Dr.Rakesh Kumar Meena vs State of Rajasthan

The present batch of writ petitions have been filed by the

prospective applicants who are claiming themselves to be eligible

for the post of Assistant Professor in their respective subjects in

the University of Rajasthan but the respondents since failed to

hold open selection through the process of direct recruitment, as

envisages u/Sec.3(1) of the Rajasthan Universities'' Teachers and

Officers (Selection for Appointment) Act, 1974 and permitted the

adhoc appointments to continue for more than two decades

including illegal appointees as alleged have been absorbed by the

Act No.22 of 2008 namely the Rajasthan Universities'' Teachers

(Absorption of Temporary Teachers) Act, 2008, their right of fair

consideration for regular selection against the substantive posts

has been seriously jeopardized.

With the consent of the parties, we have taken the facts of

lead matter from D.B.Civil Writ Petition No.6324/2008 [Dr.Rakesh

Kumar Meena & Others Vs. State of Rajasthan & Others].

The academic profile of the individual petitioner regarding

their qualification with track record has been disclosed in

Schedule-A appended to the petition and their grievance is that

the petitioners are members of open/reserved category and the

process of holding regular selections has never been invoked by

the respondents which the University was under an obligation to

hold under the Act, 1974 and permitting adhoc appointment to

continue for more than two decades, their absorption by the later

Act of 2008, right of fair consideration and their participation in

the selection process to be appointed on the post of Assistant

Professor against substantive posts and to become member of

service under the Act, 1974 has been seriously jeopardized, which

according to them is per se arbitrary exercise of power and

violative of Art.14 of the Constitution of India.

The factual matrix of the matter is that the University of

Rajasthan has been established under the University of Rajasthan

Act, 1946 and Sec.2(d) defines ''Teacher'' which includes

Professors, Readers, Lecturers and all other persons engaged in

the work of teaching in a Department of the University or in any

other colleges affiliated or institutions approved by the University

and the University Teachers are separately defined u/Sec.2(e) of

the Act, 1946 which includes a person appointed by the University

for the purpose of imparting instruction in the University. Sec.17

of the Act, 1946 defines different authorities of the University and

Syndicate is one of them and constitution of Syndicate has been

defined u/Sec.21 and its functions are envisaged u/Sec.22 of the

Act, 1946. Sec.22(g) authorizes Syndicate to discharge as one of

its function namely - subject to the provisions of the Act of 1946

and the statutes, to appoint officers, teachers and to define their

duties, emoluments and conditions of service. Sec.22(l) authorizes

Syndicate to recommend minimum scales of salaries of teachers in

colleges. Thus, the Syndicate is a statutory body constituted

u/Sec.21 of the Act, 1946 with the functions to be discharged as

defined u/Sec.22 of the Act, 1946 which controls the affairs of

University particularly in regard to the duties, emoluments,

conditions of service and minimum scales of salaries of the

University Teachers and employees appointed therein.

The service conditions of Teacher and Officers of the

University are separately regulated by the Rajasthan Universities''

Teachers and Officers (Selection for Appointment) Act, 1974 is

applicable to all the Universities in the State of Rajasthan and

u/Sec.3(1) of the Act, 1974, appointment of Teachers and Officers

are made on the recommendations of the statutory selection

committee constituted u/Sec.4 of the Act, 1974 the only mode of

regular/substantive appointment and to become a member of

service under the Act, 1974 at the same time, if the University

fails in making regular selections for any unforeseen emergent

administrative reason/exigencies, could invoke Sec.3(3) of the

Act, 1974 for making appointment of Teacher/Officer as a stopgap

arrangement or appointment of a part-time teachers or a teacher

in the pay-scale lower than that of Lecturer or Assistant Registrar.

We consider it appropriate to quote Sec.3 of the Act, 1974, as it

existed at the relevant point of time when such appointments

were made, in reference to which complaint has been made by the

writ petitioners and who have been absorbed by the respondents

under the Act, 2008, which reads ad infra:-

"3. Restrictions on appointments of teachers and officers

(1) Notwithstanding anything contained in the relevant law, as from the commencement of this Act, no teacher and no officer in any University in Rajasthan shall be appointed except on the recommendations of the Selection Committee constituted under Section 4.

