ition Civil No 873 of 1990
Under Article 32 of the Constitiution of India WITH Contempt Petition No 6 of 1991
AND Civil Appeal Nos
309 to 373 of 1992
RK Garg Kapil Sibal V Lakshmi Narayanan DK Garg and P Mahale for the Petitioners
RN Narasimhamurthy Kh
Nobin Singh and M Veerappa for the Respondents
The Judgment of the Court was delivered by RM SAHAI J
Teachers appointed temporarily for three months or less by privately managed degree colleges receiving cent per cent grant in aid controlled administratively and financially by the Educational Department of the State of Karnataka seek regularisation of their services by invoking principle of equitable estoppel arising from implied assurance due to their continuance as such for years with a break of a day or two every three months
Another basis for direction to regularise is founded on denial of similar treatment by the State as has been extended to contract teachers and local teachers appointed in government or vocational colleges
Payment of fixed salary instead of regular emoluments for eight months in a year and that too for number of years is yet another grievance
Ad hoc appointments a convenient way of entry usually from back door at times even in disregard of rules and regulations are comparatively recent innovation 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 401 widespread in government or semi government departments of 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 provsions to effectively deal with such a situation
What is surprising is that till today the State has not been able to bring out a comprehensive legislation on such an important aspect as education and the appointment selection promotion transfer payment of salary etc
of teachers is regulated by government orders issued from time to time
Since 1980 it is governed by an order issued by Educational and Youth Services Department of the State of Karnataka on 3rd October 1981
Clause 5 of the Order reads as under Any appoinment for a period of three months or less in a College shall be made subject to approval of the Director within one month from the date of appointment by the Management or such authority as the Management by Order may specify in that behalf
Such temporary appointments may however be continued for a further period of not more than three months with one day s break when selection through the Selection Committee is likely to take time
The Director may for reasons to be recorded in writing refuse approval for the said appointment and the services of the person so appointed shall be terminated forthwith
 Appointments for more than three months is to be by a regularly constituted selection committee under clause 4 of the order
But if is for three months or less than the appointment could be made by the 402 Management under clause 5 subject to approval by the Director
It could be continued for further period of three months if there was delay in regular appointment
But the direction to re appoint with one day s break is not understandable
If the intention was to differentiate between appointments for more than three months and others it was a futile exercise
That had already been achieved by providing two different methods of selection one by Selection Committee and ohter by Management
Distinction between appointment against temporary and permanent vacancies are well known in service law
It was unnecessary to make it appear crude
If the purpose was to avoid any possible claim for regularisation by the temporary teachers then it was acting more like a private business house of narrow outlook than government of a welfare State
Such provisions cannot withstand the test of arbitrariness
That is why the High Court while disposing of CMW 6232 of 1990 BR Parineeth  Ors
vs The State of Karnataka  Others along with many other petitions by its order dated 3rd July 1990 criticised such practice as pernicious
The rule making authority lost sight of fact that such policy was likely to give dominance to vested interests who leave no opportunity to exploit the educated youth who have to survive even at cost of one meal a day
That is apparent from continuance of these teachers for 8 to 10 years with sword of termination hanging on their head ready to strike every three months at the instance of either the management or the Director
Provision of stop gap appointments might have been well intended and may be necessary as well but their improper use results in abuse
And that is what has happened on a large scale
The helplessness expressed by the State in the counter affidavit that the managements went on continuing such teachers without holding regular selections despite orders of educational authorities may be true but not convincing
It sounds like surrender in favour of private managements
Another obnoxious part is the emoluments that have been paid to the temporary teachers
The order provides that the teacher shall be paid a fixed salary which is ten rupees less than the minimum payable to regular employee
This method of payment is again beyond comprehension
An appointment may be temporary or permanent but the nature of work being same and the temporary appointment may be due to exigency of service non availability of permanent vacancy or as stop gap arrangement till the regular selection is completed yet there can be no justification for paying a teacher so appointed a fixed salary by adopting a different method of payment than a regular teacher
Fixation of such emoluments is arbitrary and violative of Article 14 of the Constitution
The evil inherent in it is that apart from the teachers being at the beck and call of the management are in danger of being exploited as has been done by the management 403 committees of State of Karnataka who have utilized the services of these teachers for 8 to 10 years by paying a meagre salary when probably during this period if they would have been paid according to the salary payable to a regular teacher they would have been getting much more
Payment of nearly eight months  salary by resorting to clause 5 and that too fixed amount for the same job which is performed by regular teachers is unfair and unjust
A temporary or ad hoc employee may not have a claim to become permanent without facing selection or being absorded in accordance with rules but no discrimination can be made for same job on basis of method of recruitment
Such injustice is abhorring to the constitutional scheme
While deprecating direction by the government to break service for a day or two and paying fixed salary to temporary employees we must condemn the practice of management of not making regular selection utmost within six months of occurrence of vacancy
