STATE OF KARNATAKA AND ANR.versusB. SUVARNA MALINI AND ANR.

A                     STATE OF KARNATAKA AND ANR.

                         B. SUVARNA MALINI AND ANR.

                                 JANUARY 4, 2001

B                [G.B. PATTANAIK AND B.N. AGRAWAL, JJ.]


          Service Law:

          Karna/aka State Civil Services (Absorption of Persons ll'orking as
C   Part-Time Lecturers in the Kamataka Education Departme/1/ of College
    Education) Special Rules, 1996:

          Rule 2(b){iii)-Certain persons 11•orking as part-lime lectures for 10
    to 20 years-Due to in action State Government their services not of               +
D   regularised-Ultimately, High Power Commillee recommended their
    regulart~wtion and Absorption Rules brought into force-However, High
    Court struck down the Rules a discriminatory-Correctness of-Held:
    Absolute equality among human beings is a physical impossibilif)~Arl. 14
    guarantees similarity of treatment as contra-distinguished ji-om identical
    treatment-The Absorption Rules are made to solve a human problem-
E   Hence, High Court erred in striking down the Rules-Constitution of India,
    1950, Arts. 14 and 226.

           The appellant-State had employed part-time lecturers in different
    colleges for periods varying from ten to twenty years. Due to inaction of the
    appellant these lecturers were not regularised and treated as regular servants.
F
    Ultimately, a High Power Committee recommended that these lacturers could
    be regularised as a one-time measure and, therefore, the Karnataka State
    Ci\•il Services (Absorption of Persons working as Part-Time Lecturers in
    the Karnataka Education Department of College Education) Special Rules,
    1996 were brought into force.
G
          The respondents filed a public interest litigation before the State
    Administrative Tribunal challenging the aforesaid Rules. The Tribunal
    struck down the Rules on the grounds that the Rules violated Article 14 and
    sought to legalise back-door entrants. The High Court affirmed the decision
H   of the Tribunal. Hence this appeal.
                                          72
                                STATE v. B.S. MALIN!                            73
            Allowing the appeal, the Court                                            A
•
          HELD: t. The State Government has been regulating the mvde of
    appointment of part-time lecturers and it is not correct that there has been
    no process of selection before such appointment of part-time lecturers. Even
    though the Public Service Commission had not made the selection yet there
    was a process of selection and unqualified people were not appointed as part-     B
    time lacturers. 179-E-F)

          2.1. The concept of equality before the law does not involve the idea of
    absolute equality among human beings which is a physical impossibility. All
    that Article 14 guarantees is a similarity of treatment as contra-distinguished
    from identical treatment. Equality before law means that among equals the         C
    law should be equal and should be equally administered and that the likes
    should be treated alike. Equality before law does not mean that things, which
    are different, shall be treated as though they arc-the same. It means denial
    of any special privilege by reason of birth, creed or the like. The legislature
    as well as the executive Government, while dealing with diverse problems          D
    arising out of an infinite variety of human relations, must of necessity have
    the power of making special laws, to attain any particular object and to
    achieve that object, it must have the power of selection or classification of
    persons and things upon which such laws are to operate. Mere differentiation
    or inequality of treatment does not per se amount to discrimination. 179-H;
    80-A-B)                                                                           E
          2.2. When the Absorption Rules are examined from the aforesaid point
    and when the circumstances under which the said rules were made to solve
    a human problem and that the Rules made were put to objection to the
    general public and even the Public Service Commission was consulted and
    finally placed before the State Legislature to have its concurrence, are all      F
    considered, it is clear that the High Court committed error in striking down
    the Rules on the ground that they are discriminatory. 180-C-D)

         KS. P. College stop-gap Lecturers Association v. State of Karna/aka,
    AIR 11992) SC 677, held inapplicable.
                                                                                      G
            Ashwani Kumar's case. AIR (1997) SC 1628, referred to.

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 27 of
    2001.

            From the Judgment and Order dated 2.3. 99 of the Karnataka High Court     H
                                                                                          -l

    74                      SUPREME COURT REPORTS                      [2001] l S.C.R.

A in W.P. No. 11479of1998.
                                              With                                        . ir
                                                                                                    -
          C.A. Nos. 28-47 of2001.

