Holding

Regularisation of the incumbents as Lecturers, though a deviation from statutory recruitment norms, is upheld because of their long service and qualifications, but such practice is deprecated and must not be treated as precedent.

Summary

The Himachal Pradesh University regularised a group of long‑serving Research Associates and Evaluators as Lecturers by Executive Council resolutions, invoking equity, justice and fair play, without following the statutory procedure of direct recruitment prescribed in Ordinance 35.11. Respondent Dr. S.R. Mehrotra filed a writ petition challenging the appointments as illegal and contrary to the University’s statutes and ordinances, also questioning his own locus standi. The Supreme Court examined whether the regularisation amounted to a promotion under Ordinance 35.8, whether the statutory requirement of advertisement and selection was complied with, and whether the petitioner had standing to raise the issue. The Court held that the University’s action was a deprecated deviation from the normal mode of appointment and could not be treated as a promotion, but, given the appellants’ long service, qualifications and the passage of more than a decade since regularisation, disturbing their appointments would cause undue hardship. Consequently, the Court upheld the appointments while warning that such ad‑hoc regularisation should not be a precedent. The appeals were allowed, and the appointments were confirmed.

Issues considered

The validity of regularising Research Associates/Evaluators as Lecturers without adhering to the recruitment procedures of Ordinance 35.11.
Whether the Executive Council’s resolution amounted to a promotion under Ordinance 35.8 or merely a regularisation.
Whether the appointments required prior advertisement and selection as mandated for Category A posts.
The applicability of the principle of equity, justice and fair play in bypassing statutory provisions.
The locus standi of Dr. S.R. Mehrotra to file the writ petition under Articles 226 and 32 of the Constitution.

Legislation cited

Constitution of Indias. Article 226, s. Article 32

Subjects

regularisationpromotionuniversity appointmentspublic interest litigationlocus standiOrdinance 35.8Ordinance 35.11Statute 11equity and justicehigher educationad hoc appointments

Judgment

A DR. (MRS.) MEERA MASSEY
DR. ABHA MALHOTRA
DR. S.C. BHADWAL AND ORS.
v.
DR. S.R. MEHROTRA AND ORS.

B FEBRUARY 3, 1998

[K. VENKATASWAMI AND A.P. MISRA, JJ.]

Research Associates or Evaluators-Working since long period-
C Regularisation of services-Adoption of special stipulations conditions-
Contrary to statutory provisions-Validity of-Held, appointments on the
principle of equity, justice and fair play by adhering to special stipulations
conditions deprecated-Posts to be filled up in accordance with law strictly
on merit~However, since the appointments had been approved by Executive
D Council long back and appellants being fully qualified, their appointmc.'1ts
I·
are left undisturbed with the observation that the same should not be treated \
as precedent-First Ordinance of Himachal Pradesh University Act, 1973:
Ordinances 35.8, 35.11 and 35.53-Himachal Pradesh University Statutes~
Statute 11.

E Ad hoc appointments-Propriety of-Adhocism in all classes of service
especially in case of appointment of teachers, Readers and Professors
deprecated.

Constitution of India, 1950: Articles 226 and 32-PIL-Maintainability
of
F
Appellants were working as Research Associates or Evaluators. The
Executive Council by its resolution declared the said cadres to be wasting/
vanishing cadres. Since the appellants were working for a long time on the
said post, the Executive Council decided to regularise their services as
Lecturers after they underwent the selection by Statutory Selection
G Committee. Appellants appeared before the Selection Committee and on its
recominendations were appointed to the post of Lecturers. Respondent No.I,
a Professor challenged their appointments on the ground that it was contrary
to the Resolution of the Executive Council and also against the First Ordinance
of Himachal Pradesh University Act, 1973. The University filed a counter
H affidavit stating that since the appellants were working as Research
470
DR. MEERA, ABHA S.C. BHADW AL v. DR. S.R. MEHROTRA 471
Associates or Evaluators for a long time, on the principle of equity, justice A
and fair play, the Executive Council took the decision to regularise their
~
appointments as Lecturers on special stipulations conditions. High Court
quashed the appointment of appellants holding that it was in violation of
ordinance 35.11. The review petition filed by the University and the appellants
were dismissed. Hence, the present appeals.
B
~ The contention of the appellants was that the respondent has no locus
standi to file the said writ petition. It was also contended that since they
possessed the requisite qualifications under Ordinance for such appointments
and the appointments by way of promotion the same was within the powers
of Executive Council.
c
Allowing the appeals, this Court

HELD: 1.1. The action of the University in appointing the appellants
on the posts of Lecturers on the principle of equity, justice and fair play by
adhering to special stipulations conditions is deprecated. [486-G]
.. D
1'
1.2. There is no resolution of Executive Council which specifically
spells out appellants' promotion. The University felt that since these appellants
continued to teach as Research Associates/ Evaluators for a long time, hence
on the principle of equity, justice and fair play, their real status of teachers
be recognised. Hence the Executive Council took the decision to regularise E
their appointments as teacher. The stand of the University is that they have
appoin.ted these teachers on special stipulations conditions which is a part
from the normal mode of appointment. This is how the University has tried
to justify these appointments, i.e. on special circumstances and on the principle
of equity, justice and fair play, not under any specific provision of Statute,
Ordinance etc. If this be so how could these be appointments by way of F
1~
promotion. If University resolved to promote, there was no difficulty to say
"" so instead to take shelter of equity, justice and fair play and justify it under
special stipulation condition. There is no reason why the special stipulation
was resorted to by the University when they could have filled up the posts
of Lecturers on a regular basis in accordance with the existing ordinance. G
It is not pleasant to think that as high an institution as University has to
..,,. regularise something under cover of its own fault. [486-F-H; 487-E]

1.3. Ordinance 35.8 of the First Ordinance of Himachal Pradesh
University Act, 1973 empowers the Executive Council to lay down whether
the post or class of posts are to be filled up by direct recruitment or H
472 SUPREME COURT REPORTS (1998] l S.C.R.

