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TMI Blog2007 (5) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... arat Sangal and Rajesh Prasad Singh, Advs. JUDGMENT 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 there against, which was marked as Special Leave Petition (Civil) No. 11078 of 1989. A writ petition was also filed before this Court, which was mark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes, 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 therefore 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ors. AIR1975SC1632 , 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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