B        Kapil Sibal, P.N. Mishra, L. Nageswara Rao N. Ganpathy, D.K. Garg, V.
    Laxminrayan, A. Srivastava, Ms. Ritu Puri and D. Mahesh Babu for the
    appearing parties.

          The Judgment of the Court was delivered by

          PATTANAIK, J. Delay condoned. Leave granted m Special Leave
C Petitions.
          These appeals by State of Karnataka as well as Karnataka Rajya Sarkari
    Prathama Darje Collejugala Arekalika Upanyasakara Sangha, are directed against
    the judgment of the Karnataka High Court, dismissing the writ petitions, filed
D   against the order of the Karnataka Administrative Tribunal. The tribunal
    entertained the public interest litigation petition and struck down Rule 2(b )(iii)
    of the Karnataka State Civil Services (Absorption of Persons working as Part
    Time Lecturers in the Kamataka Education Department of College Education)
    Special Rules, 1996 as well as the order dated 15.12.1997, essentially on the
    ground that the stop-gap lecturers are back door entrants and their                        ....___,
E   regularisation by Rules is contrary to the law laid down by Supreme Court
    in several cases and it affects the rights of regular entrants. Against the order
    of the tribunal, the High Court being moved under Articles 226 and 227 of
    the Constitution and the writ petitions having been dismissed, the present
    appeals have been preferred.

F        These cases involve not only a question of law but also a human
  problem inasmuch as these part time lecturers have served in different colleges
  for varying period for ten to twenty years and, if they are not regularised and
  treated as regular servants, then they will not be able to get themselves
  engaged anywhere else and at the same time, their experience in teaching will
G be a great loss to the student community. The part time lecturers had approached
  this court against the dismissal of their applications by the Karnataka
  Administrative Tribunal by way of filing special leave petitions, which were
  registered as SLP No. 4440-4454/1992 and 432111992. Those special leave
  petitions were disposed of by order dated 3.9.1992 and the Court came to the
  conclusion that on that date their exist 626 vacancies and the part time
H lecturers should be continued till regular recruitment to fill up the posts is
                   STATE v. B.S. MALIN! [PATTANAIK, J.]                      75
1riade and such part time lecturers would be eligible' to apply to the State A
Public Service Commission, whenever, the vacancies are notified and
applications are called for. Tlie Court also took note of the fact that the
tribunal itself has given weight-age at I% per year of service as part time
 lecturers, depending upon the number of years of service or 5%, whichever
is less and also to enhance the maximum age limit upto I 0 years in case of B
part time lecturers, possessing teaching experience and the weightage is also
to be taken into consideration at the time of recruitment. Notwithstanding the
aforesaid observations of this Court, the State of Karnataka did not take any
further step for filling up 626 vacancies, as a result of which, these part time
lecturers could not make applications for regular recruitment. They again filed
a writ petition under Article 32 in January, 1994, which was registered as Writ C
Petition No.2111994. In the said writ petition, they sought for regularisation
of their services. While, the matter was pending in this Court, the State
Government appointed a High Power Committee on 28th of February, 1995 to
examine the problem and the impasse and submit a report. Taking into account
the fact that the Sub-committee has been constituted to consider the grievances
of the part time lecturers, the writ petition was disposed of by order dated D
11.9.1995. The said order reads as follows:

      "It is stated in the rejoinder affidavit that a sub-committee has been
constituted by the State Government to consider the grievances of the part
time lecturers and the cases of all such persons wou Id be considered by the       E
Sub-committee. The Minister In-charge also seems to have made a statement
to that effect on the floor of the House. If that is so, it would be open to the
petitioners to make a representation before the sub-committee along with all
other persons similarly situated.

