Holding

Appointments of ad‑hoc teachers without sanctioned posts are illegal, and the High Court's consent order substituting the statutory University Service Commission with a committee of Vice‑Chancellors is beyond its jurisdiction; the appeals are dismissed.

Summary

The Supreme Court examined the practice of appointing ad‑hoc teachers in Bihar universities without any sanctioned posts. It held that such appointments violate Article 14 of the Constitution and the Bihar State University Act, 1976, which requires recruitment for sanctioned vacancies to be made by the University Service Commission and limits temporary appointments to six months. The Court found that the Patna High Court, by a consent order, improperly replaced the statutory commission with a committee of Vice‑Chancellors, exceeding its jurisdiction. While condemning the continued use of ad‑hoc appointments, the Court declined to issue a sweeping direction for regularising all ad‑hoc teachers and instead emphasized compliance with the statutory vacancy‑identification process. Consequently, the appeals and related interlocutory applications were dismissed.

Issues considered

The High Court, by consent, could replace the Bihar University Service Commission with a committee of Vice‑Chancellors for identifying vacant posts.
Whether appointments of ad‑hoc teachers on non‑sanctioned posts contravene Article 14 and the Bihar State University Act, 1976.
Whether the State of Bihar and the universities are bound to comply with the Supreme Court's 1989 order and what remedy is available to ad‑hoc teachers.
Whether the Supreme Court can direct that all ad‑hoc teachers be considered for regularisation irrespective of the existence of sanctioned posts.

Legislation cited

Constitution of Indias. 12, s. 14, s. 141, s. 142, s. 144, s. 320
Contempt of Courts Act

Subjects

ad‑hoc teachersappointmentBihar State University ActArticle 14equalityUniversity Service Commissionregularisationconsent ordercontempt of courtvacancy identificationhigher education

Judgment

'.>..
A VEER KUNWAR SINGH UNIVERSITY AD HOC IBACHERS
ASSOCIATION AND ORS.
v.
TIIE BIHAR STAIB UNIVERSITY (C.C.) SERVICE COMMISSION AND
ORS.

B MAY 18, 2007

[S.B. SINHAANDMARKANDEYKATJU,JJ.] ...
""

Service Law:
c
Appointment-Practice of appointing ad-hoc teachers in Universities
deprecated-Held: If a Government of a State or a University which is also
a State within the meaning of Art.12, despite repeated observations of the
Superior Courts, continue to do so, such a practice must be condemned-
D Creation ofsanctioned posts is sine qua non for recruitment-Any appointment
made in violation of the constitutional scheme of equality as adumbrated
under Art. 14 as also in violation of the provisions of the relevant Act and
.,._..
the subordinate legislation framed thereunder would be wholly illegal and
without jurisdiction-Bihar State University Act, 1976-ss. 57 & 58-
Constitution of India, 1950--Arts. 12 & 14.
E
In various Universities in the State of Bihar, ad hoc teachers were being
appointed without any sanction therefor. In 1989, the matter came up before
the Supreme Court which deprecated the said practice and thereafter directed \=
the Bihar University Service Commission to advertise the posts available. The
Court also asked the Government to consider the workload in each University
F and sanction additional posts as may be required. The additional posts were ,. ,,,
directed to be filled regularly either by direct recruitment or by promotion
as per rules and not by ad hoc appointment. Further all the ad hoc teachers
against sanctioned posts were asked to continue till selection was made by
the University Service Commission.
G
Subsequently in 1993 an advertisement was issued by the Bihar
University Service Commission for appointment of teachers in different
Universities. At that point of time, additional posts were not sanctioned. \,...,...
Appellants-ad hoc teachers made representation before the Chancellor for
regularization of their services and subsequently filed a writ petition before
H 396
VEER. KUNWAR SING! Ulll. AD HOC TEACHERS ASSON. v. BlllAR STATE UNI. (C.C.) SERVIQ; COMMISSION 397

the High Court. The High Court noticed that the time frame prescribed by A
Supreme Court in the said judgment had not been adhered to and that the
controversies raised before it did not give rise to any serious dispute in law,
rather involved a careful balancing of equities, with a view to give effect to the
said judgment of the Supreme Court. In that situation, the parties agreed to
consent, pursuant to which a consent order was passed by the High Court. In B
terms of the consent order, the vacant posts were to be identified by a
Commith:e consisting of the Vice-Chancellors of the various Universities·
concerned with a retired Judge as its Chairman and the finding of the
Committee in this regard was to be final.

