Sasikumar v. Mahatma Gandhi University — 1997 DIGILAW 247 (KER)

Judgment :- Shanmugam, J. In all these Original Petitions the petitioners challenge the order of the Registrar of Mahatma Gandhi University sanctioning to terminate all ad hoc appointments of non-teaching staff made by the Directors. 2. The School of Medical Education and the School of Technology and Applied Science are run by M.G. University under a self financing Scheme. These schools commenced functioning during the year 1994 with the Honorary Directors as their head. They have made about 131 appointments for non-teaching staff of the institute on contract basis for one year and in some cases as casual labourers on daily wages. By communication dated 23.9.1996 the Directors of Self Financing Schools were informed that the appointments made to the non-teaching staff were done on ad hoc basis without following the statutory procedures. The University has, therefore, taken a decision to terminate the ad hoc temporary appointments and the Directors were instructed to initiate steps to give notice for terminating all ad hoc appointments of non-teaching staff. At this stage, the Original Petitions have been filed challenging the communication of the University. 3. The M.G. University First Statutes, 1991 deals with the terms and conditions of service of non-teaching staff of the University, under Chapter 4. Chapter 4 is divided into Part I and Part II. Part I deals with the applicability of the Kerala State and Subordinate Service Rules, in so far as it may be applicable except to the extent expressly provided for in these statutes. Part II of the Chapter deals with the Constitution of the M.G. University service. R.7 provides for scales of pay, qualification and method of posting. R.8 deals with the recruitment of posts which shall be made on the basis of the recommendations made by the selection committee consisting of Vice-Chancellor as Chairman, Convener of the Standing Committee of the Syndicate on staff and Registrar who shall be the Member-Secretary of the Committee. The Committee may conduct the test as it may deem necessary. 4. Admittedly the posts for which the petitioners are appointed are the posts coming under the Constitution of the M.G. University service and the appointment to this service should be in accordance with Rules 7, 8 and 9. The Committee may conduct the test as it may deem necessary. 4. Admittedly the posts for which the petitioners are appointed are the posts coming under the Constitution of the M.G. University service and the appointment to this service should be in accordance with Rules 7, 8 and 9. However, in so far as appointments made as not provided under Part II (Regular service) R.2 of Part I states that KSSR are made applicable, where there is no express provision for appointment. Admittedly, there is no provision under University for making temporary or ad hoc appointments. Those appointment should be in accordance with R.9 of KSSR dealing with temporary appointments. This rule also contemplates (a) the appointment should be by the competent authority; (b) the procedure prescribed as per executive orders and notification in reference to employment exchange and reservation availability of posts should be followed. The first proviso to sub-r.(4) of R.9 says that a person appointed under R.9 shall not be allowed to continue in such post for a period not exceeding 180 days. 5. The Directors of School and Medical Education and the School of Technology and Applied Science are under the control of M.G. University. The competent authority to make appointment is selection committee under R.B. The Directors have made appointments outside the scope of R.9 in the sense that appointments were made in many cases for one year and in some cases as daily rate basis. It is not disputed that no procedure whatsoever had been followed in appointing these petitioners in the sense that there was no proper assessment of the vacancies, availability of posts, qualifications for the posts and notification to the Employment Exchange. Thus, the whole appointment are illegal and contrary to the Rules and are made in an arbitrary fashion. The petitioners cannot claim a right on the basis of such appointment. 6. In O.P. No. 15052 of 1996 the petitioners have furnished Ext. P3 appointment order wherein, in the letter head of School of Medical Education, it is stated that the Director had sanctioned to appoint 15 persons on contract basis for a period of one year with effect from 1.12.1995. 7. In O.P.No. 15186 of 1996 the proceedings of the Director of Medical Education has been furnished as Ext. P1 for the appointment of non-teaching staff extract of the list of the names of the candidates. 7. In O.P.No. 15186 of 1996 the proceedings of the Director of Medical Education has been furnished as Ext. P1 for the appointment of non-teaching staff extract of the list of the names of the candidates. There is no proceedings stating the particulars of the post to be filled up, qualification necessary and the method of appointment adopted and the actual order of appointment. In O.P No. 15193 of 1997 the petitioners were appointed on daily wages as Laboratory Attender, peon, Sweeper, Watchman and Typist-cum-clerk. In O.P. No. 15281 of 1996 eight persons were appointed as casual labourers in the Regional Centre of School of Technology and Applied Sciences on daily wages. It could be seen that even in those appointments some are made as contract appointments and some are casual attendance and some are on daily basis. Thus, it is clear that the Directors of the Institutions have acted beyond the jurisdiction and authority in utter disregard of the University Rules and Regulations. 