Skip to content


Dr. (Mrs.) Rukmani Vaish and 5 ors. Vs. State of Rajasthan and 10 ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petitions Nos. 661/79 and 5 Ors.
Judge
Reported in1981WLN701
AppellantDr. (Mrs.) Rukmani Vaish and 5 ors.
RespondentState of Rajasthan and 10 ors.
DispositionPetition allowed
Cases Referred and Anandji Haridas and Company v. S.T.C.
Excerpt:
constitution of india - articles 14 & 16 and rajasthan universities (absorption of temporary lecturers) ordinance, 1978--section 3--classification based on pre-emergency and post-emergency for regularisation of temporary teachers--held, it is irrational, unintelligent and discriminatory--no nexus with object of ordinance.;the classification based on pre-emergency and post-emergency in the educational field in the matter of giving benefit of a scheme of regularisation of temporary teachers has got no nexus whatsoever with the object of the ordinance.;undoubtedly, the object of the ordinance was sacred and it was a welcome in the educational field of the universities. but, that being the object, water tight compartments were made and discrimination was made between the lot of teachers.....guman mal lodha, j.1. a 'crackdown' & 'mass sacking' of university lecturers (temporary) on change of ruling party by issuing the governors ordinance, whether offends the equal protection clause, is the billion dollar question, raised under the banner of discrimination between 'pre-emergency' and 'post-emergency' appointees by section 3 of the ordinance. the 25th june, 1975' having been made the 'laxaman rekha','deadline' or 'd day, for regularisation of services, the ousted post-emergency lecturers have invoked article 14 & 16 of the constitution of india to quash the '25th june, 1975', arbitrary dead line', a 'brainchild' of the then vice chancellors and readily welcomed by the then government, the ruling party of which is alleged to be anti-emergency.2. the ruling political parties.....
Judgment:

Guman Mal Lodha, J.

1. A 'Crackdown' & 'Mass sacking' of University Lecturers (temporary) on change of ruling party by issuing the Governors Ordinance, whether offends the equal protection Clause, is the billion dollar question, raised under the banner of discrimination between 'pre-emergency' and 'post-emergency' appointees by Section 3 of the Ordinance. The 25th June, 1975' having been made the 'Laxaman Rekha','deadline' or 'D Day, for regularisation of services, the ousted post-emergency Lecturers have invoked Article 14 & 16 of the Constitution of India to quash the '25th June, 1975', Arbitrary dead line', a 'brainchild' of the then Vice Chancellors and readily welcomed by the then Government, the ruling party of which is alleged to be anti-emergency.

2. The ruling political parties existence being temporary and changing, in federal democratic Constitution, but the bureaucracy and services, being permanent, unalloyed, and unadulterated bedrock of the State; should the High Court as watch dog & Custodian' of the Constitution, strike down the laws intended to carry out 'mass sacking operations' and 'Crackdown' on 'employees employed by earlier, ruling party', is yet another 'apex' controversy? The pivot of answers in this decision would be ambit, scope and dimensions of Articles 14 and 16 of the Constitution of India, detached from the political overtones.

3. Granting that neither 'Lion' and 'Ox' are equal, nor 'Horse' and 'Ass' can be classified in one and the same class for claiming protective necluear umbrealla of Article 14 and 16 of the Constitution; but are pre-emergency lecturers all 'Lions' and 'Horses', and the 'emergency' appointee lecturers are all 'Ox' and 'Ass', is the acid test for deciding this interesting legal debate of equals or inequals, touching new horizons having space age juristic dynamic constitutional dimensions.

4. The golden principle of equality before law though enshrined in the Constitution of India under Articles 14 and 16 is not new to Indian Jurisprudence, The rule of law was well recognised by the great saints and sages and Maharishi Manu gave specific recognition to it in his 'Tenets and Injunctions', although the 'Vara Vyavastha' undermined it.

5. The Brihadaranyak Upanished says that the law is king of kings. 'Law, Morality & Politics' By Justice G.M. Lodha (Ed. 1981) Page 3 & 4

dkjkfi.kZ Hkosn~ n.M;ks ;=kkU;% izkd`rks tu% A

r= jktk Hkosn~n.M;% lgL=fefr /kkj.kk AA euq AA336

6. In the Vedic era, king or monarch was not above law and on violation, he could be punished like any other citizen.

7. Maharishi Manu's injuction is as under 'Law, Morality & Politics' By Justice G.M. Lodha (Ed. 1981) Page 3 & 4:

/kesZ ,oa grksgfUr /kehZ j{kfr% A

rLekn~/keksZ u gUrO;ks ekuks /keksZ grkso/khr~ Aeuq [email protected]

8. Destrution of law and Justice bring about, the destruction of Society. The protection of law and Justice has a protective influence. Therefore, law and Justice should not be destroyed 'Law, Morality & Politics' By Justice G.M. Lodha (Ed. 1981) Page 3 & 4.

9. The Shatpath Brahman (xiv. 4. 2. 26) and the Brihad-Aranyak Upanishad (1.4.14) in identical terms lay down the supermacy of the law as under 'Law, Morality & Politics' By Justice G.M. Lodha (Ed. 1981) Page 3 & 4:

The Law is the ruler, even of the rulers and kings. Therefore, there is nothing higher than Law. With the aid of the law even a weakling overcomes the strong.

10. The Fumes and Fire, of the great principle of Equality' preached by the great Prophets and Saints Budha, Mahaveer, Rama, Jewish, Christ Mohammed, Marx, Mahatma Gandhi and Abraham Lincon have spread in all countries, the 'Second World' being Apex; the 'First World' proclaiming it again and again but discriminating ''Third World' and the third world galloping and struggling to attain it, except the middle East and Despotic regimes where only 'Crocodile tears' are shed for it.

11. A comparative study of the Constitutions of the Word would show that in some form or the other equal protection Clause of equality before law has been given bright place in all Constitutions of the world written or unwritten.

Indian Constitution

Preamble

EQUALITY OF STATUS AND OPPORTUNITY.

'Article 14. Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.'

'Article 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion race, caste, sex, place of birth or any of them be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of the State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizen or for the Scheduled Castes and the Scheduled Tribes.

'Article 16.--Equality of opportunity in matters of public employment (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment of ofhce under the State.

(3) Nothing in this article shall prevent from making any law prescribing, in regard to a class or classes of employment or appointment to an office (under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.

(4)Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(5)Nothing in this article shall effect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution of any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular religion.

Parallel Provision of Article 14 in Other Countries Constitution

Article

1. Afghanistan 25

2. Cambodia 17

3. Ceylon 29 (2)

4. China 7

5. India 14

6. Iran 8

7. Iraq 6

8. Japan 14

9. Jordan 6

10. Korea 11

11. Kuwait 29

12. Lebanon 7

13. Malaysia 8(1)

14. Nepal 10

15. Pakistan 15

England (Unwritten Constitution)

'Article 14.--Equality before the law' says Dicey 'is the second aspect of the rule of law'.

Article 7 of the Universal declaration of Human rights

All are equal before the law and are entitled without any discrimination to equal protection of the laws.

Article 20(1) of the Covenant on Human rights 1950.

All are equal before the law, and shall be accorded equal protection of law.

U.S.A. 14th Amendment--Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S.A. Article VI, Section 3 of the United States Constitution says

No religious test shall be required as a qualification to any office or public trust under the United States.

Burma Section 14 of the Burmese Constitution, 1948, provides

There shall be equality of opportunity for all citizens in matters of public employment and in the exercise or carrying on of any occupation, trade, business or process on.

Australia Section 116 of the Australian Constitution says:

No religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Section 117 provides:

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

Switzerland Article 60 says, 'Every Canton is bound to accord to citizens of the other Confederated States the same treatment as its own citizens in regard to legislation and judicial proceedings.

Articles 122-123 of the Soviet Constitution provide

Article 122. Women in the U.S.S.R. are accorded equal rights with men in all spheres of economic governmental, cultural, political public activity....

Article 123. Equality of rights of citizens of the U.S.S.R. irrespective of their nationality or race, in all spheres of economic, governmental, cultural, political and other public activity, is an indefeasible law.

Any direct or indirect restriction of the rights of, or, conversely, the establishment of any direct or indirect privileges for, citizens, on account of their race or nationality, as well as any advocacy of racial or national exclusiveness or hatred and contempt, is punishable by law.

Japan Article 14 says, '... there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status, or family origin.'

West Germany Article 3(3) of the West German Constitution (1948) declares

No one shall be prejudiced or privileged because of his sex, descent, race, language, homeland, origin, faith, or his religious and political opinions.

12. And now the traditional narration of facts.

13. I would first deal with the facts of the case of Dr. (Mrs.) Rukmani, and then consider the common questions. Thereafter, individual cases, if any, having some different dimensions from Dr. Rukmani's case, would be considered.

14. Dr. Rukmani's case is that having passed M.A. in Hindi in 1969, she did Ph.D. in Hindi in 1973 from the University of Rajasthan. On June 28, 1976, she was appointed tutor in Hindi on a temporary basis for a period of three month's in the University of Rajasthan. She was then permitted to work as tutor on account of various extensions and ultimately she became Lecturer. A Selection Committee of the University selected her for Lecturer and she was appointed as such with effect from October 9, 1977. Her services were terminated with effect from August 15, 1979 by an order of the Vice Chancellor.

15. The Rajasthan University Teachers and Officers (Special Conditions of Service) Act, 1974 (here in after referred to as the Act of 1974) provides elaborate procedure for recruitment of teachers and officers in the University. However, no selections were made under this Act, and all appointments made were on temporary basis.

16. In 1978 an Ordinance was promulgated by the Governor of Rajasthan, known as the Rajasthan Universities (Absorption of Temporary Lecturers) Ordinance, 1978 (here in after referred to as the Ordinance of 1978. The Ordinance was issued with the object of regularising the cases of those teachers who had been appointed on or before 25-6-75 and who were continuing as such on 12-6-78. The Ordinance provided screening of all such temporary Lecturers in case they fulfil the academic qualifications.

