Mahrishi Dayanand Saraswati University, Ajmer : Govind Singh v. Ashok Kumar Sankhla : Mahrishi Dayanand Saraswati University, Ajmer — 1994 DIGILAW 760 (RAJ)

JUDGMENT 1. - These twenty D. B. Special Appeals filed by the Mahrishi Dayanand Saraswati University, Ajmer, (hereinafter, 'the University')-particulars of which have been given in Schedule A to this judgment and the sixteen Special Appeals filed by the various employees of the University, particulars whereof appear in Schedule B to this judgment, arise out of a common judgment rendered by a learned Single Judge of this Court on March 9,1994 in S.B. Civil Writ Petition No. 488/89 Ashok Kumar Vs. M.D.S. University of Ajmer , and other connected writ petitions and raise similar questions of facts and common questions of law. Hence they have been heard together and are being disposed of by a common judgment. 2. The University was incorporated in 1987 under an Act of the State Legislature, known as the University of Ajmer Act, 1987 (hereinafter the Act). It was an infant University, which had yet to grow. Permanent appointments of employees under the University are governed by Section 11 of the Act. Sub-section (2) of Section 11 of the Act regulates the temporary appointments of employees in the University. This sub-section reads as follows:- (2) The Vice Chancellor may make, subject to the approval by the Board, any temporary appointment in the vacancy of any officer, teacher or employee until such time as a regular appointment is made in accordance with the provisions of this Act and the Statutes." 3. Section 40 of the Act empowered the Chancellor to transfer employees of other Universities to the University. Surplus employees of Rajasthan University, Jaipur were proposed to be so transferred to this nascent University; however, this proposal did not materialise. 4. It appears that to run the affairs of the University smoothly, respondents in all the appeals mentioned in Schedule A of the Judgment, were given adhoc employment by the University on March 16, 1988, except respondent Ashok Kumar who was granted employment on January, 16,1988. All these respondents possessed requisite qualifications for appointment as LDCs under the University. The appointment in the first instance, was for 90 days. On June 18, 1988, the respondents were appointed for a further period of 85 days, again on adhoc basis. On September 13, 1988, the respondents were again appointed on adhoc basis for one month. On October 13, 1988, the respondents were once more appointed on ad hoc basis for a period till 31.10.1988. On June 18, 1988, the respondents were appointed for a further period of 85 days, again on adhoc basis. On September 13, 1988, the respondents were again appointed on adhoc basis for one month. On October 13, 1988, the respondents were once more appointed on ad hoc basis for a period till 31.10.1988. The aforesaid appointments were subject to certain stipulations mentioned in the relevant orders. It appears that even though all the appointments expired on October 31, 1988, yet the respondent (employees) were not given marching orders on the expiry of their tenures but were allowed to continue. Some of them served upto 25.12.88 while some were continued upto 05.01.1989. 5. It appears that on 25.10.1988, the University advertised 40 vacancies to be filled in by direct recruitment. The respondents protested against the proposed filling up of vacancies before the University authorities and contended that competitive test to be held should be confined to the ad hoc appointees and should not be an open one. The case of the respondents was that the Vice Chancellor gave assurance about continuance of the respondents and promised regularisation on their passing the written test. 6. The case of the respondents is that inspite of such assurances, they were finally given marching orders orally. Aggrieved, the respondent-employees filed separate writ petitions challenging the validity of termination orders. They pleaded that the University was an industrial establishment within the meaning of the provisions of the Industrial Disputes Act, 1947 (for short, 'the ID Act'). They claimed that they were 'workmen' within the meaning of the ID Act. Each one of them had completed 240 days within a calendar year preceding termination of the services of the employees and this amounted to retrenchment. The retrenchment was made in violation of the provisions of Section 25-F of the ID Act and was void in as much as no notice was given; notice pay and retrenchment compensation was not paid. It was pleaded that as a result of selection in pursuance of the aforesaid advertisement, appointments were made but yet vacancies were available and retired persons were being employed. Upon such pleadings, it was inter-alia prayed that oral retrenchment of the writ petitioners be quashed and set aside; the University be directed to reinstate them with all consequential benefits; any other appropriate writ or direction be given. 7. The University opposed all the 21 writ petitions. Upon such pleadings, it was inter-alia prayed that oral retrenchment of the writ petitioners be quashed and set aside; the University be directed to reinstate them with all consequential benefits; any other appropriate writ or direction be given. 7. The University opposed all the 21 writ petitions. The case set up by the University is that services of the employees (writ petitioners) were purely ad hoc and temporary and were liable to be terminated any time. The termination of the services of the writ petitioners was in pursuance of the stipulations and terms of contract of employment. It was denied that services of the writ petitioners were continued beyond 31.10.1988. An allegation was made that if there was some continuation beyond 31.10.1988, it was due to collusion between the writ petitioners and officials of the University. It was pleaded that the termination of the services did not amount to retrenchment. Provisions of Section 25-F of the ID Act were not attracted. Writ petitions were without merit and deserved to be dismissed. Reliefs prayed for should not be granted. 