Do Away With Contractual Appointment Or 'Total Adhocism' Amongst Teachers: Rajasthan HC [Read Order]

Bench of Justice P. K. Lohra and Justice Arun Bhansali was hearing writ petitions filed by three contractual employees of National Law University, Jodhpur, who were released by the university in wake of university's decision to discontinue B.Sc. L.L.B Course.

Petitions depicted longevity of writ petitioners' service tenure and excellence in performance of their duties which stood acknowledged by the university. Petitioners had challenged the decision of the university to discontinue B.Sc. L.L.B course portraying it as an absolutely arbitrary, unreasonable dehors the aims and objects behind the concept of 5 years' law course approved by the Bar Council of India.

Besides this, petitioners' had also challenged the vires of University Service Regulations, 2001(Regulations 5 & 6 of the Regulations) and amended/inserted Regulations 37 & 38 saying they are contrary to the basic tenets of welfare state. Regulations 5 & 6 were also challenged on the anvil of not satisfying the requirements of Article 14, 16 and 21 of the Constitution precisely by urging that how and in what manner University can be allowed to treat a faculty member as a casual or contractual employee for years altogether.

Division bench without going into the merits of the case discussed at length the constitutionality of the Regulations and spelled out the details of the vice of contractualism in the universities. It said that all other reliefs asked for in the petitions can be claimed by the petitioners' before single judge bench of the court.

Subordinate Legislation Did Not Conform To the Parent Statute

Court observed that Section 17 of the Act of 1999, while delegating powers to Executive Council to frame Regulations has not provided guidelines. It said that although parent Act has delegated powers to Executive Council to make subordinate legislation but the power of the delegatee cannot be unbriddled and uncanalized so as to make subordinate legislation which do not conform to the parent statute or violate fundamental rights enshrined under Chapter III of the Constitution.

It said that if the entire Act of 1999 is examined objectively, then it would ipso facto reveal that there is no specific provision prescribing selection procedure and nature of appointments of teaching staff/faculty members or other officials in the University. Therefore, if validity of the Regulations is tested on the anvil of ground i.e. "failure to conform to the statute under which it is made or exceeding the limit of the authority conferred by the enabling Act", then it would be amply clear that the impugned Service Regulations are not edificed on any source envisaged in the parent statute i.e. Act of 1999.

"Therefore, impugned Service Regulations 5, 6 and amended/inserted Service Regulations 37 & 38 of employing teachers on contract basis for a tenure or on adhoc term, providing for termination of contract by giving one month's notice and non renewal/extension of contract of employment in certain contingencies, are manifestly arbitrary and unreasonable."

Court also held the regulations as unconstitutional and in clear negation of Articles 14, 16 & 21 of the Constitution.

"If the impugned Service Regulations are examined within the parameters of service jurisprudence by applying concept of a model employer vis-à-vis respondent-University being a wing of welfare State, then indisputably we are of the view that impugned Service Regulations are in clear negation of Articles 14, 16 & 21 of the Constitution."

Considering the contention of the petitioners that the procedure for selection provided under the Regulations is dehors the Act of 1974 and repugnancy of the impugned Service Regulations with the provisions of the Act of 1974 is writ large, court was aghast over the counter from the respondents pleading that it is autonomous and the Act of 1999 being special Act, any subordinate legislation under this Act cannot be controlled by the provisions of the Act of 1974.

It observed:

"We are aghast that respondent-University by simply boosting its credentials as premier law institution and the so-called autonomy which it is enjoying, cannot be allowed to claim liberty to thwart law of the land."

"Upon perusal of the Act of 1999 with bird's eye view, we are unable to lay our hand on any provision which has granted exemption to the respondent-University from following procedure for recruitment envisaged under the Act of 1974."

Generaliabus specialia derogant Not Applicable

Rejecting the contention of the University that 1999 Act is a special statute and general act should give way to it, court said that even if it accepts the plea of the respondent-University that Act of 1999 is a special statute, the legal maxim generaliabus specialia derogant, i.e., things special restrict things general then too the same cannot be invoked in abstract sense because there is no reference in the Act of 1999 to the previous legislation i.e. Act of 1974. It said in these circumstances, exception to the aforementioned maxim, i.e., generalia specialibus non derogant, which means things generally do not restrict (or detract from) things special, is clearly invocable.

Quality Education As a Smokescreen for Policy of Adhocism Not Allowed

Court not agreeing with the contention of the counsel for the university that the quality education can only be imparted by contractual teachers/faculty members and not by a regular faculty observed that University being an instrumentality of the State cannot be allowed to "adopt a policy of total adhocism in the guise of a jejune plea of imparting quality education."

Quoting examples of International Universities like Harvard, Oxford, Cambridge etc., it said that some of the best international universities imparting best Law education in the world are not only maintaining teacher and student ratio but employing regular teaching faculty to ensure best results. It said that there is no National or International University involved in imparting quality Law education, which has not employed regular teaching faculties and are simply thriving on contractual teachers or adhoc teachers.

It also quoted examples of Indian Universities like NLS, Bangalore, NALSAR Hyderabad, NLU Delhi etc. to say that the Indian Universities imparting quality Law education too are not employing entire teaching faculties on contract/adhoc basis but employing regular teaching faculties.

Regular Appointment Must Be the Rule

Court emphasized on the observation of the Constitution Bench of the Supreme Court in Secretary, State of Karnataka Vs. Uma Devi (3) & Ors. [(2006) 4 SCC 1], wherein it had observed:

"But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule."

Government Service Doesn't Mean Mortgaging or Bartering Away Basic Rights

Court said that any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending Article 21 of the Constitution. The Government, only because it has the power to appoint, does not become the master of the body and soul of the employee. It further observed that joining government service doesn't mean mortgaging or bartering away basic rights as a human being.

"In the present scenario, right to life with human dignity with minimum sustenance and shelter, including all those rights and aspects of life which would go to make a man's life complete and worth living, would form part of life. Therefore, on joining government service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental right in favour of the Government."

Court said further that the University being a statutory body is not expected to employ teachers and other officials on contract/adhoc basis for years together, more particularly when the duties and functions discharged by them are of perennial nature.

"When law prohibits employment of workmen on contract basis for years together if duties assigned to them are of perennial nature, we are afraid how teachers can be treated below par the workmen. In Indian context, the status of a teacher vis-a-vis disciple is at the highest esteem and they are treated with reverence."

Court said that it is a glaring example of the concept of "hire & fire" and depriving teachers from the legitimate service benefits and desired for abolishment of system of total Adhocism or contractual appointments amongst teachers.

It accordingly declared impugned Service Regulations 5 & 6 of the Regulations and amended Regulations 37 & 38 ultra vires and struck them down.

Petitioner(s) were represented by Senior Advocate Rajesh Joshi, with advocates Vineet R. Dave & Kamal Dave and respondent(s) by Kuldeep Mathur with Rajvendra Saraswat & Himanshu Shreemali for the State.

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