8. The contention of learned counsel for the petitioners can be summarised as" follows: (i) In the absence of rules governing the contract and temporary appointments, the Directors were authorised to make these appointments and sanction subsequently ratified; (ii) the University was acting under the pressure from service organisations to terminate the services and, therefore, the action of the University is arbitrary; (iii) when the posts are available and their services are required, the University should not be permitted to re-place with them another set of temporary appointees; (iv) the petitioners should be allowed to continue till regular appointments are made. 9. The submission of learned Standing Counsel for the University is summarised as follows: i) The Directors are holding the posts Honorary and they are not authorised to make appointments; ii) In any event, the appointments were made for a fixed period with condition specified with the appointment orders and the termination is in accordance to the terms of appointment; iii) TheUniversityissatisfiedthatmanyoftheHonoraryDirectorshavemadeappointments to the various posts in excess of actual requirement iv) University has taken steps to make regular appointments without affecting the normal functions of the institutions; v) There are existing rank list of Assistant Grade II, Lab Assistant, Security Guard etc. and steps are being taken to prepare rank list for other posts following the statutory procedures; vi) After getting exact staff requirement, regular staff will be deployed either from the University to replace the temporary staff or steps would be made immediately for making regular appointments; vii) The sub-committee is constituted in reference to the institutions which have only advisory powers and are not empowered to make appointments; viii) Complaints have been received and allegations were raised that there were corruption, in the appointment of various posts in the self financing and mis-management of the affairs of the self financing institutions the Vice Chancellor and the University Syndicate have seriously viewed this. 10. Even though, the School of Medical Education and the Regional Director of School of Technology and Applied Sciences were in the initial stage of formation and development, the appointments were made by the respective Directors and it is also seen that some of these appointments were approved by the Registrar of the University. But there is no denial of the fact that the Director or the sub-committee is not the competent authority to make either temporary contract or regular appointments to the posts. There was no actual assessment of the staff requirement. There was no requisition for deployment of the staff to the institution. But it appears that the Directors themselves thought that they are empowered to make appointments outside the scope of the University Act. Therefore, looking from any angle, the appointment of the petitioners are in total violations of the rules and are therefore, arbitrarily made to suit their convenience. It is rather surprising that these Head of the Departments did not consider whether they have the authority to make direct appointment. Even if it is so made they did not consider it fit to follow the known and acceptable procedure for selection. They did not think it necessary to see the M.G. University Act and First Statutes dealing with selection and appointment or consult the University before making the appointment. It is unfortunate that in this process, the unfortunate victims are the appointees including the last grade servants. But they cannot be helped for which there is no scope under public employment. 11. Even assuming that the temporary appointments can be made, it could have been made only after following the requirements for temporary appointments as per R.9 of KSSR by the competent authority. But they cannot be helped for which there is no scope under public employment. 11. Even assuming that the temporary appointments can be made, it could have been made only after following the requirements for temporary appointments as per R.9 of KSSR by the competent authority. In as much as the appointing authority in these case, viz. the Director, did not follow any of these requirements for temporary appointments, the petitioners have no right that would flow out of the temporary appointment. 12. Learned counsel for the additional 4th respondent, one of the impleading party, who is a service union of the University, submits that the prayer in this Original Petition is not maintainable. According to him, apart from calling for quashing of the University communication to terminate the service of the petitioners they also prayed for complying with the provisions of the I.D. Act and to retain them in service till regular appointments are made. 13. Learned counsel for the petitioners submits that if Industrial Disputes Act is made applicable, the proper course for the petitioner is to raise a dispute. Secondly the question of retrenchment would not apply in their case because many of the appointments were made as tenure appointments and as per S.2(oo)(bb) the petitioners have to be terminated on expiry of that term of service. I find much force in the said argument. Inasmuch as the appointments were made for a tenure, the question of following the procedure would not arise in the case of these persons. Secondly, the petitioners cannot seek for a direction to enforce the I.D. Act. If it is their contention that they are workmen under the University, they must raise a dispute for the same. 14. Learned counsel for the petitioners referred the decision in Central Inland Water Transport Corporation Ltd. v. Brojo Nath (AIR 1986 SC 1571) in support of the contention that termination of their service would be arbitrary as per the terms of the contract which are opposed to public policy. The Supreme Court was dealing with the question whether a Government Company is a state within the meaning of Art.12 of the Constitution of India and whether the terms of the contract of employment is void as being opposed to public policy. R.9 of the Corporation Rules provided for termination of employment. The Supreme Court was dealing with the question whether a Government Company is a state within the meaning of Art.12 of the Constitution of India and whether the terms of the contract of employment is void as being opposed to public policy. R.9 of the Corporation Rules provided for termination of employment. The said rule was held to be arbitrary by the Supreme Court since it enables the Corporation to discriminate between employees and employee to circumvent the regular rule of disciplinary enquiry. 