VIJAY SINGH v. STATE OF HP — 1997 DIGILAW 417 (HP)

JUDGMENT Mr. Attar Singh, Vice Chairman: This application has been filed by the applicant seeking mainly the Following relief’s besides others: (i) That the stipulation in the order of appointment of applicant and terms and conditions incorporated therein and in the agreement to the effect that the appointment of applicant would be only for a particular session coterminous with the termination of academic session and commencement of summer vacation, may kindly be quashed and set aside. (ii) That the respondents may be directed to continue the applicant in service as a result of his initial appointment till he is replaced by regularly appointed teacher duly selected by Public Service Commission that too for making room for such regularly appointed teacher, if there is no vacancy available for such regular appointee. (iii) That while replacing the applicant and others by regularly selected teachers, the respondents may be directed to follow the principle of last come first go. (iv) That the respondent may be restrained from giving notional and fictional breaks to the applicant for the period(s) of summer/winter vacation/Dushera Holidays and applicant may be held entitled to the salary for such vacation/holidays and he may also be held entitled to arrears for the period(s) for which he has been deprived of salary for such vacation / holidays. (v) That the applicant may also be held entitled to the benefit of regularisation of his service pursuant to scheme framed and exclusion of the category of contract teachers from this scheme vide the subsequent letter, may be declared to the unreasonable, arbitrary and violative of articles 14 and 16 of the constitution. 2. Briefly the case of the applicant as setout in the application is that he was appointed on contract basis as JBT in Government Primary School, Kurling vide order dated 15.9.95, Annexure A 1. There was a stipulation in the appointment order that the applicant would have to enter into an agreement with the Government and that the appointment was upto 30.6.1996 or regular appointment whichever was earlier. The appointment letter was also accompanied by terms and conditions. The applicant was also supplied with a standard form of agreement to be executed by him. The applicant was relieved from his dues on 30.6.1996. Relieving of applicant coincided with the closing of academic session in Spiti area. In spiti area vacation used to commence with effect from 1st July every year. The applicant was also supplied with a standard form of agreement to be executed by him. The applicant was relieved from his dues on 30.6.1996. Relieving of applicant coincided with the closing of academic session in Spiti area. In spiti area vacation used to commence with effect from 1st July every year. The applicant was engaged vide order dated 1.9.1996 (Annexure A-2) on his representation, re-engaging him for another academic session on the old terms and conditions. The academic session was to come to an end on 30.6.1997. It is further submitted by the applicant that the meeting of Deputy Director of Education and District Education Officers held on 13.3.1996 in the Directorate of education as decision has been taken not to give appointment on contract basis to those teachers, who have completed two sessions would not be offered further appointment even on contract basis. The education department has been appointing teachers on adhoc basis and were subjected to fictional breaks to deny them the benefit of continuity and by following this policy, their appointments used to be terminated before commencement of vacation so as to deprive them the benefit of summer/winter vacation (s). Then came the land-mark decision of Honble Supreme Court of India reported in (1985) 4 SCC 43 Rattan Lal Vs. State of Haryana wherein the policy of hire and fire being followed by the State of Haryana in the matter of appointment of adhoc teachers was deprecated by the Apex Court . The State of Haryana was directed to pay the adhoc teachers salary and allowances for the period of vacation and to grant them leave etc. in accordance with the rules. Following this judgment the High Court of Himachal Pradesh in a bunch of matters decided alongwith CWP No. 91/86 (Suresh Sharma vs. State of M.P.) issued direction on 4th /March, 1986, inter-alia to the following effects: "No casual or artificial or fictional breaks at regular intervals shall be effected in the services of the petitioners and persons similarly situate as adhoc teachers and all such persons shall be continued to be employed as adhoc teachers without effecting any such breaks. The services of such adhoc teachers will be terminated strictly in accordance with law, that is to say in the event of the termination of service becoming necessary to make room for regular appointees. The services of such adhoc teachers will be terminated strictly in accordance with law, that is to say in the event of the termination of service becoming necessary to make room for regular appointees. The tenure as also stop gap appointees approached courts of law for extending them similar protection as was admissible to adhoc teachers and in their cases also orders were issued by courts to allow such tenure and stop-gap teachers to continue till vacancies were available and regular appointments through Himachal Pradesh Public Service Commission were made against such vacacies. The applicant further submits that when the respondents found that even by changing the word1 adhoc to tenure and stop gap, they