(2) Save as otherwise provided in sub-section (3), every appointment of a teacher or of an officer in any University made in contravention of sub-section (1) shall be null and void.

(3) Nothing herein contained shall apply to the appointment of a teacher or an officer as a stop-gap arrangement for a period not exceeding one year or to the appointment of a part-time teacher or of a teacher or officer in the pay scale lower than that of Lecturer or Asstt. Registrar respectively.

Explanation

The expression "appointed" in sub-section (1) shall mean appointed initially and not appointed by way of promotion."

It revealed to the Legislature that Sec.3(3) of the Act, 1974

being an exception to Sec.3(1) of the Act, 1974, which could have

been exercised very sparingly to meet out emergent exigencies

but the experience showed that the exception became the rule by

passage of time and the University & to some extent the State of

Rajasthan as well failed in discharge of their obligations and

allowed the appointments to be made u/Sec.3(3) of the Act, 1974

and allow it to continue for more than two decades and the

process of regular selection for the reasons best known was not

initiated & at this stage the Legislature considered it appropriate

that at least there should be complete restraint from making any

further appointment of teachers on urgent temporary/adhoc/stop-

gap/partime basis and by the amendment Act of 2003, sub-sec.

(3) of Sec.3 of the Act, 1974 was omitted and sub-sec.(2) stands

substituted, as a consequence of the amendment Act of 2003, no

further appointment could have been made of teacher or officer on

a stop-gap arrangement or part-time basis by the University and

its power stands seized as a consequence thereof & if there arises

any urgent need in future where teachers are not available or

being selected through regular selection, there is no mode/method

available with the University in making appointment to meet out

the future exigencies in times to come. We consider it appropriate

to quote the substitution which has taken place after the

amendment Act, 2003, which reads ad infra:-

"3. Restrictions on appointment of teachers and officers (1) Notwithstanding anything contained in the relevant law, as from the commencement of this Act, no teacher and no officer in any University in Rajasthan shall be appointed except on the recommendations of the Selection Committee constituted under Section 4.

(2) Every appointment of a teacher or of an officer in any University made in contravention of sub-section (1) shall be null and void. Provided that the University may, with prior permission of the State Government, extend the term of appointment of such ad hoc or urgent temporary teachers who were appointed as stop gap arrangement prior to and working as such immediately before the commencement of the Rajasthan Univesrities Teachers and Officers (Selection for appointment) Amendment Act, 2003 (Act No.7 of 2003) for a period of six months at a time until regular appointments are made in accordance with sub-section (1).

(3) Omitted.

Explanation

The expression "appointed" in sub-section (1) shall mean appointed initially and not appointed by way of promotion."

In consequence thereof, at least there could not be any

appointment of teachers on stop-gap basis or by any other

method other than making substantive appointment which alone

could have been held after 2003 and it is not disputed that all

such ad hoc appointments are made at the relevant time when

Sec.3(3) of the Act, 1974 was in vogue.

There was a batch of litigation coming to this court by the

Teachers with the complaint that they are working for a sufficient

long time and still not regularized and their fate despite continuing

for decades is completely in lurch and neither the University nor

the State Government is coming forward to provide shelter to

them and the matter when finally came up before the court

[University of Rajasthan & Ors. Vs. Dr.S.C.Gupta & Ors.]

reported in 2006 (3) RDD 1813 (Raj.)(DB), this court

acknowledged the grievance of the Assistant Professors who were

working on adhoc basis and observed that by virtue of their

continuation in service for a sufficient long time, certainly right

has been accrued to such person to claim regularization in respect

of their appointment and certainly it could have been done only by

the process of law. We consider it appropriate to quote para-5 & 6

of the judgment, which appears to be relevant for the present

purpose, which reads ad infra:-

"5. As regards the post of lecturers, we are of the view that while the ad hoc teachers continuing in employment for long periods may have a case for regularization of their services in accordance with the scheme consistent with Article 14 of the Constitution of India the claim of candidates from open market cannot be ignored. While considering the question of regularization of services of ad hoc teachers the State would be well advised to strike a balance between the claims of the serving ad hoc teachers and the candidates from open market. It is needless to point out that candidates passing out from universities too have legitimate expectation of getting employment in the university and if the posts of lecturers were filled by regularizing services of ad hoc teachers alone, it may frustrate their legitimate expectations and that may also not be in the academic interest of university. We are of the view that the balance can be struck between rival claims by fixing quota/ratio for ad hoc teachers and candidates from open market. We leave it to the good sense and wisdom of the State to take appropriate decision in this regard.

