Holding

The Chancellor’s orders to regularise the respondent’s services on compassionate grounds are not authorized by either Section 9(7)(ii) or Section 74 of the Bihar State Universities Act, 1976.

Summary

The respondent, Amita Tiwari, was appointed on an ad‑hoc basis as a lecturer in Home Science at Patna Women's College despite not possessing the post‑graduate qualification in Home Science required by the university statutes, though she held an M.A. in Sociology, an allied subject. The Chancellor later issued orders directing the university to regularise her services on compassionate grounds, which the High Court enforced. Patna University appealed, contending that the Chancellor’s orders were not authorized under the Bihar State Universities Act, 1976. The Supreme Court held that the orders could not be justified under Section 9(7)(ii) because they were not issued in the administrative or academic interest and conflicted with the Act, nor could they be sustained under Section 74, which requires consistency with the Act and consultation with the Vice‑Chancellor. Consequently, the Court set aside the High Court judgment, dismissed the writ petition, and upheld the university’s position that the respondent could not be regularised without meeting the statutory qualifications.

Issues considered

Whether the Chancellor’s orders directing regularisation of the respondent’s services on compassionate grounds are permissible under Section 9(7)(ii) of the Bihar State Universities Act, 1976.
Whether Section 74 of the same Act can be invoked to validate the Chancellor’s orders for regularisation.
Whether the respondent, appointed on an ad‑hoc basis without the requisite post‑graduate qualification in Home Science, is eligible for regular appointment under the university statutes and the Act.

Legislation cited

Bihar State Universities Act, 1976s. 74, s. 9(7)(ii)

Subjects

ad hoc appointmentregularisationqualification requirementBihar State Universities ActSection 9(7)(ii)Section 74compassionate groundspublic service commissionhigher education law

Judgment

PATNA UNIVERSITY AND ANR. A
v.
DR. (MRS.) AMITA TIWARI

AUGUST 27, 1997.

(SUJATA V. MANOHAR AND M. JAGANNADHA RAO, JJ.] B

Se1vice Law :

Bihar State Universities Act, 1976 :

Sections 9(7)(ii) and 74.
c

- Regula1isation-Ad hoc appointment as Lecturer--Not possessing
qualification for regular appointment provided under the relevant Act-Order
of Chancellor to regularise the services on compassionate grounds-Held,
cannot be sustained. D
Power of the Chancellor to issue directions under Section 9(7)(ii) of
the Act to the Universities in "administrative and academic interest''-Order
passed by the Chancellor directing the University to regularise the services of
the Respondent on compassionate grounds" (in view of respondent's resigning
her previous job to join the ad hoc engagement)-Held, not protected by E
Section 9(7)(ii) of the Act-Further held, such order was also not protected
by Section 74 which pennitted the Chancellor to issue an order ''for removal •
of difficulties" because exercise ofpower under Section 74 has to be consistent
with the Act and the Statutes of the University.

The Respondent, who held degrees of B.Sc. (Home Science) and M.A.
F
in Sociology, was working as lecturer in college X of the appellant-Univer-
sity, in the Home Science department. She applied to college Y for appoint-
ment as lecturer in Home Science and was appointed as such on ad hoc
basis. At the relevant time the statute provided the qualification for
appointment as lecturer P.G. Degree in Home Science or in an "allied G
subject''., The respondent did possess P.G. degree in an "allied subject", viz.
Sociology. Subsequently the statute passed by the University prescribed
post graduate qualification in Home Science. The respondent did not
possess the requisite qualification as prescribed by the statute. A Commit-
tee headed by Vice Chancellor and other top officials opined that the H
571
572 SUPREME COURT REPORTS (1997) SUPP. 3 S.C.R.

A respondent fulfilled the qualification laid down by the UGC and the State
Government. The Chancellor under Section 9(7) (ii) of the Bihar State
Universities Act passed orders for her regularising services on compas·
sionate grounds viz. she had resigned from the earlier college as lecturer
to join the instant service. However her services were not regularised.
B Thereafter, the respondent filed a writ petition for implementation of the
orders of the Chancellor for regularisation and it was allowed by the High
Court. Hence this appeal by the University.