A promotion. In the instant case, the Executive Council has not resolved to fill
up the post of Lecturers by way of promotion, but to treat the incumbent
already working therein to be regularised. Even if it has power, it never
resolved as such. There is distinction between regularisation and promotion.
Regularisation means, one which is already working, doing or has done
B something which law did not permit but the same is being regularised,
treated to be done in accordance wit It law, treat one as such. Hence in such
cases regularisation cannot be said to be a promotion as contemplated under
Ordinance 35.8. In para four of the Executive Council Res?lution the Research
Associates and Evaluators were resolved to be treated as Lecturer. Here
University did it by itself without even following the procedure of promotion
C and in the same breath directed for regularisation. Even for regularisation
there has to be prescribed law. [486-E; 488-C-D]

2. Selection of teacher has not to be on minimum eligibility but best
available from a larger sphere. Not from the limited sphere of adhoc or stop
gap appointees. This affects teaching standard of University and output of
D student-at- large. In fact adhocism in any class of service may be class IV,
is deprecated but it should never be a principle in the cases of appointment
of teachers, Readers and Professor. [487-H; 488-A) /

3. University imparts education which lays foundation of wisdom. Future
hopes and aspirations of the country depend on this eduction, hence proper
E and disciplined functioning of the educational institutions should be the
hallmark. If the laws and principles are eroded by such institutions it not
only pollutes its functioning deteriorating its standard but also exhibits to
its own students the wrong channel adopted. The situation created by the
University to resort to special stipulation circumstances deviating from the
p normal mode of appointment is deprecated and in future such situation
should not be brought in for taking such a decision at the cost of regular ~
selection of teachers. [488-G-H; 489-A-B] 'f

Radhakrishnan Commission, Vol. I (1949) p. 79, Report of the
Committee on some Problems of University Administration, I964 (I967),
G referred to.

4. The appellants have been regularised as teachers and appointed as
Lecturers approved by the Executive Council more than I I years back. They
are all competent teachers fully qualified to be appointed as such. Setting
aside and disturbing their appointments now would create great tµrmoil and
H would affoct the teaching in the University and, in turn, the students at large
DR. MEERA ABHA, S.C. BHADW AL v. DR. S.R. MEHROTRA 473
even to the appellants also, who in the hope continued for long. Thus it would A
not be appropriate on the facts and circumstances of this case to set aside
* their appointments as teacher. However, this approval of their continuing on
the posts of Lecturers, in view of their working for such a long period should
not be treated as a precedent. This had been done on the facts and
circumstances of this case. It is made clear that every institution especially
the University while making appointment of Lecturers should not create a B
·ir-
situation so that they have to condone their own illegality by regularisation.
They should act promptly by filling up such vacancies in accordance with law.
Their appointments should be strictly on merit as they are fibre and strength
of the University on which future generation depends. [490-C-G)
c
Shainda Hasan v. State of Uttar Pradesh & Ors., [1990) 3 SCC 48,
relied on.
5. Respondent No. 1 has filed the writ petition being concerned with
the anomalies and illegalities in the procedure adopted by the University in
makin-g selection and regularising the various posts in contradiction to the
D
/
• Acts, Statutes and Ordinances. He was aware fully of all that was happening
with full grip of all the materials. Facts reveal he was genuinely concerned
to rectify the wrongs without any personal animosity against anyone. His
feelings were bona fide, being Professor of History in the same University.
He had all the details, fully equipped with facts and the law pertaining to the
University. It was not for any personal gain. It was neither politically motivated E
nor for publicity. PIL was devised for increasing citizens participation in the
judicial process for making access to the judicial delivery system to such
who could not otherwise reach Court for various reasons. Therefore, there
is no merit to the challenge of the locus standi of the respondent.
(478-G-H; 479-A-B)
F
I- S.P. Gupta v. Union of India, [1981) Supp. SCC 87, relied on.
·-,-

Janata Dal v. HS. Chowdhary and Ors., [1992) 4 SCC 305; Jasbhai
Desai v. Roshan Kumar, [1976) 1 SCC 671 and Subhas Kumar v. State of
Bihar, [1991) i SCC 598, held inapplicable.
G
--!" CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 13707-
09 of 1996

From the Judgment and Order dated 21.12.94 and 31.5.96 of the
Himachal Pradesh High Court in C.W.P. No. 222/87 and R.P. No. 43of1995. H
474 SUPREME COURT REPORTS [1998] l S.C.R.

A A.K. Sikri, Dr. Bairam Gupta, Ashok K. Mahajan, Mrs. Madhu Sikri, V.K.
Rao, Sunil gupta, Dr. K.S. Chauhan, Anil Nag and Naresh K. Sharma for the
appearing parties.

In-person for the Respondent No. I.

B The Judgment of the Court was delivered by

MISRA, J. The aforesaid three appeals raise a common question whether
the appointment of the 'Evaluators' and 'Research Associates' as Lecturers
in the Himachal Pradesh University, Shimla was valid or not? These appeals,
accordingly, are being disposed of by means of this common judgment. All
C the appellants in Civil Appeal No. 13709/96 were initially appointed as Research
Associates. Some of them have· already been appointed as Readers whose
case is not in issue in these appeals. They have been working as such for
the last about nine years. Since they were working for a long period the
Executive Council of the aforesaid University by their Resolution dated 16th
D January, 1986, declared the cadre of Reseaich Associate as wasting cadre.
Hence on 30th May, 1986, by another Resolution stipulated that they may be •
designated as Lecturers. Their suitability for the post of Lecturers was to be '
ascertained through the Statutory Selection Committee confining the selection
among the incumbent working on the post of Research Associates. Admittedly,
all the appellants were working as Research Associate when the said
E Resolutions were passed. Later, they appeared before such Selection Committee
and, on its recommendation, were appointed as Lecturers in the year 1986.
Since then they are working as such.

The appellant in C.A. No. 13708/96, namely, Dr. Abha Malhotra was
initially appointed as Research Associate on 22nd May, 1983, and her selection
F was through a Selection Committee consisting of Dean of Art Faculty with
two outsiders and two internal experts. She did her Ph.D in the year 1981 in ~
History. She was appointed as Research Associate in the department of T'
History as the said post was lying vacant and her appointment was approved
by the Executive Council in the meeting held on 22nd May. 1983. The case
G of the appellant is that Research Associate in various other departments were
approved by the Executive Council in its meeting held on 29th July, 1982, and
25/26 November. 1983, which is evident from the Notification dated 7th January,
.1984. The Executive Council approved the creation of one post in each of the
teaching department including History with effect from the date of filling up
the post. Thereafter to decide the status and future of the Evaluators and
H Research Associates, the Vice Chancellor of the University appointed a
\'

DR. MEERA ABHA, S.C. BHADWAL v. DR. S.R. MEHROTRA [MISRA, J.] 475

·~-
Committee which gave its report which was considered by the Council on A
18th January, 1986. Thereafter, on 30th May, 1986, vide Resolution on the
same day it was decided to regularise the Evaluators and Research Associates
in the existing designation and scale with immediate effect and it was also
decided that they were to be designated as lecturers. The appellant appeared
before the Selection Committee on 24th November, 1986, and on its
~·
recommendation, was appointed to the post of Lecturer. On 27th Decemb~r, B
1986, the Executive Council approved her selection and on 1st January, 1987,
the appointment letter was received and finally on 4th February, 1987, the
appellant joined as Lecturer in History.

The appellant in C.A. No. 13707/96 [Dr. (Mrs.) Meera Massey] did her
c
M.A. in Sociology in the year 1973. Thereafter, she passed M.Ed. in July 1975
from the aforesaid University. On 29th September, 1975, she was appointed
as Evaluator in Sociology in the Directorate of Correspondence Courses in
the aforesaid University. In 1976 she did her M. Phil. in Education and stood
first in the University and thus was awarded gold medal for the same. In 1981
i she got the degree of Ph.D. in Education. In fact, she did both M. Phil. and D
Ph.D. in the field of Education while being Evaluator as aforesaid. The Executive
Council as aforesaid on the 30th May, 1986, decided to regularise all the
Evaluators with immediate effect for their appointment on regular basis as
lecturers selecting them through the Statutory Selection Committee. The
Statutory Selection in Committee met on 30th October, 1986, found the appellant
E
competent to be a Lecturer. The Executive Council thereafter in December
1986, on the basis of the observations of the Selection Committee, appointed
her as lecturer in Education in the Directorate of Correspondence Courses. On
20th February, 1987 she joined as lecturer. On 29th May, 1987 she was
confirmed as such.
f-.: F
T Dr. S.R. Mehrotra, Professor in History Department, respondent No. I in
all these appeals, filed a writ petition assailing the appointments of the
aforesaid two appellants and Dr. Shivraj Singh who is respondent No. 5 in
Civil Appeal No. 13709/96, as Lecturer both on the ground that it is contrary
to the Resolution of the Executive Council and also against the Ordinance of
the aforesaid University. In the counter affidavit filed by the university it was G
~· revealed that there are 12 other Research Associates similarly situated who
had been appointed as lecturers, whose appointments had not been challenged.
Consequently, the appellants in Civil Appeal No. 13709/96 were also impleaded
as respondents and their appointments were also challenged on the ground
of violation of ordinance No. 35.11 of the University as they were also not H
476 SUPREME COURT REPORTS [1998] 1 S.C.R.

A appointed after due advertisement. The High Court by means of impug11ed
judgment quashed the appointment of the aforesaid two appellants and
Respondent No. 5 both on the ground of violation of Ordinance 35.11 and
favouritism and other illegalities and appointment of remaining appellants
were quashed .as it was in violation of Ordinance 35.11. Thereafter, Review
B Petition was filed by the aforesaid University, Dr. Ai:>ha Malhotra, the appellant,
and Shivraj Singh (Resrondent No. 5) who was respondent No. 16 in the writ
petition and all the remaining appellants in Civil Appeal No. 13709/96. Dr.
Meera Massey one of the other appellants did not file review as she already
preferred Special Leave Petition No. 5235/95 (C.A. 13707/96). Respondent
Nos. 4 and 15, namely, Shri S.C. Bhadwal and Shri Ram Sharma in the writ
C petition, had neither filed Review Petition nor Special Leave Petition before
this Court. In review the High Court deleted the observation, that Respondent
No. 2 (Dr. Abha Malhotra) is admittedly the close relation of the Vice Chancellor
of the University as it was found to be factually incorrect. Neither in the writ
petition such allegations were made nor there was any material on record from
which such fact could be inferred. The said observation came on the basis
D of the submission made by counsel only. However, the Court refused to i.
review other part of the judgment which held her (Dr. Abha Malhotra) '
appointment as illegal and violative of Ordinance 35. The High Court held, her
appointment as a Research Associate in the department of History was
temporary/stop gap arrangement on the basis of order dated 25th May, 1983,
E while post of Research Associate was created in the said department and
notified on 7th January, 1984. It was further held in the absence of filling up
the post created vide Notification dated 7th January, 1984, in accordance with
the ordinance 35 of the First Ordinances of the Himachal Pradesh University,
1973, her appointment was void and hence could not be given benefit of
Resolution of the Executive Council dated 16th January, 1986. So far as taking
F benefit of para 4 of the Resolution dated 30th May, 1986 being violative of .,,
the aforesaid order, cannot be availed of by her as her appointment as lecturer '(
on the recommendations of the Selection Committee, is illegal. So far as the
review by the University pertaining to the case of one of the aforesaid
appellants, Dr. Meera Massey, it was held:
G "It is rightly observed that the University failed to place before the
Division Bench the original proceedings of the Selection Committee
which would have put an end to the controversy whether she was
interviewed for appointment as Lecturer in Education but from the
--
totality of material on record, especially the resolution dated 27th
H December, 1986, the only conclusion possible is that she was not
DR. MEERA ABHA, S.C. BHADWAL v. DR. SR. MEHROTRA [MISRA, J.] 477
considered and recommended by the Selection Committee for A
.. ~- - appointment as lecturer in Education irrespective of her possessing
the qualification and experience for the said post may be because she
was working as Evaluator in Sociology at the relevant time."
While considering the case of Shivraj Singh, Respondent No. 5, in the
aforesaid appeal, in review it was held that since he was appointed as Reader B
~
by way of direct recruitment in the department of Public Administration of the
,. University in March, 1989, the decision of this Court will have no effect. So
far as the appellants in the aforesaid Civil Appeal No. 13709/96 are concerned,
it is not in dispute that for the first time their appointment was alleged to be
by way of promotion under Ordinance 35.8, however, their review was also
rejected. c
__;