In appeals to this Court, it was contended by the Appellants that the High C
Court committed a manifest error in passing the impugned judgment, insofar
. as by reason of the consent order, it neither could have modified the terms of
the order passed by this Court, nor could it in contravention of the provisions
of the Bihar State University Act, 1976 as also the statutes framed thereunder,
appoint a committee of the Vice Chancellors in place and stead of the Bihar
University Service Commission, which is a statutory body. D
.,, Dismissing the appeals and the connected interlocutory applications,
the Court

HELD: 1.1. In terms of the Section 57 of the Bihar State University
Act, 1976, all sanctioned vacant posts were required to be filled up by E
candidates who were qualified therefor and who had been selected by the
University Service Commission, which is a statutory body. Clause (a) of sub-
section (1) of Section 58 of the said Act provides for appointment on temporary
basis without following the procedure prescribed in Section 57 of the Act;
but such appointments shall not exceed a period of six months.
F
(Para 26) [406-G-H; 407-A-B)

1.2. Any appointment made in violation of the constitutional scheme of
equality as adumbrated under Article 14 of the Constitution as also in violation
of the provisions of the Act and the subordinate legislations framed thereunder
would be wholly illegal and without jurisdiction. G
[Para 27) (407-8-C)

Secretary, State ofKarnataka and Ors. v. Umadevi (3) and Ors., [2006)
>- ; 4 sec 1, followed

R.S. Garg v. State of U.P. and Ors., [2006) 6 SCC 430; Surinder Prasad H
398 SUPREME COURT REPORTS (2007] 7 S.C.R.

A Tiwari v. U.P. Rajya Krishi Utpadan Mandi Parishad and Ors., (2006) 7 SCC
684; State ofMP. and Ors. v. La/it Kumar Verma, (2007) 1 SCC 573; Indian
Drugs & Pharmaceuticals Ltd v. Workmen, Indian Drugs & Pharmaceuticals
Ltd, (2007] 1 SCC 408; Municipal Corporation, Jabalpur v. Om Prakash
Dubey, (2007] 1 SCC 373; Accounts Officer (A&I), AP SRTC v. KV. Ramana
and Ors., (2007) 2 SCC 324; Punjab Water Supply & Sewerage Board v.
B Ranjodh Singh and Ors. etc., (2007) 2 SCC 491; State of Punjab and Ors. v.
Lakhwinder Singh and Ors., (200i) 2 SCC 502, Yamuna Shankar Sharma v.
State of Rajasthan and Ors., (2007) 2 SCC 611 and Post Master General,
Kolkata & Ors. v. Tutu Das (Dutta) (2007) 6 SCALE 453, relied on. -"

C 2.1. Creation of sanctioned posts is a sine qua non for recruitment to
the post of lecturers. Adherence to the statutory provisions therefor is
imperative in character. No doubt the qualification for holding the post of
lecturer has since been changed in terms of the ordinance promulgated in
the year 1993, but then the same was done as per the directions of the
University Grants Commission. The colleges whether constituent or
D recognized must have lecturers who are qualified to hold the post Qualification
to hold the post of lecturer is fixed by the University Grants Commission. A
University can ignore the directions of the University Grants Commission in
this behalf only at its own peril and risk of derecognition. Neither i.t is
permissible for a University to contravene the directions of the University
E Grant Commission nor is it permissible for a court of law to issue a direction
contrary thereto. Evidently, the endeavour on the part of the appellants and
interveners herein was to obtain a direction from this Court that their cases
may be considered by a Public Service Commission or in its absence by the
State or by the University on the basis of a qualification held by them prior to
1993. No such direction at this point of time can be issued. This Court will
F assume that the State and/or Universities had failed to adhere to the time frame
fixed by this Court, but even if a violation of this Court's order in that behalf
had taken place, the same by itself would not lead to an inference that the
respondents were still to obey the order of this Court, despite the change in
law, which had taken effect in this behalf. Such a direction cannot be given at
G this stage. [Para 35] [409-C-G]

2.2. In a situation of this nature, when a subsequent event has occurred
and when there exists a dispute as to whether order of this Court has
substantially been complied with or not, it would not be proper to put the
parties to the same position to which they were in 1989.
H [Para 37] [410-G-H; 411-A]
VEER KUNW AA SINGH UNl AD HOC TEACHERS ASSON. •·· BIHAll STATE UNI. lC.C.) SERVICE COMMISSION 399

Secretary, State of Karnataka and Ors. v. Umadevi, 3 and Ors., (2006) A
4 sec 1, followed.

3. The practice to appoint ad hoc teachers must be deprecated. If a
Government of a State or a University which is also a State within the meaning
of Article 12 of the Constitution of India, despite the repeated observations of
the superior courts of the country, continue to do so, such a practice must be B
condemned. [Para 38) [411-A-B)

4.1. Directions can be issued to the State to act within four-corners of
the statute and to declare any action taken in contravention thereof to be a
nullity; but it would not be permissible for this Court to go beyond the
provisions of the statute and issue a direction that cases of all the appellants C
must be considered irrespective of the fact as to whether their appointment
even as ad hoc teachers was against a sanctioned post or they have been
working against the non-sanctioned posts or not. (Para 39] (411-C]

4.2. Even before the High Court it had been conceded that many teachers
have been appointed on an ad hoc basis on non-sanctioned posts. One fails to D
understand how this could be validly done. Those teachers who could compete
with others having requisite qualification must be appointed by the University
Service Commission in accordance with the provisions of the Bihar State
Universities Act. Appellants may have the requisite qualification at the relevant
point of time, but one must also consider that since then a large number of E
other persons must have acquired the requisite qualification for being
appointed to the said posts, who cannot be deprived of their right to be
considered for appointments along with other eligible candidates in terms of
Article 14 of the Constitution. (Para 40) (411-D-E]