17. After the promulgation of the above Ordinance of 1978, the process of screening started. The University authorities interpreted the Ordinance to mean that only those who are continuously in service between 25-6-75 to 12-6-78 are eligible and the teacher having a break of even one single day in between would be ineligible. This sparked off a controversy of serious magnitude, because, the practice in the University was to break the services of the temporary lecturers and not to allow them to function continuously. One Y.K. Tewari aggrieved by this interpretation of the University approached this Court in S.B. Civil Writ Petition No. 446/78. This court ultimately allowed the writ petition on 29-8-78, and gave the following directions:

(A) The result is that the writ petition is allowed and the respondents are directed to declare the result of the petitioner as screened by their Screening Committee under Clause 3 of the Ordinance No. 5 of 1978 and appoint him substantively in case he is found suitable by such Screening Committee in accordance with the Rules. There will be no order as to costs in the facts and circumstances of the case.

18. The screening resulted in absorption of about 106 Lecturers, who were working temporary and they all became permenant.

19. Orders to this effect were issued on August 17, 1978. Since the petitioners were not appointed as Lecturers on or before 25-6-75, they were treated as ineligible for being screened under the provisions of the Ordinance of 1978.

20. The Ordinance was ultimately placed before the Rajasthan Legislative Assembly, and a Bill was introduced, which, after undergoing some amendments, became the Act of 1979, and is known as the Rajasthan Universities Teachers (Absorption of Temporary Lecturers) Act, 1979 herein referred to as the Act of 1979'. Having received the assent of the Governor on 17-4-79, it was published in the Rajasthan Gazette on 18-4-79. The Act gave second opportunity to those unfortunate lecturers who were rejected after screening under the Ordinance of 1978. Yet another important alteration and amendment was that where the entire process of screeing and appointment was to be finished by 30.8.78 under the Ordinance, the time was extended upto 31-8-79 by the Act.

21. Since the posts of lecturers in Hindi were advertised by the University by advertisement No. 9 of 1978, Dr. Rukmani applied the post in pursuance of the advertisement. The Selection Committee held the interviews on 16th and 17th July, 1979. The petitioner Dr. Rukmani was not called for interview earlier, but after a notice was served on the University by her Advocate, she was also invited for being considered at the interview. The Selection Committee consisting of the Vice-chancellor Mr. V.P. Tyagi and other educationists selected respondents 3 to 11, but did not select the petitioner Dr. Rukmani, and thus she was rejected by the Selection Committee.

22. Dr. Rukmani has challenged the 'Ordinance of 1978'and the 'Act of 1979' on the one hand, and also the Selection Committee's decisions by which she was rejected and the respondents were selected under the Act of 1974.

23. All these writ petitions have been vehmently opposed by the University of Rajasthan, the State of Rajasthan and the other respondents, who have been selected by the Selection Committee, and whose selections have been challenged.

24. The first and foremost point canvassed before this Court on behalf of the petitioners relates to the validity of the Ordinance of 1978 and the Act of 1979. Since both the Ordinance as well as the Act have got common feature of making a teacher eligible for consideration by the Screening Committee, only if he or she was in service of the University on or before 25-6-75, and further was also in the service of the University on 12-6-78, the date when the Ordinance became effective by publication in the Rajasthan Gazette, it is not necessary to deal the challenge of the Act and Ordinance separately. In other words, the Ordinance of 1978 and the Act of 1979 would 'swim or sink' together. I would while considering the validity of the Act deal with the Ordinance only and that would cover the validity of the Ordinance and the Act.

25. The controversial Clause of the Ordinance is Clause (3), reads as under:

(B) 3. Substantive appointment of temporary lecturers: All temporary lecturers as were appointed as such on or before the 25th day of June, 1975 and are continuing as such at the commencement of this Ordinance shall be considered by the University concerned for their absorption and substantive appointment on the recommendation of the Screening Committee constituted under Section 4 subject to their fulfiling the conditions of eligibility including minimum qualifications prescribed by the University concerned under the relevant law as applicable on the respective dates of their temporary appointments and subject also to the availability of substantive vacancies of lecturers in the department concerned.

26. Yet another Clause, which has relevancy, is Clause 5, which reads as under:

(C) 5. Appointment to be under the Act No. 18 of 1974.--The lecturers appointed to the substantive posts in pursuance of the provisions of this Ordinance shall be deemed to have been appointed under the provisions of the Rajasthan Universities, Teachers and Officers (Special Conditions of Service) Act, 1974 (Act No. 18 of 1974)

27. Clause 7 of the Ordinance provides that those persons who are not substantively appointed on account of the screening would not continue in service after 31-8-78 as their service shall stand terminated on the expiry of that date. Clause 8 of Ordinance provides that the provisions of this Ordinance shall have effect notwithstanding anything contained in the relevant law.

28. An analysis of the provisions of this Ordinance would show that it has applications to ail temporary lecturers who were working in the various Universities in Rajasthan on the relevant dates and unless they were selected by the Screening Committee under this Ordinance, their services were to be terminated by 31-8-78. The dual object of this Ordinance was, therefore, to regularise the services of those who were found suitable after screening and to fulfil the conditions of Clause (3) and then terminate the services of all other temporary teachers on expiry of August 31, 1978. The important feature of the Ordinance was that once a person was screened and found suitable, then he got the benefit of being appointed substantively under the Act of 1974 without facing the Selection Committee as required by that Act.

29. The crucial controversy raised before this Court relates to the fixation of two dates in Clause (3), the first being 25-6-75 and the second date of commencement of this Ordinance i.e., 12-6-78. However, during arguments, so far as the second date i.e., commencement of the Ordinance, 12-6-78, is concerned, the controversy was not pressed to its logical conclusion, but the entire concentration was made on attack about the validity of the date fixed as 25-6-75, as the date on or before which the teacher should have been functioning as a teacher in the particular University concerned.

30. The entire arguments of the learned Counsel for both the parties centered round the question whether fixation of '25-6-75' was arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India. In order to appreciate the rationale or justification for fixing of 25-6-75, as the crucial date, the Court enquired from the learned Advocate General, who appeared on behalf of the State to defend the validity of the Ordinance and the Act, and also from the learned Counsel of the Rajasthan University as to what prompted the fixing of the date as 22-6-75. The learned Advocate General submitted that it was at the instance of the Rajasthan University, and its Vice Chancellor. The standing Counsel for the University initially took the stand that so far as the University is concerned, it never suggested the above date of 25-6-75 and he has got no reason to justify the fixing of this date. However, when the Secretariat file was summoned by the court and perused, it was revealed to the great surprise of the standing Counsel of the University that the data was fixed precisely on account of the suggestion of the Vice Chancellor of the Rajasthan University. The record submitted before this Court for perusal clearly shows that the then Vice Chancellor, sent letter dated 30-1-78 (contained at page 54 of the File No. F.3 (28) Edu/ C / Gr. III/77 Subject--Education Gr. II), which contained the following suggestion:

(D) It is proposed that all the temporary lecturers appointed on or before 25-6-75 be screened by a Screening Committee appointed by the University concerned & on the recommendation of the Screeing Committee they be absorbed subject of course to the availability of the vacencies in the department and the candidate fulfiling the prescribed qualifications. 25th day of June, 1975 has been suggested as crucial date taking into account the fact that could take care of all appointments made before the national emergency which was clamped with effect from 26-6-75

(emphasis added.)

31. This letter was sent to Mr. Lalit-Kishore Chaturvedi, then Education Minister. The two drafts of the Ordinance which were sent with the letter also contained the alteration in the date which was changed from 1st day of September, 1973 to 25-6-75. The draft of the Ordinance contained the offending date as such in Clause 3. The learned Advocate General also pointed out that certain representations were made by the University teachers and their associations to change the date from 1973 to 1975, and to substantiate that allegation, the above file was placed before this Court. However, the representations contained in this file nowhere contain 25-6-75 as the date. Of course, in these representations there was a demand that the earlier Government decision to fix the enabling date of eligibility as 1st of September, 1973 should be altered to a date so as to cover cases of all other lecture who have been appointed later on also.

32. The University of Rajasthan has been adopting a practice of appointing temporary lecturers for a fixed period and after a gap reappoint thnm. It has created a serious controversy and dozens of teachers were found ineligible on account of this break in service. As mentioned earlier, this led to the writ petition, and this court while accepting that writ petition interpreted Clause (3) to mean that Continuity of service between 25-6-75 to 12-6-78 is not necessary and all that is required is that one must be in service on or before 25-6-75, and then again on 12-6-78.

33. This judgment of the Rajasthan High Court having become final, I have to interpret Clause (3) of the Ordinance to mean that the essential condition of eligibility under Clause (3) is that one must be in appointment of the University at any time, and for any period, may be even a day on or before 26-6-75, and then again he or she must be a temporary teacher on 12-6-78, even though during the entire period in between, he or she might not be at all in service of the University.

34. Taking the above as a bed rock of the interpretation of Clause (3), Mr. Singhvi, the learned Counsel for the petitioner has argued that the resultant position is that a teacher who is working for even two or three days only or two or three months' as the case may be with a long interval of about three years in between when he remained out of employment of the University would become eligible for being screened and being made permanent under the Act of 1974, but a teacher who has worked continuously form 26.6.75 to 12.6.78 for about three years would be ineligible for being screened under the Ordinance and the services will be terminated on 31.8.78. This is an extraordinary situation and there appears to be no nexus between the fixation of the date of 25.6.75 and the object of the Ordinance for regularising the services of those teachers who were working temporarily as teacher on 12.8.78. It was pointed out that the classification is unintelligible and difficult to be understood on any rational basis whatsoever.

