B SUVARNA MALINI Vs. KARNATAKA ADMINISTRATIVE TRIBUNAL BANGALORE

JUDGEMENT

(1.) PROLONGED and repeated bane of Service Jurisprudence of the State of Karnataka has been the appointment of ad hoc/part-time lecturers in the Government Aided Colleges/government independent Junior Colleges and their consequent absorption in service for the purpose of conferment of permanent status. Supreme Court of India in its judgment in Karnataka State private College Stop-Gap Lecturers' Association v State of Karnataka and Others, pointed out as to how an individual problem after becoming the family problem goes on to become a malignant disease afflicting the society in general giving rise to the contending equities between the two groups of 'haves' and 'have nots': It was observed: "2. Ad hoc appointments, a convenient way of entry usually from back-door, at times even in disregard of rules and regulations, are comparatively recent innovations to the service jurisprudence. They are individual problem to begin with, become a family problem with passage of time and end with human problem in Court of law. It is unjust and unfair to those who are lesser fortunate in society with little or no approach even though better qualified, more meritorious and well deserving. The infection is widespread in Government or semi-Government departments or State financed institutions. It arises either because the appointing authority resorts to it deliberately as a favour or to accommodate someone or for any extraneous reason ignoring the regular procedure provided for recruitment as a pretext under emergency measure or to avoid loss of work etc. or the rules or circulars issued by the department itself empower the authority to do so as a stop-gap arrangement. The former is an abuse of power. It is unpardonable. Even if it is found to have been resorted to as a genuine emergency measure the courts should be reluctant to grant indulgence. Latter gives rise to equities which have bothered courts every now and then. Malady appears to be widespread in educational institutions as provisions for temporary or ad hoc appointments have been exploited by the managements of private aided colleges to their advantage by filling it, on one hand, with persons of own choice, at times without following the procedure, and keeping the teachers exposed to threat of termination, on the other, with all evil consequences flowing out of it. Any institution run by state fund but managed privately is bound to suffer from such inherent drawbacks. In State of karnataka it is basically State created problem due to defective rule and absence of any provision to effectively deal with such a situation". It was pointed out by the Supreme Court that the problem is basically a State created problem which arises either because the Appointing Authority resorts to it deliberately as a favour or to accommodate someone or for any extraneous reason ignoring the regular procedure provided for recruitment as a pretext under emergency measure. Appointment on temporary/ad hoc basis have been exploited by the managements to do favours and give appointments to persons of their own choice without following the regular procedure provided for filling up the posts.

(2.) IN spite of the above quoted observations of the Supreme Court, the State of Karnataka did not instruct itself well and repeated the mistake by publishing the draft rules called the Karnataka education Department Service (Department of Collegiate Education Department) (Special)Rules, 1996 inviting objections from the public. Certain interested persons filed objections. Thereafter, the Government got published the final rules in the Official Gazette on 22nd of january, 1997 called as the Karnataka State Civil Services Rules (Absorption of Persons working as Part-time lecturers in the Karnataka Education Department Service) (Department of collegiate Education) (Special) Rules, 1996 (hereinafter called 'the Absorption Rules' ). Relevant rules for the purpose of adjudication of the issues are:

(3.) ABSORPTION of part-time lecturer into Kamataka State Civil Services,-- (1) Notwithstanding anything contained in the Kamataka Education Department Services (Collegiate Education department Recruitment) Rules, 1964 and the Karnataka Civil Services (General Recruitment)Rules, 1977 or the rules of recruitment relating to recruitment of lecturers for Government First grade Colleges made or deemed to have been made under the provisions of the Karnataka State civil Services Act, 1978 (Karnataka Act 14 of 1990), part-time lecturers whose names have been notified by the State Government under sub-rule (2) shall be with effect from the date of such notification be absorbed in the category of posts of lecturer in the Karnataka Education department Services (Department of Collegiate Education) in the scale of pay of Rs. 2,200-4,000: provided that appointment shall not be made under these rules against any post earmarked to be filled from among candidates belonging to the Scheduled Castes or the Scheduled Tribes under the Government Order allowing reservations, unless there are candidates belonging to these classes available from among the part-time lecturers to be absorbed; otherwise such posts shall be treated as backlog to be filled by process of special recruitment from among these classes. (2) The State Government shall constitute one or more Committees consisting of such number of members as it deems fit, for the purpose of recommending to the State Government, the names of eligible part-time lecturers for absorption. The State Government shall, on receipt of such recommendation notify the names so recommended by the Committee. (3) The Committee shall determine its own procedure. (4) The entire process of recommendation of names of eligible part-time lecturers and notifying such names shall, as far as may be completed before the first day of June, 1997. (5) The inter se seniority of such part-time lecturers shall be determined on the basis of length of service as part-time lecturers and where length of service is same, seniority shall be determined on the basis of age, the older in age, being senior to a part-time lecturer who is younger in age". Government issued a notification dated 17-11-1997 amending Rule 3 of the Absorption Rules retrospectively making it effective from 22nd January, 1997 providing that in sub-rule: " (i) the words 'as and when vacancies arise' shall be inserted at the end; (ii) after the first proviso, the following shall be inserted: provided further that appointment shall not be made under these rules against any post earmarked to be filled from among candidates belonging to any category of other Backward classes under the Government orders providing for reservation unless candidates belonging to such category are available from among the part-time lecturers to be absorbed and the posts remaining vacant in any category of other Backward Classes for want of sufficient number of candidates belonging to such category from among the part-time lecturers shall be filled by direct recruitment". 3. In the State of Karnataka appointment of part-time lecturers has been in vogue since 1979. Method of appointment of part-time lecturers and allowance for workload for every one hour has undergone series of revisions since 1979. The object of appointment on part-time basis has been the utilization of services of unemployed qualified persons. As a rule the appointment of part-time lecturers is necessitated only when full time teaching staff is not adequate to cope up with the existing teaching workload or when there is no full time teaching staff in any subject. Since the appointments were being made without following any procedure whatsoever in the individual colleges, in the year 1983, a circular was issued by the Directorate of Collegiate education on 30th September, 1983 to the effect that appointment of part-time lecturers must be canalized only through the Directorate of Collegiate Education and not through Principals or heads of Departments. Similarly, Directorate of Collegiate Education issued another circular dated 23rd June, 1988 giving guidelines as to the appointment of part-time lecturers. In addition to the above circular, number of circulars were issued subsequently. The salient features of the circulars being: