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

Terming it as glaring example of the "hire & fire" policy and depriving teachers from the service benefits, Rajasthan High Court impressed upon the need to do away with total Adhocism or contractual appointment amongst teachers. It said that nebulous and unsatisfactory conditions of service of the teaching community create a sense of insecurity which may ultimately result in making education set up ineffective and inefficient. This is a significant order coming from the Rajasthan High Court given the difficulties contractual faculty grapple with in universities and colleges across the country. 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...

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

Shayesta Nazir

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