4.3. The interest of justice would be subserved if it is directed that the F
Respondents in filling up of the vacant posts take into consideration the cases
of all those teachers also who have the requisite qualifications, upon relaxation
of age, if permissible by law along with other eligible candidates. However, it
would be open to the State of Bihar as also the concerned Universities to
forthwith terminate the services of those teachers not working against
sanctioned posts or who do not fulfill the requisite educational qualifications G
or whose services are otherwise not required.
[Para 46) [412-G, H; 413-A, BJ

B.S. Bajwa and Anr. v. State of Punjab and Ors., (1992) 2 SCC 523;
Swami Krishnanand Govindanand v. MD. Oswal Hosiery (Regd), {2'J01J 3
SCC 39 and Employers in relation to Monoharbahal Colliery Calcutta v. KN. H
400 SUPREME COURT REPORTS [2007) 7 S.C.R.

A Mishra and Ors., AIR (1975) SC 1632 referred to. .,
>-
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1601-1602 of
2004.

From the Final Judgment and Order dated 2.2.2000 and 23.11.2000 of the
B High Court of Judicature at Patna in CWJC No. 4001of1995 and Civil Review
No. 140 of2000.

J.C. Gupta, P.S. Misra, Sr. Adv. Shrish Kumar Mishra, Salcet Singh, .>,
Upendra Mishra, D. Jha, Niranjana Singh for the Appellants.

c H.L. Aggarwal, P.S. Mishra, Sr. Advs. Vikram Braj K. Mishra, Apaqia
Jha, Ujjwal K. Jha, Atul Jha, Naresh Kumar, Amit Kumar, P. Chandra Kumar
Brij Nandan, J.K. Jha, Ashish Kumar, Syed Ali Ahmad, Syed Tanweer Ahmad,
S.S. Banoyopadhyay, Mohd. Shah Nawaj Hasan, Shabana Saifi, Mohan Pandey,
Vijay Kumar, Vishwajit Singh, Upendra Mishra, Rajeev Singh, Ravi Chandra
Pralcash, Dhruv Kumar Jha, H. Tathagat, Sunita R. Singh, Shefali Jain, Gopal
D Singh, Anukul Raj, Rituraj Biswas, B.B. Singh (NP), Prem Sunder Jha, Deba
Prasad Mukherjee, Ugra Shankar Prasad, Prashant Kumar, Manjula Gupta, P.B.
Suresh (for Temple Law Firm) Gopal Prasad, A.N. Bardiyar, Bharat Sangal,
Rajesh Prasad Singh for the Respondents.
" <

The Judgment of the Court was delivered by
E
S.B. SINHA, J. l. These appeals are directed against a judgment and
order da' J 02.02.2000 p<.ssed by a Division Bench of the Patna High Court
disposing of the writ applications filed by the appellants herein on consent
as also an order dated 23 .11.2000 passed by another Bench of the said Court
F refusing to review the said order.

2. Appellant No. I is an Association of ad hoc teachers appointed in
various colleges affiliated to Veer Kunwar Singh University.

3. The affairs of all the Universities situated in the State of Bihar
G including that of Appellant No. I-University admittedly are governed by the
provisions of the Bihar State University Act, 1976.

4. Ad hoc appointments indisputably were made by various Universities
in the State of Bihar. Ad hoc teachers of Ranchi University had filed writ \__.;.·
applications for regularization of their services, which were dismissed by the
H Patna High Court by a judgment and order dated 22.05.1989. A special leave
VEER KUNW AR SINGH UNL AD HOC TEAOIERS ASSON. •· BDIAR STATE UNL (C.C.) SERVICE COMMISSKlN (S.B. SINHA. J.) 40}

petition was filed thereagainst, which was marked as Special Leave Petition A
(Civil) No. 11078 of 1989. A writ petition was also filed before this Court,
which was marked as Writ Petition No. 65 of 1989 inter alia, for a direction
to the University to take steps to sanction posts against which ad hoc
teachers were working for regularization of their services. An order of status
quo was granted.
B
5. T.. : writ petition as also the special leave petiti0n were taken up for
hearing by tnis Court together. By a judgment and order dated 06.12.1989, the
)
said writ petition and special leave petition were disposed of. We would refer
to the purport of the order of this Court, a little later.

6. However, we may notice that allegedly during the pendency of the C
said matter before this Court Magadh University which was the predecessor
of Appellant No. I-University had sent its proposal for creation of 1467
additional posts of lecturers to the Government, which included 426 additional
posts which were required for Appellant No.I-University, which was a part
of Magadh University at the relevant time. State of Bihar and the University, D
however, have a different story to tell.

7. This Court by reason of the said judgment dated 06.12.1989, inter
alia, noticed the unsatisfactory situation created by repeated appointments
of ad hoc teachers. This Court deprecated the common practice purported to
be existing in some of the colleges of Bihar to appoint ad hoc teachers at the E
instance of/or without reference to the Vice Chancellor and even without any
sanction therefor. It was held that appointments of ad hoc teacher like
employees were neither good for Universities nor for students.

