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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@@

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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@@

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of part time lecturers and it is not correct that there has@@

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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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