On behalf of ad hoc lecturers our attention was drawn to certain observations of the learned Single Judge in the impugned order characterizing their appointments as back-door entries and void ab initio. Any apprehension was expressed that in view of such observations the university may find it difficult to consider their cases for regularization. The apprehension, in our opinion, is unfounded. It may be observed that notwithstanding the manner in which these ad hoc lecturers were appointed, they form a class by themselves and no bald observation can be made with respect of all such appointments as being void and illegal. Further, some right has accrued to such persons with the passage of time to claim regularization irrespective of the manner of their initial appointment. It is, therefore, clarified that any observation regarding nature of appointment of the ad hoc lecturers will not stand in the way of consideration of their cases for regularization in accordance with law."

It appears and is the stand of State Government also that

after the judgment of this court, the State Government examined

the plight of the teachers who were working for almost two

decades and that apart the fact is that large number of teachers

were appointed in the Universities in Rajasthan u/Sec.3(3) of the

Act, 1974 and majority of them are still working and lot of them

have crossed the maximum age limit prescribed by the State

Government for appointment in the State services and Sec.3(3) of

the Act, 1974 has been repealed w.e.f. 01.01.2003 and that the

number of posts of Teachers are lying vacant in the Universities

and its academic environment is adversely affected due to

shortage of teachers and, thus, it was proposed to absorb such

temporary teachers appointed u/Sec.3(3) of the Act, 1974 and in

furtherance thereof the Act No.22 of 2008 was enacted and such

of the temporary teachers who fall u/Sec.2(iv) of the Act, 2008

after being screened by the Screening Committee constituted

u/Sec.4 of the Act, 2008 were absorbed and deemed to have been

appointed as teacher against substantive post under the Act of

1974.

It has come on record that after the Act of 2008 came into

force from 12.06.2008 the High Powered Screening Committee

was constituted and the Committee made its recommendations

which was considered by the Syndicate in its meeting held on

05.08.2008 and on approval of the recommendations such of the

teachers found suitable were absorbed and appointed against the

substantive post with consequential benefits flowing thereof vide

order dt.05.08.2008 with the rider that actual financial benefits

shall be paid from 05.08.2008.

Counsel for the petitioners submits that Sec.3(3) of the Act,

1974 which was invoked by the respondents in making

adhoc/urgent temporary/part-time/appointments of Assistant

Professor (Lecturer) at least could not have been allowed to

continue after one year which is the outer limit envisaged under

the law and permitting them to continue for two decades itself

postulates that their appointment to be per se illegal and could not

have been absorbed under the Act, 2008 and the procedure

adopted by the respondents for absorption of the temporary

teachers, as alleged, is in violation of Art.14 of the Constitution of

India.

Their further grievance is that while the action being taken

for absorption of the temporary teachers under the Act, 2008, the

policy of reservation for the members of Scheduled Castes/

Scheduled Tribes which is 16% & 12% respectively while making

appointment to the post of Assistant Professor has been given a

complete go-bye and such action of the respondents in not giving

adequate representation and absorption of temporary teachers

against the vacancies reserved for the members of SC/ST is in

contravention to the provisions of law and deserves to be

quashed.

