1998 Supreme(SC) 147

1998(3) Supreme 50
Supreme Court of India
(From Himachal Pradesh High Court)
K. Venkataswami and A.P. Misra, JJ.
Dr. (Mrs.) Meera Massey & Ors. -Appellants
versus
Dr. S.R. Mehrotra & Ors. -Respondents
Civil Appeal Nos. 13707-13709 of 1996
Decided on 3-2-1998
Counsel for the Parties :
For the Appearing Parties : A.K. Sikri, Sr. Advocate, Dr. Balram Gupta, Ashok K. Mahajan, Mrs. Madhu Sikri, V.K. Rao, Sunil Gupta, Dr. K.S. Chauhan, Anil Nag, Naresh K. Sharma, Advocates.
For the Respondent No. 1 : In person.

Headnote:Service Law-Himachal Pra­desh University Ordinance-Ordi­nance 35.11-Appointment of faul­ty members-Appellants were Research Associ­ates and Evaluators appointed on temporary stop gap arrangement-Executive council by resolution declared Research Asso­ciates/Evaluators as wasting and vanishing cadre-Subsequent reso­lu­tion to regularise and designate them as lecturers-Statutory Selec­tion Committee ascertained their suitability for post of lecturers-On its recommendation they were appointed as lecturers-Professor of a department of university challenged appointment as illegal as being violative of Ordinance 35.11 which contemplates selection through advertisement-High Court held appointment was violative of Ordinance and quashed appointment-University’s stand that regularisation and appointment was on ground of equity, justice and fair play since they were working for a long time-Held, appointment could be only by promotion and direct recruitment through advertisement -Regularisation does not amount to promotion-Appointments of appellants were illegal - However on facts and circumstances setting aside and disturb­ing appointments at this stage would create turmoil and affect appel­lants and students -Appointment upheld.

       Held : 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 both. 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 in 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 recognised. 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 fair 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 was passed the thinking of the University was different. They resolved, Research Associates were wasting and vanishing cadre, no such future appoint­ment be 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 permanent absorption through a regular selection com­mittee. The Executive Committee till this time was not thinking of any special stipulation/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”. (Para 16)

       It is 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 bring in articulated sympathy to justi­fy special stipulated condition. Even if one has all the minimum qualification for a higher grade post and is or 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 competitors 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 i.e. 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. Not 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 the 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 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? (Para 17)

       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. (Para 18)

       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, ethics 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. (Para 19)

       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 was nothing against these appellants. They are all competent teachers fully qualified to be 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. (Para 21)

        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. (Para 24)

       Further held that every institution especially the Universi­ties while making appointment of lecturers should not create a situa­tion so that they have to condone their own illegality by regularisa­tion. They should act promptly by filling up such vacancies in accord­ance with law. Their appointments should be strictly on merit as they are fibre and strength of the University on which future generation depends. (Para 22)