Allowing the appeal, the Court

c HELD : 1. The case of the respondent cannot be brought within
sub-clause 7(ii) of section 9 of the Bihar State Universities Act. The orders
in question are not passed in administrative exigencies or in academic .._
interest. The order of the Chancellor directed that the respondent's ser·
vices are to be regularised purely on "compassionate grounds" (as she was
D working as lecturer in a different college of the appellant-University before
joining the instant job of lecturer). In fact, in the same Section 9, sub-
clause (4) says that the Chancellor may annul any proceedings or order
of the University which is not in conformity with the Act, the Statutes,
Ordinances, or Regulations. In that setting, it is not possible to hold that
E sub-clause 7(ii) of Section 9 would permit the Chancellor to pass an order
"in the administrative or academic interest" if the order is to be in conflict
with the Act or Statute. No provision has been brought to the notice of this
Court which permits the Chancellor to direct regularisation of the services
of a lecturer un "compassionate grounds". In the present case the respon-
dent was appointed on ad hoc basis till regular appointments were to be
F made and regular appointments required a qualification which the respon·
dent did not possess and further, regular appointment could not be made
except by consulting the relevant Service Commission. [578-E·H]

2. Section 74 of the Act deals l\ith a situation before the constitution
G of the authorities of the Universities and apart from the limited scope of
its application, consultation with the Vice Chancellor was also necessary.
The present case does not fall within the limited scope of section 74 nor is
there any finding that the Chancellor was feeling it necessary to pass such
an order under Section 74. In any event, orders under Section 74 must be
H consistent with the provisions of the Act and statutes, as is expressly
PAlNAUNNERSITYv.AMITATIWARI[M.JAGANNADHARAO,J.] 573

provided in that section. Hence Section 74 is of no avail to the respondent. A
The High Court was therefore not correct in directing the enforcement of
the said orders. [578-A·B]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 259 of
1993.
B
From the Judgment and Order dated 24.4.92 of the Patna High Court
in C.W.J.C. No. 6824 of 1991.

Amarendra Sharan for the Appellant.

A.K. Thakur, Anil K. Chopra and Ram Ekbal Roy for the
c
Respondent.

B.B. Singh for Intervenor.·

The Judgment of the Court was delivered by D
M. JAGANNADHA RAO, J. This Civil Appeal has been preferred by
the Patna University and the Vice-Chancellor of the said University against
the judgment of the Patna High Court dated 24.4.1992 in CWJC No. 6824
of 1991 allowing Writ Petition filed by the respondent and directing
implementation of two orders of the Chancellor of the University. The first E
order dated 18.9.1990 of the Chancellor directed the Patna University to
regularise the services of the respondent Writ Petitioner "on compassionate
grounds" while the second dated 22.6.1991 directed implementation of the
direction contained in the earlier letter of the Chancellor dated 18.9.1990.
F
The facts of the case are as follows :

The respondent holds a degree of B.Sc. (Home Science) with
specialisation in Foods and Nutrition from the University of Udaipar and
also an M.A. in Sociology from Patna University. (Later she also obtained
a Ph.D from the same University). In 1981, Patna Women's College opened G
the Department of Home Science. Initially, the respondent was working in
Siddarth Mahila College. As per the statutes of the University in force at
that time, the qualification for appointment as Lecturer was P.G. degree
in Home Science or in an "allied subject". Respondent resigned her job and
applied to the Patna Women's College as she had a P.G. degree in an H
574 SUPREME COURT REPORTS [1997) SUPP. 3 S.C.R.

A "allied subject", viz, Sociology. The respondent was appointed on 1.10.1982
on an "ad-hoc" basis to take up the P.G. Home Science Classes and the
Principal by letter No. 511983 dated 13.1.1983 requested the Vice-Chancellor
to pennit the respondent to "engage" P.G. Classes on an adhoc basis and be
paid per lecture. The Vice- Chancellor, by letter No. 47 dated 25.1.1983
B gave approval and on that basis, the Education Department of the Govt.
of Bihar wrote to the Patna University on 24.2.1983 that Governor has
accorded sanction for two posts of lecturers on adhoc and purely temporary
basis and for paying an honorarium of Rs. 25 per lecture subject to a
maximum of Rs. 1250 p.m. The letter also stated :

C "Please take necessmy steps for regular appointment against these
posts immediatedly because the aforesaid arrangement has been
approved only on purely tempormy basis."

On 26.2.1983, the University informed the Principal of the Patna
D Women's College that the respondent was "allowed for engaging P.G.
classes" on Rs. 25 per lecture subject to maximum of Rs. 1250. It was also
stated:

"This is purely on ad hoc mrangement till a regular appointment is
made In accordance with the provisions of law."
E
It is not in dispute that therefore, statutes passed by the University
in 1983 (see para 9 of the Counter filed in the High Court) prescribed post
graduate qualification in Home Science (at least II class) as the requisite
qualifacation for appointment as lecturer in Home Science. Unfortunately,
F the respondent did not possess a post-graduate degree in Home Science.
Possession of the Post Graduate degree in Sociology, as an 'allied subject'
did not suffice.