That apart further objection raised by counsel for the

petitioners Mr.Rajendra Soni is that there are good number of

appointments made in the University without even following the

procedure prescribed u/Sec.3(3) of the Act, 1974 and at least

such appointments indeed not being in conformity with the

mandate of law, are per se illegal and in violation of Art.14 of the

Constitution & could not be absorbed under the Act, 2008 and

Sec.2(iv) envisages definition of ''temporary teacher'' and at least

to the extent it deals with a teacher who are appointed on part-

time basis and continuing in the pay-scale prescribed by the

Universities could not have been treated as a temporary teacher

for being absorbed under the Act, 2008 and it is the settled

principles of law that illegal appointment even by the enactment

neither can be absorbed nor be regularized and merely because

they are working for more than two decades that will not confer a

indefensible right for absorption and to become a member of

service under the Act, 1974 and at least to this extent the

inclusion of teachers who are appointed on part-time basis as

temporary teacher u/Sec.2(iv) of the Act, 2008 is in violation of

Art.14 of the Constitution and the Act of 2008 to this extent be

declared to be unconstitutional and in support of his submission

placed reliance on the judgment of Apex Court in University of

Rajasthan Vs. Premlata reported in (2013) 3 SCC 705 and

also the judgment of Division Bench of Patna High Court in Ram

Sevak Yadav Vs. State of Bihar & Ors. [CWJC No.267/2010]

decided on 01.02.2013.

At the outset, it may be noticed that there is no such specific

pleadings in the petition that who are such teachers who were

appointed in violation of Sec.3(3) of the Act, 1974 and even at the

stage when the counsel raised his submission, this question was

put to him to apprise this court from the pleadings on record for

substantiating the submissions made by him as to who are those

appointees to whom it has been alleged to be per se illegal but

nothing in support has been placed on record except a bald &

vague statement made in para 7-9 of the writ petition.

Reply has been filed by the respondent-State and while

supporting the amendment Act, 2008, the State has tendered

justification that the Division Bench of this court while disposing of

D.B.Civil Special Appeal (Writ) No.606/2005 [University of

Rajasthan & Ors. Vs. Dr.S.C.Gupta & Ors.] reported in 2006 (3)

RDD 1813 (Raj) (DB) made observation to consider such of the

Lecturers who were working for a sufficient long time, right has

been accrued to them with the passage of time to claim

regularization of their service and the State Government could not

have been oblivious of the situation that teachers were appointed

on adhoc/temporary basis and continue for more than two

decades could not be left with their fate in lurch and taking note of

the observations of the Division Bench of this court in the

judgment referred to in para 5-6 in particular arrived to the

conclusion that time has come to enact the law to safeguard

interest of the teachers who have served the institution for all

practical purposes for two decades coupled with the fact that no

regular selections have been held in the University of Rajasthan

after 1979-80 and thus it gave impetus to appointment on

adhoc/temporary basis u/Sec.3(3) of the Act, 1974 and the

teachers have gained sufficient experience by passage of time and

became overage and after adopting due process of law and taking

legal recourse of their legislative competence from Entry-25 of the

List-III (concurrent list) of Schedule-VII appended to the

Constitution, enacted the Act of 2008 and action of the

respondents being in conformity with law, challenge to the

constitutional validity of the Act, 2008 is not substantiated from

the pleadings on record and deserves outright rejection.

Respondent No.2 (University of Rajasthan) has filed separate

reply and supported the stand of the Government and stated that

there were 703 sanctioned posts of Assistant Professor out of

which 481 posts were lying vacant at the relevant point of time

and presently 273 Assistant Professors are working on adhoc basis

in the University of Rajasthan and if found to be suitable after

being screened can be benefited by the Act, 2008 and almost 220

posts of Assistant Professor remain vacant to be filled by open

selection for which process has been initiated by the University of

Rajasthan by issuance of advertisement which has been published

in daily newspaper on 26.07.2008 and it has been further stated

that after the enactment of the Act, 2008, on the

recommendations made by the Screening Committee constituted

u/Sec.4 of Act, 2008 was placed before the Syndicate and on its

approval in its meeting held on 05.08.2008 such of the Assistant

Professors working in the University who were found suitable were

absorbed and substantively appointed vide order dt.05.08.2008,

copy whereof has been placed on record as Annex.7.

We have heard counsel for the parties and with their

assistance perused the material available on record.

There cannot be any dispute that a presumption is always

there in favour of constitutionality or validity of a subordinate

legislation and the burden is always upon the person who attacks

it to show that it is invalid and it has been consistently laid down

by the Apex Court recognizing the principles and parameters on

which a subordinate legislation can be challenged as has been

referred to by the Apex Court in State of T.N. & Anr. Vs.