8. We may notice that the petitioners therein, inter alia, contended that
adequate number of posts should be sanctioned so as to conform to the ratio F
of teachers and students. This Court in its judgment directed :

"(i) The University Service Commission shall advertise the posts
available for direct recruitment within four months.

(iI) The Government shall consider the workload in each University G
and sanction such additional posts that may be required, within
the said period. Such additional posts shall also be filled regularly
either by direct recruitment or by promotion as per rules and not
by ad hoc appointment.

(fu) The University/Government shall relax the maximum age prescribed H
402 SUPREME COURT REPORTS [2007) 7 S.C.R.

A for direct recruitment of teachers to the extent of service rendered
by persons as ad hoc teachers.
(iv) All the ad hoc teachers in service on February 10, 1989 against
sanctioned posts shall continue till selection is made by the
University Service Commission and they shall be paid in terms
B agreed for the period in which they actually worked.
(v) Other ad hoc teachers who have worked till that day must also
be paid.
(vi) The payment shall be made within one month."

C 9. It is not in dispute that on an allegation that the said order had not
been complied with, a contempt petition was also filed before this Court. As
would be noticed hereinafter, this Court discharged the rule issued against the
contemnor.

10. Appellant No.I-University was created in the year 1992. On or about
D 23.11.1993, an advertisement was issued by the Bihar State University
(Constituent Colleges) Service Commission for appointment of teachers in
different Universities. Allegedly, at that point of time, additional posts were
not sanctioned. It is furthermore not in dispute that ad hoc teachers made a
representation before the Chancellor for regularization of their services. The
E University Service Commission had also issued a corrigendum in the said
advertisement asking the candidates to appear in the Bihar Eligibility Test
(BET) for appointment of teachers in different Universities/Constituent
Colleges.

11. A writ petition was filed before the Patna High Court by the
F Federation of the University Ad hoc Teachers Associations of Bihar, which
was marked as CWJC No. 4001 of 1995. One Dr. Umesh Prasad Singh also filed
.•
a writ petition, which was marked as CWJC No. 4138 of 1993. A Division
Bench of the Patna High Court took notice of the said judgment of this Court
and furthermore noticed that all ad hoc teachers were allowed the benefit of
continuation till final selection was made by the University Service Commission
G irrespective of the fact as to whether they were appointed against the
sanctioned posts or not. It also noticed that unfortunately the time frame
prescribed by the Supreme Court had not been adhered to. It was noticed that
having regard to an ordinance that was issued in the year 1993 followed by
Act 17 of 1993 as also amendment thereto in the year 1995 by way of an
H ordinance followed· by Act 12 of 1995 prescribing additional eligibility
\'EER KL1''WAR SL'1GH UNI. AD HOCTEACllERS ASSON. •· BIH.AR STATE U1'1.1C C.l SER\lC'ECOMMISSiOl'i (S.B. Sl1'l!A. J.J 403

conditions such as passing Bihar Eligibility Test or the National Eligibility A
Test, and in the alternative, holding of Ph.Dor M. Phil Degree had been laid
down for recruitment to the said posts. It was in the aforementioned premise
that another advertisement was issued by different Universities and about
1374 cand: ·ates were ultimately selected for appointment and in fact were
appointed.
B
12. Before the High Court, contention of the appellants, inter a/ia, was
that as thousands of posts were still lying vacant which were to be filled up
.;
within the time frame set by this Court, which if had been adhered to in letter
and true spirit, the appellants would have been found eligible therefor.
According to the learned Judges the controversies raised before it did not
give rise to any serious dispute in law, rather involved a careful balancing of
c
equities, with a view to give effect to the judgment and order of the Supreme
Court.

.L 13. In that situation when the learned counsel for the petitioners therein
as also the learned Advocate General agreed to a consent order, the same was D
accepted by the High Court finding it to be fair and equitable. One of the
/ tenns of the consent order is as under :

(ii) The vacant posts shall be identified by a committee consisting of
the Vice-Chancellors of the various Universities concerned with
Hon'ble Mr. Justice S. Sarwar Ali (retired) as its Chainnan and the E
Secretary, Higher Education as its Member Secretary. Within a period
of four months from today, the vacant posts as on the relevant date
i.e. 30th May, 1990 shall be identified by this committee. The finding
of the committee on this question shall be final and shall not be
challenged by any one in any proceeding."
F
14. Appellants were not satisfied therewith. They filed an application for
review which by reason of an order dated 23 .11.2000 has been dismissed.

15. Appellants are, thus, before us.

16.Various interlocutory applications by different persons have also G
been filed, but it is not necessary to deal therewith separately.

17. Mr. P.S. Misra, learned Senior Counsel appearing on behalf of the
,,,,. __,
appellants, inter alia, would submit that the High Court committed a manifest
error in passing the impugned judgment and order dated 02.02.2000 and
H
404 SUPREME COURT REPORTS (2007) 7 S.C.R.