8. It may be stated that qua the continuance of the writ petitioners beyond 31.10.88 and re. the allegation of collusion, the learned Single Judge hearing the writ petitions got an enquiry made by the District Judge, Ajmer, who submitted a due report. It was found by the learned District Judge that writ petitioners were continued beyond 31.10.1988 in the employment of the University and this was not due to any collusion between the writ petitioners and the officials of the University. 9. After hearing both the sides, the learned Single Judge arrived at the following conclusions "1. The petitioners had completed 240 days of service at the time of their termination. 2. There was a good reason available for the termination of their service. 3. Section 11(oo) (bb) of the Act of 1947 is not attracted in the cases and circumstances of the cases at hand. 4. It is a case of retrenchment and requirements of Section 11-F of the Act of 1947 were required to be followed, which have not been followed. 5. Vacancies are available in the University of Ajmer and the petitioners are entitled to the benefit of Section 11-H of the Act of 1947. 4. It is a case of retrenchment and requirements of Section 11-F of the Act of 1947 were required to be followed, which have not been followed. 5. Vacancies are available in the University of Ajmer and the petitioners are entitled to the benefit of Section 11-H of the Act of 1947. Upon such findings, the learned Judge held the retrenchment of the writ petitioners to be invalid but refused to grant the relief of reinstatement. He gave finally directions as follows : "In these circumstances, I am not inclined to grant the relief of reinstatement and back wages to the petitioners but in the facts and circumstances of the cases, narrated herein above, I feel inclined to direct that each of the petitioners except those three petitioners who had been selected and appointed at that very time will be entitled to a lumpsum amount of compensation of Rs. 11,000/-(Rs. eleven thousand only) each. With regard to the violation of provisions of Section 11-H of the Act of 1947, as I have held that the petitioners being subjected to retrenchment, are entitled to have a preference in the matter of employment against the vacancies which have become available subsequently and which have already been notified and they are said to be 60 in number, the petitioners who were retrenched and who were not appointed by the University at that time are entitled to get this preference, under section 25-H of the Act of 1947. It is therefore, directed that the petitioners, other than those who were appointed on the basis of selection earlier, will be offered re-employment, and such number of vacancies out of the 60 which have been advertised now, shall be made use of for the purpose of allowing those petitioners to be in employment, subject to the condition that all such petitioners will have to face the regular process of selection within a period of six months from the date of their re-employment on the qualifications of the post of LDC as per the University regulations and such number of posts out of the 60 which have been advertised as LDC-cum-Typists shall be made available for the concerned petitioners and the University will be free to proceed to make selections with regard to the rest of the vacancies out of these 60 vacancies, and the mere mention of nomenclature of these posts as LDC-cum-Typist will be no impediment in making these posts available to the concerned petitioners for their regular selection subject to their qualifications for the post of LDC. In case the University does not complete the process of adjudging their suitability within a period of six months from the date of their re-employment, the petitioners shall continue in service till their suitability is adjudged by the University. Certain candidates about whom reference has already been made hereinabove had passed written test but had failed in the typing test for them it is directed that while adjudging their suitability against these posts, they will be required to appear only in the typing test if necessary and not in the written examination. All these writ petitions are allowed as indicated above. No order as the costs." 10. Aggrieved by the aforesaid judgment and directions the University has filed the twenty appeals referred to above and detailed in Schedule A to the Judgment. From amongst the writ petitioners, sixteen writ petitioners feeling dissatisfied from the judgment and directions enumerated above, have filed the sixteen special appeals, particulars whereof have been set out in Schedule B to the judgment. 11. We have heard the learned counsel for the parties and have also perused the relevant record. In the special appeals filed by the University, it is submitted that the University had adopted Ordinance 359-A of the Rajasthan University. 11. We have heard the learned counsel for the parties and have also perused the relevant record. In the special appeals filed by the University, it is submitted that the University had adopted Ordinance 359-A of the Rajasthan University. This ordinance ordained that regular and permanent appointments could be made only by way of a competitive examination. The respondent writ petitioners were adhoc/temporary employees. They were governed by the terms and stipulations made in the appointment letters. The terminations of their services were made in pursuance of such stipulations and hence the terminations did not amount to retrenchment on account of the provisions of section 2 (oo)(bb) of the ID Act. The terminations were bonafide and were made for good and valid reasons namely, duly selected candidates had become available. Provisions of Section 11-H of the ID Act were not attracted and no preferential right of re-employment could be conferred on the writ petitioners (respondents employees). 