Mr. Sunil Gupta, learned counsel for the appellants in C.A. No. 13709/
96, challenged the locus standi of Dr. S.R. Mehrotra who filed the writ petition
in the High Court. The arguments raised before the High Court were reiterated
before us. In addition, reliance was placed in the case of Janata Dal v. H.S.
-"'. Chowdhary and Ors., (1992) 4 SCC 305: D
'
"In Gupta Case Bhagwati, J. emphatically pointed out that the relaxation
of the rule of locus standi i:J the field of PIL does not give any right
to a busybody or meddlesome interloper to approach the court under
the guise of a public interest litigant. He has also left the following
note of caution: (SCC p. 219, para 24). E
But we must be careful to see that the member of the public, who
approaches the court in cases of this kind, is acting bona fide and
not for personal gain or private profit or political motivation or other
oblique consideration. The court must not allow its process tu be
abused by politicians and others to relay legitimate administrative F
t- action or to gain a political objective." (para 99)
'Y
"Sarkaria, J. Jn Jasbhai Motibhai Desai v. Roshan Kumar expressed
.• his view that the application of the busybody should be rejected at
the threshold in the following terms: (SCC p. 683, para 37)
,;;t:
"It will be seen that in the context of locus standi to apply for a
G
--+- writ of certiorari, an applicant may ordinarily fall in any of these
categories (i) 'person aggrieved'; (ii) 'stranger'; "(iii) busy body or
meddlesome interloper. Persons in the last category are easily
d_istinguishable from those coming under the first two categories.
Such persons interfere in the things which do not concern them. They H
~
478 SUPREME COURT REPORTS [1998] 1 S.C.R.

A masquerade as crusaders for justice. They pretend to act in the name
of pro bona publico, though they have no interest of the public or .!" ~

even of their own to protect. They indulge in the pastime of meddling
with the judicial process either by force of habit or from improper
motives. Often, they are actuated by a desire to win notoriety or
cheap popularity; while the ulterior intent of some applicants in this
B category may be no more than spoking the wheels of administration.
The High Court should do well to reject the applications of such
·"'
busybodies at the threshold." (para 104)

"K. N. Singh, J. speaking for the Bench in Subhash Kumar v.
State of Bihar, has expressed his opinion in the following words:
c (SCC pp. 604-05, para 7)

"Public interest litigation cannot be invoked by a person or body
of persons to satisfy his or its personal grudge and enmity, if such
petitions under Article 32 are entertained it would amount to abuse
of process of the Court, preventing speedy remedy to other genuine
D petitioners from this Court. Personal interest cannot be enforced ,,
through the process of this Court under Article 32 of the Constitution '
in the garb of a public interest litigation. Public interest litigation
contemplates legal proceeding for vindication or enforcement of
fundamental rights of a group of persons or community which are not
E able to enforce their fundamental rights on account.of their incapacity,
poverty or ignorance of law. A person invoking the jurisdiction of this
Court under Article 32 must approach this Court for the vindication
of the fundamental rights of affected persons and not for tne purpose
of vindication of his personal grudge or enmity. It is the duty of this
Court to discourage such petitions and to ensure that the course of
F justice is not obstructed or polluted by unscrupulous litigants by
invoking the extraordinary jurisdiction of this Court for personal matters -(
"
under the garb of the public interest litigation." (para 108)
Having considered the submissions, we do not find any of the
observations made hereinbefore is applicable in the present case. We find Dr.
G Mehrotra has filed the writ petition being concerned with the anom~lies and
illegalities in the procedure adopted by the University in making selection and
regularising the various posts in contradiction to the Acts, Statute and
Ordinances. He was aware fully of all what was happening with full grip of
all the materials. Facts reveal he was genuinely concerned to rectify the
H wrongs without any personal animosity against anyone. His feelings were
DR. MEERA ABHA, S.C BHADWAL v. DR: SR MEHROTRA [MISRA, I.) 479
bona fide, being professor of History in the same University. He had all the A
details, fully equipped with facts and the law pertaining to the University. It
was not for any personal gain. It was neither politically motivated nor for
publicity. The golden key for public interest litigation was delivered in the
land mark decision of this Court in S.P. Gupta's case (1981 Suppl SCC 87). This
was devised for increasing citizens participation in the judicial process for B
making access to the judicial delivery system to such who could not otherwise
reach court for various reasons. But it is also true, since then this Court
repeatedly has been cautioning its misuse laying down restrictions to scuttle
out undesirable persons or body. It is in this context the above observations
were made by this court as relied by the appellants but that very authority
accords approval for filing such public interest litigation. c
After having elaborately explained the concept of PIL, the learned
Judge held that: (SCC p. 218, para 23)

" .... any member of the public having sufficient interest can maintain
an action for judicial redress for public injury arising from breach of D
public duty or from violation of some provision of the Constitution
or the law and seek enforcement of such public duty and observance
of such constitutional or legal provision. This is absolutely essential
for maintaining the rule of law, furthering the cause of justice and
accelerating the pace of realisation of the constitutional objectives." E
(para 92)

Of course, even this is also in a given case restricted, laid down in
various decisions not necessary to refer here.

In view of the said legal principle on the facts of this case, we do not
find any merit to the challenge of the locus standi of Dr. Mehrotra. F
The High Court held that the appointment of the Evaluators and the
Research Associates on the post of teachers could only be done through
direct recruitment by virtue of Ordinance 35.11. It can only be by advertisement
which, admittedly, was not done hence their appointment as such is illegal. G
Further abolition or creation of the post also could not be done without the
recommendation.ofthe Faculty concerned and, in tum, the Academic Council
_and that not having been done is violative of Ordinance 24.3(b ).
r
In order to appreciate the contention it is necessary to refer to the
relevant provision of the Himachal Pradesh University Statutes (hereinafter H
480 SUPREME COURT REPORTS [1998] l S.C.R.