were not able to come out of the mandate of various decisions of Supreme Court and High Court and this Tribunal, they resorted to new device and they termed these adhoc, tenure or stop-gap appointment as contract appointments and again introduced the policy of hire and fire and the method of giving notional and fictional breaks, so as to deprive these adhoc/ tenure /stop gap/ contract teachers, the benefit of summer/winter vacation and appintment on contract basis is an attempt to over-reach the law declared by the Supreme Court as also by High Court. Once a stop- gap arrangement has been made by the State for filling up a vacancy pending regular selection or for meeting some other exigency, such appointment is required to be continued till regular selection is made or the exigency for which the appointment is made, is accomplished. Thus the stipulation contained in the offer of appointment that the appointment would terminate on the closing of academic session or commencement of summer/winter vacation is clearly unreasonable, arbitrary and violative of Articles 14 and 16 of Constitution of India. The contract appointment is in substance adhoc appointment and is entitled to continue till the post is regularly filled up through Public Service Commission. Thus, the stipulation confined in contract of appointment as also appointment order that appointment would come to an end on termination of academic session or commencement of summer/ winter vacation, cannot be enforced against the applicant, the same being unreasonable and arbitrary and also violative of law declared by the Supreme Court of India. Thus, the stipulation confined in contract of appointment as also appointment order that appointment would come to an end on termination of academic session or commencement of summer/ winter vacation, cannot be enforced against the applicant, the same being unreasonable and arbitrary and also violative of law declared by the Supreme Court of India. The decision taken in the meeting held on 13.3.1996 referred to above, not to give appointment to those teachers, who have completed two sessions, is prima facie arbitrary and unreasonable and also an attempt to defeat the law declared by the Apex Court. At the time of framing regularisation scheme for teachers in the year 1994, the category of contract teachers had also been included alongwith adhoc/ tenure teachers. Subsequently the category of contract teachers has been deleted from the scheme for regularisation. This factor also goes to show that by using a different nomenclature the respondents have endeavoured to create impermissible classification in a class of teachers who have been appointed as a stop-gap arrangement all of whom qualify to be termed as adhoc teachers. Thus, the applicant submit that the intention of respondents is clear and un-ambiguous that the term contract has been coined by them only to deprive such teachers form the benefits which may become available to adhoc tenure appointees, the exclusion of the category of contract teachers from the scheme for regularisation of teachers itself is irrational and arbitrary, having been made on no rational principle and having no nexus with the object sought to be achieved by the scheme framed for regularisation of such teachers. The method of offering appointments to applicant and other similarly situated persons on contract basis by making them to sign on dotted lines, by itself is indicative of the intention of respondents to deprive the applicant and others of the benefits, which may become due and admissible to such appointees by efflux of time. 3. Reply has been filed on behalf of respondent No. 1 through secretary (Edu) to the Govt. of Himachal Pradesh . 3. Reply has been filed on behalf of respondent No. 1 through secretary (Edu) to the Govt. of Himachal Pradesh . In the reply it has been stated that the contract appointments are made for a specific time where after the services of such appointees automatically come to an end on the expiry of contract period and the applicant has therefore no case for his continuance as because his term of contract has come to an end on 17.7.1997 with the closure of school in Spiti valley due to summer vacations. It is further submitted by the respondents that the contract appointment of the applicant has come to an end on 30.6.1997 as per Annexure P-2 with the original application because the vacations used to start from 1st of July every year. The respondents have already issued instructions to the District Primary Education Officer to extend the contract till 14th of July, "997 when the vacations from the current session will start (Annexure R-1). The respondents offer the appointment either for an academic session or even for lesser period till the vacancy would be available further for another year on the same terms and condition. However, in case the applicant was to continue for third year fresh interviews are held and the applicant can compete alongwith other candidates and in this interview the applicant will certainly be in advantageous position, because he will be entitled for marks of experience as provided in the scheme. The school was to close on 30.6.1997 for summer vacations and it is not that the academic session has come to an end on 30.6.1997. It is further submitted that the appointment made on ad-hoc basis has no nexus with contract appointments and the same carry different meanings as per the provisions of Rules /law. The judgment given by the Honble Supreme Court in SLP (C) No. 9673 of 1992 in OA-118/92 titled as Dhirender