      The writ petition is accordingly dismissed.                                  F

 On consideration of the grievances made by the part time lecturers, the High
Power Committee submitted its report with the recommendation that the part
time lecturers could be regularised as one time measure, and the aforesaid
recommendation was more or less for solving the impasse on account of G
inaction on the part of the State government in taking regular steps for filling
up the vacancies and the continuance of these part time lecturers, who have
served for fairly long period ranging from ten to twenty years. The State of
Karnataka, approved the recommendation of the High Power Committee and
decided to frame Rules under the provisions or'Karnataka State Civil Services
Act, 1978 for regularisation of these part tim!! lecturers.                      H
    76                     SUPREME COURT REPORTS                    [200 I] I S.C.R.

A         It may be noticed that the High Power Coinmittee considered the
  problems of the part time lecturers in great detail and bearing in mind the
   relevant decisions on the question, made the recommendation for absorption
  of such part time lecturers and while making such recommendations, the
  reserved quota in favour of Scheduled Castes/Scheduled Tribes/other back-
B ward classes under Article 16(4) of the Constitution remained intact. The said
  Committee also recommended that special recruitment rules will have to be
  framed by the State Government in exercise of powers conferred on it by the
  Karnataka State Civil Services Act, 1978 for the purpose of absorption. On
  the basis of the aforesaid recommendations of the High Power Committee, the
  State Government framed draft rules called the Karnataka Civil Services
C (Absorption of Persons working as Part Time Lecturers with Karnataka
  Education Department Services) (Department of Collegiate Education) (Special)
  Rules, 1996 (hereinafter referred to as 'the Absorption Rules') in exercise of
  powers conferred under Section 3 read with Section 8 of the Karnataka State
  Civil Services Act, 1978 [hereinafter referred to as 'the Act]. Section 3(2)(b)
  of the Act mandates that the draft rules should be forwarded to the Karnataka
D Public Service Commission for necessary consultation, as provided under
  Article 320(3) of the Constitution. The draft rules were notified in Gazette,
  inviting objections and then the same were sent to the Public Service
  Commission for necessary consultation. On consideration of all objections
  received and in consultation with the Public Service Commission, the final           ...._
E absorption rules were published on 22nd of January, 1997. The Karnataka
  State Civil Services Act is an Act to regulate the Recruitment and the conditions
  of Service of persons appointed to Civil Services of the State of Karnataka
  and posts in connection with the affairs of the State of Karnataka. Section
  3 authorises the State government to make rules, regulating recruitment and
  the conditions of service. Section 8 is the rule making power of the State
F government to make rules to carry out the purposes of the Act. Under Sub-
  section (3) of Section 8, every rule made under the Act is required to be laid
  as soon as may be, after it is made before each House of the State Legislature,
  while it is in session for a total period of thirty days, which may be comprised
  in one session or in two or more successive sessions, and any modification
G in the rule, as desired by the House, could be carried out or if both Houses
  agree that the rule should not be made, in which case the rule will not be
  effective and it is only when the House agrees with or without any modification,
  then the rules shall have the effect in such modified form. The absorption
  rules being the rules made in exercise of powers under Section 8 and the
  aforesaid requirement under sub-section(3) of Section 8, having been duly
H complied with, the rule is legislative in character and would have the force,
                  STATE v. B.S. MALIN! [PATTANAIK . .I.]                   77
as if the State Legislature have fra1ned the rules.                             A

       On the public interest litigation filed by some intending candidates for
the post of lecturer, the tribunal struck down the absorption rules on the
ground that it violates Article 14 and seeks to legalise back-door entrants,
even at the cost of relaxation of the relevant qualification and must be held
to be contrary to several decisions of this Court. Reliance has been placed B
on the three Judge Bench Judgment of this Court in Ashwani K11111ars case,
AIR (I 997] SUPREME COURT 1628, where-under this Court had indicated
that an employee whose entry in service is illegal being in total disregard of
recruitment rules or being not on existing vacancy, has no case for regularisation
and in any event, back-door entries· for filling up the vacancies have to be C
strictly avoided.