P.Krishnamurthy & Ors. reported in (2006) 4 SCC 517 and the

Apex Court observed at para-15 of the judgment ad infra:-

"15.There is a presumption in favour of constitutionality or validity of a sub-ordinate Legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognized that a sub-ordinate legislation can be challenged under any of the following grounds :-

a) Lack of legislative competence to make the sub- ordinate legislation.

b) Violation of Fundamental Rights guaranteed under the Constitution of India.

c) Violation of any provision of the Constitution of India.

d) Failure to conform to the Statute under which it is made or exceeding the limits of authority conferred by the enabling Act.

e) Repugnancy to the laws of the land, that is, any enactment.

f) Manifest arbitrariness/unreasonableness (to an extent where court might well say that Legislature never intended to give authority to make such Rules)."

The above legal principles has further came up for

consideration before the Apex Court in Namit Sharma Vs. UOI

reported in (2013) 1 SCC 745 and the Apex Court observed

therein ad infra:-

"11. An enacted law may be constitutional or unconstitutional. Traditionally, this Court had provided very limited grounds on which an enacted law could be declared unconstitutional. They were legislative competence, violation of Part III of the Constitution and reasonableness of the law. The first two were definite in

their scope and application while the cases falling in the third category remained in a state of uncertainty. With the passage of time, the law developed and the grounds for unconstitutionality also widened. D.D. Basu in Shorter Constitution of India (14th Edn., 2009) has detailed, with reference to various judgments of this Court, the grounds on which the law could be invalidated or could not be invalidated. Reference to them can be made as follows:-

"Grounds of unconstitutionality.- A law may be unconstitutional on a number of grounds:

(i) Contravention of any fundamental right, specified in Part III of the Constitution.

(ii) Legislating on a subject which is not assigned to the relevant legislature by the distribution of powers made by the Seventy Schedule, read with the connected articles.

(iii) Contravention of any of the mandatory provisions of the Constitution which impose limitations upon the powers of a Legislature, e.g. Article 301. (Ref. Atiabari Tea Co. Ltd. v. State of Assam )

(iv) In the case of a State law, it will be invalid insofar as it seeks to operate beyond the boundaries of the State. (State of Bombay v. Chamarbaughwala)

(v) That the legislature concerned has abdicated its essential legislative function as assigned to it by the Constitution or has made an excessive delegation of that power to some other body. ( Hamdard Dawakhana Wakf v. Union of India )

On the other hand, a law cannot be invalidated on the following grounds:

"(a) That in making the law (including an Ordinance), the law-making body did not apply its mind (even though it may be a valid ground for challenging an executive act), (Ref. Nagaraj K. V. State of A.P.) or was prompted by some improper motive. (Ref. Rehman Shagoo v. State of J & K )

(b)That the law contravenes some constitutional limitation which did not exist at the time of enactment of the law in question. (Ref. STO v. Ajit Mills Ltd.)

(c) That the law contravened any of the Directive contained in Part IV of the Constitution. (Ref. Deep Chand v. State of U.P .)"

XX XX XX

XX XX XX

It is a settled canon of constitutional jurisprudence that the doctrine of classification is a subsidiary rule evolved by courts to give practical content to the doctrine of equality. Over-emphasis of the doctrine of classification or anxious or sustained attempt to discover some basis for classification may gradually and imperceptibly erode the profound potency of the glorious content of equality enshrined in Article 14 of the Constitution. (Ref. LIC of India v. Consumer Education & Research Centre ). It is not necessary that classification in order to be valid, must be fully carried out by the statute itself. The statute itself may indicate the persons or things to whom its provisions are intended to apply. Instead of making the classification itself, the State may lay down the principle or policy for selecting or classifying the persons or objects to whom its provisions are to apply and leave it to the discretion of the Government or administrative authority to select such persons or things, having regard to the principle or policy laid down by the Legislature.