A refusing to review its order, insofar as by reason of the consent order, it
neither could have modified the terms of the order passed by this Court, rior
could it in contravention of the provisions of the Bihar State University Act
as also the statutes framed thereunder, appoint a committee of the Vice
Chancellors in place and stead of the Bihar University Service Commission,
B which is a statutory body.

18. It was urged that the State has taken recourse to supperssio veri
inasmuch in its affidavit it had reduced the number of sanctioned vacant
posts only to 55, despite the fact that there are materials on records to show
that there were 289 vacant posts in Magadh University, 249 posts in Ranchi
C University and 292 posts in Bhagalpur University.

19. The learned counsel would submit that that the order passed by this
Court was binding on the parties and the time frame set therein was required
to be strictly adhered to. No additional financial burden, the learned counsel
would contend, shall be placed on the exchequer ifthe directions of this Court
D are followed and thereby only the students will be benefitted.
.'
20. It was, however, very fairly stated before us that both the University.
Service Commission and the College Service Commission have since been
abolished and, therefore, this Court should issue a direction to the State of
Bihar or the Selection Committee to fill up the vacancies by constituting the
E selection committee, as may be found necessary.

21. Mr. Gopal Singh, learned counsel appearing on behalf of the State
of Bihar, on the other hand, has drawn our attention to the statements made
in the Counter Affidavit filed on behalf of Respondent Nos. 3 and 4 and
affirmed by one Qamar Ahsan, Registrar of Appellant No. I-University, which
F are in the following terms :

"6. That it is submitted that the University has already identified the
vacant sanctioned post in different colleges and sent to the
University Service Commission for advertisement and
recommendation. Pursuant to the recommendation of the
G commission appointments were made in the years 1996 and 2003.
7. That the ad hoc teachers appointed without authority of law may
be treated as contractual agreement and payment was made on
per class basis. Such appointment was made merely on agreement
without the consent of the University which was made from time
H
\'EEJI. KL"l.'WAR SINGH L~l AD HOC TEAOIERS ASSOK •. BIHAR SHTE L1'l lC.C.) SERV1CE COMMISSIOS IS e. S!!>ll.4. J.1 40 5

to time and cannot be treated as valid appointment. A
8. That the Secretary, Higher Education vide his letter dated 9.7.2003
has also informed the University that the Govt. has complied the
order dated 6.12.1989 as directed by the Hon'ble Supreme Court."

22. Our attention has also been drawn to the Counter Affidavit filed on B
behalf of the State of Bihar, some relevant paragraphs whereof are as under:

"8. I say that in respect of this Hon'ble Court's direction at SI. No.
1 all the Universities were asked to report the available vacancies to
the University Service Commission.
"'
'
9. I say that in respect of this Hon'ble Court's direction at SI. No. 2 C
Universities of the State were requested vide Department letter No.
14/MI-021/89 MA-210 dated 15.2.1990 to send proposal for creation of
additional posts according to the workload by 15th March, 1990. The
Universities were reminded vide letter No. 427 dated 28.4.1990 and
again vide letter No. 506 dated 5.5.1990. Many more reminders were D
also sent. In response to these letters, proposals were received from
y -I
Magadh, Ranchi and Bhagalpur Universities. Other Universities did
not send any consolidated proposal for creation of additional posts
in accordance with the workload. Therefore, it was presumed that they
did not have requirement for additional posts of teachers.
E
10. I say that on the basis of workload 55 additional posts have been
sanctioned for three concerned Universities. The concurrence of
Government for sanctioning these posts has been communicated to
the concerned Universities to enable them to send requisition to
University Selection Committee.
F
xxx xxx
12. l say that in respect of direction given at S. No. 4, 5 & 6, the
Universities were asked to comply. A contempt petition no. 145/91
was filed in this Hon 'ble Court for not complying with the order of
this Hon 'ble Court dated 6.12.1989. The State Government filed an G
affidavit in the contempt petition and produced advertisement for 98
posts including 55 addtitional sanctioned posts for Ranchi, Bhagalpur
and Magadh Universities and this Hon'ble Court discharged the rule
of contempt on 23.9.1991.
H
406 SUPREME COURT REPORTS [2007] 7 S.C.R.

A xxx xxx
16. That the present petitioners of this Special Leave Petition have
been claiming that they are ad hoc teachers of Veer Kunwar Singh
University which had been bifurcated from Magadh University. That
in case of Magadh University, the Department of higher education
B had given concurrence in creation of additional posts in some _subjects
on the basis of workload. It is also important to point that it was
found that there had been already excess posts in many subjects on ...
the basis of workload. So this finding and creation of additional posts
applying equally to the Veer Kunwar Singh University which had been
part of Magadh University during 1989 to 1991."
c I

23. It was submitted that an advertisement had been issued in the year
1997, for filling up the 55 sanctioned vacant posts. Our attention has also
been drawn to the fact that rule in the contempt proceeding, which was issued
had been discharged by this Court upon satisfying itself that there had been
a substantial compliance of this Court's order.
D
24. The leam~d counsel would contend that in terms of the provisions
of the Bihar University Act and the statutes framed thereunder, vacancies
'"
must be filled up in accordance with law and in view of the fact that the
appellants had been appointed in violation of the provisions of the said Act
E as also the statutes framed thereunder, their appointments were illegal.

