on the basis of  workload.  It is also important to point that it was found  that there had been already excess posts in many  subjects on the basis of workload.  So this finding and  creation of additional posts applying equally to the Veer  Kunwar Singh University which had been part of  Magadh University during 1989 to 1991."      

23.     It was submitted that an advertisement  had been issued in the year  1997, for filling up the 55 sanctioned vacant posts.  Our attention has also  been drawn to the fact that rule in the contempt proceeding, which was  issued had been discharged by this Court upon satisfying itself that there had  been a substantial compliance of this Court’s order.   

24.     The learned counsel would contend that in terms of the provisions of  the Bihar University Act and the statutes framed thereunder, vacancies must  be filled up in accordance with law and in view of the fact that the appellants  had been appointed in violation of the provisions of the said Act as also the  statutes framed thereunder, their appointments were illegal.   

25.     Applicability of the provisions of the Act and the statutes framed  thereunder in the matter of recruitment to the post of teachers in constituent  and affiliated colleges is not in dispute.  Section 57 of the said Act reads as  under : "57. (1)  Subject to the provisions of  this Act and the  statutes, the Bihar State University (Constituent  Colleges) Service Commission shall, as far as may be,  perform, in respect of appointment to the post of teachers  and officers (other than Vice-Chancellor, Province- Chancellor and the Dean of faculty) of the University the  same functions as are assigned to the State Public Service  Commission in respect of the State Services under  Article 320 of the Constitution of India."                   

26.     In terms of the aforementioned provisions, thus, all sanctioned vacant  posts were required to be filled up by candidates who were qualified therefor  and who had been selected by the University Service Commission, which is  a statutory body.  Clause (a) of sub-section (1) of Section 58 of the said Act  provides for appointment on temporary basis without following the  procedure prescribed in Section 57 of the Act; but such appointments shall  not exceed a period of six months.   

27.     It is now a well-settled principle of law that any appointment made in  violation of the constitutional scheme of equality as adumbrated under  Article 14 of the Constitution of India as also in violation of the provisions  of the Act and the subordinate legislations framed thereunder would be  wholly illegal and without jurisdiction.  It has been so held by a Constitution  Bench of this Court in Secretary, State of Karnataka and Others v.  Umadevi  (3) and Others  [(2006) 4 SCC 1].   

28.     The ratio of the said decision has since been followed in a large  number of cases, e.g.  R.S. Garg v. State of U.P. and Others [(2006) 6 SCC

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430], Surinder Prasad Tiwari v. U.P. Rajya Krishi Utpadan Mandi Parishad  and Others [(2006) 7 SCC 684], State of M.P. and Others v. Lalit Kumar  Verma [(2007) 1 SCC 573], Indian Drugs & Pharmaceuticals Ltd. v.  Workmen, Indian Drugs & Pharmaceuticals Ltd. [(2007) 1 SCC 408],  Municipal Corporation, Jabalpur v. Om Prakash Dubey [(2007) 1 SCC 373],  Accounts Officer (A&I), AP SRTC v. K.V. Ramana and Others  [(2007) 2  SCC 324], Punjab Water Supply & Sewerage Board v. Ranjodh Singh and  Others etc. [(2007) 2 SCC 491], State of Punjab and Others v. Lakhwinder  Singh and Others  [(2007) 2 SCC 502], Yamuna Shankar Sharma v. State of  Rajasthan and Others [(2007) 2 SCC 611], and Post Master General, Kolkata  & Others v. Tutu Das (Dutta) [2007 (6) SCALE 453].

29.    The legal position obtaining in this behalf is not in dispute.  The  question which, however, falls for consideration is as to whether the State of  Bihar or the Universities constituted within the State of Bihar were bound to  act in terms of the judgment of this Court.

30.     There cannot be any doubt whatsoever that the judgment of this Court  must be respected by all concerned including those who were not parties  thereto, in view of the provisions contained in Articles 141, 142 and 144 of  the Constitution of India.  If the time frame fixed by this Court for  complying with this Court’s order was not adhered to, a proceeding under  the Contempt of Courts Act was maintainable.

31.     We have noticed hereinbefore, the stand of the State of Bihar.   According to it, the orders of this Court had been complied with and only 55  posts are lying vacant.  We have also noticed hereinbefore that the contempt  notice issued by this Court has also been discharged.  There exists a dispute  with regard to the actual number of vacancies.   

32.     The Respondent-University, according  to the State of Bihar did not  make any recommendation for creating any additional posts of teachers  having regard to the teacher-student ratio.   In the affidavits, the State and  the Respondent-University clearly stated that there were only 55 vacant  posts.  Order of this Court did not say that for filling up the vacancies of one  university, ad hoc teachers appointed in other universities should be  considered.   