Article 14 forbids class legislation but does not forbid reasonable classification which means :

16.1 It must be based on reasonable and intelligible differentia; and

16.2 Such differentia must be on a rational basis.

16.3 It must have nexus to the object of the Act.

The basis of judging whether the institutional reservation fulfills the abovementioned criteria, should be:

17.1 There is a presumption of constitutionality;

17.2 The burden of proof is upon the writ petitioners, the person questioning the constitutionality of the provisions;

17.3 There is a presumption as regard the State''s power on the extent of its legislative competence;

17.4 Hardship of few cannot be the basis of determining the validity of any statute."

From the principles which are laid down by the Apex Court in

order to examine the constitutionality of a statute or any of its

provisions, one of the most relevant consideration is the object

and reasons as well as the legislative history of the statute and

that always help the court in arriving to a more objective and just

approach and it would be necessary for the court to examine the

reasons of enactment of a particular provision so as to find out its

ultimate impact vis-?-vis the mandate of the provisions and

therefore, this court must examine the contemplations leading to

the enactment of the Act, 2008.

The background in detail has already been noticed by this

court supra and it is not the case of the petitioners that authority

either lacks competence or the action is in contravention of the

fundamental rights of an individual specified in Part-III of the

Constitution or the legislation is not on the subject which is not

assigned to the legislature or the action of the authority is in

contravention of any of the mandatory provisions of the statute

which relates to power of legislature.

What being contended by the petitioners'' counsel is that the

definition of the term ''temporary teacher'' as being referred to

under the Act of 2008 covers such of the teachers who are

appointed u/Sec.3(3) of the Act, 1974 but appointed on part-time

basis and continuing the pay-scale prescribed by the Universities

are non more temporary teachers for the purpose of their

absorption which according to the petitioners'' counsel is even in

contravention of Sec.3(3) of the Act, 1974 and being illegal

appointees could not have been absorbed under the Act, 2008.

This court considers it appropriate to quote the Act of 2008 which

read ad infra:-

"The Rajasthan Universities'' Teachers (Absorption of Temporary Teachers) Act, 2008 (Act No. 22 of 2008)

[Received the assent of the Governor on the 3rd day of August, 2008]

An Act to provide for the absorption of temporary teachers of long standing, working in the Universities in Rajasthan.

Be it enacted by the Rajasthan State Legislature in the Fifty-ninth Year of the Republic of India, as follows:-

Short title, extent and commencement. - (1) This Act may be called the Rajasthan Universities Teachers (Absorption of Temporary Teachers) Act, 2008.

(2) It extends to the whole of the State of Rajasthan. (3) It shall be deemed to have come into force on and from 12.6.2008.

Definition. - (1) In this Act, unless the subject or context otherwise, requires,-

(i) "Department concerned" means the Department of the University concerned in which the vacancy of a teacher exists;

(ii) "relevant law" means the Rajasthan Universities Teachers and Officers (Special for Appointment) Act, 1974 (Act No.18 of 1974) and any enactment of the Rajasthan State Legislature establishing a University in Rajasthan, and it includes the Statutes, Ordi- nances, Regulations, bye-law, rules, notifications or orders made thereunder and as amended from time to time;

(iii) "screening committee" means a Committee ap- pointed under the provisions of this Act to scrutinize the academic record and report(s) about the work and conduct of the temporary teachers;

(iv) "temporary teacher" means a teacher appointed in accordance with the provisions of sub-sec. (3) of Sec. 3 of the Rajasthan Universities'' Teachers and Officers (Selection for Appointment) Act, 1974 (Act No.18 of 1974) in the pay scale prescribed by the University concerned on temporary basis as stop-gap arrangement, after due public advertisement of va- cancies, or a teacher appointed on part time ba- sis and continuing in the pay scale prescribed by the universities but shall not include a teacher appointed on contract basis or those in foreign ser-

vice and serving the University concerned on depu- tation;

(v) "University concerned" means the University in which the temporary teachers are working; and

(vi) "Vice-Chancellor" means the Vice-Chancellor of the University concerned, and includes any person who for the time being performs the functions of the Vice-Chancellor of the University concerned accord- ing to the relevant law.

(2) All other expressions used but not defined in this Act shall have the meaning respectively assigned to them under the relevant law.