35. That takes me to the pointed controversy as to what was the reason, ground or basis for fixation of 25.6.75 for making a person eligible and conversely for making all those teachers who came to be employed on and after 26.6.75 in the University to be ineligible. Normally if a particular period of experience is fixed, e.g., a year or two or three, it shows hatthe Legislature in its wisdom thought it proper to prescribe that the minimum requirement relates to a particular period and then it is not open to the Court to srutinise and decide why one years working or experience was only fixed and why not a period of two years or three years was fixed. Similarly, the some date is to be fixed in case of regularisation, and if it has got some nexus with the object of Legislation, then merely because persons not covered by that date would not get benefit of that Legislation, the fixation of the date cannot be held to be invalid.

36. It was in these circumstances that this Court on various dates of hearing made persistent enquiries from the Advocate General and the Counsel of the University to satisfy this Court about the reason which prompted the fixation of the date as 25.6.75 Curiously enough, after a good deal of search made by the department and officers of the Government, when the file was brought before this Court, all that was found was that 25.6.75 was fixed because the emergency was clamped on 26.6.75. It would, therefore, be necessary to analyse and appreciate whether 'clamping of the emergency' had any relationship with the functioning or working of the teachers or their appointments as temporary lecturers in the University.

37. The learned Counsel for the University and so also the Advocate General were therefore asked repeatedly to enlighten & assist this Court in correlating the clamping of the emergency' with the fixation of the date of 25-6-75, as the last date for eligibility in the Ordinance for teacher and depriving others who were appointed after the clamping of the emergency as temporary teachers, though they might have been working continuously for one or two years or more Neither in the letter of the Vice Chancellor who appears to have mooted this date, to the Government nor any where else either in the Secretariat record of this file shown to this court or the pleadings of the parties consisting of returns filed by the respondents, any light has been shown to explode this mythard puzzle, which insrite of the best efforts of the Court appears to be unsolved and unresolved.

38. The University in its reply in para 21, Sub-clause (f) and further Sub-clause 1 and 2 has mentioned as under:

(E) (f).--That with regard to sub-para (f) of para 21 of the writ petition it would suffice to submit that the writ is pre-matured. No Screening Committee is to be appointed to screen the temporary Lecturers in Hindi and the candidates covered by the provisions of Act No. 7 of 1979 because non selection of the petitioner by the Selection Committee constituted under Act of 1974. Since the petitioners was not eligible to be considered by the Screening Committee constituted under Act No. 7 of 1979, her case could cot be considered.

(i) That Sub-clause (i) of sub-para (f) of para 21 of the writ petition does not suffer from any infirmity. It is also not contrary to the provisions of article 14 of the Constitution of India. The fixation of 25th June, 1975 has got its rational The interpretation with regard to temporary Lecturers sought to be placed by the petitioner is illfounded.

(ii) That Sub-clause (ii) of sub-para (f) of para 21 of the writ petition is misconceived. The emergency was imposed on 25-6-1975 and the Legislature was fully competent to take into consideration the date on which the emergency was imposed and to enact law keeping in view the date.

(Emphasis added)

39. Classification based on pre-emergency and post emergency in the matter of regularisation of temporary teachers in the University of Rajasthan, whether can be sustained is the crucial question which has now emerged after the arguments of both the sides have been summarised. The date of 25-6-75 was mentioned in the Ordinance, on the suggestion of Vice-Chancellor of Rajasthan University, who made it clear that this date is being fixed as emergency was clamped on 25-6-75. The noting on the file, more particularly the note of the Chief Secretary, Mr. Bhanot, shows that he agreed to the suggestion that classification should be made on the basis of pre-emergency and post-emergency cases. This note of approval of Mr. Bhanot resulted in the memorandum submitted to the Cabinet approved it and thereafter the Governor of Rajasthan accepted and approved the cabinet decision and classified the temporary teachers of Rajasthan into one of pre-emergency recruited persons and other one of post-emergency recruited persons. Those who were recruited after clamping of the emergency were not permitted to have the benefit of the Ordinance and the screening, with the result that they were all removed from service on 31-8-78, as the Ordinance expressly mentioned that unless they are screened and selected earlier their services will be terminated. The lot of the petitioners before this Court in this bunch of cases, happen to be of teachers who were appointed in the post-emergency period, and, therefore, their services were terminated.

40. The Advocate General and Mr. C.M. Mathur standing Counsel of the University could not spell out what was the co-rrelation between clamping of emergency and the appointment of the lecturers, and depriving those teachers who were employed either during the emergency or after the clamping of the emergency, of the benefit of the Ordinance, and contrary to it giving the benefit to those teachers who were appointed in cre-emergency period.

41. Not only that they could not spell out any correlation and satisfy the Court of the just needs of this classification based on pre-emergency and post-emergency, but both of them during arguments found it difficult to justify the classification.

42. This Court is not concerned with the implications and consequences of clamping or proclamation of emergency, because that is not the subject matter of dispute in this case, but what states on the very face of the question involved in this, is that clamping of emergency may have some relationship with detention of citizens, censorship of the press if any, curtailment of some of the fundamental rights, a subject on which important debates have taken place, in the Hon'ble Supreme Court in a number of cases; but obviously it has got no relevancy whatsoever with the appointments of lecturers who were appointed after the date of clamping of emergency, and during the period of emergency or after it. It would not be possible to hold nor it has been alleged even that the petitioners were products of emergency or were given any benefit due to emergency, not it can be held that their appointments were irregular or done in a high-handed manner, simply because the period of appointments coincided with the emergency.

42A. So far as the educational field and the recruitment of teachers in the University is concerned it is difficult to hold that it had any relationship with the emergency and the Advocate General as well as Mr. C.M. Mathur have very frankly and fairly conceded that the appointment of these petitioners as also of other persons in the University has to co-rrelation with the clamping of emergency.

43. It is true that the Governments or the ruling party in the Government may change in the democratic set up, as that may be one of the logical consequence of a democracy, but from that no relationship exists in law, so far as the validity of appointments of the civil servants or other employees in the State is concerned. This applied with all the more force in the educational field where Universities which are autonomus bodies make appointments in the teaching staff.

44. Even on a careful reading of the relevant file, referred to above, the learned Advocate General could not point out what was the relationship between clamping of the emergency and the classification made in the Ordinance. A thorough search and research of the record reveals that except the use of the date 25-6-75 and the reason of its coinciding with the clamping of emergency as mentioned in the letter of late Shri V.P. Tyagi, Vice Chancellor of Rajasthan University addressed to Mr. Lalit Kishore Chaturvedi, then Education Minister, Rajasthan, there is nothing to show or justify the detailed reasons, cause or grounds for this classification of pre-emergency and post-emergency, I am, therefore, constrained to observe that the classification based on pre-emergency and post-emergency in the educational field in the matter of giving benefit of a scheme of regularisation of temporary teachers has got no nexus whatsover with the object of the Ordinnace.

45. It is not in doubt or debate that the Universities in Rajasthan were for the reasons best known to it, not conducting selections on permanent basis by convening selection committees under the Act of 1974. It reveals a very sad state of affairs that, even though the Act of 1974 was made precisely for providing procedure for appointment of teachers and officers in the Universities, and it was found that the Universities Acts which were in existence earlier were not used and the Universities were full of temporary even then temporary teachers were not made permanent lecturers. How unfortunate it is that even though the Universities were functioning since two decades or three decades, as the case may be, the syndicate of the University and the Vice-Chancellor could not convene the meetings of the Selection Committees for one reason or the other, and the temporary lecturers were being thrown from pole to pillar and pillar to people, by making fictional gaps of break of services from time to time. That such a sad state of affairs in the educational field, where the teachers always go to the University with uncertainty about their tenure and service were allowed to continue for years and years together, is a matter which should cause anxiety to all relevant educationists, administrators and the people concerned with the education.

46. The object of the Ordinance was, therefore, to stop and put an end to this uncertainty of service of those teachers, who were working on temporary basis, but who used to get extensions from time to time and that too after break of service, which were fictional in nature made only to deprive the teachers of their right which accrued to them. Undoubtedly, the object of the Ordinance was sacred and it was a welcome in the educational field of the Universities. But that being the object, witer tight compartments were made and discrimination was made between the lot of teachers even though they may have put up more service not only in terms of months but even in terms of years simply because the date of appointment was during the emergency or after clamping of the emergency. Such an irrational, illogical, unintelligible and discriminatory provision cannot be allowed to stand in view of Articles 14 and 16 of the Constitution, wherein the founding fathers and the constitutional Pandits, gave to this country the guarantee of equal protection of laws and equality before law and equal opportunity in appointments, enshrined in part III of the Constitution.

47. To me it appears that this issue is clinched by the celebrated judgment of the Hon'ble Supreme Court in the Presidential reference of the Special Courts Bill. A Constitution Bench consisting of Hon'ble Y.V. Chandrachud, Chief Justice, P.N. Bhagwati V.R. Krishna Iyer, R.S. Sarkaria, N.L. Untwalia, S. Murtaza Fazal Ali and P.N. Shinghal Justices, in The Special Courts Bill, 1978, Special Reference No. 1 of 1978, made an authoritative pronouncement reported in A.I.R. 1978 S.C. 478. The President of India made this reference in order to ascertain whether the Bill or any of the provisions thereof, if enacted, would be constitutionally invalid. This Bill in its ambit wanted to cover the offences committed from 27-2-75 to 25-6-75 also in addition to the period of emergency. The preamble of the Bill stated as under:

(F) The Special Courts Bill, 1978--A Bill to provide for the trial of a certain class of offences.

WHEREAS the Commissions of Enquiry appointed under the Commissions of Enquiry Act, 1952 have rendered reports disclosing the existence of prima facie evidence of offences committed by persons who have held high public or political offices in the country and others connected with the commission of such offences during the operation of the proclamation of Emergency dated 25th June, 1975, and during the preceding period commencing 29th Feb., 1975 when it became apparent that offenders were being screened by those whose duty it was to bring them to book.

48. Section 4, Clause (1) of the Act was as under:

(G) 4. (1)--If the Central Government is of the opinion that there is prima facie evidence of the commission of an offence alleged to have been committed during the period mentioned in the preamble by a person who held high public or political office in India and that in accordance with the guidelines contained in the Preamble hereto the said offence ought to be dealt with under the Act, the Central Government shall make a declaration to that effect in every case in which it is of the aforesaid opinion.