12. In the appeals filed by the writ petitioners, it has been contended that the termination of their services amounted to retrenchment, which was made without complying with the mandatory provisions of Section 11-F of the ID Act. Hence, the retrenchment was void and nonest. Since vacancies existed even after holding selections and granting appointments, to duly selected candidates, they should have been reinstated with continuity of service. Monetary compensation was not adequate and writ petitioners (respondents in special appeals of the University) who had put in satisfactory service, ought to have been regularised. The University has opposed the appeals of the writ petitioners while writ petitioners have opposed the appeals filed by the University. 13. We have carefully perused the record of the cases in hand and have bestowed our earnest consideration to the rival contentions advanced before us. 14. It is not disputed before us that all the writ petitioners (employees) were ad hoc and temporary employees of the University and were 'workmen' for the purposes of the ID Act and the University was an 'industry' for the purposes of the ID Act. It is also not disputed before us that each one of them had put in more than 240 days of service within a calendar year preceding the date of respective retrenchments, though it has been urged that the services rendered prior to 31.10.1988 should not be counted in computing 240 days. It is also not disputed before us that each one of them had put in more than 240 days of service within a calendar year preceding the date of respective retrenchments, though it has been urged that the services rendered prior to 31.10.1988 should not be counted in computing 240 days. The principal thrust of the argument is that the impugned terminations were bonafide; impugned terminations did not amount to retrenchment and provisions of Sections 25-F and 25-H of the ID Act were not attracted. Hence, no compensation could have been awarded, likewise no direction for preference in re-employment could have been given. The writ petitioners oppose these contentions. 15. In the appeals filed by the writ petitioners, it is urged that learned Single Judge fell in error in refusing reinstatement of the writ petitioners, and ought to have ordered reinstatement with back wages and should have ordered regularisation of the writ petitioners. The University opposed all these contentions. 16. On the contentions raised before us, the first question that falls for our consideration is, whether the termination of the services of the respondents-writ petitioners amounted to retrenchment within the meaning of Section 2(oo)(bb) of the ID Act. This section reads as follows : "2(oo) 'retrenchment 'means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include- (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry of such contract being terminated under stipulation in that behalf contained therein; or (c) termination of the service of a workman on the ground of continued ill health." A bare reading of this section shows that termination of the services of a workman by an employer, for whatsoever reason, falls within the definition of retrenchment, except the terminations inflicted by way of punishment as a consequence of disciplinary action and those which fall within sub-clauses (a), (b), (bb) and (c) of this sub-section. In the present case, we are not concerned with clauses (a), (b) and (c) of this sub-section but are concerned with clause (bb) of this sub-section (oo) of Section 2 of the ID Act. 17. Word, 'termination', is derived from the verb, 'terminate', which literally means, to bring to an end or to come to an end. In the present case, the services of the writ petitioners were continued even after the expiry of the term mentioned in the last order extending the services, viz., order dated 15.10.1988. In accordance with order, the services of writ petitioners could have been brought to an end on the expiry of mid night of 31.10.1988 or 'till such time as the surplus staff of the Rajasthan University became available, or till further orders, whichever is earlier'. The earliest contingency in accordance with this stipulation occurred on mid-night of 31.10.1988. Their services could have been terminated w.e.f. 01.11.1988. However, this was not done and they were allowed to continue on the job, as found by the District Judge, Ajmer, after due enquiry; a finding which could not be assailed before the learned Single Judge and has not been assailed and rightly so before us. In view of this unassailable position, it cannot be asserted that the services of the writ petitioners were brought to an end in accordance with the stipulations contained in the order dated 15.10.1988. For ready reference, we may reproduce the relevant portion of the order (Ann. 4 of Anil Mathur's writ petition) which reads as under : "All the non-plan posts for the University of Ajmer, have been sanctioned on the condition that on these posts the surplus staff of the University of Rajasthan shall be absorbed. Since it may take some time for the surplus staff to be carried out, the Vice-Chancellor has been pleased to make the following temporary appointments purely on contract basis on consolidated amount of Rs. 750/-p.m. upto 31.10.88 or till such time the surplus staff of the University of Rajasthan, Jaipur joins duty here or till further orders whichever is earlier." 18. 750/-p.m. upto 31.10.88 or till such time the surplus staff of the University of Rajasthan, Jaipur joins duty here or till further orders whichever is earlier." 