A referred to as "Statute") and the First Ordinance of Himachal Pradesh
University Act 1973. (hereinafter referred to as the "Ordinances"). Section
2( 15) defines teachers:-

"Teachers means teachers of the University who have been appointed
or recognised by the Academic Council as Professors, Readers and
B Lecturers and shall include Professors, Readers and Lecturers and
Officers appointed to man research and extension education"
'
Relevant portion of Statute 11 as quoied here under which defines the
powers of the Executive Council : -

C "Powers of the Execu:ive Council : Subject to the provisions of the
Act, these Statutes and Ordinances, the Executive Council shall in
addition to any other p"owers vested in it, have the following powers:

(i) to create and to appoint such Professors, Readers, Lecturers, and
other members of the teaching and research staff as may be necessary,
D on the recommendation of the Selection Committee, constituted for
the purpose and to provide for the filling of temporary vacancies
therein;
c
(ii) to fix the emoluments and define the duties and conditions of
service of Professors, Readers, Lecturers and other members of the
E teaching and research staff:

Provided that no action shall be taken by the Executive Council
in respect of the number, the qualifications and the emoluments of
teachers otherwise than after consideration of the recommendations
of the Academic Council:
F
Learned counsel referring to the definition of 'teachers' contends that
Research Associates and the Evaluators will fall within the words: -f

"Officers appointed to man research and extension education", hence
a teacher.
G The Executive Council have power under Statute 11 (i) both to create
and appoint members of teaching and such research staff. Further the duties
and qualifications of Research Associates and Evaluators are Similar to that
of Lecturer, which is evident from the advertisement for appointment of such
Research Associates. Ordinance 35.53 prescribes the pay scale of teachers
H which refers to different pay scales of Professors, Readers, Principals, Lecturers
DR. MEERA ABHA, S.C. BHADWAL v. DR. S.R. MEHROTRA [MISRA, J.] 48]

etc., but does not include the pay scale of either Evaluators or Research A
~
Associates. Repelling this reliance of the High Court to exclude the Research
Associates to be teacher, the submission is this categorisation of pay scale
in that Ordinance is not exhaustive and this cannot restrict the categories of
teachers as envisaged under the Act and the Statutes. The Research Associates
and Evaluators being at the lowest category has a lower pay scale than the
Lecturers. The Executive Council, in the circumstances of this case, resolved B
L~
~
to regularise their appointments and then to appoint them as lecturers after
each incumbent passing the scrutiny of the Statutory Selection Committee. It
is said that the appointment to the posts of lecturer is not only by direct
recruitment as provided under Ordinance 35.l l(b) but could also be by way
of promotion under Ordinance 35.8. Both Ordinances 35.8 and 35.11 (a) (b) are c
quoted hereunder.:-

35.8 - "Save as otherwise specifically provided in the Act, Statutes or
Ordinances, the Executive Council shall fix the minimum qualifications
required for each post or class of post and also lay down whether the
post or class are to be filled by direct recruitment or promotion or by D
~ both and if so in what proportion."
'.
"35.11 (a) Save as otherwise provided in the Statutes the appointment
of all categories of employe~s shall be made by the competent authority
referred to in 35.7 on the recommendation of Selection Committees,
appointed by the competent authority. E
(b) Whenever there is a vacancy to be filled by direct recruitment, the
post in Category 'A' or 'B' or Asstt. Registrar/Asst!. Engineer/Asst.
Architect or above shall be advertised not less than three weeks in
advance, in at least one leading daily newspaper, while others in
category 'B' and 'C' shall be advertised through Employment F
Exchanges and affiliated colleges in Himachal Pradesh and applications
invited there for. The advettisement shall clearly mention the eligibility
qualifications and pay'scale of the post."

It is argued that though the Executive Council has not used the word G
proniotion but through its Resolution it directed the Research Associate/
Evaluators to be appointed as lecturer in the higher grade which would
constitute to be a case of promotion. Hence, for such internal candidates
when the Executive Counci.l desired, their absorption by way of promotion
was within the powers of the Execu:ive Council. Hence, their appointment
would be valid under Statute 35.8. Further submitted the only pre-requisite for H
;. '
J

482 SUPREME COURT REPORTS [1998] 1 S.C.R.

A promotion to the post of teachers is that they fulfil the qualification of
Lecturers prescribed under Ordinance 35.54 which is the minimum qualification
for appointment as teachers and to face the Selection Committee as provided
under Ordinance 35.l l(a) read with Section 34 of the Act. The contention is
that expression 'absorption', 'regularisation', adjustment' etc. have all been
B used loosely in the Resolutions of the Executive Council dated 16th January,
1986 and 30th May, 1986, but, in fact, it is in the context of promotion. In
support that it is a case of promotion reliance is placed in State of Rajas than
v. Fateh Chand Soni, [1996] 1 SCC 562 :-

"In the literal sense the word 'promote' means to advance to a higher
position, grade, or honour. So also 'promotion' means 'advancement
c or preferment in honour, dignity, rank, or grade. 'Promotion' thus not
on.ly covers advancement to higher position or rank but also implies
advancement to a higher grade. In service law also the expression
'promotion' has been understood in the wider sense and it has been
held that 'promotion' can be either to a higher pay scale or to a higher
D post."

Tarsem Singh & Anr. v. State of Punjab & Ors., [1994] 5 SCC 392 :-

"Promotion as understood under the service law jurisprudence
means advancement in rank, grade or both. Promotion is always a step
E towards advancement to a higher position, grade or honour."

Director, Central Rice Research Institution Cuttack and Anr. v. Khetra
Mohan Das, [1994] Supp. 3 SCC 595.