49. The Hon'ble Supreme Court struck down the inclusion of the offences committed from 27.2.75 to 25.6.75, and while doing so observed as under:

(H) The Bill excludes the existence of two Parallel jurisdictions in the same field and ensures effectively that all offences which fall within its scope shall be tried by the Special Court only and by no other court or tribunal. However, the ante-dating of the emergency as it were, from June 25 to February 27, 1975 is wholly unscientific and proceeds from irrational considerations arising out of a supposed discovery in the matter of screening of offenders. The inclusion of offences and offenders in relation to the period from February 27 to June 25, 1975 in the same class as those whose alleged unlawful activities covered the period of emergency is too artificial to the substained. Accordingly the classification provided for by Clause 4(1) of the Bill is valid to the limited extent to which the Central Government is empowered to make the declaration in respect of offences alleged to have been committed during the period of emergency, by persons holding high public or political offices. The Classification is invalid in so far as it covers offences committed by such persons between February 27 and June 25, 1975. No declaration can, therefore, be made by the Central Government in regard to those offences and offenders under the present classification.

50. The court was of the opinion that the offences alleged to have been committed during the period of emergency constitute a class by themselves and so do the persons who are alleged to have utilised the high public or political offices held by them as a cover or opportunity for the purpose of committing those offences.

51. The object of this Bill was to ensure a speedy trial of the offences and offenders, who constitute a single and special class. The Supreme Court observed that as stated in 5th para of Bill's pre-amble ordinary criminal Courts due to congestion of work cannot reasonably be expected to bring the prosecution constituted by the Bill to the speedy termination. The Bill justifiably provides for a method whereby prosecutions falling within its scope may be terminated speedily.

52. Their Lordships of the Hon'ble Supreme Court found that the classification is founded on an intelligible differentia which distinguishes those which are grouped together from others who are left out and the said differentia has a rational relation with the object sought to be achieved by the Bill.

53. It would thus be seen that whereas the classification of those offences and offenders who were to be tried for misusing the high public office and political power for committing offences during emergency was found to be reasonable and permissible, the stretching of the same to the earlier period upto 27-2-75 was held to be impermissible and invalid.

54. The preamble of the Bill and the Sections clearly made out a case of valid classification for special trials by Special Courts of those offenders who committed offences during the period of emergency with speed in comparison to ordinary criminals who were being tried in the ordinary courts. But, their Lordships found that there was no reason to extend jurisdiction to the period upto February 27, 1975, and it was wholly unscientific and proceeds from irrational consideration.

55. As I have discussed earlier, the period of emergency had no relationship with the appointments of teachers or their service conditions or their selections or their tenure. In my considered opinion the classification based on emergency is not only wholly unscientific and proceeds from irrational considerations but is so unintelligible that even by a telescopic examination of any supposed reason, even the learned Advocate General and the standing Counsel for the University were wholly unable to decipher any good reason. According to me the smoke screen of clamping of emergency sought to be used by the Governor in promulgating this Ordinance for debarring the teachers in temporary employment of Universities from their getting benefit of screening and regularisation is outrageous and violative of the equal protection Clause and violently offends against the guarantee of equality before law and opportunity in appointments provided by Articles 14 and 16 of the Constitution of India. Neither it is based on any intelligible differentia which distinguishes the group of pre-emergency teachers in the Universities with the post emergency recruited teachers in the Universities, who have been left out, nor this unintelligible differentia has got even the remotest rational relation with the object of the Ordinance, which reads as under:

(1) An Ordinance to provide for the absorption of temporary lecturers of long-standing, working in the Universities in Rajasthan.

In the Rajasthan Universities Teachers and Officers (Special Conditions of Service)Act, 1974 (Rajasthan Act No. 18 of 1974) specific provisions have been made for the selection of teachers and officers in the Universities. But for one reason or the other, regular selection committees in the Universities could not meet to hold regular selections before and after the commencement of the Act. Therefore, temporary appointments against such vacant posts were made by the Universities. Such appointments have been continuing in some cases for the last ten years. With a view to solve this long standing problem, it was considered necessary to regularise the appointments through specially constituted Screening Committees. Since, the academic session was about to commence and since the Rajasthan Legislative Assembly was not in session and the Governor was satisfied that circumstances existed which rendered it necessary for him to take immediate action, he made and promulgated the Rajasthan University Teachers (Absorption of Temporary Lecturers) Ordinance, 1978 on 8th day of June, 1978.

56. The Ordinance was published on 12-6-78 and the Statement of Objects and Reasons is to be taken as correct, I have no reason to disbelieve to correctness of it, the object was that the appointments upto about ten years were to be regularised. It is not only surprising b almost shocking as to how these ten years were computed to exclude those teachers who were appointed after 25-6-75 and before 12-6-78. The rational and logical enactment to give effect to statements and objects would have been to include all those teachers who were appointed in the Universities after 12-6-68 and upto the date of 12-6-78, in case 10 years period was to be computed. It is not for me to say whether 10 years period was rational or not, but even on the assumption that the object Clause contained in the statement of objects and reasons was not justifiable, the logical and legal consequence would have been to compute 10 years from the date of commencement of the Ordinance, and in any case the day when it was being processed or approved by the cabinet or the Governor. Of course, a few months here and there would have been explained on the ground that the drafting was in process.

57. I pointedly put this question to the Advocate General and Mr. C.M. Mathur, standing Counsel of the University, as to how the object of this Ordinance to regularise the appointment of teachers of long standing who were appointed during last ten years or near about it would be served by excluding those who have been appointed after 25-6-75. Frankly speaking, the learned Counsel for the respondents stated that they have got no valid justification or explanation.

58. Thus, on both the counts, namely, that the grouping of pre-emergency and post-emergency teachers separately is not based on intelligible differentia and because this classification has got no rational nexus with the object of the Ordinance of 1978 or the Act of 1979. I have got no hesitation in striking down and quashing the date fixed in the Ordinance and the Act as '25-6-1975'.

59. It is true that some date could always be fixed in such matters and it is also true that for some matters pre-emergency and post-emergency periods can be grouped separately for classification as was held in the case of offences to be tried by the Special Courts, but each Statute which prima facie suffers from such vice of discrimination is required to be examined closely in order to find out whether there is an intelligible differentia between two groups, and whether the classification made has got any rational nexus with the object of the Statute. Since, in the present case, the fixation of the date as 25-6-75 could not withstand either of the two tests and failed to satisfy anyone of them, it is not necessary to examine in details the long series of judgments relevant on the point. However, I would like to make a mention of them in short.

60. The principles for invoking Article 14 of the Constitution in respect of determining the validity of the classification have been discussed in details in a series of cases of the Hon'ble Supreme Court and also the High Courts. The relevant discussion for the purpose of taking guidance in the instant case finds place in D.R. Nim. v. Union of India : (1968)ILLJ264SC , which reads as under:

(J) It would be noticed that the date May 19, 1951, to begin with had nothing to do with the finalisation of the Gradation List of the Indian Police Services because it was a date which had reference to the finalisation of the Gradation List for the I.A.S. Further this date does not seem to have much relevance to the question of avoding the anomalous position mentioned in para 9 of the affidavit reproduced above. This date was apparently chosen for the I.A.S. because on this date the Gradation List for all the earlier persons recruited to the service had been finalised and issued on a somewhat stable stage. But why should this date be applied to the Indian Police Service has not been adequately explained. Mr. B.R.L. Iyengar, the learned Counsel for the appellant strongly urges that selection of May 19, 1951, as a crucial date for classifying people is arbitrary and irrational. We agree with him in this respect. It further appears from the affidavit of Mr. D.K. Guha, Deputy Secretary to the Government of India, Ministry of Home affairs, dated December 9, 1966. that 'the Government of India have recently decided in consultation with the Ministry of Law that the Ministry of Home Affairs letter No.2/32/51/-IAS, dated the 25th August, 1955 will not be applicable to those SCS/SPS Officers, who were appointed to I.A.S /I.P.S. The IPS(Regulation of Seniority) Rules, 1954, & the date of the issue of the above letter in their earlier continuous officiation was approved by the Ministry of Home Affairs and Union Public Service Commission'. It further appears that 'in the case of Shri C.S. Prasad also, an IPS Officer of Bihar, a decision has been taken to give the benefit of full continuous officiation in senior posts and to revise his year of allotment accordingly.' But, it is stated that 'as Shri Nim was appointed to IPS on the 22nd October, 1955, i.e., after the promulgation of the IPS (Regulation of Seniority) Rules, 1954, and after the issue of letter, dated 25th August, 1955, his case does not fall even under this category.' The above statement of the case of the Government further shows that the date, May 19, 1951, was an artificial and arbitrary date having nothing to do with the application of the first and the second proviso to Rule 3(3). It appears to us that under the second proviso to Rule 3(3) the period of officiation of a particular officer has to be considered and approved or disapproved by the Central Govt., in consultation with the Commission considering all the relevant facts. The Central Government cannot pick out a date from a hat and that is what it seems to have done in this case and say that a period prior to that date would not be deemed to be approved by the Central Government within the second proviso.

61. Their Lordships of the Supreme Court again in Jagdish Pandey v. The Chancellor, University of Bihar and Ors. 1968 SLR 252 laid down the important cirteria and the following test:

(K) The three points raised in the High Court have been urged before us in support of the appellant's contention that the two orders dated August 18, 1962 and February 18, 1963 are liable to be quashed We shall first consider whether Section 4 is ultra vires Article 14 of the Constitution. The first ground in that behalf is that the dates mentioned in Section 4 were completely arbitrary and therefore there was no valid classification to uphold the validity of the Section. There is no doubt that if the dates are arbitrary, Section 4 would be violative of Article 14, for then there would be no justification for singling out a class of teachers who were appointed or dismissed etc. between these dates and applying Section 4 to them while the rest would be out of the purview of that Section.