It appears that the respondent represented for regularisation and her
case was referred to the Chancellor through the letter dated 10.12.1986 of
G the Registrar, Patna University. But the Chancellor stated he would "not
interfere" in the matter. This was conveyed by the Governor to the
Registrar by letter PU-53/96 dated 20.12.1996 with copy to the respondent.

Meanwhile, the respondent filed CWJC 5664/1986 and the same was
H disposed of on 28.2.1987 by a Division Bench of the High Court stating that
PA1NA UNIVERSITYv. AMITA TIWARI [M. JAGANNADHARAO, J.] 575

the respondent could avail of alternative remedies available to her. A

After the communication of the rejection of the representation of the
respondent by the Chancellor as communicated by the Govt. through letter
dated 20.12.1986, the respondent filed a fresh Writ Petition CWJC
758/1987 for regularisation and the same was dismissed on 2/10.3.1987 by B
a Division Bench, stating as follows :

"Heard, learned counsel for the writ petitioner as well as the
learned Advocate General. This Wirt application is dismissed in
limine."
c
The matter was again pursued by the respondent. The Principal of
., the College wrote a long Jetter to the Vice-Chancellor on 29 .4.1988 stating
that the respondent was working continuously from 1.10.1982 taking classes
for the P.G. students on posts sanctioned on 24.2.1982, that a Committee
consisting of Dr. S.P. Singh, Pro Vice-Chancellor, the Registrar the D
Development Officer and the Principal as well as Head of the Departments
of Home Science opined that the respondent "fulfilled the statutory
qualifications laid down by the UGC and the State Government", for
appointment as a lecturer; and that she had earlier resigned from the
Siddharth Mahila College and joined in this College in 1982. It was stated
that the essential qualifications for appointment as a Lecturer were E
changed ''in 1985" and that the Chancellor may be requested by the
Government to give his concurrence for her appointment "as per old
statutes prevalent at the time of her appointment".

It appears also that by a further letter dated 16.6.1988, the University p
again recommended her. case to the Chancellor. On 18.9.1990, the
Secretary to the Chancellor communicated the order favourably issued by
the Chancellor in favour of the respondent. The said order reads :

"It is a fit case where the services of Mrs. Tiwari should be
regularised on compassionate grounds - order may accordingly be
G
issued."

On 4.9.1991, the University requeted the Chancellor to let them know
"as to under which statute the services of the petitioner could be
regularised." (vide para 11 of the counter affidavit in the High Court). The H
576 . SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.

A Chancellor however, informed by letter dated 22.6.1991 that the
regularisation may be made as suggested in the University's letter dated
16.6.1988. Thereafter, it appears that the University requested the
Chancellor to review his earlier orders.

When the question of regularisation was at that stage, the respondent
B filled the present writ petition for implementation of the letters of the
Chancellor dated 18.9.1990 and 22.6.1991 and sought a direction for
regularisation. A Division Bench of the High Court allowed the writ
petition by judgment dated 24.4.1992 and directed regularisation as per the
orders of the Chancellor. Against the said judgment, the University and
C the Vice-Chancellor have preferred this appeal.

We have heard the submissions of the learned counsel for the
University and also of the Government of Bihar. We have also heard the
submissions of the learned counsel for the respondent writ petitioner.

D The point for consideration is : whether the respondent's services as
Lecturer in Home Science could be directed to be regularised on the basis
of the letters of the Chancellor dated 18.9.1990 and 22.6.1991 and whether
the Chancellor's directions could be brought within the provisions of the
Bihar State Universities Act 1976 or other statutes of the Patna University?
E It is true that when the respondent was "engaged" on an "ad hoc"
basis to take up the post-graduate classes in Home Science, the respondent
perhaps satisfied the requirement of the 'statute' in force at that time
inasmuch as she was an M.A. in Sociology apart from having a Bachelor's
degree in Home Science. It is also true that the respondent resigned her
F job in the Siddharth College and joined the Patna Women's College on the
basis of the statutes then in force. But the fact remains that the approval
granted by the University on 24.2.1983 was for ad hoc appointment only
and the orders of the Registrar dated 26.2.1983 also described her appoint-
ment as purely "ad hoc" till regular appointments were to be made.
G It may however be noticed that as per the requirement of the relevant
provision of the Bihar State Universities Act, 1976 namely, Section 56 read
with the statutes, the post had to be filled by and upon recommendation
of the Bihar Public Services Commission. Later, Commission for con-
stituent colleges was separately established. Inasmuch as the respondent
H was not recruited by following the said procedure, it was not possible to
PATNA UNIVERSITYv. AMITA TIWARI(M. JAGANNADHARAO, J.] 577