"Promotion as understood in ordinary parlance and also as a term
frequently used in cases involving service laws means that a person
F already holding a position would have a promotion if he is appointed
to another post which satisfies either of the two conditions namely
that the new post is in a higher category ~f the same service or that
the new post carries higher grade in the same service or class." t
G On the other hand, Dr. Mehrotra submitted, under Section 22(4) of the
Act read with proviso to Section l l(i) - (ii) of the Statutes and 24.3(b) (ii) and
24.5 of the Ordinances, require that no teaching or research post can be
created in the University unless and until a proposal to that effect has been
made to the Executive Council by the Faculty concerned through the Academic
Council. By virtue of 11 (i) ar.d 17 of the Statutes read with 35.11 (a) of the
H Ordinances, no appointment to a teaching post in the University can be made
DR. MEERA ABHA, S.C. BHADWAL v. DR. S.R. MEHROTRA [MISRA, J.] 483
by the Executive Council save and except on the recommendation of a Selection A
'(' Committee constituted by the competent authority. He submitted that Hon'ble
High Court rightly held selection for a teacher should only be under Section
35. I I (b) of the Ordinances which requires prior advertisement at least in one
leading daily newspaper. So far as appellants Dr. Abba Malhotra and Dr.
Meera Massey are concerned, he reiterated his submission as before High
Court, that their appointments were also illegal and is nullity as they were B
~
appointed in violation of Section 35.11 (b) of the University Ordinances and
on the posts which did not exist.

It is relevant at this stage to refer to the stand of the University, the
relevant portion of the counter affidavit filed by it to the amended writ petition
in the High court is reproduced below :-
c
"Para l : In reply to this para, it is submitted that simply because the
petitioner is working as Professor in the Department of History, in the
Himachal Pradesh University that does not give him any right or
i cause to maintain the present petition as submitted in the preliminary D
~ objections above and as such the petition is not maintainable and
deserves to be dismissed."

"Para 2 ...... The action of the University is absolutely in the interest
of the institution, students and the teachers working against certain
assignments/posts which were not considered fit to be continued by E
the University and these teachers had been working against these
assignments for a pretty long time, it was not only reasonable but also
in consequence with the principle of equity, Justice and fair play that
their real status in the University was recognised and they no longer
remained under suspense as to their future. These appointments,
therefore, are absolutely legal, valid, equitable as well as in the interest F
. "' ~ of justice and cannot be quashed on any principle."
-,
" Para 5 & 6 .... The Executive Council took a decision that the
category of Evaluators/Research Associates will be a vanishing cadre
and the incumbents of these assignments be considered for
regularisation of the posts of Lecturers and their cases routed through G
the Statutory Selection Committee for the purpose. The same was
+-
done and these appointments are by way of regularisation ................
The University can appoint a teacher on special stipulations -
conditions which may not be in accordance with the normal mode
of appointment as alleged by the petitioner". H
484 SUPREME COURT REPORTS [1998] 1 S.C.R.

A This shows regularisation, appointment as teacher to these Research
Associates/Evaluators was because they were working as such for a long ~
time and hence for equity, justice and fair play it was reasonable to do this.

The relevant Executive Council Resolutions No. 20 dated 16th January,
1986 and No. 33 dated 30th May, 1986 as referred and incorporated· in this
B counted affidavit are also reproduced below :-

"Resolution No. 20 dated 16th January, 1986. The Council
considered the report of the committee constituted by the Vice
Chancellor and dec;ded as under:-

c I. That the Rese~rch Associateship should be a wasting/vanishing
cadre and that no future appointment of Research Associates be made
in any Department/Wing of the University.

2. That the existing Research Associates who have been appointed
in various Departments/Wings against regular/vacant available
D positions of lecturers, may be allowed to continue as such till the
vacancies are filled on regular basis after due advertisement etc.

3. For those Research Associates who have been appointed against
the positions created by the Executive Council for individual
departments/wing, they be allowed to continue till their permanent
E aLsorption through a regular selection committee against regular
positions of lecturer in the different departments/wings. As and when
any of them secures regular appointments in any position or leaves
the university the said position of the said Research Associate shall
stand abolished with immediate effect. No further recruitment in this
cadre will be made henceforth.
F
4. The Council further decided that the following facilities be provided
to the existing Research Associates working in the Directorate of
Correspondence Courses.

(a) They shall be allowed to contribute towards the contributory
G provident fund with usual share of University contribution as per
rules.

(b) They shall be allowed to participate in different symposia/seminars/
summer institutes connected with that particular subject.

H (c:) They shall be provided the medical facilities as provided to other
DR. MEERA ABHA, S.C. BHADWAL v. DR. S.R. MEHROTRA [MISRA, J.] 485
employees of the University. A
·1
The council also, decided that the same committee as has been
constituted by the Vice Chancellor in respect of Research Associates,
will consider and examine the issue of evaluators alongwith the
question whether, the evaluators are teachers or not, and submit its
report to the Executive Council." B
"Executive Council Resolution No. 33 dated 30th May, 1986:

"The Executive Council after a detailed discussion on the issue
of evaluators and Research Associates (as per item No. 34), in the
context of.their academic qualifications, nature of duties, academic C
and administrative implications, vis-a-vis service put in the University
by most of them, and the recommendations of the committee constituted
by the Executive Council earlier to go into the matter, decided as
under:-

1. That all Evaluators and Research Associates be regularised in their · D
existing designation/post and scale with immediate effect.

2. Their suitability towards their appointment as Lecturers be
ascertained by the Statutory Selection Committee before which only
the present incumbents would appear and compete, if necessary
amongst themselves. Those who do not get selected will continue as E
such till their appointment against regular posts of Lecturers.

3. All service benefits will accrue to them as in the case of regular
employees of the University.

4. Research Associates and Evaluators be designated as lecturers. F
Their services will be regularised after undergoing the formality of
' selection through the Statutory Selection Committee. In case any
vacancy of lecturer is vacant in any department/Evening College/
Directorate of Correspondence Courses, they will be adjusted against
such posts.
G
5. No future appointment, adhoc or otherwise will be made as Research
Associates in any department or Evaluators in the Directorate of
Correspondence Courses."

In view of the aforesaid stand of the University, the Evaluators and
Research Associates were required only to face the Statutory Selection H
486 SUPREME COURT REPORTS [1998) 1 S.C.R.

A Committee for their regularisation as lecturers.