Paul Gupta vs. State of H.P. has already set this whole Controversy to rest that any adhoc appointment made in contravention of sin liable to be set aside and this judgment comes from the judgment given by the Honble Supreme Court in J & K Public Service Commission Vs. Narinder Mohan and others. It is denied that the contract appointment has been made to over reach the law established by the Honble Supreme Court. Narinder Mohan and others. It is denied that the contract appointment has been made to over reach the law established by the Honble Supreme Court. In fact, Honble Supreme Court has by now issued directions not regularise any adhoc / tenure or other appointments as have been made in contravention of the provisions of R & P Rules . The regularisation either of adhoc or contract appointments cannot be ordered in defiance of the provisions of R & P Rules. The statutory rules do not permit the appointment of the applicant on regular basis and therefore, he was engaged on the post of J.B.T. on contract basis. The principle of last come first go cannot be made applicable on contract basis appointments which are for a limited period as per the condition mentioned in the appointment order. It is further submitted by the respondents that there is no question of giving finctional and notional breaks. The payment of salary is regulated according to the terms of contract. The services of the applicant cannot be regularised as per R & P Rules. 4. An affidavit on contract appointment in Education Department as also been filed by the Secretary (Education) in response to the directions issued by us on 30.6.1997. In this affidavit it has been submitted there is quite a long time gap between placement of requisition with H.P. Public Service Commission & actual receipt of recommendation from commission. Besides for some categories persons holding the prescribed qualification are not available. Keeping this in view the apartment of education has taken decision that the post of trained graduate teachers, lecturers schools cadre, lecturers college cadre an junior basic trained teachers should not be allowed to remain vacant so that the studies of the students do not suffer. The different procedures have been prescribed for making appointments on contract appointment to fill these posts. In this affidavit the respondents have explained ask 1 why the principle of last come first go cannot be adopted for the reasons as stated now :- (i). Junior basic trained teachers :- In this regard adequate number of persons who have undergone the prescribed training are not available as such, the District Education Officers have been directed! In this affidavit the respondents have explained ask 1 why the principle of last come first go cannot be adopted for the reasons as stated now :- (i). Junior basic trained teachers :- In this regard adequate number of persons who have undergone the prescribed training are not available as such, the District Education Officers have been directed! to interview persons registered with the District Employment Exchanges having Trained Graduate Qualifications or who have the qualifications prescribed for C & V Teachers of Shastri, Language Teachers, Drawing Teachers and prepare list on batch-wise basis for appointment on contract basis to JBT vacant posts. Selection are made from TGT (60%) & C & V (40%). Whenever, candidates with JBT certificates is available he/she will be appointed to a vacant! post or by replacing the contract appointee. With thousands oil primary schools in the District it is difficult for District Primary. Education Officers to maintain lists to determine the last appointee! nor it is possible to make the appointment of regular JBT only to the post where the last contract appointee was sent. (ii). Trained Graduate Teachers & School Lectures:- These posts! are filled by promotion, 25% in case of TGP and 50% of balance by batch-wise and direct recruitment each. These appointments are made in middle, high & Senior Secondary School. Although these, are state cadre, contract appointments to fill casual vacancies are made by the Headmasters & Principals by inviting names from the nearby Employment Exchanges. No record of these appointments is maintained by Directorate of Education nor it is feasible to do so considering the scattered nature of the educational institutions. As such, principle of Last come First go while making regular appointments cannot be adopted. (iii) College Cadre:- Appointments are made by direct recruitment through H.P. Public Service Commission to fill up the vacancies/ Principals of the Degree Colleges have, been authorised to makes contract appointment for a limited period. Again, the principal will! obtain names from the Employment Exchanges of the District (he may get names from one or two neighbouring Exchanges). However, the post of lecturer is a post of State Cadre and the principle of last come first go cannot be adopted as it is not possible to ensure appointment only in place of the last contract appointee. The appointment on contract basis are made for a period of one to two years. However, the post of lecturer is a post of State Cadre and the principle of last come first go cannot be adopted as it is not possible to ensure appointment only in place of the last contract appointee. The appointment on contract basis are made for a period of one to two years. The word Contract itself replies implies definiteness and a contract appointment is for a defined period. It cannot be extended indefinitely and such persons who are appointed on