Substantive appointment of temporary teachers. - All temporary teachers continuing as such at the commencement of this Act shall be considered by the University concerned for their absorption and substantive appointment on the recommendation of the Screening Committee constituted under Sec. 4, subject to their fulfilling the condition of eligibility, including minimum qualifications, prescribed by the University concerned under the relevant law and subject to the availability of substantive vacancies of teachers in the department concerned.

Constitution of the Screening Committee. - The Screening Committee shall consist of the following:-

(i) Vice-Chancellor of the University concerned who shall be Chairperson of the Committee;

(ii) Dean of the faculty concerned;

(iii) the Head of Department concerned of the Uni- versity concerned;

(iv) the senior most Professor/Reader of the Depart- ment, if he is not the Head of Department;

(v) one expert, not connected with the University concerned and having special knowledge in the sub- ject in which the teacher is to be screened, to be nominated by the Vice-Chancellor of the University concerned out of a panel of names recommended by the Academic Council of such University;

(vi) one member to be nominated by the Chancellor;

(vii) an eminent educationist to be nominated by the State Government; and

(viii) one member of the Syndicate/Board of Man- agement to be nominated by the State Government.

Appointment to be under the Act No. 18 of 1974. - The teachers appointed to the substantive posts in pursuance of the provisions of this Act shall be deemed to have been appointed under the provisions of the Rajasthan Universities'' Teachers and Officers (Se- lection for Appointment) Act, 1974 (Act No. 18 of 1974).

Last date of making appointments.- No appoint- ment in pursuance to the provisions of this Act shall be made after the expiry of 180 days from the date of the commencement of this Act.

Termination of the services of temporary teachers not substantively appointed.- The services of a temporary teacher who is considered for substan- tive appointment under Secs.3 and 4 but is not sub- stantively appointed on or before the expiry of 180 days from the date of the commencement of this Act, shall stand terminated on the date of such expiry.

The Act to have overriding effect. - The provi- sions of this Act shall have overriding effect notwith- standing anything contained in the relevant law.

Repeal and Savings. - (1) The Rajasthan Universi- ties'' Teachers (Absorption of Temporary Teachers) Ordi- nance, 2008 (Ordinance No. 3 of 2008) is hereby re- pealed.

(2) Notwithstanding such repeal, all things done, actions taken or orders made under the said Ordinance shall be deemed to have been, taken or made under this Act."

It may be relevant to note at this stage that it appears to be

a mere misconception of the petitioners for the reason that

Sec.3(3) of the Act, 1974 is the only provision under which

appointments could have been made of Teachers or Officers as a

stop-gap arrangement or the appointment of a part-time teacher

or a teacher or officer in the pay-scale lower than that of Lecturer

or Assistant Registrar respectively. Thus, such of the teachers who

were appointed either on part-time basis or as a stop-gap

arrangement are being appointed u/Sec.3(3) of the Act, 1974, as

it then was in vogue and even statement of objects and reasons

which are referred in enacting the Act of 2008 clearly envisages

that it was proposed by the State Government that the services of

Teachers who had been appointed u/Sec.3(3) of the Act, 1974,

after due public advertisement of vacancies in newspapers be

regularized.

At the outset, it may be noticed that if at all there is any

substance in the complaint made by the petitioners of

appointments being made of Teachers in the University of

Rajasthan, without resorting to the procedure prescribed

u/Sec.3(3) of the Act, 1974, there are no pleadings to this effect

on record as to who are such Teachers who were appointed in the

University of Rajasthan without going through the procedure

prescribed u/Sec.3(3) of the Act, 1974 or without public

advertisement of vacancies in the newspaper and if at all such

appointments were made, it was open for the persons aggrieved

to question such appointments when made and that apart they

are not party to the petition and no adverse order could be passed

behind their back without an opportunity of hearing is being

afforded which is one of the cardinal principles of Administrative

Law that no one should be condemned unheard and in the given

facts & circumstances it may not be advisable for this court to

make any observation on the basis of the material on record and

even before this court pleadings are vague & laconic in this regard

and on a mere assertion, no cognizance can be taken by this court

and the presumption has to be drawn of the action being valid

unless proven to the contrary and the burden was on the

petitioners to establish, in absence whereof at least presumption

can be drawn that the appointments were made u/Sec.3(3) of the

Act, 1974 and allowed to continue for more than two decades and

in the interregnum period when the University failed in making

regular selection u/Sec.3(1) of the Act, 1974, if the decision has

been taken to absorb such Teachers who have been working for a

sufficient long time u/Sec.3(3) of the Act, 1974, the decision of

the University cannot be said to be faulty or unconstitutional or in

violation of Art.14 of the Constitution, as being prayed for by the

petitioner.