15. The case on hand stands entirely on a different plane. The rules of temporary appointments have not been followed. The tenure of appointment and the terms of the appointments vary between persons to persons. The appointment were so made in utter disregard of the rules by an incompetent authority. It is common knowledge that each post of an Assistant attracts thousands of applications and they are already waiting in the queue in their employment exchanges. The petitioners were able to obtain appointments by directly approaching the concerned authorities. Therefore, the petitioners cannot take advantage of these appointments and claim a right of contractual engagement. There appears to method of entering into service by hook or crook and later on try to find some rules and regulations to continue in service. There cannot a premium of illegality. Learned counsel for the petitioners referred to the decision in Dr. S.C. Kaushik v. Union of India (1981(1) SLR 214) a Division Bench of the Gujarat High Court held that termination of a person who has put in more than 5 years on the ground that he had not passed the selection examination is discriminatory in violation of Arts.14 and 16 of the Constitution. In that case, the petitioner was a medical graduate holding a degree of MBBS. He was appointed for a period of six months and services were extended till they are replaced by U.P.S.C. candidates. Though the services of 50 Assistant Medical Officers were extended, petitioner was alone selected for being served with an order of termination. While quashing that order the Division Bench held that the impugned order would lead to uncontrolled discrimination at their pleasure and caprice, on considerations not based on the welfare of the State, but based on personal likes and dislikes, personal sympathies and prejudices. 16. The facts of this case are entirely different. While quashing that order the Division Bench held that the impugned order would lead to uncontrolled discrimination at their pleasure and caprice, on considerations not based on the welfare of the State, but based on personal likes and dislikes, personal sympathies and prejudices. 16. The facts of this case are entirely different. There is no discrimination among the candidates who were asked to be terminated. Secondly, it could be seen that the competent authority is not the Director to make appointments and that appointments were made without following any guidelines or rules and at the pleasure and caprice of the appointing authority. A Division Bench of this Court in K. Purushothaman v. Registrar and Ors. (1996(1) KLJ 531) held that persons who got the orders of appointment by resort to back door methods should be sent out through back door itself. The Division Bench while making such observations followed the judgment of the Supreme Court in Krishan Yadav v. State of Haryana (AIR 1994 SC 2166). The Supreme Court while considering the case of persons who got selection to the post by illegal methods held as follows: "The effect of setting aside the selection would mean the appointments held by these 96 candidates (including the respondents) will have no right to go to the office. Normally speaking, we should require them to disgorge the benefit of these ill-gotten gains. That means they will have to repay the entire salary and perks which they have received from the said office. But, here we show a streaks of sympathy. For more than four years they were enjoying the benefit of "office". The proper lesson would be learnt by them if their appointments are set aside teaching them that dishonesty could never pay". In this case also it could be seen that petitioners were all appointed by not a competent authority and not following any of the rules and procedures. Therefore, they have no right to insist that retrenchment notices must be given and they must be allowed to continue till regular appointees are made. The petitioners who have got the appointment by arbitrary selection are not entitled to claim the benefit of that selection. In Sasidharan v. Reserve Bank of India (1990 (2) KLT 573) this Court held that appointments made without reference to the rules, temporarily on ad hoc basis are liable for reversion. The petitioners who have got the appointment by arbitrary selection are not entitled to claim the benefit of that selection. In Sasidharan v. Reserve Bank of India (1990 (2) KLT 573) this Court held that appointments made without reference to the rules, temporarily on ad hoc basis are liable for reversion. It was held that the authority concerned can itself remedy the mischief and such an order does not affect any rights of the party benefiting by that mistake, as no right legally inhered on them. 17. A Division Bench of this Court in Sree Sankaracharya University of Sanskrit v. State (1996 (2) KLT 378) held that in the absence of a Selection Committee the appointments made by the Vice Chancellor is illegal. According to the Division Bench, Selection Committee must be constituted in the manner prescribed by the statutes and not otherwise. In the absence of a selection committee, the Syndicate or for that matter first Vice-Chancellor has no power to make any appointment of teachers, officers and other employees of the University. So, all appointments made by the Vice-Chancellor are without jurisdiction. The entire selection made by him purporting to be in exercise of power conferred by him was set aside. The principles enunciated by the Bench squarely applies to the facts of the case on hand. In that case, the Division Bench also held that by any stretch of imagination, under our constitution the authority can be allowed to function as the Vice-Chancellor wants to do. As per the Scheme of the said Act, the Vice Chancellor is bound to issue proceedings prescribing qualifications for the different posts in exercise of the powers, duties and functions of the academic council. Only after prescription of such qualifications by some means known to law the Vice-Chancellor is empowered to act under the Act. The position in this case is that though the Vice Chancellor and the Selection Committee is empowered to make the appointments the Director of the Institutions have taken the power of appointment without prescribing qualifications and without following the procedure in a manner known to law have appointed the employees of their own. Therefore, the action of the Directors in making these appointments is nothing, but arbitrary or illegal. Therefore, the action of the Directors in making these appointments is nothing, but arbitrary or illegal. If the selection and the appointment made by the directors are allowed to continue as observed by the Division Bench in that case, it will be the case of negation of justice and giving legal stamp to the illegal action of the Directors, virtually, making the University Act and the Statutes prescribing the mode of selection is a mockery. 18. The petitioners have made a plea that the selected candidates are innocent victims of their own selection, and, therefore, they should not be penalised for non-fault of them. The petitioners who sought for appointments directly without the notification calling for it are deemed to be aware of the procedural irregularity in their appointments. As Supreme Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress (AIR 1991 SC 101) held that it is settled proposition of law that public employment is property of the nation which has to be shared equally. Their Lordships observed: "It is important to emphasise that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within defined limits. The rule of law form this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law". The selecting authority did not follow any of the provisions of selection. Therefore, the appointment is invalid and they have no right to continue in the posts. In State of Punjab v. Surinder Kumar (AIR 1992 S.C.1593) the Supreme Court held that the High Court under Art.226 of the Constitution has no power to allow the continuance of ad hoc appointees till regular appointments are made. In Reji Joseph v. K.S.E.B. (1993 (1) ] klt 393) another Division Bench of this Court while dealing with similar claims held that provisional employees have no legal right to continue. In Reji Joseph v. K.S.E.B. (1993 (1) ] klt 393) another Division Bench of this Court while dealing with similar claims held that provisional employees have no legal right to continue. After exhaustive analysation of the cases on the subject the Division Bench held as follows: "13. From the above, it is clear that this Court has been taking a uniform view that appointees under R.9(a)(i) of K.S.& SSR have no legal right to continue in service beyond the period of their appointment, that they have no right to insist that they can be substituted only by candidates selected through the P.S.C. for regular appointment and that they have no right to claim regularisation in the post in which they were appointed on a provisional basis. The above view was being expressed by this Court taking into consideration the elaborate statutory provisions contained under R.9 of Kerala State and Subordinate Services Rules. The above rule dealing with temporary appointments empowers the appointing authority to appoint a person otherwise than in accordance with the general rules and special rules where it is necessary in the public interest, owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with the general rules and the special rules. After giving such a power under R.9(a)(i) to the appointing authority, detailed provisions are made in the remaining portion of R.9 as to how the above power has to be exercised. It has laid down provisions for appointment of different types of posts and also for appointment of different categories of persons like members of scheduled castes and scheduled tribes and handicapped persons. Provisions regarding seniority or preference for appointment and also the order in which their services are to be terminated are also contained under R.9. The petitioner has not been able to place before us any decision of the Supreme Court holding that provisionally appointed employees can be sent out of service only by substituting candidates recruited through P.S.C., after considering the provisions contained under R.9 of K.S.& SSR or similar provisions under other service rules". 20. Learned counsel for the petitioners apprehends that there will be another set of temporary hands to replace them and they have no objection if the University makes regular appointments. 20. Learned counsel for the petitioners apprehends that there will be another set of temporary hands to replace them and they have no objection if the University makes regular appointments. The answer is given in the counter affidavit and also by learned Standing Counsel. According to him, there are existing rank lists and steps are being taken to prepare rank lists for other posts after obtaining exact staff requirements in order to deploy regular staff from the University to replace them. He has made clear that the University shall not make any set of temporary appointments to replace the petitioners. For all these reasons, I do not find any grounds vitiating the impugned communication of the University. No grounds are made out to grant the other reliefs sought for. Accordingly, the Original Petitions are dismissed.