62. Their Lordships, of the Supreme Court while considering the ambit of Article 14 again laid down the fallowing principles in Jaila Singh and Anr. v. State of Rajasthan and Ors. AIR 1975 SC 1435. The important observations are contained in paras 14, 17 which read as under:

(L) 14. We are unable to see the nexus between the pre-1955 Conditions and past-1955 Rules and the Rajasthan Tenancy Act which came into force on 15-10-1955. In three cases we are concerned with the validity of the rules relating to the allotment of Government land which had been given on temporary leases to various persons whether before 1955 or after 1955, Both sets of leases has been cancelled by the relevant pre-1955 Condition and post 1955 Rules and there is no dispute that the pre-1955 leases cannot be cancelled, while post-1955 leases could be cancelled. The Rajasthan Tenancy Act is not concerned with that question. Proviso to Section 15 of that Act specifically provides that no Khatedari rights shall accrue under that Section to any tenant, to whom land is or has been let out temporarily in the Gang Canal Bhakra, Chambal or Jawai project area, or any other area notified in that behalf by the state Government. Admittedly the Rajasthan Canal area has been included within the scope of this proviso by a notification. To make matters more clear Section 15 A also provides that the land in the Rajasthan Canal area leased out on any terms whatsoever shall be deemed to have been let out temporarily within the meaning of the proviso earlier mentioned and no Khatedari rights shall accrue or shall be deemed ever to have accrued in any such land leased out as aforesaid. This provision thus applies to both pre-1955 as well as post-1955 leases. Both these leases stand on the same footing and therefore do not form different classes.

17. One of the arguments attempted before us, though it was not pleaded before the Rajasthan High Court was that in the case of the post-1955 tenants a smaller area had to be allotted because of the pressure for land. We have already pointed out that the difference in the period of occupation between the pre-1955 and post-1955 tenants could not be of such an extent as to justify allotment of larger extent of land to the pre-1955 tenants than to the post-1955 tenants nor for the discrimination even among the pre-1955 tenants between those holding more than 25 bighas and those holding less than 25 bighas. If the Rajasthan Government wanted to act fairly by all classes or residents of Rajasthan they could very well have omitted portions in the 1967 Rules found objectionable by the Rajasthan High Court and therefore struck down and there would have been nothing more to say. The striking down of Rules 16 and 19 of the 1967 Rules did not necesitate the promulgation of two wholly new sets of rules. In that case only 15 bighas of land would have been available to each allottee and there would have been no discrimination between one class of persons and another. There would also have been greater extent of land available for allotment to a larger number of persons at the rate of 15 bighas each. One of the justifications pleaded on behalf of the State of Rajasthan for the definition of the landless tenants in the post-1955 Rules as persons holding less than 15 bighas of land was that 15 bighas was a viable un t. In that case, it is all the more reason why all allottees whether the pre-1955 or the post-1955 should get 15 bighas. We are unable to see any justification for treating the pre-1955 and post-1955 tenants differently. What prompted the Rajasthan State to do so in 1971 when they did not do so in 1967 and the decision of the Rajasthan High Court in regard to the 1967 Rules did not compel them to do so is beyond our comprehension. We are not able to accept the contention that they belonged to two different classes. By that standard any arbitrary difference could be fixed and it could be said that persons who got temporary leases before that date belonged to one class and the persons who had been allotted land after that date formed another class. We have already shown that the Rajasthan Tenancy Act has no relevance at all to the decision of this question and therefore 15-10-1955, the date on which it came into force, has no relevance to the classification attempted by the pre-1955 & pest-1955 tenants The classification must have a nexus with the object sought to be achieved. We can see no such nexus in this case. We thus find that the definition of landless tenants as well as the rules for allotment in the post-1955 Rules as compared to the pre-1955 conditions are discriminatory and unjustriable.

63. In State of Rajasthan and Ors. v. Ramdhan this Court was pleased to observe as follows:

(M) The date 15th of Rajasthan Tenancy Act came into force. It appears that it brought is its wake certain benefits such as conferment of Khatedari rights and with a view to those right it is possible that some sham separations and partitions may have been effected to evade the implications of ceiling laws. This appears to be the intention behind Rule 16 that all partitions after the 15th of October, 1955 shall be ignored. Mr. Kashwal urged that if this date was good for holding Rule 9 valid this could equally apply to Rule 16. It is correct that the learned Single Judge in his judgment has held Rule 9 as valid although the classification therein was correlated to the date of the Rajasthan Tenancy Act. Rule 9 relates to the cancellation of leases. Leases granted prior to 1955 by the Government conferred certain rights because of the coming into force of the Rajasthan Tenancy Act and it was perfectly possible and legitimate for the Government to treat temporary leases granted after 1955 as a different class. The same cannot be said with regard to joint Hindu families on their separations. The separation or partition of a joint Hindu family is implied in the very concept of a joint Hindu family as understood in the Hindu Law and no distinction could be made with regard to partitions made before one date or made thereafter. Sham transaction could always be refused recognition but to divide the factum of partition by an arbitrary date is clearly unrelated to the nexus which creates the classification and is patently hit by Article 14 of the Constitution. A simple illustration will bring out the discriminatory nature of this classification. F and S and S1 constituted a joint Hindu family, who were all landless agriculturists. Due to difference or otherwise they separated from one another and constituted three different families one of F and second of S and the third of S1. The partition look place on the 14th of October, 1955. In that case F. S and S1 each would be eligible for allotment but if the partition had taken place on the 16th of October, 1955, then F, S and S1 could only claim as a single person for allotment because the Rajasthan Canal Rules refused to recognise the reality of partition only on the ground that it took place on the 16th of October, 1955. In our opinion this classification by reference to 15 10-1955 is clearly discriminatory and was righty struck down by the learned Single Judge.

64. The same principles find place in Brijlal and Ors. v. Rajasthan State Electricity Board, Jaipur 1979, WLN (UC) 221 upheld by Division Bench which read as under:

(N) There is another infirmity in the notification dated 6th December, 1972 By the said notification even amongst the class of Meter Readers II, a distinction has been made in the matter of fixing the pay scale on the basis of the date of their appointment on the post. Meter Readers II who were appointed before 1st April, 1968 have been placed in pay scale No. 3 Rs. 126-250, whereas Meter Readers II who were appointed on or after 1st April, 1968 have been placed in pay scale No. 2, Rs. 80-194. The said classification of Meter Readers II into two classes on the basis of the date of their appointment on the post has been sought to be justified by the respondent Board on the ground that Meter Readers who hold experience of more than one year on 1st April. 1969 were entitled to a higher pay scale as compared to Meter Readers who had experience of less than one year on 1st April, 1969. If one year's experience was the consideration for giving the higher pay scale No. 3, Meter Reader II after attaining one year's experience will be placed in pay scale No. 3, but the notification dated 6th December 1972 does not contain such a provision. What the said notification seeks to do is to fix an arbitrary date i.e., 1st April, 1968 for the purpose of classifying Meter Readers II into two categories and gives a higher Pay Scale No. 3 to all Meter Readers who were appointed before 1st April, 1968 and gives the lower par scale No. 2 to all the Meter Readers who were appointed on or after 1st April, 1968. As a result of the notification a person who was appointed as Meter Reader II on 31-3-1968 would be given the higher pay scale of Rs. 126-250 whereas a person who was appointed as Meter Reader II a day later on 1st April, 1968 would be given the lower pay scale of Rs. 80-194. This classification of Meter Read-ders-II into two classes is thus dependent on the fortuitous circumstances of their being appointed as Meter Reader II either before 1st April, 1968 or on or after 1st April, 1968. In the present case we find that Brijlal and Chanderbhan (Petitioners in Civil writ No. 369 and 397 of 1973) were appointed as Meter Reader after 1st April, 1968 in the year 1968 and they have been placed in Pay Scale No. 2 in pursuance of the impugned notification. Thus it cannot be said that the discrimination resulting from the impugned notification is a mere hypothetical possibility & is of no practical significance. This classification of Meter Reader II on the basis of an arbitrary date i.e., 1st April, 1968, which has no rational basis and has no nexus what so ever with the object sought to be achieved by the impugned notification viz., improvement in the conditions of service of the employees of the respondent Board, cannot there fore, be upheld and it must be held that the notification dated 6th December, 1972 is so far as it divides Meter Readers II into two categories and places Meter Readers II who were appointed before 1st April, 1968 in Pay Scale No. 3 and places Meter Reader II who were appointed before 1st April, 1968 in Pay Scale No. 2 is violative of the provisions of Articles 14 and 16 of the Constitution.

65. The two important criteria for testing the validity of Statute under Article 14 were reiterated by their Lordships in Mohammed Sujat Ali and Ors. v. Union of India and Ors. 1974 (2) SLR 568:

(O) But we have to be constantly on our guard to see that this test which has been evolved as a matter of practical necessity with a view to reconciling the demand for equality with the need for special legislation directed towards specific ends necessitated by the complex and varied problems which require solution at the hands of Legislature, does not degenerate into rigid formula to be blindly and mechanically applied whenever the validity of any legislation is called in question. The fundamental guarantee is of equal protection of the laws and the doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to that guarantee by accommodating it with the practical needs of the society and it should not be allowed to submerge and drown the precious guarantee of equality. The doctrine of classification should not be carried to a point where instead of being a useful servant, it becomes a dangerous master, for otherwise, as pointed out by Chandrachud J., in State of Jammu and Kashmir v. Triloki Nath Khosla 1974 (1) S L.R., 536, 'the guarantee of equality will be submerged in class legisation as laws meant to govern well marked classes characterised by different and distinct attainments'. Over emphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the guarantee of equality of its spacious content. That process would inevitably and in substituting the doctrine of classification for the doctrine of equality: the fundamental right to equality before the law and equal protection of the laws may be replaced by the overworked methodology of classification. Our approach to the equal protection Clause must, therefore, be guided by the words of caution uttered by Krishna Iyer J., in State of Jammu and Kashmir v. Triloki Nath Khosla (supra): 'Mini-classification based on micro-distinctions are false to our egalitrarian faith and only substantial and straight forward classifications plainly promoting relevant goals can have constitutional validity. To over do classification is to undo equality.'

