Case Brief
State of Karnataka and Anr v. B. Suvarna Malini and Anr– Appeal (civil) 27 of 2001, Appeal (civil) 15991 of 1999, Special Leave Petition (crl.) 44412-4431
Deciding Authority
Supreme Court
Name of the Judges
G.B.Pattanaik, B.N.Agarwal JJ.
Date of Judgment
4th January 2001
Facts of the Case
Appeals by State of Karnataka as well as Karnataka Rajya Sarkari Prathama Darje Collejugala Arekalika Upanyasakara Sangha, 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 had 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.
Background-
The part time lecturers had approached the Supreme 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 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 Supreme 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 had 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 read 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. 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 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.
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.
Judgment
Mr. Kapil Sibal, the learned senior counsel, appearing for the part time lecturers, submitted that the question of absorption through a legislative measure was necessary because of inaction on the 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 onetime measure. 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. 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.
The Hon’ble court observed 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 scale. Failure on their part to pass the N.E.T. test would debar them from being absorbed and regularised.
Decision
Appeals were allowed with the above mentioned observations.
Shubham Shandilya, IVth Year, B.B.A. LL.B., Symbiosis Law School, Pune
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