25. Applicability of the provisions of the Act and the statutes framed
thereunder in the matter of recruitment to the post of teachers in constituent
and affiliated colleges is not in dispute. Section 57 of the said Act reads as
under:
F
"57. (I) Subject to the provisions of this Act and the statutes, the '~
Bihar State University (Constituent Colleges) Service Commission shall,
as far as may be, perform, in respect of appointment to the post of
teachers and officers (other than Vice-Chancellor, Province-Chancellor
and the Dean of faculty) of the University the same functions as are
G assigned to the State Public Service Commission in respect of the
State Services under Article 320 of the Constitution of India."

26. In terms of the aforementioned provisions, thus, all sanctioned y---i..
vacant posts were required to be filled up by candidates who were qualified
H therefor and who had been selected by the University Service Commission,
which is a statutory body. Clause (a) of sub-section (I) of Section 58 of the
\'EER KL1''\I' AR Sl!<GH UNI. AO HOC TEAOIERS ASSO!<.' BIHAR STATI: u1'1. (CCI SERVICE COM.\llSSIO!< is.a. SIJ',l!A l.I 407

said Act provides for appointment on temporary basis without following the A
procedure prescribed in Section 57 of the Act; but such appointments shall
not exceed a period of six months.

27. It is now a well-settled principle of law that any appointment made
in violation of the constitutional scheme of equality as adumbrated under
Article 14 of the Constitution of India as also in violation of the provisions B
of the Act and the subordinate legislations framed thereunder would be
wholly illegal and without jurisdiction. It has been so held by a Constitution
Bench of this Court in Secretary, State ofKarnataka and Ors. v. Umadevi (3)
and Ors., [2006] 4 SCC I.

28. The ratio of the said decision has sin~e been followed in a large C
number of cases, e.g. RS. Garg v. State of UP. and Ors., (2006] 6 SCC 430,
Surinder Prasad Tiwari v. UP. Rajya Krishi Utpadan Mandi Parishad and
Ors., (2006] 7 SCC 684, State of M.P. and Ors. v. La/it Kumar Verma, (2007]
I sec 573, Indian Drugs & Pharmaceuticals Ltd v. Workmen, Indian Drugs
& Pharmaceuticals Ltd., (2007] I SCC 408, Municipal Corporation, Jabalpur D
v. Om Prakash Dubey, [2007] I SCC 373, Accounts Officer (A&!), AP SRTC
.,I
v. K. V. Ramona and Ors., (2007] 2 SCC 324, Punjab Water Supply & Sewerage
Boardv. Ranjodh Singh and Ors etc., (2007] 2 sec 491, State of Punjab anJ
Ors. v. Lakhwinder Singh and Ors., (2007] 2 SCC 502, Yamuna Shankar
Sharma v. State of Rajasthan and Ors., (2007] 2 SCC 611, and Post Master E
General, Kolkata & Ors. v. Tutu Das (Dutta) (2007) 6 SCALE 453.

29. The legal position obtaining in this behalf is not in dispute. The
question which, however, falls for consideration is as to whether the State of
Bihar or the Universities constituted within the State of Bihar were bound to
act in terms of the judgment of this Court.
F
30. There cannot be any doubt whatsoever that the judgment of this
Court must be respected by all concerned including those who were not
parties thereto, in view of the provisions contained in Articles 141, 142 and
144 of the Constitution of India. If the time frame fixed by this Court for
complying with this Court's order was not adhered to, a proceeding under the G
Contempt of Courts Act was maintainable.

31. We have noticed hereinbefore, the stand of the State of Bihar.
According to it, the orders of this Court had been complied with and only
55 posts are lying vacant. We have also noticed hereinbefore that the contempt
notice issued by this Court has also been discharged. There exists a dispute H
408 SUPREME COURT REPORTS (2007] 7 S.C.R.

A with regard to the actual number of vacancies.
32. The Respondent-University, according to the State of Bihar did not
make any recommendation for creating any additional posts of teachers having
regard to the teacher-student ratio. In the affidavits, the State and the
Respondent-University clearly stated that there were only 55 vacant posts.
B Order of this Court did not say that for filling up the vacancies of one
university, ad hoc teachers appointed in other universities should be
considered.