66. The above dictums of law laid down by the various courts of this country ultimately evolved the two golden principles on the touch stone of which the validity of the Statue can be tested and which have been extracted in the Special Courts Bill, the Presidents Reference Case (supra). Therefore, substance of the matter is, that where as a reasonable classification is always permissible, it must satisfy the two fold test that when persons similarly situated are differentiated, a classification or grouping them separately should be based on reasonable and intelligible differentia which distinguishes the one from the other and the second additional test is that, that classification should have a rational nexus with the object sought to be achieved of that Legislation.

67. I have already discussed above in details and come to the conclusion that the fixation of date as on or before 25-6-75 fails to fulfilany of the above tests.

68. To illustrate the absurdity of this classification, it would be useful to notice a few examples and illustrations submitted by Mr. Singhvi in the chart produced with the written arguments, and the facts of which have been mentioned in the earlier pleadings It would be found that some of the lecturers, who were in service in 1974 or 1973 for some time and who had a gap of service of about two and half years in between, who again were in service on 12-6-78 became eligible and were screened. The following are the typical examples:

69. Shri Jagmohan Sharma was in University Service from December, 1973 to May, 1974, and then he left the University. He joined again in February, 1978 and was in service upto 15-6-78. Though, there was a gap of three and a half years in between, and he had hardly an experience of one year and four months, he became eligible. Again though he was rejected in the first screening committee in 1978 under the Ordinance, he got the benefit of second screening under the Act of 1979 and was selected. Similar are the cases of Dr. P. C. Trivedi, Dr. Rekha Kamal, Dr. Nagendra Bharadwaj, Dr. R.K. Raghuvanshi, Dr. (Mrs) Sumanlata, Shri Maliram, Mrs. Neena Parmar, Mr. Paritosh Misra and Mrs. Shashi Joshi. In short, these examples would show that some of the teachers who worked some where in 1974 or 1973, but then remained out of the employment of the University for various terms ranging upto three years were considered simply because they were again appointed in the service before the Ordinance of 1978 came into force and they got the facility of screening and re-screening but in paradox and contrast to it, the petitioners each of whom had about two years experience, and who were in service of the University on the date of coming into force of the Ordinance 1978 were declared ineligible and thrown out of consideration on an artificial & unintelligible classification of post-emergency & pre-emergency appointees. As I have already discussed above, the emergency may have some relevancy for cases of some political offences or other offences or detentions or newspaper censures or curtailment of fundamental rights and the rights flowing from that and therefore, legislation can certainly be made making them as the basis and providing classification between pre-emergency and post-emergency citizens, but so far as the educational field is concerned, and their action in the realm of appointment of teachers and their service conditions or tenure, screening or selection, are concerned neither anything has been argued nor it is possible to visualise that the emergency had any relevancy. In a case of this nature, inspite of inital presumption of validity and constitutionality, when seemingly the classification was offending and outrageous and unintelligible, it was for the respondents and more so the State of Rajasthan that to put relevant material before this Court for providing justification and showing reasonableness. Not only that it has not been done, but the learned Advocate Genera] found himself almost in an undefendable situation and confronted with it, he did not even try to defend it vigorously except by placing the original file of the Secretariat, which, as discussed above, has only added to the conviction that the fixation of date of 25-6-75 as the dead line for eligibility of teachers for taking benefit of the Ordinance, is wholly unintelligible and not based on any rationale logical or intelligible criteria.

70. I am impressed by submission of the learned Counsel for the petitioners that the discrimination against post emergency teachers, appears to be a 'brain child' of a few Vice-Chancellors, who in 1978 were having the anti-emergency State Government and seemingly thought that the 'appointees of emergency' period were 'blue eyed boys' of emergency bosses and should be penalised by a mass 'sack'. The mass sacking of emergency appointees, is worst type of arbitrariness and it is outrageous and borders on 'malafides', As watch-dogs of the Constitution, this Court can not allow laws contemplating 'mass sacking' of employees on grounds of change of ruling party, as long as Articles 14 and 16, continue to have pride place in Part III. For this Court, it is irrelevant whether emergency was clamped by one party or the other and whether it was hailed or condemned.

71. Mr. C. M. Mathur, relied upon various judgments of the Court in a feeble attempt to defend the Ordinance. Reliance was placed by him on the decision of the Hon'ble Supreme Court in K.V. Rajalakshmiah and Anr. v. State of Mysore and Anr. AIR 1967 SC 993. In the above case, the question was whether when a concession is given to one particular group of people, the other group can claim similar concessions by issue of a writ under Article 226 of the Constitution. I am convinced that the principles laid down there in have got no application, because the tight to be considered by screening has been given by an Ordinance, and further the Ordinance itself says that the person so screened and appointed permanently would be treated as an appointee under the Act of 1974. This gives them a right of claiming 'status' and not a concession'.

72. It is true that concessions cannot be claimed as a matter of right by writ of mandamus, as held by their lordships of Supreme Court in the above case of Mysore, but I am firmly of the view that when the University authorities failed to discharge their legal functions by miserable failure to hold selections during the last 10 years, the State or the University was not granting any charity or bounty, nor they were showing any mercy, when they came with the regularisation scheme under the Ordinance of 1978 and Act of 1979. Contrary to it, it was to over come the lapse, in-action, inefficiency and serious omissions of the University authorities, that the University requested the Government and the State to promulgate such an Ordinance.

73. It hardly lies in the mouth of Mr. C.M. Mathur to term the above legal rights of the University teachers as 'concessions' or 'charity' or 'mercy'. I am simply surprised that the University authorities who acted indifferently by their failure to hold selections during last 10 years should now try to defend their undefendable action under the false pretext and unexcusable excuse of 'mercy' or 'charity'. It should not be forgotten that this arbitrary fixation of date of 25-6-75 was done by the Government not voluntarily but at the instance of the Vice Chancellors of the University, as pointed out above by citing certain extracts from the letter of the Vice Chancellor of Rajasthan University. I have, therefore, got no hesitation in holding that the principles laid down in the above Mysore case would not be applicable in the instant case.

74. The fact that for about a decade, in spite of ample provisions in the original University Acts and Special Legislation of 1974 Act' the University bosses could not hold permanent selection, and fate of hundreds of tutors and lecturers hanged in uncertainly due to temporary extensions after fictional brakes, gaps, was a concern. It unwittingly hints at the in efficiency, inaction and lethargy. It may be in some cases product of favourtism and nepotism to employ 'blue eyed child' without Selection Committees meetings, whatever the reason may be it was most 'chaotic mess' for which none else but the relevant authorities were squarely responsible. It ill sounds from them to make a tall claim of defending this arbitrary date by calling it a 'mercy' or 'concession Ordinance'.

75. The decision in Yog Raj Gupta and Ors. v. Union of India and Ors. 1975 (2) SLR 568 is equally of no assistance the guidance. Here again, the case was not of any Statute. The Delhi High Court was considering the question of granting grace marks, and naturally grace marks, cannot be claimed as of right. The Delhi High Court relied upon the above judgment of the Hon'ble Supreme Court in Mysore case, and since the principal case is not applicable, the decision of the Delhi High Court is equally inapplicable.

76. Reference was also made to Full Bench judgment in S.K. Verma and Ors. v. State of Punjab and Ors. 1979 (2) SLR 164, and Mr. Mathur read over the paras 6, 9, 16 and 20 of the judgment. The principle laid down in this case is, that if a date is fixed for purposes of regularisation of ad hoc employees, it cannot be termed arbitrary. As I have said above, the fixation of date in itself cannot be held to be arbitrary by any rule of thumb, but it is to be examined in each case on the basis of justification provided for such fixation. I have myself said and while doing so relied upon the judgments of the Special Courts Bill that even the date of 25-6-75 could have been fixed, as was done in the Special Courts Bills but that must have soma correlation with the subject matter of classification It is not fixing of a date which makes it arbitrary, but it is arbitrary fixation of a date which makes it invalid The crux of the matter is, whether the fixation of the date was done on some just and reasonable case, basis or ground or whether it was done arbitrarily at the whim or caprice. There could not have been a worst case of discrimination than the present one where even the learned Advocate General and the standing Counsel could not even for argument's sake provide any justification.

77. Mr. Mathur also invited my attention to the decision in Jagdish Pandey v. Chancellor 1968 SLR 252 reporteddecisionin Gian Chand and Ors. v. The Director, Hydel Designs, Punjab, Chandigarh and Ors. 1976 (1) SLR 570 In the first case of Jagdish Pandey, the Hon'ble Supreme Court was concerned with validity of Section 4. Here again, the question examined by the Hon'ble Judges was, whether the date fixed was arbitrary. The Hon'ble Court held that there is no doubt that if the dates are arbitrary, Section 4 would be violative of Article 14, for, then there would be no justification for singling out a class of teachers, who were appointed and dismissed between these dates However, on the merits of the case, the learned Judges found that from the statement of objects for enactment of Section 4, there is proper justification for fixing of the dates in that particular case.

78. It would bean idle parade of familiar learning to review the multitudious cases in which the constitutional assurance of equality before the law has been applied.

79. In my view, the equal protection of the laws is a pledge of the protection of equal laws. But laws may classify. And the very idea of classification is that of inequality. In tackling this paradox the Court has neither abandoned the demand for equality nor denied the legislative right to classify. It has taken a middle course. It has resolved the contradictory demands of legislative specialization and constitutional generality by a doctrine of reasonable classification. (Joseph Tussman and Jaconbusten Book 'The Equal Protection of law', 37 California L Beb. 34).

80. A reasonable classification is one which includes all who are similarly situated and none who are not. The question then is: what does the phrase 'similarly situated' mean The answer to the question is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose law. The purpose of law may be either the elimination of a public mischief or the achievement of some positive public good.

