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1995 DIGILAW 77 (PAT)

Deepa Bariar v. Government Of Bihar

1995-02-04

ASOK KUMAR GANGULY

body1995
Judgment A. K. Ganguly, J. 1. -the petitioner is a first Class Science graduate in Chemistr from Patna University and then she obtained also a first class degree of M. Sc from the said University. She was appointed on 8th April, 1986 as a Lecturer in the department of Chemistry in Rajkiya Mahila mahavidyalaya, Gardanibagh, Patna. The said College is admittedly a Government college. The petitioner was appointed as as lecturer in the department of Chemistry or the basis of daily wages at the rate of Rs.25/- per lecture and it was also stipulated in the order of appointment that the total salary will not excend Rs.1250/-in a month. 2. The petitioners case is that she has been continuing on that post on such a meagre amount against a sanctioned post which fell vacant as one Smt. Sabita Banerjee who was initially appointed on the said sanctioned post and started absenting herself and was not available for teaching. 3. The grievance of the petitioner is that while she was continuing on that post an order was purportedly passed on 5th july, 1991 asking the petitioner not to take classes. Such order was issued on 5th July, 1991, but the same was again cancelled by respondent no.4, the Principal of the College on communication of the order of this Hon ble the Court. The petitioners case is that she is still continuing on the said post on the basis of the appointment given to her on 8th April, 1986. Learned counsel appearing on behalf of the petitioner states that the petitioner is a fully qualified person having a degree of First Class in both B. Sc. and M. Sc. and carrying on research and she was also appointed against a sanctioned post. The further case of the petitioner is that from the order of the recommendation issued by the Principal of the said College, it will appear that she is carrying the entire duty of the department of Chemistry of the said College and she is carrying on an onerous duty on a meagre sum of Rs.1250/- per month. The Principal of the institution therefore recommended that her services should be regularised and her remuneration should be enhanced. Copy of such recommendation of the Principal of the college on the petitioners representation dated 12th September, 1994 is filed along with the supplementary affidavit. The Principal of the institution therefore recommended that her services should be regularised and her remuneration should be enhanced. Copy of such recommendation of the Principal of the college on the petitioners representation dated 12th September, 1994 is filed along with the supplementary affidavit. Learned counsel for the petitioner has also stated that at the time of her appointment apart from the petitioner several other candidates were also considered for the said posts by the appropriate authority, and on consideration of those candidates the petitioner has been appointed as the most meritorious candidate for the post in question. 4. In the counter affidavit used by the state respondents the only stand which has been taken is that the petitioner has been appointed without following the proper selection procedure, but the respondents further assert that the appointment of the petitioner cannot be called an adhoc one. It is further stated that if in future any regular appointment is made, in that case, the case of the petitioner will be considered sympathetically. 5. Learned counsel appearing on behalf of the petitioner cited before this Court two decisions, one of them is reported in 1991 (1) P. L. J. R. page-747 (Vijay Kumar and ors. vs. State of Bihar and ors) in which a learned Single Judge of this Court was pleased to allow the writ petitions filed by qualified lecturers who were similarly made to work on a daily wage of Rs.20/- per lecture. While allowing the petition, the learned Judge was pleased to observe as follows : - "the principle of equal pay for equal work is deducible from the provisions of articles 14, 16 and 39 (d) of the Constitution of India. It has not been denied in the counter-affidavit that the petitioners perform the same duties as being performed by those lecturers appointed on regular basis. If that be so, it is difficult to understand how the respondents could deny to these petitioners the same salary and conditions of service which have been granted to other lecturers regularly appointed. It is peculiar on the part of the respondents to urge that these petitioners took up employment knowing fully well that they would be paid only rs.20/- per lecture and, therefore, they cannot claim more. A welfare State committed to a socialist pattern of society cannot be permited to advance such an argument. It is peculiar on the part of the respondents to urge that these petitioners took up employment knowing fully well that they would be paid only rs.20/- per lecture and, therefore, they cannot claim more. A welfare State committed to a socialist pattern of society cannot be permited to advance such an argument. In the country where there is so much unemployment, the choice for the majority of people is to starve or to take employment on whatever exploitative terms are offered by the employer. The fact that these petitioners accepted the employment with full knowledge that they would be paid only Rs.30/- per lecture and they would not get the same salary and conditions of service as granted to other lecturers, cannot provide an eccape to the respondents to avoid the mandate of equality enshrined in Article 14 of the Constitution. " The learned counsel further stated that the Hon ble Supreme Court also affirmed the said judgment by dismissing the S. L. R against it. The judgment of the Supreme court is reported in 1991 (2) RL. J. R. page (SC) 74. 6. Learned counsel for the petitioner further submitted that in view of the provisions contained in the Bihar Gazetted officers Adhoc Appointment Regulation Act, 1987 the services of the petitioner should be regularised in view of provisions contained under section 4 of the said Act. Sec.4 of the said Act is set out below : - 4. "regularisation and validation of ad-hoc appointments : Notwithstanding any law, rule or regulation regarding the recruitment to the gazetted posts in the state, the ad-hoc appointments of the gazetted Officers shall be deemed to be regular and valid from the dates of their appointments. " 7. A question whether the petitioners appointment can be called an adhoc appointment or not has been raised by the learned counsel appearing on behalf of the respondents by saying that the petitioners appointment is on the basis of daily wages. Adhoc appointment has been defined in the said Act under Sec.2 (9) to mean that any appointment made on adhoc basis by direct recruitment by the State Government to any gazetted post in any category at all level in the State of Bihar. It is not in dispute that the petitioner was appointed as a Lecturer in a Government College on a gazetted post. It is not in dispute that the petitioner was appointed as a Lecturer in a Government College on a gazetted post. Such appointment was also made by direct appointment by the State government. The mode of appointment shows that the such appointment has been made without following the regular procedure. Such an appointment cannot but be categorised as an adhoc one. The word adhoc means for this special purpose. Here also it is dear that the appointment of the petitioner was made for a special purpose and may be without due regard to the regular selection procedure and on terms which are highly derogatory to the honour and dignity of teacher. 8. Be that as it may, this Court holds that the petitioners appointment is an adhoc one and therefore on the strength of section 4 of the said Act such appointment shall be deemed to have become regular from the date of the appointment. Apart from this, this Court also follows the ratio delivered in the judgment in Vijay Kumar (supra) whereby the Court has directed the respondents concerned to regularise such appointment on a regular basis. 9. However, both on the strength of section 4 of the said Act and also on the ratio of the judgment in the case of Vijay kumar (supra), the appointment of the petitioner should be regularised. The respondents are, therefore, directed to regularise the appointment of the petitioner with effect from the date of her appointment and the respondents are also directed to pay her salary on the same basis on which the regular lecturer in the Government Colleges to be paid. The entire arrears of salary on the aforesaid basis be paid to the petitioner within a period of four months from the date of production/receipt of a copy of this judgment. This writ petition is thus allowed. There will be no order as to costs.