give her a regular appointment to the post of Lecturer. In addition, the A
statutes of the University which were passed after 1981, provided that the
essential qualification would be P.G. degree in the subject concerned, i,.e.
Home Science. The respondent was not having a P.G. degree in Home
Science .
..
No doubt a statute was made on 16.11.1978 for regularisation of B
certain teachers appointed before 1977 and another statute was issued
[letter No. G 240 G.S. (1)] on 18.11.1980 for regularisation of teachers who
had completed 24 months by 31.2.1980 and para 8 of that statute clarified
that those purely appointed on temporary basis and who were on their
posts on 19.11.1977 could be regularised. But the respondent did not come C
under this category because her appointment was on 1.10.1982. Nor can
she come within the scope of a latter statute dated 29.1.1986 (B.S.U.-25/85-
283-G .S.(1), which permitted regularisation of those appointed on a tem-
porary basis on or before 28.2.1982 and who possessed at least a second
class Master's Degree in the subject. These statutes did not take within
their sweep, a person like the resondent who was appointed on 1.10.1982. D

Learned counsel for the respondent submitted that the
Chancellor's orders could be brought within S. 74 of the Bihar State
Universities Act, 1976 which provides for 'Removal of difficulties'. That
section reads as follows : E
"S.74 - Removal of difficulties by the Chancellor at the commen-
cement of this Act : If any difficulty arises in respect of estab-
lishment of the University, or in the first implementation of the
provisions of this Act or Statutes or otherwise the Chancellor may,
cut any time, before the Constitution of all the authorities of the F
universities, by order consistent with the provision of this Act and
Statutes, as far as possible, make any appointment or perform any
other function, which seems necessary or proper for him for the
removal of the said difficulty; and all such orders shall take effect
in the same manner as by the said appointment or function has G
been done in the manner provided in the Act."

Provided that before issuing such an order, the Chancellor shall
elicit the opinion of the Vice-Chancellor and of such appropriate
authority of the University, as may have been constituted, on the
proposed order and give considerations thereon." H
578 SUPREME COURT REPORTS (1997) SUPP. 3 S.C.R.

A We are unable to see how S. 74 can help. The said Provision deals
with a situation before the constitution of the authorities of the Universities
and apart from the limited scope of its application, consultation with the
Vice-Chancellor was also n~cessary. The present case does not fall within
the limited scope of S. 74 nor is there any finding that the Chancellor was
B feeling it necessary to pass such an order under S. 74. In any event, orders
under S. 74 must be consistent with the provisions of the Act and statutes,
as is expressly provided in that section. Hence S. 74 is of no avail.

Reliance is also placed for the respondent on sub-clauses 7(ii) of S.
9 of the Bihar Universities Act, 1976. That provision reads as follows :
c
"S. 9(i) the Chancellor : The Governor of Bihar shall be the
Chancellor........................... 7(i) ......................... 7(ii) The Chancellor
shall have the power for issue directions to the Universities in the
administrative or academic interest of the Universities which he
D considers to be necessary. The directions issued by Chancellor
shall be implemented by the Vice-Chancellor, Syndicate, senate
and other bodies of the University as the case may be.

We are of the view that the case of the respondent cannot be brought
E within sub-clause 7(ii) of S.9 of the Act either. The orders in question are
nol passed in administrative exigencies or in academic interest. The orders
of the Chancellor dated 18.9.1990 and 22.6.1991 directed that the
respondent's services are to be regularised purely on 'compassionate
grounds'. In fact, in the same section 9, sub-clause (4) says that the
Chancellor may annual any proceeding or order of the University which is
F not in conformity with the Act, the statutes, Ordinances or Regulations. In
that setting, it is not possible to hold that sub-clause 7(ii) of Section 9 would
permit the Chancellor to pass an order "in the administrative or academic
interest" 'if the order is to be in conflict with the Act or Statutes. No
provision has been brought to our notice which permits the Chancellor to
G direct regularisation of the services of a Lecturer on 'compassionate
grounds'. In the present case the respondent was appointed on ad hoc basis
till regular appointments were to be made and regular appointments
required a qualification which the respondent did not possess and further,
regular appointment could not be made except by consulting the relevant
H Senices Commission.
PATNA UNIVERSITY v. AMITA TIWARI [M. JAGANNADHARAO, J. J 579

The result is no doubt unfortunate but we are unable to find any A
provision to sustain the orders of the Chancellor dated 18.9.1990 and
22.6.1991. The High Court was, therefore, .not correct in directing the
enforcement of these orders. We accordingly allow the appeiil., set aside
the judgment of the High Court and dismiss the writ petition. Orders
passed by the University consequent to the judgment of the High Court B
are also set aside. There shall be no order as to costs.

R.K.S. Appeal allowed.