33. However, in the Rejoinder Affidavit to the Counter Affidavit, it is
stated :
c
"IO. That in reply to para 9 of the counter affidavit, it is most
· respectfully submitted that in response to the letters written by
the respondent no. 5 and 6 seeking proposal for creation of
additi:>nal posts, according to the workload the Ranchi, Magadh
and Bhagalpur Universities sent their respective proposal for the
D creation of 644 7 posts of teachers. It is most respectfully submitted
that out of 6447 posts, the Magadh University sent a proposal
for creation of 1467 posts. After the Division of Magadh
University, out of 1467, 424 posts came to the share of Veer
Kunwar Singh University.
E l l. That in reply to para I 0 of the counter affidavit, it is most
respectfully submitted that the creation and advertisement of 55
vacancies only as against the proposal for creation of 6444 posts
by no stretch of imagination can be said to be the compliance of
the directions given by the court. Such statement has been made
F simply to mislead this Hon'ble Court by projecting that the order
of the Hon'ble Court are being complied with_, It is further submitted
that under various Universities in various colleges various
departments have been opened. However, for want of regular
appointments various colleges are being run by the ad hoc
teachers since 1982.
G

13. That in reply to para 12 of the counter affidavit, it is most
respectfully submitted that on 23.09.1991 the respondents 5 and
6 projected before this Hon 'ble Court that in compliance of the
H
VEER Kl'J\"W.'Jl SINGH u1'1. AD HOC TEACHERS ASSON. ,. BIHAA 51 ATE L1'1 tC.C l SERVICE COMMISSION fS.B Sl1'liA I.I 409

direction of this Hon'ble Court, they have already started taking A
steps. It is reiterated that as against the proposal for creation of
6447 posts sent by the Universities, creation of only 55 posts, by
no stretch of imagination can be said to be the compliance of the
judgment of this Hon'ble Court. It is most respectfully submitted
that at the time of hearing of the Hon 'ble Court when the fact of B
proposal for creation of 6447 posts was brought to the notice, the
statement was made that it was only a beginning and further post
would be created and filled in."

34. It is neither possible nor advisable to go into the aforementioned
disputed questions of fact. The stand of the University is clear from the C
affidavit affirmed by its Registrar. Without anything more it is not possible
to reject the averments made therein.

35. Creation of sanctioned posts is a sine qua non for recruitment to the
post of lecturers. Adherence to the statutory provisions therefor is imperative
in character. No doubt the qualification for holding the post of lecturer has D
since been changed in terms of the ordinance promulgated in the year 1993,
but then the same was done as per the directions of the University Grants
Commission. The colleges whether constituent or recognized must have
lecturers who are qualified to hold the post. Qualification to hold the post of
lecturer is fixed by the University Grants Commission. A University can E
ignore the directions of the University Grants Commission in this behalf only
at its own peril and risk of derecognition. Neither it is permissible for a
University to contravene the directions of the University Grant Commission
nor, in our opinion, is it permissible for a court of law to issue a direction
contrary thereto. Evidently, the endeavour on the part of the appellants and
interveners herein was to obtain a direction from this Court that their cases F
may be considered by a Publi1: Service Commission or in its absence by the
State or by the University on the basis of a qualification held by them prior
to 1993. In our opinion, no such direction at this point of time can be issued.
We will assume that the State and/or Universities had failed to adhere to the
time frame fixed by this Court, but even if a violation of this Court's order in G
that behalf had taken place, the same by itself would not lead to an inference
that the respondents were still to obey the order of this Court, despite the
change in law, which had taken effect in this behalf. Such a direction cannot
be given at this stage in view of the decision of the Constitution Bench of
this Court in Umadevi (supra), wherein it was directed :
H
"53. One aspect needs to be clarified. There may be cases where
410 SUPREME COURT REPORTS [2007) 7 S.C.R.

A irregular appointments (not illegal appointments) as explained in S. V
Naravanappa, R.N. Nanjundappa and B.N. Nagarajan and referred
to/i;; para 15 above, of duly qualified persons in duly sanctfoned
vacant posts might have been made and the employees have continued
to work for ten years or more but without the intervel)tion of orders
of the courts or of tribunals. The question of regularisation of the
B services of such employees may have to be considered on merits in
the light of the principles settled by this Court in the cases
abovereferred to and in the light of this judgment. In that context, the
Union of India, the State Governments and their instrumentalities
should take steps to regularise as a one-time measure, the services of
c such irregularly appointed, who have worked for ten years or more in
duly sanctioned posts but not under cover of orders of the courts or
of tribunals and should further ensure that regular recruitments are
undertaken to fill those vacant sanctioned posts that require to be
filled up, in cases where temporary employees or daily wagers are
being now employed. The process must be set in motion within six
D
months from this date. We also clarify that regularisation, if any
already made, but not sub judice, need not be reopened based on this
judgment, but there should be no further bypassing of the
constitutional requirement and regularising or making permanent, those
not duly appointed as per the constitutional scheme.
E
54. It is also clarified that those decisions which run counter to the
principle settled in this decision, or in which directions running counter
to what we have held herein, will stand denuded of their status as
precedents."

F 36. It may be, as was submitted by the learned Senior Counsel, that ad
hoc teachers have been working for the last 20 years or more, but it is also
beyond any dispute that they had been doing so pursuant to orders passed
by this Court or by the High Court from time to time. Even this Court in its
order dated 06.12.1989 had issued such a direction. But for the orders of the
G superior courts, their services would have been terminated by the University.