contract basis do not get a vested right to continue against these posts. It is further submitted that the Education Department is no longer making adhoc/ tenure appointments to fill up the casual vacancies. Only contract appointment are being made to which the decision of the Honble High Court given in the bunch of petitions including the one citied in this original application dated 4th March, 1986 does not apply. Another Short affidavit has also been filed by the Director of, Education giving details of vacancies of various categories which is as [follows ; as on 1.1.1999 : i) College lectuter 240 ii) School lecturers 795 iii) TGT Teachers 1552 iv) C & V Teachers 1242 v) Asstt. Libratians 192 Fresh recruitment have been made in the category of TGT and the present vacancy position is 301 as on 25.5.1999 in case of TGP teachers (Annexure R-ll) filed with the short affidavit meaning thereby that the steps are being taken up by respondents to fill up the various vacancies. 4. This case was ordered to be listed before Full Bench alongwith similar cases without mentioning the points of reference to be considered by Full Bench vide order dated 30.6.1997. The following points of reference to be considered by Full Bench had been framed vide order dated 29.12.1997 with the consent of the parties : i) Whether tenure / contract employment in education department of the State is in substance the same as adhoc appointment ii) In case point No. 1 is decided in the affirmative, whether they are entitled to continue till the time they are replaced by regularly appointed employees ? iii) Whether such employees are entitled to the benefit of regularisation at par with the adhoc teacher ? iii) Whether such employees are entitled to the benefit of regularisation at par with the adhoc teacher ? iv) Whether the policy to engage the teachers on contract/ tenure/adhoc basis, despite the existence of Recruitment & promotion Rules for appointment of persons on regular basis is, legal, valid and in consonance with the Constitutional mandate ? With the consent of the parties one more point was added on 27.5.1999 to the following effect : Whether the cut off date of March 31,1994 mentioned in the policy for regularisation is arbitrary and whether it meets the test of objectivity? The Full Bench answered the five points and it was held that: Point No. 1 That the appointment of applicant on contract basis is infact the same as that of adhoc / tenure teachers. Point No. II: After discussing this point it was held that the applicant was entitled to continue till the time they are replaced by regular appointee in accordance with the R & P Rules. Point No. Ill : With regard to point No. 3 the contract teachers are also entitled for regularisation at par with the adhoc / tenure teachers in accordance with the policy of the government regarding regularisation, if they have been appointed as such before 31.3.1994. Point No. 1V : With regard to point No. 4 it was held that making temporary and stop gap arrangement is not illegal but its continuation for a period of time without making any effort to fill up the post in accordance with the Recruitment and Promotion Rules is highly undersirable and illegal. Point No. V : With regard to point No. 5 it was held that the cut off date i.e. 31.3.1994 mentioned in the policy of regularisation is not arbitrary and does meet the test of objectivity. It was further held that the benefit of regularisation cannot be extended to persons appointed after 31.3.1994. 5. We have heard the learned counsel appearing on behalf of the applicant as also the learned Addl. Advocate General for the respondents. The Full Bench has covered most of the points raised by the applicant. However, the matter was not before the Full Bench with regard to the principle of last come first go;. The reasons advanced by the respondents are seems to be convincing in the facts and circumstances of the case. Advocate General for the respondents. The Full Bench has covered most of the points raised by the applicant. However, the matter was not before the Full Bench with regard to the principle of last come first go;. The reasons advanced by the respondents are seems to be convincing in the facts and circumstances of the case. It is not possible to follow the principle of last come first go as explained by the respondent. It will create very difficult situation. Respondents have to fill up the vacancies at the earliest and they resort to a very limited selection. The local employment exchanges are approached to sponsor the names of candidates and the appointments are made by the Head of the Institutions and though in many cases these are State Cadre posts. Obviously it is not possible to keep record of all the appointment made by various head of Institutions at the Directorate level. In these circumstances the principle of last come first go cannot be adopted. 6. The Full Bench, thus has convered most of the points raised by the applicant. Since it has been held that the applicant shall continue with the respondents till he is replaced by regularly selected persons in accordance with the Recruitment and Promotion Rules, the applicant shall be entitled for salary of Summer winter vacations and in respect of other types of vacations holidays and shall also be entitled to the arrears for the period for which he has been deprived of and for such vacation holidays and no notional and fictional breaks shall be given to the applicant. The application stands finally disposed of with above referred to terms with no orders as to costs.