University cannot employ teachers on ad hoc basis for years together: Rajasthan HC quashes NLU Jodhpur Regulations
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University cannot employ teachers on ad hoc basis for years together: Rajasthan HC quashes NLU Jodhpur Regulations

Meera Emmanuel

A case filed in the wake of the discontinuation of the B.Sc. LL.B  course by National Law University, Jodhpur (NLU Jodhpur) took a significant turn on Tuesday. with the Rajasthan High Court quashing regulations concerning the engagement of contractual teachers by the University.

In this regard, a Division Bench quashed Regulations 5 and 6 of the NLU’s University Service Regulations, 2001. Two other allied regulations, Regulations 37 and 38, were also quashed as a natural consequence. The Bench of Justices PK Lohra and Arun Bhansali concluded,

“… [the] impugned Service Regulations 5, 6 and amended/inserted Service Regulations 37 & 38 of employing teachers on contract basis for a tenure or on adhoc term, providing for termination of contract by giving one month’s notice and non renewal/extension of contract of employment in certain contingencies, are manifestly arbitrary and unreasonable.

In substance, genus of Regulations 37 & 38 is Regulations 5 & 6 of the Service Regulations. If Regulations 37 & 38 are construed with pragmatic approach, then undoubtedly both these Regulations being consequential and necessary corollary to Regulations 5 & 6 are ex-facie vulnerable and cannot be sustained.” 

The Court also proceeded to express its disapproval of such hire and fire policies.

The University being a statutory body is not expected to employ teachers and other officials on contract/adhoc basis for years together, more particularly when the duties and functions discharged by them are of perennial nature…

…this sort of provision is a glaring example of the concept of hire and fire and depriving teachers from the legitimate service benefits. Nebulous and unsatisfactory conditions of service of teaching community create a sense of insecurity which may ultimately result in making education set up ineffective and insufficient. So it is necessary and desirable to do away with total adhocism or contractual appointment amongst teachers.”

Further, such an attitude is detrimental to the University’s interests as well, observed the Court.

There is no National or International University involved in imparting quality Law education, which has not employed regular teaching faculties and simply thriving on contractual teachers or adhoc teachers. Some of the foreign Universities imparting best Law education in the world are not only maintaining teacher and student ratio but employing regular teaching faculty to ensure best results.”

The order was passed in a challenge brought by three former employees hired on a contractual basis by NLU Jodhpur for the B.Sc. LL.B course.

The University had initially suspended the B.Sc. LL.B course from the year 2015-2016 onwards, citing declining student turnout. In August 2015, an office order was issued intimating that the B.Sc. stream at NLU Jodhpur was being closed with immediate effect.

The General Council of the University proceeded to unanimously resolve to dispense with the B.Sc. LL.B course from 2016-2017. In line with this decision, the Executive Council also resolved that the science stream be wound up and that all teaching jobs in the science stream be abolished.

This led to the University terminating the services of contractual employees engaged for the science stream, including the petitioners.

In response, the petitioners challenged their termination and the discontinuation of the course as arbitrary, unreasonable and discretionary. In doing so, they also challenged validity of the 2001 Service Regulations that had effectively allowed the University to engage employees on a contractual basis for long periods of time.

The petitioners contended that the University cannot be allowed to treat a faculty member as a casual or contractual employee for years together. Regulations enabling the same were unconscionable contractual terms, it was contended. This was also in violation of the Rajasthan Universities Teachers & Officers (Selection for Appointments) Act, 1974 apart from being contrary to Articles 14, 16 and 21 of the Constitution.

NLU Jodhpur and the State contested these arguments, asserting that the University was entitled to decide whether or not to discontinue courses or abolish teaching posts as a matter of policy. The decision taken concerning the discontinuation of the B.Sc. LL.B course was grounded on objective considerations in the best interest of the University, it was claimed.

Further, the University also cited autonomy to argue that it was entitled to enforce its own Service Regulations concerning the hiring of contractual employees. In this regard, it was argued that NLU Jodhpur was not bound by the 1974 Act. Rather, the challenged Service Regulations was sourced from the 1999 National Law University Act.

The Division Bench, however, disagreed, even going on to remark,

We are aghast that respondent-University by simply boosting its credentials as premier law institution and the so-called autonomy which it is enjoying, cannot be allowed to claim liberty to thwart law of the land. [sic]”

The Court pointed out that the 1999 Act did not envision the the selection or appointment of teaching staff/faculty members or other officials of the University. Therefore, the 2001 Service Regulations cannot claim its validity from the 1999 Act. Consequently, the challenged Regulations were liable to be quashed as ultra vires its parent Act i.e. the 1974 Act.

While this was the case, the Court also observed that the contractual engagement of employees thus also entailed a violation of fundamental rights under the Constitution. Hauling up the University for the same, the Court said,

University being an instrumentality of the State cannot be allowed to adopt policy of total adhocism in the guise of a jejune plea of  imparting quality education…

…on joining government service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental right in favour of the Government. The Government, only because it has the power to appoint, does not become the master of the body and soul of the employee.”

The same would also stand in violation of Section 23 of the Indian Contract Act, the Bench added.

In view of these observations, the petitioners succeeded in their challenge to the validity of Regulations 5, 6, 37 and 38 of the Service Regulations concerning the hiring and termination of employees on contract basis.

However, the specific questions concerning the termination of their employment and the discontinuation of the B.Sc. LL.B course by NLU Jodhpur has been referred to a Single Bench for consideration on merits.

It may also be noted that the petitioners had also challenged Regulation 2(1) (d) of the Provident Fund Regulations, promulgated under the NLU Act, 1999. However, the Court rejected this challenge, concluding that,

In totality, we feel that challenge laid to Regulation 2(1)(d) of the PF Regulations, by the petitioners, lacks legal foothold and per se inconsequential, therefore, cannot be sustained. Thus, challenge to its validity is hereby repudiated.”

Senior Advocate Rajesh Joshi and Advocates Vineet R Dave and Kamal Dave argued for the petitioners. Advocates Kuldeep Mathur and Rajvendra Saraswat appeared for NLU Jodhpur. Advocate Himanshu Shreemali appeared for the State of Rajasthan.

Read the order:

NLU-Jodhpur-Rajasthan-HC-DB-Order-May-28-2019.pdf
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