81. Equal protection Clause rests upon two largely subjective judgments: one as to the relative indiviousness or particular differentiation and the other as to the relative importance of the subject with respect to which equality is sought. (Cox, 'The supreme Court.: Foreward, 1965 Term', 80 Harv. Law Rev. 9.-95).

82. I am fastidiously careful to observe the admonition of Mr. Justice Brandlis, Mr. Justice Stone and Mr. Justice Cardozo that we do not 'sit as a super legislature' (See their dissenting opinion in Colgate v. Harvey 196 US 404, 441). (P) As 'Laski' has said;

Equality, therefore, involves up to the margin of sufficiency of response to primary needs. And that is what is meant by justice. We are rendering to each man his own by giving him what enables him to be a man. We are of course, there in protecting the weak and limiting the power of the strong. We so act because the common welfare includes the welfare of the weak as1 well as of the strong. Grant, as we may well grant, that this involves a payment by society to men and women who limp after its vanguard: the quality of the state depends on its regarding their lives as worth preserving. To act otherwise to regard them not as persons but as instruments. (Laski, Harold; A Grammer of politics 1925: 142-172)

83. In State of Gujarat v. Shri Ambica Mills : [1974]3SCR760 , the Supreme Court has said that a classification may be either over inclusive when all who are included in the class are tainted with the mischief, but there are others also tainted whom the classification does not include As the classification does not include all who are similarly situated with respect to the purpose of the law, there is a violation of the equality Clause. But the court has recognised the very real difficulties under which legislatures operate; difficulties arising out of both the nature of the legislative process and the society which the legislature attempts perenially to reshape and it has refused to strike down indiscriminately all legislation emboyding classificatory inequality under consideration.

84. Mr. Justice Holmes in urging tolerance of under inclusive classifications has stated that such legislation should not be disturbed by the Court unless it can clearly see that there is no fair reason for the law which would require with equal force its extension to those whom it leaves untouched. Missouri K. and T. Rly. v. May (1903) 94 I Section 267, cited in (1975) 4 SCC 756, op, cit. supra note, 28 at, 758).

85. The notion of equality, like all other treat abstractions, has an intimate association with some of the great movements in human history. The concept is a difficult one and discussion of its meaning is often laden with emotional overtones. The word 'equality' is incapable of a single definition as it is a notion of many shades and connotations. (Dallmayer, 'Functiona-lism, Justice and Equality' (1967) 78 Ethics.

86. It is no doubt frequently asserted that 'all men are equal': but there is no unanimity as regards the common attributes are likely to lead, to farranging discussions concerning the relations between equality and justice between equality and liberty. (Developments: Equal protection of the Laws, (1968-69) Harv. L. Rev., 1065 at 1161).

87. Let me again test the validity on the above touchstones. I have reproduced above the statement of objects which mentions that for about 10 years temporary teachers have not been considered for permanent appointment and are continuing, and, therefore, the Ordinance was made to provide for a machinery to regularise their appointments. This being the object as already held above, the carving out of an exception for the appointees, who can be termed as post emergency appointees is against the very object of the Ordinance, because the object was to cover cases of 10 years on 12-6-78, and which on a plain reading should have covered all cases upto 1968 normally.

88. It is true that classification per se is not violative of Article 14 or 16 of the Constitution. As Anthony Lester in his talk on the B.B.C. in 1970 observed 'One law for the lion and ox is oppression', a typical illustration quoted by Justice Iyer in the judgment of the Supreme Court in State of Kerala- v. Thomas (1976), but what is offending and violative of Article 14 is classification without any intelligible differentia or/and without, having any rational nexus with the object of Legislation. Let me now re-examine whether grouping of post-emergency and pre-emergency lecturers and providing them protection by one law in the matter of opportunity of employment for being considered by Screening Committee would be making one law for the lion and ox as per the test of Anthony Lester. To me, it appears as per the above detailed consideration that it cannot be said that pre-emergency lecturers were lions and the post-emergency were oxen or vice versa. All said and done, they were lecturers simpliciter and, therefore, either they were all lions or all oxen. To appreciate it further, I have already pondered and probed into the statement of object of the impugned law.

89. In Punjab and Haryana High Court judgments in Bhupendra Singh's case also the case of regularisation of services of ad-hoc employees was dealt with. The date of 1-1-73 was fixed keeping in view the prevalent situation and one year's experience was required on that date. Naturally, it could not have suffered from the vice of discrimination under Article 14. As held by me in the instant cases, (teachers having about two years experience or more have been left out and their services have come to an end, but teachers who had lost experience and that too for long intervals of 3 years, have been accepted and given the status of permanent teachers not only by screening under the Ordinance but by re-screening under the Act after having failed to satisfy Screening Committee first. This is an extra-ordinary situation where Article 14 and 16 have been violated and that too in outrageous manner. I have, therefore, no hesitation in striking down the date of '25-6-75' fixed in the Ordinance of 1978 and the Act of 1979.

90. On the next issue, whether 'offending portions' would be struck down and the Ordinance of 1978 and the Act of 1979 should be allowed to stay; the learned Advocate General invited my attention to the important pronouncement of the Supreme Court in Sunil Batra v. Delhi Administration : 1978CriLJ1741 . In para 50, Justice Iyer confronted with a similar situation provided the following guide lines for the Courts of this country:

(q) The Court is always ready to correct injustice but it is no practical proposition to drive every victim to move the court for a writ, knowing the actual hurdles and the prison realities. True, technicalities and legal niceties are no impediment to the court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found; still, the awe and distance of courts, the legalese and mystique, keep the institution unapproachable. More realistic is to devise a method of taking the healing law to the injured victim. That system is best where the remedy will rush to the injury on the slightest summons. So, within the existing, dated legislation, new meanings must be read. Of course, new legislation is the best solution but when law makers take for too long for social patience to suffer, as in this very case of prison reform, courts have to make do with interpretation and carve on wood and sculpt on stone ready at hand and not wait for far away marble architecture. Counsel rivetted their attention on this pragmatic engineering and jointly helped the court to constitutionalise the Prisons Act prescriptions. By this legal energetics they desired the court to read into vintage provisions legal remedies.

91. Reference was also made to the decision of the Supreme Court in I.T. Commissioner v. National Taj Traders : [1980]121ITR535(SC) , wherein their Lordships of the' Supreme Court made the following observations in para 10:

(R) In other words, under the first principle a casus omissus cannot be supplied by Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or Section must be construed together and every Clause of a Section should be construed with reference to the context and other Clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so, if literal construction of a particular Clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature 'An intention to produce an unreasonable result', said Danckwerts L J., in Artemious v. Procopious (1966) 1QB 878), 'is not to be imputed to a statute if there is some other construction available'. Where to apply words, literally would 'defeat the obvious intention of the legislation and produce a wholly unreasonable result' we must 'do some violence to the words' and so achieve that obvious intention and produce a rational construction, (Per Lord Reid in Luke v. IRC 1963 AC 557 where at p. 577 he also, observed: 'this is not a new problem, though our standard of drafting is such that it rarely emerges'. In the light of these principles we will have to construe sub-Section (2)(b) with reference to the context and other Clauses of Section 33-B.

92. The learned Advocate General also placed reliance upon the decision in State of Kerala v. T.P. Roshana : AIR1979SC765 wherein their Lordships of the Supreme Court observed as under:

(S) After all, the Court system belongs to the people and must promote constructive justice; and all institutions including the Governments and University likewise belong to the people. This commitment is the whetstone for doing justice in the wider context of social good. The Universities, as we gather from Counsel representing all the parties, may not find it difficult to accommodate 30 students more, apportioned among the four medical colleges of the State. This addition is compelled by the critical condition set out above. This need will not survive this academic year and, in that sense, no long term trauma for academic standards will be inflicted by each of the colleges accommodating a Jew more students for their course this year. After all, not much time has passed since the teaching session began Compared to their existing strength, the additions are negligible. The Medical Council of India, through the learned Additional Solicitor General, has expressed that it has no objection to this proposal for a minicule addition confined to this academic year. We see no ground for either University to plead inability to help the cause of justice. The insistence on standards, measured by marks, is not being relaxed, so much so the quality of the admission of the additional students does not suffer. A marginal strain in the matter of teaching and perhaps extra burden in regard to the practicals may have to be endured We are, therefore, sure that the Universities, the colleges concerned, the teaching community and the alumni themselves will appreciate the goal and co-operate in the success of the direction we make.

(T) 40. Had we left the judgment of the High Court in the conventional form of merely quashing the formula of admission the remedy would have aggravated the milady-confusion, agitation, paralysis. The root of the grievance and the fruit of the writ are not individual but collective and while the 'adversary system' makes the judge a mere umpire, traditionally speaking the community orientation of the judicial function, so desirable in the Third World remedial jurisprudence, transforms the court's power into affirmative structuring of redress so as to make it personally meaningful and socially relevant. Frustration of invalidity is part of the judicial duty; fulfilment of legality is complementary. This principle of affirmative action is within our jurisdiction under Article 136 and Article 32 and we think the present cases deserve its exercise.

93. On the basis of the above observations and the well known Doctrine of Severability, the learned Advocate General has submitted that the Court should not strike down the entire Ordinance of 1978 and the Act of 1979, but the only date 25th June, 1975 should be struck down. Mr. Singhvi has prayed for striking down the entire Ordinance of 1978 and the Act of 1979.

94. I had occasion to consider and discuss in details the principles regarding Doctrine of Severability as evolved by the Supreme Court, in the case of S.M.S. Investment Corpn. v. State of Rajasthan and Ors. S.B. Civil Writ Pet. No. 877/1973, decided on May 11, 1979. In that case, it was observed as under:

(U) 57. In this respect whereas Mr. Rastogi relied upon R.M.D. Chambaraugwalla's case : [1957]1SCR930 , Mr. Ray relied upon Sunderaramier's case : [1958]1SCR1422 . In para 21 of Chambaraugawall's case (supra), the Hon'ble Judges of the Supreme Court observed as under:

It is not material for the purpose of this rule whether the invalidity of the Statute arises by reason of its subject matter being outside the competence of the legislature or by reason of its provisions contravening constitutional prohibition.