18. Learned Single Judge has recorded his findings on this aspect in the following words:- "In terms of these orders, so far as the period is concerned, the same was over on 31.10.88 but it has been proved and held that the petitioners continued in service even beyond this dated of 31.10.88, and they were never made known with regard to any further date for their continuance or otherwise and they continued in service even after 31.10.88 uptil about 5.1.89, when their services were terminated by verbal orders. Thus, formal orders for their continuance beyond 31.10.88 may not have been passed but the fact remains that they continued and worked even thereafter and by the time their services were terminated by verbal orders, they had already completed more than 240 days and in the facts and circumstances of the case, it cannot be said that their services were terminated as a result of the non-renewal of the contract of employment. It was for the University to pass appropriate orders at appropriate time and we have to look to the matter of substance and not the form and therefore, the absence of passing of the formal orders at appropriate time cannot be made the basis to say that the termination was the result of the non-renewal of the contract of employment. If the termination was to be made as a result of the non-renewal of the contract of employment, automatically it should have resulted into their termination from 1.11.1988, itself when the period fixed vide order dated 15.10.1988 (Ann. 4) i.e. upto 31.10.88, was over. Thus, on the basis of the report made by the District Judge, Ajmer, it can be safely concluded that there was an implied renewal for the period after 31.10.88 and no further definite date with regard to continuance or terminate. was fixed. I, therefore, hold that in terms of Section 11(oo)(bb) of the Act of 1947, it cannot be construed as a case of termination as a result of the non-renewal of the contract of employment. was fixed. I, therefore, hold that in terms of Section 11(oo)(bb) of the Act of 1947, it cannot be construed as a case of termination as a result of the non-renewal of the contract of employment. The other limb of the arguments raised by Shri C.N. Sharma to substantiate that it was not a case of retrenchment with reference to Section 11(oo)(bb) of the Act of 1947, is that it was under the stipulation. I have already extracted the Preamble of the latest orders Ann. 3 and 4, dated 13.9.88 and 15.10.88, and from these orders, it is clearly discernible that the stipulation was for termination with the joining of the surplus staff of the University of Rajasthan. Counsel for the University failed to show either from the pleadings or otherwise, that any surplus staff of the University of Rajasthan had joined, which was the stipulation in the two orders referred to herein above, and has stressed that the selected candidates had become available; although counsel for the University has established that the regularly selected candidates had become available and in the regular selections, only 3 of the petitioners had been selected. Availability of the regularly selected candidates may afford a good reason for the retrenchment but it cannot be said that it is not a case of retrenchment. Therefore, I hold that Section 11(oo)(bb) of the Act of 1947 is not attracted in the facts of these case, and I further hold that it is a case of retrenchment and, therefore, the petitioners were entitled to the benefit of section 25-F of the Act of 1947, and the provisions of the same should have been followed, which have admittedly not been followed treating them to be unnecessary in these cases." This finding could not be successfully assailed before us and for the reasons mentioned by the learned Single Judge and as also for the reasons given by us above, we find that the termination (sic) of the services of the writ petitioners were brought to an end neither or efflux of the tenure nor in pursuance of any stipulation contained in the letter of appointment. 19. When it was so, it was obligatory for the University to comply with the provisions of Section 11-F of the ID Act and give one month's notice or notice pay in lieu thereof .and to pay retrenchment benefits. 19. When it was so, it was obligatory for the University to comply with the provisions of Section 11-F of the ID Act and give one month's notice or notice pay in lieu thereof .and to pay retrenchment benefits. Admittedly this was not done in the present case and hence the retrenchment was bad; it was void and non est. Legally, the order of retrenchment does not exist in the eyes of law.19-A. Learned Senior Counsel for the University feebly argued before us that services of the writ petitioners prior to 31.10.1988 should not be taken into consideration for computing 240 days prior to termination of their services because services prior to the said date were under specific contracts, renewed from time to time. We are afraid that this submission is neither here nor there. There is no valid and legitimate ground for making such a submission, which does not take into account the provisions of Section 11-B of the ID Act. This section reads as under : "25-B-Definition of. continuous service. We are afraid that this submission is neither here nor there. There is no valid and legitimate ground for making such a submission, which does not take into account the provisions of Section 11-B of the ID Act. This section reads as under : "25-B-Definition of. continuous service. - For the purposes of this Chapter, (1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal or a lock-out or a cessation of work which is not due to any fault on the part of the workman; (2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer:- (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than- (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days, in any other case; (b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than (i) ninety five days, in the case of a workman employed below ground in a mine; and (ii) one hundred and twenty days in any other case. Explanation - For the purposes of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which- (i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under this Act or under any other law applicable to the industrial establishment; (ii) he has been on leave with full wages, earned in the previous year; (iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and (iv) In the case of a female, she has been on maternity leave; so however, that the total period of such maternity leave does not exceed twelve weeks." A bare reading of this section, particularly sub-section (2) goes to show that continuous service does not mean continuous service as such for the entire year. By a deeming fiction of law, if service has been rendered for 240 days in year preceding the date of termination, the workman still be deemed to be in continuous service for a year. The import and spirit of this section would be lost altogether, if we accept the contention put forth by Shri C.N. Sharma. We may remind ourselves that giving of short artificial breaks by an employer with a view to deprive him of the beneficient provisions of Section 11-F of the ID Act has always been frowned upon by Courts in this country. Hence, we find no merit in this contention at all and reject the same as one without substance. 