33.     However, in the Rejoinder Affidavit to the Counter Affidavit, it is  stated :

"10.    That in reply to para 9  of the counter affidavit, it  is most respectfully submitted that in response to  the letters written by the respondent no. 5 and 6  seeking proposal for creation of additional posts,  according to the workload the Ranchi, Magadh and  Bhagalpur Universities sent their respective  proposal for the creation of 6447 posts of teachers.   It is most respectfully submitted that out of 6447  posts, the Magadh University sent a proposal for  creation of 1467 posts.  After the Division of  Magadh University, out of 1467, 424 posts came to  the share of Veer Kunwar Singh University.

11.     That in reply to para 10 of the counter affidavit, it  is most respectfully submitted that the creation and  advertisement of 55 vacancies only as against the  proposal for creation of 6444 posts by no stretch of  imagination can be said to be the compliance of  the directions given by the court.  Such statement  has been made simply to mislead this Hon’ble  Court by projecting that the order of the Hon’ble  Court are being complied with.  It is further  submitted that under various Universities in  various colleges various departments have been

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opened.  However, for want of regular  appointments various colleges are being run by the  ad hoc teachers since 1982.         xxx                     xxx                     xxx      13.     That in reply to para 12 of the counter affidavit, it  is most respectfully submitted that on 23.09.1991  the respondents 5 and 6 projected before this  Hon’ble Court that in compliance of the direction  of this Hon’ble Court, they have already started  taking steps.  It is reiterated that as against the  proposal for creation of 6447 posts sent by the  Universities, creation of only 55 posts, by no  stretch of imagination can be said to be the  compliance of the judgment of this Hon’ble Court.   It is most respectfully submitted that at the time of  hearing of the Hon’ble Court when the fact of  proposal for creation of 6447 posts was brought to  the notice, the statement was made that it was only  a beginning and further post would be created and  filled in."  

34.     It is neither possible nor advisable to go into the aforementioned  disputed questions of fact.  The stand of the University is clear from the  affidavit affirmed by its Registrar.  Without anything more it is not possible  to reject the averments made therein.     35.     Creation of  sanctioned posts is a sine qua non for recruitment  to the  post of lecturers.  Adherence to the statutory provisions therefor is  imperative in character.  No doubt the qualification for holding the post of  lecturer has since been changed in terms of the ordinance promulgated in the  year 1993, but then the same was done as per the directions of the University  Grants  Commission.  The colleges whether constituent or recognized must  have lecturers who are qualified to hold the post.  Qualification to hold the  post of lecturer is fixed by the University Grants Commission.  A University  can ignore the directions of the University Grants Commission in this behalf  only at its own peril and risk of  derecognition.  Neither it is permissible for  a University to contravene the directions of the University Grant  Commission nor, in our opinion, is it permissible for a court of law to issue a  direction contrary thereto.  Evidently, the endeavour on the part of the  appellants and interveners herein was to obtain a direction from this Court  that their cases may be considered by a Public Service Commission or in its  absence by the State or by the University on the basis of a qualification held  by them prior to 1993.  In our opinion, no such direction at this point of time  can be issued.  We will assume that the State and/or Universities had failed  to adhere to the time frame fixed by this Court, but even if a violation of this  Court’s order in that behalf had taken place, the same by itself would not  lead to an inference that the respondents were still to obey the order of this  Court, despite the change in law, which had taken effect in this behalf.  Such  a direction cannot be given at this stage in view of the decision of the  Constitution Bench of this Court in Umadevi (supra), wherein it was  directed : "53. One aspect needs to be clarified. There may be cases  where irregular appointments (not illegal appointments)  as explained in S.V. Narayanappa, R.N. Nanjundappa    and B.N. Nagarajan and referred to in para 15 above, of  duly qualified persons in duly sanctioned vacant posts  might have been made and the employees have continued  to work for ten years or more but without the intervention  of orders of the courts or of tribunals. The question of  regularisation of the services of such employees may  have to be considered on merits in the light of the  principles settled by this Court in the cases abovereferred  to and in the light of this judgment. In that context, the  Union of India, the State Governments and their

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instrumentalities should take steps to regularise as a one- time measure, the services of such irregularly appointed,  who have worked for ten years or more in duly  sanctioned posts but not under cover of orders of the  courts or of tribunals and should further ensure that  regular recruitments are undertaken to fill those vacant  sanctioned posts that require to be filled up, in cases  where temporary employees or daily wagers are being  now employed. The process must be set in motion within  six months from this date. We also clarify that  regularisation, if any already made, but not sub judice,  need not be reopened based on this judgment, but there  should be no further bypassing of the constitutional  requirement and regularising or making permanent, those  not duly appointed as per the constitutional scheme.   

54. It is also clarified that those decisions which run  counter to the principle settled in this decision, or in  which directions running counter to what we have held  herein, will stand denuded of their status as precedents."  

36.     It may be, as was submitted by the learned Senior Counsel, that ad  hoc teachers have been working for the last 20 years or more, but it is also  beyond any dispute that they had been doing so pursuant to  orders passed  by this Court or by the High Court from time to time.  Even this Court in its  order dated 06.12.1989 had issued such a direction.  But for the orders of the  superior courts, their services would have been terminated by the University.  37.     There has been a sea change in the legal position in view of the  decision in Umadevi (supra) and a large number of decisions of this Court  following it.  In a situation of this nature, when a subsequent event has  occurred and when there exists a dispute as to whether order of this Court  has substantially been complied with or not, it would not be proper for us to  put the parties to the same position to which they were in 1989.

38.     The practice to appoint ad hoc teachers must be deprecated.  If a  Government of a State or a University which is also a State within the  meaning of Article 12 of the Constitution of India, despite the repeated  observations of the superior courts of the country, continue to do so, such a  practice must be condemned.  

39.     Directions can be issued to the State to act within four-corners of the  statute and to declare any action taken in contravention thereof to be a  nullity; but it would not be permissible for this Court to go beyond the  provisions of the statute and issue a direction that cases of all the appellants  must be considered irrespective of the fact as to whether their appointment  even as ad hoc teachers was against  a sanctioned post or they have been  working against the non-sanctioned posts or not.   

40.     We may at this stage notice that even before the High Court it had  been conceded that many teachers have been appointed on an ad hoc basis  on non-sanctioned posts.  We fail to understand how this could be validly  done. Those teachers who could compete with others having requisite  qualification must be appointed by the University Service Commission in  accordance with the provisions of the Bihar State Universities Act.  Appellants may have the requisite qualification at the relevant point of time,  but we must also consider that since then a large number of other persons  must have acquired the requisite qualification for being appointed to the said  posts, who cannot be deprived of their right to be considered for  appointments along with other eligible candidates in terms of Article 14 of  the Constitution of India.     

41.     We, therefore, are of the opinion that having regard to the legal  position obtaining, it is not possible to agree with the submissions of Mr.  Misra.  It may be that the High Court should not have constituted a  committee but then constitution of a committee was directed with consent.  

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By consent the statutory provisions cannot be violated.  By consent  jurisdiction cannot also be conferred.  Here, however, is a case where parties  consented to find out the actual number of additional posts which were  required for the benefit of the students.  However, in view of the order  proposed to be passed, we may not enter into the said question.  

42.     In B.S. Bajwa and Another v. State of Punjab and Others [(1992) 2  SCC 523], to which our attention was drawn by Mr. Misra,  this Court held : "6. Obviously on this conclusion alone the writ petition  should have been dismissed by setting aside the judgment  of the Single Judge allowing the LPA without any caveat.  However, the Division Bench, after reaching the above  conclusion, proceeded to grant the benefit of a much  earlier date, namely, 6-4-1964 as the date of appointment  on the basis of a concession of the Additional Advocate  General made therein without considering the effect of  the same or of taking into account the inconsistency with  its earlier finding. We have no doubt that the concession  on this point, being one of law, it cannot bind the State  and, therefore, it was open to the State to withdraw as it  has been done by filing a review petition in the High  Court itself\005"  

43.     In Swami Krishnanand Govindanand v. M.D. Oswal Hosiery (Regd.)   [(2002) 3 SCC 39], this Court observed :         "4. The learned counsel next contended that the  statement of the learned counsel for the respondent  should be treated as a compromise as the Court granted  five years’ time to the respondent for vacating the suit  premises. In our view, this contention has to be rejected.  The compromise like a contract postulates consensus  between two parties. A statement of a counsel conceding  the grounds of eviction and seeking some time for the  respondent to vacate the premises, cannot be termed a  compromise."  

44.     We may, however, notice that in Employers in relation to  Monoharbahal Colliery Calcutta v. K.N. Mishra and Others [AIR 1975 SC  1632]  , the power of an advocate to make concession on behalf of his client  as envisaged under Order III of the Code of Civil Procedure has been  recognized.  There are only certain exception thereto, e.g. when such consent  is against law or otherwise not binding on the parties.

45.     We, however, are of the opinion that it is not necessary for us to go  into the said question.

46.     We, therefore, are of the opinion that the interest of justice would be  subserved if it is directed that the respondents herein in filling up of the  vacant posts must take into consideration the cases of all those teachers also  who have the requisite qualifications, upon relaxation of age, if permissible  by law along with other eligible candidates.  We may, however, direct that it  would be open to the State of Bihar as also the concerned Universities to  forthwith terminate the services of those teachers not working against  sanctioned posts or who do not fulfill the requisite educational qualifications  or whose services are otherwise not required.

47.     The appeals and connected interlocutory applications are dismissed  with the aforementioned observations.  In the facts and circumstances of the  case, however, there shall  be no order as to costs.