Nor the helplessness of government can be appreciated as expressed in the counter affidavit that despite orders the management continued with it
If the government could not take effective measure either by superseding the management or stopping grant in aid then either it was working under pressure from Management of the private aided institutions or it was itself interested in continuing such unfortunate state of affairs
In either case the equities have been created because of doing of state itself therefore it should resolve it
One such method was adopted by the High Court in invididual petitions filed by the teachers by directing the Director of Education to hold selection
In pursuance of it some of the teachers have been regularised
But substantial number still remain due to State s going back on its agreement before the court by creating obstacles in implementation of the order
Many of them who have have faced selection and have secured higher marks and are in zone of selection are being denied the benefit because it is claimed that such regularisation would be contrary to reservation policy of the State
The policy is under challenge in another proceedings in the Court
Without entering into validity of the policy which according to petitioner results in cent per cent reservation we are of opinion that such practice should be put an end to therefore following directions are necessary to be issued 1 Provision in clause 5 of one day s break in service is struck down as ultra vires
2 Orders for payment of fixed salary to temporary teachers is declared invalid
But it shall operate prospectively
A teacher appointed temporarily shall be paid the salary that is admissible to any teacher appointed regularly
404 3 Any teacher appointed temporarily shall be continued till the purpose for which he has been appointed exhausts or if it is in waiting of regular selection then till such selection is made
4 Management shall take steps whenever necessary to fill up permanent vacancies in accordance with rules
Delay in filling up the vacancies shall not entitle the management or Director to terminate the services of temporary teachers except for adequate reasons
But it shall entitle the government to take such steps including supersession of management or stopping grants in aid if permitted under law to compel the institutions to comply with the rules
So far these petitioners and teachers similarly situated are concerned it could not be disputed that many of those teachers who appeared for selection in pursuance of the High Court order secured sufficiently high marks but they could not be regularised because the vacancies are said to be reserved
But what has been lost sight of is that petitioners are seeking regularisation on posts on which they have been working and not fresh appointments therefore they could not be denied benefit of the High Court s order specially when no such difficulty was pointed out and it was on agreement by the respondents that the order was passed
No material has been brought on record to show that any action was taken prior to decision by the High Court against any institution for not following the reservation policy
To deny therefore the benefit of selection held on agreement by the respondents is being unjust to such selectees
Further the State of Karnataka appears to have been regularising services of adhoc teachers
Till now it has regularised services of contract lecturers local candidates University lecturersEngineering colleges lecturers etc
It may not furnish any basis for petitioners to claim that the State may be directed to issue similar order regularsing services of teachers of privately managed colleges
All the same such policy decisions of government in favour of one or the other set of employees of sister department are bound to raise hopes and expectations in employees of other departments
That is why it is incumbent on governments to be more circumspect in taking such decisions
The petitioners may not be able to build up any challenge on discrimination as employees of government colleges and private colleges may not belong to the same class yet their claim cannot be negatived on the respondents  stand in the counter affidavit that the regularisation of temporary teachers who have not faced selection shall impair educational standard without explaining the effect of regularisation of temporary teachers of University and even technical colleges
Such being the unfortunate state of affairs this Court is left with no option but to issue following directions to respondents for not honoring its com 405 mitments before the High court and acting contrary to the spirit of the order and also due to failure of governemt in remaining vigilant against private management of the college by issuing timely directions and taking effective steps for enforcing the rules 1 Services of such temporary teachers who have worked as such for three years including the break till today shall not be terminated
They shall be absorbed as and when regular vacancies arise
2 If regular selections have been made the governemt shall create additional posts to accommodate such selected candidates
3 The teachers who have undergone the process of selection under the directions of the High Court and have been appointed because of the reservation policy of the Government be regularly appointed by creating additional posts
4 From the date of judgment every temporary teacher shall be paid salary as is admissible to teachers appointed against permanent post
5 Such teachers shall be continued in service even during vacations
For these reasons this petition succeeds and is allowed
The direction is issued to respondents in the terms indicated above
Civil Appeal Nos
309 373 of 1992 arising out of SLP Civil Nos
13131 95 of 1990 challenging the order of High Court in CMW 6232 of 1990 decided on 3rd July 1990 is disposed of accordingly
Contempt Petition No 6 of 1991 alleging violation of status quo order granted in WP Civil No 873 of 1990 need not be decided
It is directed to be filed
The petitioners shall be entitled to their cost from the State of Karnataka
TNA Petition allowed


Summary:
The arbitration clause incorporated by section 571 of the  in a licence granted by the Government for the supply of electrical energy to the consumers is not available for adjudicating upon a dispute between the licensee and the consumer for the licence is an engagement between the licensee and the Government and the arbitration clause in it refers only to disputes between them
Section 571 does not make the arbitration clause a statutory provision by virtue of which disputes between any and every person may be referred to arbitration