Special leave Petition Civil No 10330 of 1991
From the Judgement and Order dated 351991 of the Bomaby High ourt in writ Petition No 186 of 1991
Kapil Sibal Makrand D Adkar and Ejaz Maqbool for the Petitioner
RD Tulpule DM Nargolkar Ms Kiran Bhagalia Ms VDKhanna and AM Khanwilkar for the respondents
Caveator in person
The following Order of the Court was delivered
The petitioner Bhushan Uttam Khare appeared for the Third Year MBBS Examination held by University of Poona in the months of October November 1990
The results of the said examination were declared on 12121990
As per University of Poona Ordinance 134A the petitioner applied for revaluation of his answer papers
167 students including the petitioner had applied for revaluation
When the revaluation results were declared certain students made representation to the University authorities for their answer papers being revaluate from the same set of examiners
388 On receipt of the representation the Executive Council of University appointed a Committee to make an enquiry
On the report of the Committee the University of Poona decided to cancel the revaluation results and to conduct further revaluation
This decision of the Executive Council cancelling the earlier revaluation and directing a second revaluation was challenged by the petitioner and others in writ petitions filed before the High Court at Bomaby
By the impugned judgement dated May 3 1991 the High Court dismissed the writ petitions
Aggrieved by the decisions the petitioners have moved this petition for special leave
The Poona University Act 1974 defines the powers and duties of the Executive Council
The Executive Council may make Ordinances to provide for the conduct of the examinations
Under Ordinance 134A the Vice Chancellor shall use his discretionery powers to decide as to whether all the applications received from the candidates be considered for revaluation or not
If as a result of revaluation of answer books the marks obtained by the candidate increase over the original marks by 10 or more of the marks carried by the paper then only the result of revaluation will be accepted by the University
Application for vertification of answer books will be entertained within a period of two weeks from the date of declaration of the results
Ordinance 146 reads 146
In any case where it is found that the result of an examination has been affected by error malpractice fraud improper conduct or other course of whatsoever nature the Executive Council shall have power to amend such result in such manner as shall be in accord with the true position and to make such declaration as the Executive Council shall consider necessary in that behalf
Provided that but subject to 0147 no result shall be amended after the expiration of six months from the date of publication of the said result
In the Third Year MBBS Examination 402 students appeared for the examination and 167 students for revaluation of the answer books
When the representation of students opting for revaluation was placed before the Executive Council as glaring difference was indicated a Committee was appointed for scrutiny and to reassess theory papers of the students acquiring more than 20 marks after revaluation from senior teachers of the Faculty
After scrutiny it was found out that the marks are closer to the original marks in Medicine Surgery and Preventive and Social Medicine
Therefore the Committee recommended that the entire revaluation of the papers should be cancelled
This report of the 389 Committee was placed before the Executive Council in its meeting held on March 27 1991 and the Council by the resolution cancelled the result of the revaluation and directed fresh revaluation
The second revaluation was done through the examiners outside the State
The results on revaluation intimated to the Medical College thus stood cancelled and the final results were delcared in pursuance to the second revaluation
The action of the Executive Council was attacked on the grounds that it was an arbitrary action that the choice of the examiners was that of the Vice Chancellor as enjoined under the Ordinance and there was no glaring instance of any malpractice fraud or other course of whatsoever nature to cancel the revaluation and in the absence of any provision in the statute or the Ordinance for a second revaluation the decision taken by the Executive Council is unwarranted and therefore illegal
In repelling these contentions the High Court has taken the view that educational institutions set up Enquiry Committee to deal with problem posed by the adoption of unfair means and it is normally within their domestic jurisdiction to decide all questions in the light of the material adduced
Unless there is an absolute and compelling justification the Writ Court is slow to interfere with the autonomous activity of the Executive Councils
The High Court said that the material on record indicated that this is not a case for exercise of jurisdiction under Article 226 of the Constitution and since the Court has found that there is material to reach the decision as regards cancellation of the impugned result of revaluation the contentions taken up by the petitioner are untenable
The petitioners have reiterated the submissions that there had been no improper conduct come to light and the absence of any provision for a second revaluation vitiates the whole action
We have been taken through a comparative chart containing the marks awarded in the original examination the first revaluation and the second revaluation
The attempt of the learned counsel for the petitioners had been to make out that the disparity was not such as to indicate any improper practice and that the Committee constituted consisted of four members of whom two were original examiners and the report submitted by that Committee should not have been made the basis for the decision which affected the prospects and career of a large number of medical students
The learned counsel for the University as also the standing counsel for the State drew our attention to the fact that Executive Council had only cautiously proceeded in the matter and before ordering cancellation a probe was made and the mem 390 bers of the Enquiry Committee were competent persons and that there is no illegality which warrants interference of the Court
We have considered all the materials placed before us in the light of arguments advanced keeping in mind the well accepted principle that in deciding the matters relating to orders passed by authorities of educational institutions the Court should normally be very slow to pass orders in its jurisdiction because matters falling within the jurisdiction of educational authorities should normally be left to their decision and the Court should interfere with them only when it thinks it must do so in the interest of justice
We are satisfied that there had been sufficient material before the Executive Council to proceed in the manner in which it has done
It is not correct to say that the University had acted on non existing rule for ordering revaluation
Ordinance 146 is comprehensive enough to include revaluation also for further action
The fact that two examiners were also the members of the Committee which recommended for revaluation cannot result in any bias even if they had been directly concerned with the original evaluation
It is true that in the second revaluation also there had been some changes between the original valuation and the revaluation results
However it is not so glaring or demonstrably unconscionable as seen in the first revaluation
We cannot therefore accept the contention of the petitioner that the High Court had erred in not granting the relief sought for
We can only observe that the case of the petitioner who alone has come before this Court and who had secured higher marks in the first revaluation and is therefore aggrieved by the cancellation of the same would by duly considered in the selection for Post Graduate Course
The special leave petition is dismissed
YL SLP dismissed


Summary:
The Education and Youth Services Department of the State of Karnataka issued an order dated 3rd October 1981 which provided two different methods of selection of teachers in private aided degree colleges one by Selection Committee and another by Management
Under the order appointments for more than three months could be made by a selection committee whereas temporary appointments for less than 3 months could be made by the Management and such temporary appointments could be continued for a futher period of not more than 3 months with one day s break in service
The Government order also provided that such temporary teachers shall be paid fixed salary being ten rupees less than the minimum payable to regular teachers
The teachers temporarily appointed under the said order accordingly continued in service for a long period but with a break of a day or two every three months in their service
Subsequently they filed a writ petition in this Court seeking regularisation of their services by invoking the principle of equitable estoppel arising from implied assurance due to their long continuance
It was contended on behalf of the petitioners that i since the State has regularised the services of contract teachers and local teachers appointed in Government or vocational colleges they should also he extended similar treatment and ii payment of fixed salary instead of regular emoluments for eight months in a year was discriminatory and arbitrary
398 Allowing the petition this Court HELD 1
Provision of one day s break in service in the Government order is deprecated and is struck down as ultra vires
If the intention was to differentiate between appointments for more than three months and others it was a futile exercise
That was already achieved by providing two different methods of selection one by Selection Committee and other 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
403 G 402 A B BR Parineeth  Ors
vs The State of Karnataka  Ors
CMW 6232 of 1990 decided on 371990 referred to
Order for payment of fixed salary to temporary teachers is declared invalid
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
403 G 402 F G 21 Payment of nearly eight months  salary by resorting to government order and that too fixed amount for the same job which is performed by regular teachers is unfair and unjust
Such injustice is abhorring to the constitutional scheme
403 A B 3
The practice of management of not making regular selection utmost within six months of occurrence of vacancy is condemned
The helplessness expressed by the State that the managements went on continuing such teachers without holding regular selections despite orders of educational authorities may be true but not convincing and sounds like surrender in favour of private managements
403 C 402 E 31 Managements shall take steps whenever necessary to fill up permanent vacancies in accordance with rules
Delay in filling 399 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 premitted under law to compel the institutions to comply with the rules
404 B 4
Regularisation of services of teachers of Government colleges by the State may not furnish any basis for petitioners to claim that the state may be directed to issue similar order regularizing 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 hope and expectations in employees of other departments
Therefore it is incumbent on governments to be more circumspect in taking such decisions
404 E G 5
Ad hoc appointments a convenient way of entry usually from backdoor at times even in disregard of rules and regulations are comparatively recent innovation to the service jurisprudence
The infection is widespread in government or semi government departments or State financed institutions
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 time 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
400 G H 401 C D 6
In the circumstances of the case following directions are issued a 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 404 A b 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 405 B 400 c If regular selections have been made the government shall creat additional posts to accommodate such selected candidates 405 B d From the date of judgment every temporary teacher shall be paid salary as is admissible to teachers appointed against permanent post
405 D