        Mr. Kapil Sibal, the learned senior counsel, appearing for the part time
 lecturers, submitted with vehemence that the question of absorption through
 a legislative measure was necessary because of inaction on the part of the
 State machinery in complying with the directions of this Court dated 3.9.92 D
 in special leave petition Nos. 4440-4454/1992 and even before initiating framing
 of absorption rules, the State Government have constituted a special Committee
 to examine the problems of these part time lecturers and suggest measure<'
 to be taken for ventilating their grievances and said Committee had
 recommended for absorption as a one time measure. According to Mr. Sibal, E
 therefore, this is not a clandestine regularisation of the so-called back-door
 entrants, but solving a problem and an impasse which was the creation of the
 inaction on the part of the State machinery and, therefore, there could not be
 any objection to such regularisation, so long as the essential qualifications
.are not sacrificed. According to Mr. Sibal, these part time lecturers have in
 fact discharged the maximum work load in taking the courses of study meant F
 for the students and would otherwise loose their livelihood, if their services
 are not regularised and the legislative measures by way of enactment of
 absorption rules, subserves the purpose and the tribunal as well as the High
 Court committed error in striking down the said rules. By referring to the
 requirement of the absorption rules, Mr. Sibal also submitted that due care G
 and caution has been taken, so that unworthy and unqualified hands do not
 get themselves absorbed and he further urged that if this Court feels any
 further stipulation in that regard, the Court may observe to that effect. The
 learned counsel also contended that he is not advocating for absorption,
 general)y of untrained and unqualified persons but in the case in hand, the
 absorption rules have been framed to meet a special and peculiar situation H
    78                       SUPREME COURT REPORTS                       (2001] I S.C.R.

A and that too, after thoroughly examining the pros and cons by an expert
    Committee and consequently, it stands on a different footing than an ordinary
    process of absorption of back-door entrants and this perspective has not
    been borne in mind by the tribunal or the High Court, while striking down the
    provisions of the absorption rules. We find considerable force in the aforesaid
B   submission of Mr. Sibal, appearing for these part time lecturers. Though some
    of the intending applicants for the post of lecturer had moved the tribunal by
    way of a public interest litigation and had been arrayed as party respondents           . J-..
    in these appeals, but there had been no appearance on their behalf and,
    therefore, the Court had not the advantage of having the opposite view point
    and for this reason, we have to scrutinize the so-called absorption rules in
c   a great detail. It may be stated that the State of Karnataka has also preferred
    a special leave petition, which has been tagged on to the present case, being
    SLP(Civil) No. 15991/99 and the contentions raised in the said special leave             +
    petition are similar to those raised by Mr. Sibal in the special leave petitions
    filed on behalf of the part time lecturers. It may also be noticed that the order
D   of the State Government dated I0.6.1998 as well as the assertion of the State
    Government in the special leave petition filed in this Court unequivocally
    indicates that there would be no compromise with the prescribed qualification
    and, necessarily, therefore, the part time lecturers, who would get themselves
    absorbed under the Absorption Rules by following the prescribed procedure,
E   will have to pass the N.E.T. test, fixed by the University Grants Commission,
    within the period of three years, as provided in the Government letter dated
    I0.6.98 and would not be entitled to the scale of pay available for the regular
    qualified teachers but would only get the State scale of pay provided they
    possess the requisite qualification for the state scale. It is in these perspectives,
    we are examining the validity of the Absorption Rules.
F
           It is no doubt true that this Court in the case of K.S.P. College Stop-
    Gap lecturers Association v. State of Karna/aka, AIR (1992) SC 677, had
    indicated as to how appointments made in disregard of rules and regulations
    and then regularising the same by process of regularisation rules or order has
    been unjust and unfair to those who are lesser fortunate in society, even
G   though they may be better qualified, more meritorious and well deserving. The
    Court also indicated its anxiety to find that the infection has been widespread
    in Government or semi-government departments and even used a word of
    caution that even if it is found to have been resorted to as a genuine
    emergency measure, the Courts should be reluctant to grant indulgence. It is
H   specifically indicated in the aforesaid case that in the State of Karnataka, it
                   STATE v. B.S. MALIN! [PATTANAIK, .I.)                     79
is basically State created problem due to defective rules and absence of any       A
provision .to effectively deal with such a situation. It is this judgment of the
Court, which has weighed with the High Court in upholding he orders of
tribunal by striking down the provisions of the Absorption Rules. As has
been indicated in the impugned judgment of the High Court that the appoinnnent
of the part time lecturers in the State of Karnataka is in vogue since 1979 and    B
the object of appointment on part time basis is the utilisation of services of
unemployed qualified persons and such part time lecturers are appointed only
when the full time teaching staff is not adequate to cope up with the existing
teaching work load or when there is no full time teaching staff in any subject.
                                    I