20. This takes us to consider the contention of the learned counsel for the writ petitioner that the learned Single Judge ought to have ordered reinstatement of the writ petitioners with payment of back wages. It is settled law that once retrenchment is held to be invalid for non-compliance of mandatory provisions of Section 25-F of the ID Act even in case of temporary employees, would entitle such an employee to a declaration that retrenchment is void and the employees continue to be in service with back wages. If any authority is needed for this proportion we may refer to Mohanlal Vs. Bharat Electronics Ltd., 1981 (3) SCC 225 = AIR 1981 SC 1253 . In that case, the Apex Court observed as follows : "15. If any authority is needed for this proportion we may refer to Mohanlal Vs. Bharat Electronics Ltd., 1981 (3) SCC 225 = AIR 1981 SC 1253 . In that case, the Apex Court observed as follows : "15. Reverting to the facts of this case, admittedly the appellant was employed and was on duty from December 8, 1973 to October 19, 1974 when his service was terminated. The relevant date will be the date of termination of service, i.e. October 19, 1974. Commencing from that date and counting backwards, admittedly he has rendered service for a period of 240 days within a period of 12 months and, indisputably, therefore, his case falls within Section 25-B(2)(a) and he shall be deemed to be in continuous service for a period of one year for the purpose of Chapter V-A. 16. Appellant has thus satisfied both the eligibility qualifications prescribed in Section 25-F for claiming retrenchment compensation. He has satisfactorily established that his case is not covered by any of the excepted or excluded categories and he has rendered continuous service for one year. Therefore, termination of his service would constitute retrenchment. As per-condition for a valid retrenchment has not been satisfied the termination of service is ab initio void, invalid and inoperative. He must, therefore, be deemed to be in continuous service. 17. The last submission was that looking to the record of the appellant, this Court should not grant reinstatement but award compensation. If the termination of service is ab initio void and inoperative, there is no question of granting reinstatement because there is no cessation of service and a mere declaration follows that he continues to be in service with all consequential benefits. Undoubtedly, in some decisions of this Court such as Ruby General Insurance Co. Ltd. v. Chopra (P.P.) and Hindustan Steels Ltd. Vs. A. K. Roy ( 1969(3) SCC 653 ) ( 1969(3) SCC 513 ) , it was held that the court before granting reinstatement must weigh all the facts and exercise discretion properly whether to grant reinstatement or to award compensation. But there is a catena of decisions which rule that where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination or cessation of service and a declaration follows that the workman concerned. continues to be in service with all consequential benefits. But there is a catena of decisions which rule that where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination or cessation of service and a declaration follows that the workman concerned. continues to be in service with all consequential benefits. No case is made out for departure from this normally accepted approach of the courts in the field of social justice and we do not propose to depart in this case." 21. Learned Senior counsel for University relied heavily upon the judgment of this court rendered in a batch of special appeals on 19.03.1986, State of Rajasthan Vs. Arun Mathur and connected matters, D.B. Special Appeal No. 33/86 and other appeals (Ex. R.2) . Actually, it was this very judgment, which was subject matter of SLP in Surendra Kumar (supra). The Division Bench deciding these cases was of the view that termination of services of the employees in that case did not amount to retrenchment at all. When it is so, the decision has no applicability to the facts of the case. 22. Learned Senior counsel for the University has placed reliance upon the decision in Surendra Kumar Gyani Vs. State of Rajasthan and other connected cases, AIR 1993 SC 115 and has urged that temporary appointments could be terminated on availability of duly recruited candidates. It is significant that in that case, the matter was taken to Apex Court by the employees against the judgment rendered in Arun Mathur and connected cases (supra). The Apex Court did not decide as to whether the employer was an 'industry'. Consequently, it had no occasion to decide as to whether the termination of the employee amounted to retrenchment. The Apex Court was also impressed by the fact that the relevant service rules did no even warrant ..............a temporary appointments. It had, therefore, no occasion to deal with violation of the mandatory provisions of Section 11-F of the ID Act. When it is so, the judgment is not an authority for the proposition that when a workman serving in an 'industry' is retrenched without complying with the provisions of Section 25-F of the ID Act, he is not entitled to reinstatement and back wages. We have already adverted to the provisions of section 39(2) of the Ajmer University Act, which specifically permits temporary appointments to be made. We have already adverted to the provisions of section 39(2) of the Ajmer University Act, which specifically permits temporary appointments to be made. Hence, we find that the decision in Surendra Kumar and Arum Mathur's case (supra) has no application to the facts of the present case. 23. We, thus find that the finding of the learned Single Judge on this aspect of the matter is perfectly correct and sound and does not suffer from any infirmity, illegality or improperety, so as to warrant any interference with this finding at our hands. Being entirely in agreement with him, we hold that the action of the University in terminating the services of the writ petitioners amounted to retrenchment and was not saved by the provisions of Section 2(oo)(bb) of the ID Act. The terminations were illegal and void and nonest ab initio, in as much as mandatory provisions of Section 25-F of the ID Act, had not been complied with. As such, the employee-respondents have to be deemed to be in continuous employment, notwithstanding oral terminations as per dictum of the Apex Court in Mohan Lal's case (supra). 24. Now, the next question which needs to be considered is, whether learned Single Judge fell in error in refusing to order reinstatement of the employees and was justified in awarding compensation to the retrenched employees. It is settled law that it depends upon facts of each case, if the rentrenched employee should be reinstated. No rule of thumb can be laid down in this regard. No strait jacket formula can be formulated so as to have universal application. It is settled law that reinstatement is the general rule and refusal to do so is an exception. Exceptional circumstances have to be established to justify refusal of reinstatement. These circumstances could be legion. For example, the industry has been closed. It would justify refusal of reinstatement. Abolition of a post may be such other circumstance. Non-availability of a vacant post on which reinstatement could be ordered, would be another such circumstance. The instances can be multiplied. The principle has been well settled by a catena of cases of the Apex Court and we may refer only to Punjab National Bank Ltd. Vs. Its Workmen, AIR 1960 SC 160 , Ruby General Insurance Co. Ltd. Vs. P.P. Chopra, 1970 (1) LLJ 63 (SC) and Hindustan Steels Ltd. Rourkela Vs. The instances can be multiplied. The principle has been well settled by a catena of cases of the Apex Court and we may refer only to Punjab National Bank Ltd. Vs. Its Workmen, AIR 1960 SC 160 , Ruby General Insurance Co. Ltd. Vs. P.P. Chopra, 1970 (1) LLJ 63 (SC) and Hindustan Steels Ltd. Rourkela Vs. A. K. Roy, AIR 1970 SC 1401 . 25. Really in such cases, the Court has to balance the rival competing claims of the employer and the employee; it has to take into account the equities operating on both the sides; it has to balance the claim of the employee vis-a-vis the rights of the employer. The learned Single Judge has found that since selections had been made and duly selected candidates were available, there was a valid and justifiable reason for refusing reinstatement. We have to see if this finding of the learned Single Judge is correct. 26. Here we may state that it is not the case of the University that the performance of the writ petitioners was not satisfactory or they were inefficient or incompetent or were guilty of any lapse during the period they served under the University. The retrenched employees had acquired valuable experience of the functioning of the University and must have familarised themselves with the functioning of the different sections of the University where they were serving. 27. This is true that the University held some selections and some duly selected candidates had become available. But, this is not the case of the University that after appointment of duly selected candidates, no vacancies were available on which the retrenched employees could have been continued. On the contrary, the case of the retrenched employees is that inspite of such selections, vacancies were still available and the University appointed retired employees against such vacancies. A chart has been placed for our perusal showing the appointments of retired persons made after the retrenchment of the writ petitioners. The learned Senior counsel for the University could not refute the contention. His contention was that the writ petitioners had also taken the regular selection test and could not be selected. At the selection, there were some 68 candidates who had secured higher marks than the writ petitioners and hence the writ petitioners could not have been appointed to the regular vacancies. His contention was that the writ petitioners had also taken the regular selection test and could not be selected. At the selection, there were some 68 candidates who had secured higher marks than the writ petitioners and hence the writ petitioners could not have been appointed to the regular vacancies. The argument so far as it goes, is correct that the writ petitioners who had failed to secure positions in merit, so as to entitle them to regular appointments, could not have been appointed to the posts lying vacant on regular basis. But, the argument does not sufficiently meet the contention that inspite of selections and appointments, vacancies were still available against which the writ petitioners could have been continued on ad hoc and temporary basis and against which retired employees of Government had been appointed. 28. It is trite law that an employer cannot fire its ad hoc employees and then employ another set of ad hoc employees. This would be highly unfair and unjust. To our mind, sacking the writ petitioners and in their stead employing retired hands on ad hoc basis was highly arbitrary. We have been told at the bar that such retired ad hoc employees are still working under the University. Learned Senior Counsel for the University could not justify this action of the University in any manner. 29. Learned Senior counsel for the University tried to meet this contention by saying that retired persons formed a separate class altogether and University did not commit any illegality or impropriety in appointing retired employees on an ad hoc basis. This is true that retired employees constitute a class in themselves but when they came to be appointed as ad hoc employees, they stood at par with the writ petitioners and the University could not have on one hand sacked these ad hoc employees and on the other hand, subsequently employed another set of ad hoc employees, even though retired hands. This demolishes the contention of the University that vacancies were not available after due selection and appointments. Hence, in our opinion, it was unjust and unfair to refuse reinstatement to the writ petitioners. This demolishes the contention of the University that vacancies were not available after due selection and appointments. Hence, in our opinion, it was unjust and unfair to refuse reinstatement to the writ petitioners. In our opinion, learned Single Judge seriously erred on this count and we, therefore, declare that the writ petitioners who are appellants before us and whose names find mention in Schedule B of this judgment, continue to remain in the employment of the University as ad hoc employees and are entitled to back wages as ad hoc employees at the rate they were being paid prior to their retrenchment. If any one of them has been paid compensation as awarded by the learned Single Judge, the amount shall be adjusted towards arrears of back wages payable to such an employee.We accordingly direct the University to treat the aforesaid writ petitioners (appellants in their special appeals mentioned in Schedule B to this judgment) as in continuous employment of the University and to pay them back wages after due adjustment as indicated above. 30. In view of the aforesaid direction, we need not discuss the direction granted by the learned Single Judge in respect of re-employment of the aforesaid writ petitioners and the directions has become otiose and redundant. We, therefore, need not say much on this aspect of the matter. 31. Now re. regularisation. Admittedly, the regular appointments in the University are governed by the provisions of Section 33 of the Act read with the provisions of the Ordinance 359-A, which prescribes a competitive examination to be held for selection of the candidates. Learned counsel for the different writ petitioners have urged that notwithstanding these provisions, the writ petitioners ought to be regularised on the basis of their past satisfactory services. Various rulings have been cited before. us in this regard. As against this, learned Senior counsel for the University submits that this court should not permit any tinkering with the provisions pertaining to regular selections and if the writ petitioners seek regularisation, they must face open selection. There is no provision in the relevant Act and University Ordinance for regularisation of ad hoc employees. 32. We have bestowed our earnest consideration to the rival contentions. In our opinion, permanent selections can be made only in accordance with relevant provisions, there being no provision for regularisation of ad hoc and temporary employees. There is no provision in the relevant Act and University Ordinance for regularisation of ad hoc employees. 32. We have bestowed our earnest consideration to the rival contentions. In our opinion, permanent selections can be made only in accordance with relevant provisions, there being no provision for regularisation of ad hoc and temporary employees. The writ petitioners, it they want to be absorbed as permanent employees of the University, must face regular selection. It was contended that some of them might have become over-age. In our opinion, it would be for the University to consider if any relaxation in age would be feasible for the ad hoc employees in case they face the regular selection procedure. 33. At this juncture, we may take note of authorities on the basis of which relief of regularisation is being before us. Bhagwati Prasad Vs. Delhi State Mineral Development Corporation and connected matters, 1990 (1) SCC 361 , is an authority for the proposition that daily rated employees, having served for more than 3 years deserved to be regularised in accordance with their seniority. To our mind, this authority can have no application to the cases in hand because, as stated already their permanent appointments are governed by relevant provisions and the provisions do not provide for any regularisation. 34. In Jacob M. Puthupurambali and others Vs. Kerala Water Authority and others and in connected matters, AIR 1990 SC 2228 the employees had served on ad hoc basis for more than two years. The relevant service rules had no statutory force or flavour. Hence, it was ordered that they deserved to be regularised. To our mind, the fact that the rules did not have a statutory force or flavour distinguishes that case from the cases in hand. 35. In Karanataka State Private Colleges Step Gap Lecturers Association Vs. State of Karnataka and others, AIR 1992 SC 677 , it was ordered that teachers in private colleges receiving grant-in-aid, who had served for three years, shall not be terminated and shall be absorbed as and when regular vacancies arise. It may be stated that in this case also, there was no statutory provision and only administrative orders existed. To our mind, this authority also does not help the writ petitioners. 36. It may be stated that in this case also, there was no statutory provision and only administrative orders existed. To our mind, this authority also does not help the writ petitioners. 36. We need not multiply the authorities on this point because service rendered over years may justify regularisation in peculiar circumstances, particularly when there is no embargo on regular appointments by regularisation under the relevant service rules. But if service rules require that permanent selections shall be made only by undergoing a selection process, duly prescribed under service regulations, such regulations cannot be allowed to be circumvented and regularisation cannot be ordered. 37. To our mind, indiscriminate regularisation jeopardizes public interest. It shuts out better talent which could be made available by open market selections. Even while permitting reservations for weaker sections of society, the Constitution of India mandates that this has to be consistent with the maintenance of efficiency. Not only this, the Constitution exhorts each one of us to strive towards excellence in all spheres of individual and collective action. Shutting out open door selection by regularising ad hoc employees, who have not come through such selection results in shutting out the best talent and only second rate or third rate persons occupy the field. It is an admitted position that the writ petitioners took the competitive test but could not make a proper mark. We hope that as and when future selections take place, they will strive for better results. To our mind, regularisation would be a misplaced sympathy with such persons, who have failed to make the mark. 38. We are supported in our view by the following pronouncement of the Apex Court in Delhi Development Horticulture Employees Union Vs. Delhi Admn., 1992 (4) SCC p.99 - "Apart from the fact that the petitioners cannot be directed to be regularised for the reasons given above, we may take note of the pernicious consequences to which the direction for regularisation of workmen on the only ground that they have put in work for 240 or more days, has been leading. Delhi Admn., 1992 (4) SCC p.99 - "Apart from the fact that the petitioners cannot be directed to be regularised for the reasons given above, we may take note of the pernicious consequences to which the direction for regularisation of workmen on the only ground that they have put in work for 240 or more days, has been leading. Although there is an Employment Exchange Act which requires recruitment on the basis of registration in the Employment Exchange, it has become a common practice to ignore the Employment Exchange and the persons registered in the Employment Exchanges, and to employ and get employed directly those who are either not registered with the Employment Exchange or who though registered are lower in the long waiting list in the Employment Register. The courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularisation knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularised. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchanges for years. Not all those who gain such backdoor entry in the employment are in need of particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases which come to the courts are of employment in Government departments, public undertakings or agencies. Ultimately it is the people who bear the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate regularisation has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 or more days they have to be absorbed as regular employees although the works are time-bound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardised on both counts. The public interests are thus jeopardised on both counts. In the circumstances, it is not possible to accede to the request of the petitioners that the respondents be directed to regularise them." In the aforesaid premises, we are of the view that the writ petitioners can not legitimately claim regularisation without following proper process of selection. 39. A contention was raised by Shri Virendra Dangi that in terminating the services of the writ petitioners, principles of natural justice were violated and the terminations were arbitrary. A good number of authorities were also cited on this aspect of the matter. However, we need not enter this controversy because we have held that the terminations of the services of the writ petitioners were bad in law. 40. No other point was urged before us. 41. In the aforesaid premises, we dismiss all the twenty appeals filed by the University and detailed in Schedule A to this judgment. 42. Appeals filed by the writ petitioners as detailed in Schedule B to this judgment are allowed with costs and the writ petitioners in these appeals shall be reinstated and will be paid back wages within one month of this judgment. In case the payment is not made within the aforesaid period, University shall pay interest of 18% p.a. on the amount of the arrears. The arrears shall be computed at the rate at which these writ petitioners were being paid wages immediately before their retrenchment. Compensation, if any, paid already under order of the learned Single Judge shall be adjusted towards such arrears. To the extent above, the impugned judgment of the learned Single Judge shall stand modified. Schedule AParticulars of D. B. Civil Special Appeals filed by the Mahrishi Dayanand Saraswati University, Ajmer S.No. Special Appeal No. Writ Petition No. Name of respondent-Employees 1. 401/94 488/89 Ashok Kumar 2. 402/94 2756/89 Jagdish Chandra Sharma 3. 403/94 812/89 Vinod Kumar 4. 404/94 809/89 Govind Singh 5. 405/94 662/89 Ravindra Kumar 6. 406/94 663/89 Ram Swarup Khandelwal 7. 407/94 891/89 Miss Kumud Sharma 8. 408/94 874/89 Rakesh Saini 9. 409/94 1251/89 Abdul Ahmed Khan 10. 410/94 489/89 Praveer Kumar 11. 411/94 640/89 Anil Mathur 12. 412/94 810/89 Rajeev Kumawat 13. 413/94 989/89 Shyam Prakash Dewatwal 14. 414/94 3877/89 Rakesh Kumar Parashar 15. 415/94 808/89 Bhanwarlal Kumawat 16. 416/94 793/89 Sanjay Sharma 17. 417/94 2483/89 Gajanand Sharma 18. 418/94 2081/89 Sushil Gupta 19. 408/94 874/89 Rakesh Saini 9. 409/94 1251/89 Abdul Ahmed Khan 10. 410/94 489/89 Praveer Kumar 11. 411/94 640/89 Anil Mathur 12. 412/94 810/89 Rajeev Kumawat 13. 413/94 989/89 Shyam Prakash Dewatwal 14. 414/94 3877/89 Rakesh Kumar Parashar 15. 415/94 808/89 Bhanwarlal Kumawat 16. 416/94 793/89 Sanjay Sharma 17. 417/94 2483/89 Gajanand Sharma 18. 418/94 2081/89 Sushil Gupta 19. 419/94 313/90 Ajay Tiwari 20. 420/94 1109/89 Zakir Hussain Schedple BParticulars of D. B. Civil Special Appeals filed by the various employees of of the University S.No. Special Appeal No. Writ Petition No. Name of Appellant-Employees 1. 633/94 809/89 Govind Singh 2. 635/94 2081/89 Sushil Gupta 3. 509/94 313/90 Ajay Tiwari 4. 534/94 640/89 Anil Mathur 5. 630/94 662/89 Ravindra Kumar 6. 631/94 2483/89 Gajanand Sharma 7. 506/94 812/89 Vinod Kumar 8. 507/94 810/89 Rajeev Kumawat 9. 508/94 808/89 Bhanwarlal Kumawat 10. 632/94 874/89 Rakesh Kumar Saini 11. 1258/94(Def) 1251/89 Abdul Ahmed Khan 12. 1259/94(Def) 489/89 Praveer Kumar 13. 1260/94(Def) 488/89 Ashok Kumar 14. 1261/94(Def) 3877/89 Rakesh Chandra Prashar 15. 1269/94(Def) 891/89 Miss Kumud Sharma 16. 1257/94(Def) 2756/89 Jagdish Chandra Sharma SPL. Appeals of University Dismissed and SPL. Appeals of Writ Petitioners allowed. *******