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2013 Supreme(Pat) 43
IN THE HIGH COURT OF JUDICATURE AT PATNA
AJAY KUMAR TRIPATHI, J.
Anand Kumar son of Sri Abhay Kumar Yadav - Petitioner
Versus
The State Of Bihar through the Secretary, Human Resources Development Department (Higher Education), Government of Bihar, Patna & Ors. – Respondents
Civil Writ Jurisdiction Case No.15350 of 2007
Decided on: 10-01-2013
Advocate Appeared
For the Petitioners: Mr. Y.V. Giri, Mr. Pranav Kumar
For the Respondent/s: Mr. SC 7 Mr. H.P. Singh, Mr. Arbind Kumar
The main legal point established in the judgment is that the observation of the Hon’ble Supreme Court cannot be read down to allow the continuance of adhoc teachers, and the removal of adhoc teachers is a necessary step towards filling up the posts on a regular basis after following the procedure, as compelled by the Hon’ble Apex Court.
Headnote:
Adhocism - Higher Education in the State of Bihar - 1989 order, Veer Kunwar Singh University Adhoc Teachers Association & ors. V. the Bihar State University (C.C.) Service Commission & ors. - The court discussed the 1989 order of the Hon’ble Supreme Court and the observations of the Hon’ble Apex Court in the case of Veer Kunwar Singh University Adhoc Teachers Association & ors. V. the Bihar State University (C.C.) Service Commission & ors. The court highlighted the condemnation of the practice of appointing ad hoc teachers, the requirement for appointments to be made in accordance with the provisions of the Bihar State Universities Act, and the direction for the State and the University to take steps for filling up the posts in accordance with statute and the law within a reasonable time frame.
Fact of the Case:
The petitioner filed a writ application challenging the termination of services of adhoc teachers by the respondent- B. N. Mandal University, citing misapplication of the direction of the Hon’ble Supreme Court in the case of Veer Kunwar Singh University. The petitioner argued that the direction did not apply to his case as he had been in the capacity of a teacher for almost two decades.
Finding of the Court:
The court found that the petitioner had been an adhoc teacher without acquiring any permanency, and the observation of the Hon’ble Supreme Court could not be read down to allow his continuance on the post. The court held that the removal of the petitioner was a first step towards filling up the posts on a regular basis after following the procedure, as compelled by the Hon’ble Apex Court.
Issues: The issues revolved around the misapplication of the direction of the Hon’ble Supreme Court in the case of Veer Kunwar Singh University, the status of adhoc teachers, and the requirement for appointments to be made in accordance with the provisions of the Bihar State Universities Act.
Ratio Decidendi: The court held that the observation of the Hon’ble Supreme Court could not be read down to allow the petitioner's continuance on the post, and the removal of the petitioner was a necessary step towards filling up the posts on a regular basis after following the procedure, as compelled by the Hon’ble Apex Court.
Final Decision: The writ application was dismissed, and the court directed the State and the University to take steps for filling up the posts in accordance with statute and the law within a reasonable time frame.
1. Adhocism seems to be the bane for most of the ills of the Higher Education in the State of Bihar. Series of decisions over long period of time rendered by the Apex Court or this Court has not helped in cleaning up the stable, as would be evident from reading of the present writ application and the issues raised therein.
2. As far back as in the year 1989, the Hon’ble Supreme Court had taken note of the manner in which large number of adhoc teachers came to be appointed, either by Vice Chancellors or Principals of various colleges, without any advertisement or sanctioned posts being available. Though ad hoc appointments were valid for a period of six months but they have been allowed to continue from one decade to the next. The Hon’ble Supreme Court in the order contained in Annexure- 2 has also taken note of the case where salary was being paid to such teachers from provident fund, development fund, building fund etc. which can never be the source for funding such teachers. Clear directions came to be issued on 6th of December, 1989 to bring an end to the adhocism by resorting to permanent arrangement. The direction of the Apex Court is reproduced herein below :
“(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 adhoc 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 adhoc teachers.
(iv) All the adhoc 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 adhoc teachers who have worked till that day must also be paid.
(vi) The payment shall be made within one month.”
3. There is nothing available from record that these directions of the Hon’ble Supreme Court were followed in letter and spirit. If that had been, there may not have been many other litigations by various teachers on this issue. But it was not be as cases on the issue continue to pour before this Court and before the Apex Court.
4. We are not required to take note of all those decisions. What is of relevance is the decision which had been rendered by the Hon’ble Supreme Court in the case of Veer Kunwar Singh University Adhoc Teachers Association & ors. V. the Bihar State University (C.C.) Service Commission & ors., reported in 2007 (3) PLJR 262 (SC). This was yet another matter where the question of status of adhoc teachers and their rights for continuance or permanency was the subject matter of consideration by the Apex Court. The Division Bench of the Hon’ble Supreme Court after taking note of the various other decisions rendered from time to time, again opined in similar manner in which the 1989 order was passed. The observations of the Hon’ble Apex Court rendered in paragraphs 38, 39 and 40 are reproduced herein below:
“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