       From time to time, the Government have also been issuing instructions C
for canalizing the method of appointment and directing that even part time
lecturers could be appointed through the Directorate of Collegiate Education
and not otherwise. The Directorate of Collegiate Education also has been
issuing circulars indicating the guidelines. The reasons which weighed with
the High Court to sustain striking down of the Absorption Rules are that the
so-called part time lecturers had not been appointed after a process of selection D
in accordance with the prescribed rules but on the other hand, their
appointment is de hors the rules. Further such candidates are not scrutinized
by the Public Service Commission and they do not possess the N.E.T. test,
as provided by the University Grants Commission, which is one of the essential
requisites for recruitment under the statutory Recruitment Rules of 1993.         E
       From the materials on record, it appears that the State government has
been regulating the mode of appointment of part time lecturers and it is not
correct that there has been no process of selectibn before such appointment
of part time lecturers. Even though the selection had not been made by the
Public Service Commission, but yet there was a process of selection and it F
further appears that unqualified people were not been appointed as part time
lecturers. Part time lecturers having been formed a class by themselves and
for some reason or the other, they having been deprived of the benefits of
the earlier directions of this Court on account of inaction on the part of the
State Government, the matter was reexamined by a Committee of experts as G
to how best, the services of these part time lecturers can be utilised and at
the same time, there will be no dilution in the quality of teaching nor there
can be any infraction in the minimum qualification, necessary for appointment
as a lecturer. The concept of equality before the law does not involve the idea
of absolute equality among human beings which is a physical impossibility.
All that Article 14 guarantees is a similarity of treatment contra-distinguished H
    80                      SUPREME COURT REPORTS                     (2001] I S.C.R.

A from identical treatment. Equality before law means that among equals "the law
  should be equal and should be equally administered and that the likes should
  be treated alike. Equality before the law does not mean that things which are
  different shall be treated as though, they are the same. It of-course means
  denial of any special privilege by reason of birth, creed or the like. The
B legislature as well as the executive government, while dealing with diverse
  problems arising out of an infinite variety of human relations must of necessity,
  have the power of making special laws, to attain any particular object and to
  achieve that object, it must have the power of selection or classification of
  persons and things upon which such laws are to operate. Mere differentiation
  or inequality of treatment does not per se amount to discrimination. When the
C Absorption Rules are examined from the aforesaid stand point and when we
  consider the circumstances under which the said rules were made to solve a
  human problem and that the rules made were put to objection to the general
  public and even the Public Service Commission was consulted and finally was
  before the State Legislature to have their concurrence, we are of the considered
  opinion that the High Court committed error in striking down the rules on the
D ground that it is discriminatory. When this Court deprecates the regularisation
  and absorption, when it comes to the conclusion that such regularisation and
  absorption has become a common method of allowing back door entries and
  then regularising such entry, it is not that in every case, the Court would be
  justified in striking down the process of absorption or regularisation, more so
E when such absorption has been made as a legislative measure and that also
  as a one lime measure, and at the same time insisting upon the essential
  qualifications to be duly complied with, by the persons intended to be absorbed
  on regular basis. In the aforesaid premises, we have no hesitation to come
  to the conclusion that the tribunal as well as the High Court committed
   serious error in striking down the impugned absorption rules. We, therefore,
F set aside the judgment of the tribunal and the High Court and allow these
   appeals. While we hold the absorption rules to be valid, we would further
  direct that the State Government must insist upon the candidates to pass the
  N.E.T. test, as required by the University Grants Commission within the period
   of three years and it is only on passing of such test, the absorbed employees
G will be entitled to the scale of pay, available for the regular qualified lecturers.
   Failure on their part to pass the N.E.T. test would debar them from being
   absorbed and regularised.

           These appeals are allowed with the aforesaid observations and directions.

H v.s.s.                                                           Appeals allowed.