Learned counsel for Dr. Abba Malhotra adopted the arguments of
learned counsel for the appellant in Civil Appeal No. 13709/96. He clarified
only difference of her case was the wrong allegation against her that she was
related to the Vice Chancellor which in review, the High Court deleted. Similarly,
B the other appellant Dr. Meera Massey also adopted the submission of the
aforesaid learned counsel in her appeal.

Having heard learned counsel for the parties and perused the affidavits,
we find there is no Resolution of the Executive Council which specifically
C spells out appellants promotion. It is also not in dispute that the appellants,
either as Research Associates or Evaluators were withdrawing pay much
below that of Lecturer. It is also admitted that they were performing the duties
of teachers and taking classes. It is also not in dispute that their appointments
initially were temporary and was so till the regular appointment to the post
of Lecturers is made. It is also not in dispute that the post of Research
· D Associates and Evaluators are not referred to in the Act, Statutes or
Ordinances. Ordinance 35.8 empowers the Executive Council to fix the minimum
qualifications for each post or class of post and also to lay down whether
the post or class of posts are to be filled up by direct recruitment or promotion
or by both. Ordinance 35.l l(b) refers that whenever a vacancy is to be filled
up by direct recruitment, the post in category 'A' and 'B' shall be through
E adve1tisement specifying the minimum eligible qualification. It is also not in
dispute that these posts since long time are only being filled by direct
recruitment under the said provision and till the present disputed case no
case to the contrary was brought to our notice. From the stand of the
University it is clear that the University felt that since these appellants
F continued to teach as Research Associates/Evaluators for a long time, hence
on the principle of equity, justice and fair play, their real status of teachers
be recognized. Hence, the Executive Council took the decision to. regularise
their appointments as teacher. From the counter affidavit, as reproduced
above, the stand of the University is that they have appointed these teachers
on special stipulations conditions which is apart from the normal mode. of
G appointment. This is how the University has tried to justify these appointments,
i.e., on special circumstances and on the principle of equity, justice and fair
play, not under any specific provision of Statute, Ordinance etc. If this be so
how could this be the appointments by way of promotion. If University
resolved to promote, there was no difficulty to say so instead to take shelter
H of 'equity' justice and fair play and justify it under special stipulated condition.
DR. MEERA ABHA, S.C. BHADWAL "· DR. S.R. MEHROTRA [MISRA, J.] 487
The Resolution of the Executive Council clearly depicts that initially when the A
First Resolution dated 16th January, 1986 was passed the thinking of the
University was different. They resolved, Research Associates were wasting
and 'vanishing cadre, no such future appointment be made but those already
appointed to the various departments be permitted to continue on the regular/
vacant available post of Lecturers till the vacancies are filled on regular basis
after due advertisement, it further resolved even those Research Associates,
B
\-
who were appointed against the post created by the Executive Council, be
also continued till be permanent absorption through a regular selection
committee. The Executive Committee till this time was not thinking of any
special stipulation/conditions but to let them continue till regular selection
takes place nor it thought to promote them. lt seems on 30th May, 1986 the c
Council resolved that all such persons be regularised in their existing
designation with immediate effect and their suitability for appointment as
Lecturer be through the Statutory Selection Committee. In fact even those
. who were not to be selected through Statutory Selection Committee their
continuance was also secured as the Resolution further stated "those who
do not get selected will continue as such till their appointment against regular D
,(
posts of Lecturers". The Resolution also records that "their services will be
regularised after undergoing the formality of selection through the Statutory
Selection Committee."

The question arises why this special stipulation was resorted to by the
E
University when they could have filled up the post of lecturers on a regular
basis in accordance with the existing Ordinance. IS it not, the university sat
for number of years to fill the vacancies of Lecturers at the cost of students
and permitted adhocism and stop gap arrangement for a long time to bring
in articulated sympathy to justify special stipulated condition. Even if one has
all the minimum qualification for a higher grade post and is on a much lower F
--< 'r grade of scale of pay, it is never desirable to regularise such persons as
standard of selection criteria for both is bound to be different even scrutiny
of selection and sphere of competition is bound to be different. Regularisation
excludes large number of very competent persons who if given opportunity
was available would have applied. It is a slackness inertness may be in some
cases, to which we are not adjudicating, for favouring particular person. This
G
leads to a situation as the present case viz. the sympathy and in-drawing
principle of equity, justice and fair play to regularise adhocism, justifying
merely on eligibility criteria. Selection of teacher has not to be on minimum
eligibility but best available from a larger sphere. Nor from the limited sphere
of adhoc or stop gap appointees. This affects teaching standard of university H
,, ...

488 SUPREME COURT REPORTS [1998] l S.C.R.

A and output of student-at-large. In fact adhocism in any class of service may
be class IV, is deprecated but in our opinion it should never be a principle
in the cases of appointment of Teachers, Readers and Professors. Ordinance
35.8 as aforesaid empowers the Executive Council to lay down whether the
post or class of posts are to be filled up by direct recruitment or promotion.
B In the present case, the Executive Council has not resolved to fill up the post
of Lecturers by way of promotion but to treat the incumbents already working
therein to be regularised. Even if it has power, it never resolved as such. There
is distinction between regularisation and promotion. Regularisation means,
one which is already working, doing or has done something which law did
not permit but the same is being regularised, treated to be done in accordance
C with law, treat one as such. Hence in such cases regularisation cannot be said
to be a promotion as contemplated under the Ordinance 35.8. In para four of
the Executive Council Resolution dated 30th May, 1986 the Research
Associates and Evaluators were resolved to be treated as Lecturer. Here
University did it by itself without even following the procedure of promotion
as noticed and in the same breath directed for regularisation. Could this be
D said to be desirable?

It is not pleasant to think that as high an institution as University has
to regularise something under cover of his own fault. The post of Research
Associates/Evaluators is not provided as aforesaid under Act, Statute or
E Ordinances. It is vanishing cadre, it was only created in 1984 and resolved
to end in 1986. ·Hence it is not necessary to record the finding that they are
teachers within the meaning of Section 2 ( 15) of the Act. Even if it is accepted
as such they will also be held to be covered by category 'A' which includes
teachers as per Ordinance 35.53 and then to such the selection and appointment
could only have been by advertisement by virtue of Ordinance 35.1 I (b).
F However, their appointment as Research Associate/Evaluator is not a matter
of Challenge.

University imparts education which lays foundation of wisdom. Future
hopes and aspira~ion of the country depends on this education, hence proper
and disciplined functioning of the educational institutions should be the
G hallmark. If the laws and principles are eroded by such institutions it not only
pollutes its functioning deteriorating its standard but also exhibits to its own
students the wrong channel adopted. If that be so, how such institutions,
could produce good citizens. It is the educational institutions which are the
future hopes of this country. It lays the seed for the foundation of morality,
H ethics and discipline. If there is any erosion or descending by those who
DR. MEERA ABHA, S.C. BHADWAL v. DR. S.R. MEHROTRA [MISRA, J.] 489 ·
control the activities all expectations and hopes are destroyed. If the institutions A
perform dedicated and sincere service with the highest morality it would not
only uplift many but bring back even limping society to its normalcy. As we
have already recorded above from the stand of University itself that this was
done as a special stipulation circumstances not in accordance with the normal
mode of appointment, we depreciate this and record that in future such
situation should not be brought in for taking such decisions at the cost of B
recognised regular selection of teachers.

It is pertinent to refer to the Report of the University Education
Commission (December 1948 - August 1949) popularly known as the Report
of the Radhakrishnan Commission, Vol, I. (1949), p. 79. C
"We must reiterate our warning against the growth of certain tendencies
which are unhealthy. One is inbreeding. Universities are more and
more inclined to recruit their staff from among their own students and
teachers. Secondly, there is negligence in applying criteria of merit in
the selection of their lecturers. The first breeds narrow parochialism D
and leads to stagnation. The second is dangerous because it
encourages favouritism, depreciates the value of the work of the
lecturers and gradually vitiates the whole atmosphere of the University,
for the Lecturer of today is Reader and Professor of tomorrow. For
University appointments there should be no criteria other than that of E
merit ......"

Simiiarly another Report of the Committee on some problems of
University Administration, 1964 (1967) is reproduced below :

The most important factor in the field of higher education is the type F
of person entrusted with teaching. Teaching cannot be improved
without competent teachers ..... The most critical problem facing the
universities is the dwindling supply of good teachers . .... The Supply
of the right type of teachers assumes, therefore, a vital role in the
educational advancement of the Country. We,. therefore, recommend
that teachers should be selected purely on the basis of their merit G
through regularly constituted selection committees on which there
should be outside experts.

These reports have been given few decades back but in spite of long
passage of time the suggestions and guidance still holds good. But we find
this still not been applied dissolving all the efforts of these commissions. It H
490 SUPREME COURT REPORTS [1998] I S.C.R.

A needs no direction when laws of the universities are framed it is to be adhered
to viz. Act, Statutes and Ordinances. Even for regularisation there has to be r·
if any the law to be prescribed certainly not on parity with the general
principle of law of Industrial workmen or class JV th employees, casual or daily
worker. It is an appointment of teacher. Whenever vacancies of teachers arise
they should be promptly filled up by following the procedure as laid down
B under the University Laws, lest students suffer.
i
However, we find that all the appellants have been regularised as teacher
and appointed as Lecturers approved by the Executive Council since 1986
more than 11 years back. Respondent No. I Dr. Mehrotra very fairly states
he has nothing against these appellants. They are all competent teachers fully
c qualified to be appointed as such. We feel setting aside and disturbing their
appointments now would create great turmoil and would affect the teaching
in the University and, in turn, the students at large even to the appellants ,;

also, who in the hope continued for long. We feel it would not be appropriate
on the facts and circumstances of this case to set aside their appointments
D as teacher. In Shainda Hasan v. State of Uttar Pradesh and Others, (1990)
~
3 SCC 48) it was a case where appointment of the Principal was held to be
illegal but since she was working in the college for 16 years it was felt to be
unjust to make her leave the post, hence in spite of that she was permitted
to continue.
E However, we want to make it clear this approval of their continuing on
the posts of lecturer, in view of their working for such a long period should
not be treated as a precedent. This had been done on the facts and
circumstances of this case. Through this judgment we want to make it clear
that every institution especially the universities while making appointment of
F lecturers should not create a situation so that they have to condone their own
illegality by regularisation. They should act promptly by filling up such
vacancies in accordance with law. Their appointments should be strictly on
~
,
.
merit as they are fibre and strength of the University on which future generation
depends.

G So far as the case of appellant Dr. Meera Massey is concerned, the
contention by Dr. Mehrotra is that she was not even approved by the
Statutory Selection Committee, _as it did not select her as a Lecturer in
Education as she was only Evaluator in Sociology. Since the University failed
to place the original proceeding of the Selection Committee which would have
H put an end to the controversy whether she was interviewed for her appointment
DR. MEERA ABHA, S.C. BHADWAL v. DR. S.R. MEHROTRA [MISRA, J.] 491

as Lecturer in Education, inference was drawn by the High Court in the A
absence of original records produced that she was not considered and
recommended by the Selection Committee for appointment as Lecturer in
Education. Though there was observation of her competence as Lecturer.
However, since the qualification of the appellant Dr. Meera Massey to be
appointed as Lecturer in Education is not disputed as she passed M.Ed. B
examination in July, 1975, M.Phil in Education from this very University and
stood first and awarded gold medal and later did even Ph. D, in Education
while being Evaluator. The dispute, if any is whether the Selection Committee
approved her for Sociology or Education notwithstanding the findings of the
High Court in the situation as aforesaid, we feel for the same reason as she
has also been working for a very long period approved by the Executive C
Council we are not disturbing her appointment as Lecturer on the facts and
circumstances of this Case.

For the aforesaid reasons though we deprecate the situation which was
brought in by the University which created a situation for special stipulation,
deviating from the normal mode, but in view of what we have said above we D
uphold appellants appointments as Lecturers, Accordingly all the three appeals
are allowed with the aforesaid observations. Cost on the parties.

S.V.K.I. Appeals allowed .

. .•