The judgment of the Apex Court in the case of Premlata

(supra), on which petitioners placed reliance to show that such

illegal appointments, at least could not have been regularized or

absorbed under the Act of 2008 may not be of any assistance for

the reasons that it was a case where the Teachers who

approached the court were working on ad-hoc basis and were

neither absorbed nor became member of service under the Act,

1974 and stood retired from service as an ad-hoc teachers and

prayed that they should be considered as regularly appointed

Teachers and to become a member of pension scheme under the

Pension Regulations, 1990 and in this reference the observations

have been but in the instant case the teachers appointed

u/Sec.3(3) of Act, 1974 are absorbed & substantively appointed

vide order dt.05.08.2008 and became a member of service,

certainly their appointment cannot be said to be illegal, as prayed

for by the petitioner and the judgment relied upon by the counsel

for the petitioners may not be of any assistance in the given

circumstances.

It may further be noticed that while disposing of the batch of

appeals of temporary/adhoc Teachers, the Division Bench of this

court in the case of Dr.S.C.Gupta observed that adhoc Lecturers

who were appointed form a class by themselves and no bald

observation can be made in respect of such appointments as being

void and illegal and that apart rights have been accrued to such

persons with the passage of time to claim regularization

irrespective of the manner of their initial appointment. At the

same time, this court was conscious of this fact that if any

decision being taken to safeguard the service of adhoc Teachers,

the candidates from open market have to be given their due

weightage and they have legitimate expectation in getting

appointment in the University and balancing the interest of serving

Teachers and the candidates from open market who certainly have

a legitimate expectation, this court further observed that balance

has to be struck between their rival claims either by fixing

quota/ratio for adhoc Teachers and candidates from open market

but left it to the good sense and wisdom of the State Government

to take appropriate decision in this regard.

That was noticed by the State Government while enacting

the Act of 2008 and the University of Rajasthan in its reply has

come out with the explanation that in all there were 703

sanctioned posts of Assistant Professor out of which at the

relevant point of time 481 posts were lying vacant and 273

Assistant Professors after being found suitable were screened by

the Screening Committee and absorbed under the Act, 2008 and

at the same time, 220 posts of Assistant Professor remain vacant

to be filled by open selection for which process was initiated by

the University of Rajasthan by issuance of advertisement which

has been published in daily newspaper on 26.07.2008 and this

appears to be the reason that a balance has been put between the

adhoc teachers who are serving the University for almost two

decades & the candidates from open market, who are aspirant to

get an opportunity and have their legitimate expectation of being

appointed as a Teacher in the University and as regards the

present petitioners are concerned, when the process was initiated

by the University for holding open selection for the post of

Assistant Professor, opportunity was available to each of them to

participate in the process of selection to fulfill their dream.

The submission made by petitioners'' counsel that while

making absorption under the Act of 2008, the vacancies which

ought to have been reserved for the members of SC/ST have not

been taken note of is without substance for the reason that the

Act of 2008 was enacted for absorbing the teachers who were

appointed u/Sec.3(3) of the Act, 1974 and working for a period of

almost two decades and it was in open selection where the

vacancies ordinarily is to be reserved for the members of SC/ST to

the extent of 16% & 12% respectively and thus there was no

reason/justification for the respondents to provide benefit of

reservation to the members of SC/ST, as prayed for.

After we have heard counsel for the parties and scrutinized

the material on record, we are of the view that the Act of 2008,

enacted by the respondents is intra vires to the Constitution

having a reasonable nexus behind it and the present batch of writ

petitions assailing the constitutional validity of the Act, 2008 are

wholly without substance.

Consequently, the instant batch of writ petition stands

dismissed. No costs.