37. There has been a sea change in the legal position in view of the·
decision in Umadevi (supra) and a large number of decisions of this Court
following it. In a situation of this nature, when a subsequent event has
occurred and when there exists a dispute as to whether order of this Court
H has substantially been complied with or not, it would not be proper for us
VEER K!Jl,'W AR SINGH L.,.,1. AD HOC TEAOIERS ASSON. "· BIHAR STAlC L'l'.l. <C.C) SERVICE COMMISSION (S.B. SINHA l.J 411

to put the parties to the same position to which they were in 1989. A
38. The practice to appoint ad hoc teachers must be deprecated. If a
Government of a State or a University which is also a State within the meaning
of Article 12 of the Constitution of India, despite the ~epeated observations
of the superior courts of the country, continue to do so, such practice must a
be condemned. B
39. Directions can be issued to the State to act within four-comers of
the statute and to declare any action taken in contravention thereof to be a
nullity; but it would not be pennissible for this Court to go beyond the
provisions of the statute and issue a direction that cases of all the appellants C
must be considered irrespective of the fact as to whether their appointment
even as ad hoc teachers was against a sanctioned post or they have been
working against the non-sanctioned posts or not.

40. We may at this stage notice that even before the High Court it had
been conceded that many teachers have been appointed on an ad hoc basis D
on non-sanctioned posts. We fail to understand how this could be validly
done. Those teachers who could compete with others having requisite
qualification must be appointed by the University Service Commission in
....___accordance.with the.provisions of the Bihar State Universities Act. Appellants
ma~~isite qualification at the relevant point of time, but we must
also consider that ~ a large number of other persons must have E
acquired the requisite qualification for being appointed to the said posts, who
cannot be deprived of their right to be considered for appointments along
with other eligible candidates in terms of Article 14 of the Constitution of
India.

41. We, therefore, are of the opinion that having regard to the legal F
position obtaining, it is not possible to agree with the submissions of Mr.
Misra. It may be that the High Court should not have constituted a committee
but then constitution of a committee was directed with consent. By consent
the statutory provisions cannot be violated. By consent jurisdiction cannot
also be conferred. Here, however, is a case where parties consented to find G
out the actual number of additional posts which were required for the benefit
of the students. However, in view of the order proposed to be passed, we may
not enter into the said question.

42. In B.S. Bajwa and Anr. v. State of Punjab and Ors., [1992) 2 SCC
H
412 SUPREME COURT REPORTS (2007) 7 S.C.R.

A 523, to which our attention was drawn by Mr. Misra, this Court held :
"6. Obviously on this conclusion alone the writ petition should have
been dismissed by setting aside the judgment of the Single Judge
allowing the LPA without any caveat. However, the Division Bench,
after reaching the above conclusion, proceeded to grant the benefit
B of a much earlier date, namely, 6-4-1964 as the date of appointment on
the basis of a concession of the Additional Advocate General made
therein without considering the effect of the same or of taking into
account the inconsistency with its earlier finding. We have no doubt
that the concession on this point, being one of Jaw, it cannot bind the
State and, therefore, it was open to the State to withdraw as it has
c been done by filing a review petition in the High Court itself'

43. In Swami KrishnanandGovindanandv. MD. Oswal Hosiery (Regd)
[2002) 3 SCC 39, this Court observed :

"4. The learned counsel next contended that the statement of the
D .. learned counsel for the respondent should be treated as a compromise
'· as the Court granted five years' time to the respondent for vacating
the suit premises. In our view, this contention has to be rejected. The
compromise like a contract postulates consensus between two parties.
A statement of a counsel conceding the grounds of evi~ion .and
E seeking some time for the respondent to vacate the premises, cannot
be tenned a compromise."

44. We may, however, notice that in Employers in relation to
Monoharbahal Colliery Calcutta v. KN. Mishra and Ors., AIR (1975) SC
1632, the power Qf an advocate to make concession on behalf of his· client
F as envisaged under Order III of the Code of Civil Procedure has been
recognized. There are only certain exception thereto, e.g. when such consent ...
is against law or otherwise not binding on the parties.

45. We, however, are of the opinion that it is not necessary for us to
oo into the said question.
G 0

46. We, therefore, are of the opinion that the interest of justice would
be subserved if it is directed that the respondents herein in filling up of the ,..
vacant posts must take into consideration the cases of all those teachers also
who have the requisite qualifications, upon relaxation of age, if permissible
H by \aw along with other eligible candidates. We may, however, direct that it
VEER KIJl>'\\'AR SINGH Ll).1. Al>HOC lEAO!ERS ASSON. •. BlllAR SfATE UWl (C.C.) SERI/ICE COMMISSION ts.B. SINHA, l.J 413

would be open to the State of Bihar as also the concerned Universities to A
forthwith terminate the services of those teachers not working against
sanctioned posts or who do not fulfill the requisite educational qualifications
or whose services are otherwise not required.

47. The appeals and connec;_ted interlocutory applications are dismissed
with the aforementioned observations. In the facts and circumstances of the B
case, however, there shall be no order as to costs.

B.B.B. Appeals and l.A.S. dismissed.