This judgment of the Supreme Court was given by five judges Bench and the leading judgment was given by Hon. Justice Mr. Venkata-remma Iyer, Mr. Rastogi pointed out that the judgment of Simdararamier (supra) on which much reliance has been placed by Mr. Ray was also given by the same Hon. Justice Iyer. The above principle laid down earlier, has not been adversely commented upon nor reviewed and, therefore, the law laid down in Chambarbaughwalla's case (supra) mentioning that it is immaterial whether invalidity arose on account of legislative incompetence or being violative of other constitutional provisions, holds the field and is good law and covers the present case squarely.

58. I am of the opinion that the second proviso introduced by Act No. 51/73 is severable from the rest of Section 3 and, therefore, even though the second proviso is ultra vires being outside the scope of entry 49, Section 3 can be kept alive after severing this proviso from it.

59. I have even otherwise c irefully gone through the judgment reported in R.M.D. Chambarbaugwalla and Anr. v. Union of India and Anr. (supra) and Sundararamier,s case (supra). It is to be noted that the court was concerned with examining the doctrine of severability. The earlier judgment in which the Central Provinces and Berar Regulation of Manufacturers of Bidis (Agricultural purposes) Act, 1948 was challenged, was being considered. The Court in earlier judgment held that the restrictions imposed by Section 4(2) was in excess of what was requisite for achieving the purpose of the Act and, therefore, could not be upheld as reasonable restrictions within Article 19. It was held that Section 4(2) of that Act was inseverable. In this view of the matter, the earlier judgment was held to be valid, a decision on the doctrine of severability only.

60. The R.M.D.C. v. Union of India (supra) is a decision on the point that if a part of the statute is severable then the court need not strike down the whole of the statute and it is immaterial whether the part which is declared to be ultra vires on account of violative of some constitutional provision or the invalidity of the statute arises by reason of a subject matter being outside competence of the legislature.

95. The Hon'ble Supreme Court has without articulating any reason, applied the doctrine of severability by deleting the offending Clause which made classification unreasonable (See decision in Jalan Trading Company v. Mazdoor Union : (1966)IILLJ546SC and Anandji Haridas and Company v. S.T.C. : [1968]1SCR661 .

96. I am in agreement with Dr. Tewari, the learned Advocate General that the whole Ordinance and the Act need not be struck down, making further 'chaotic mess' in which all those lecturers, who have already been selected and given status of a permanent teachers under the regular Act of 1974, would be put to severe detrimental consequences. It is not difficult to apply the 'Doctrine of Severability' in these cases because if the date '25th June, 1975' is struck down from Section 3 of both the Ordinance of 1978 and the Act of 1979, the same would be read as under:

(V) 3. Substantive appointment of temporary lecturers-All temporary lecturers as were appointed as such and were continuing as such at the commencement of the Rajasthan Universities Teachers (Absorption of Temporary Lecturers Ordinance, 1978 (Ordinance No. 5 of 1978) shall be considered by the University concerned for their absorption and substantive appointment on the recommendations of the Screening Committee constituted under Section 4 or Section 5, as the case may be subject to their fulfiling the conditions of eligibility including minimum qualifications prescribed by the University concerned under the relevant law as applicable on the respective dates of their temporary appointments and subject also to the availability of substantive vacancies of lecturers in the department concerned.

97. The result of it would be that all those lecturers, who were in employment of the University on the date of commencement of the Ordinance, i.e., 12th June, 1978, would become eligible for being considered by the Screening Committee irrespective of their date of appointment. This would cover the cases of the temporary lecturers, who were in employment on the date of the commencement of the Ordinance and that would be in consonance with the preamble and the statement of objects of the legislation, which was to provide for the regularisation of the temporary lecturers who were in services and were appointed earlier during the period of about 10 years.

98. Yet another difficulty, which comes in the way of formulating the relief is that in case this is done, then the period during which the screening was to be completed by 31st August, 1979, under the Act of 1979, has already expired. Since, I have already held that the date, 25th June, fixed was violative of Article 14 of the Constitution, and all those persons are entitled to be screened, who were in service on 12th June, 1978 irrespective date of their appointment, the natural legal and logical consequences would be, that they must now be screened by the Screening Committee after they are taken in service immediately. This is not permissible so long as the date of 31st day of August, 1979 remains in Sections 7 & 8 of the Act of 1979.

99. Sections 6 & 7 of the Ordinance of 1978 and Section 7 & 8 of the Act of 1979 reads under:

Sections 7 & 8

7) Last date of making substantive appointments : No appointment in pursuance of this Act shall be made after the expiry of the 31st day of August 1979.

8) Termination of the services of the temporary lecturers not substantively appointed: The services of temporary lecturer who is considered for substantive appointment under Sections 3, 4, and 5 but is not substantively appointed on or before the 31st day of August 1979, shall stand terminated on the expiry of that day.

Sections 6 & 7 of Ordinance

6) Last date of making substantive appointments: No appointment in pursuance of this Ordinance shall be made after the expiry of the 31st August, 1978.

7) Termination of the Services of the temporary lecturers not substantively appointed: The service of a temporary lecturer who is considered for substantive appointment under Sections 3 and 4 but is not substantively appointed on or before the 31st day of August, 1978 shall stand terminated on the expiry of that day

100. The serious illegal and offending action of 'mass sacking' of all those teachers, who were post emergency teachers, was sought to be achieved by the date which has been mentioned in Sections 6 & 7 read with Section 3. By virtue of the above, after the 31st day of August, 1979 since all these post emergency teachers would not be considered by the Screening Committee, they will have to be deprived of their employment as their services would stand terminated on that date. Similarly, no appointment in pursuance of the Ordinance of 1971 and the Act of 1979 should be made after 31st August, 1978.

101. As a result of my striking down of the date 25th June, 1975, in Section 3, the legal and logical corollary is that the date of 31st August, 1978 in Sections 6 & 7 of the Ordinance of 198 and the same date, 31st August, 1979 in Sections 7 & 8 of the Act of 1979 are also struck down. Since these two dates are inserverable in Sections 6 & 7, the Doctrine of Severability cannot be applied and both the Sections 6 & 7 as a whole of the Ordinance of 1978 and Sections 7 & 8 of the Act of 1979 are struck down.

102. The resultant position would be that all post emergency lecturers of all the Universities in Rajasthan will have a right to be considered by the Screening Committee under Section 3 and if they are found suitable, they will be absorbed substantively and treated as substantive permanent lecturers under the Regular Act of 1974. The respondent-University of Rajasthan should hold the screening within a period of six months after notifying the dates and during that period the petitioners, in these writ petitions, will have a right to be reinstated within a period of fifteen days from today. The same principle would apply for the other Universities of Rajasthan.

103. The first and foremost contention of the petitioners succeeded, all of them would now be reinstated as per the above directions and further they would be rescreened.

104. In view of the above relief having been granted to the petitioners, they prayed that second part of the relief in respect of challenging their rejection by the Selection Committee, which was convened under the regular Act of 1974, later on, and in which other respondents were selected; need not be pressed at this stage and liberty may be given to them to challenge it separately, if necessary. This prayer of the petitioners appears to be reasonable and fair and, therefore, is accepted. As a result of this, it is not necessary to mention facts of each case separately and decide other contentions raised therein individually or collectively.

105. The net result of the above discussion is that all these six writ petitions succeed and they are accepted. It is held as under:

1/- In Section 3 of the Rajasthan University (Absorption of Temporary Lecturers) Ordinance 1978 (Ordinance No. 5 of 1978) and the University Teachers (Absorption of Temporary Lecturers) Act, 1979 (Act No. 7 of 1979), the date '25th June, 1975', offends against the provisions of Articles 14 and 16 of the Constitution of India and is consequently declared invalid, ultra vires and struck down. The remaining part of the above Section would be read as under:

(X) 3. Substantive appointment of temporary lecturers--All temporary lecturers as were appointed as such and were continuing as such at the commencement of the Rajasthan Universities Ordinance, 1978, (Ordinance No. 5 of 1978) shall be considered by the University concerned for their absorption and substantive appointment on the recommendations of the Screening Committee constituted under Section 4 or Section 5, as the conditions of eligibility including minimum qualification prescribed by the University on the respective dates of their temporary appointments and subject also to the availability of substantive vacancies of lecturers in the department concerned.

2/- As a legal & logical consequences of the above striking down Sections 6 & 7 of the Ordinance of 1978 and 7 & 8 of the Act of 1979 are declared invalid and struck down being violative of Articles 14 and 16 of the Constitution.

3/- The respondent, University of Rajasthan, is directed to reinstate all the petitioners on the posts which they were holding, i.e., Lecturers, with in a period of fifteen days from today, and grant them all the consequential relief and benefits as if termination has not taken place in pursuance of the above provisions, which have been declared invalid and ultra vires.

4/- The respondent University of Rajasthan, is further directed to convene a meeting of the Screening Committee within a period of six months from today and screen all the eligible lecturers who were post emergency appointees, but whose cases were not considered on account of the above provisions of law, which have been declared ultra vires. After screening them, the University of Rajasthan should further appoint them as permanent lecturers, if found suitable, under the regular Act of 1974 and while doing so, give them all consequential benefit of seniority etc., as if the above invalid provisions of the Ordinance and the Act were not there.

5/- All the six petitioners should further be given all consequential reliefs which may flow from the above directions.

6/- Since the State of Rajasthan promulgated the impugned Ordinance of 1978 and the Act of 1979 at the instance, primarily of the Vice Chancellor of University of Rajasthan-respondent, and made the untenable distinction of post emergency and pre-emergency, all the petitioners would get the costs of their petitions from the University of Rajasthan only.

106. All the six writ petitions are, therefore, accepted as indicated above.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //