Ram Niwas v. State of Rajasthan — 1998 DIGILAW 721 (RAJ)

Honble GUPTA, J.–In this writ petition and the writ petitions mentioned in the Schedule the petitioners sought directions against proposed termination of their services on 31.3.98, and to continue them in service till regularly selected candidates are made available through Rajasthan Public Service Commission to replace them. (2). The facts are borrowed from writ petition no. 884/98. The respondent no.2 issued an advertisement on 6.10.97 inviting applications for appointment to the post of Lecturers in different subjects for a period of four months or till the availability of selected candidates from the R.P.S.C., whichever is earlier. The petitioner being eligible applied for the post of Lecturer. He was found suitable for the appointment to the post and was appointed in a College at Chmanpura Shahpura vide order dt. 15.11.97 upto 31.3.98. The petitioner joined his duties on 18.11.97. Thereafter the R.P.S.C. also advertised posts to be filled in by selection vide advertisement no. 5/97-98 dt. 17.12.97. The applications were required to be submitted to the R.P.S.C. upto 9.2.98. The petitioner has also applied for the post. The petitioners in the writ petitions mentioned in the Schedule were also appointed as Lecturers for the period ending on 31.3.98. (3). The petitioners case is that the term of the appointment of the petitioner is to expire on 31.3.98 and hence his services shall be terminated on 31.3.98 and by this act of the respondents he would be deprived of the emoluments for the pe- riod of summer vacation and for the period till regular appointments are given after selection. It has been prayed that in the appointment order of the petitioner the fixing of the term upto 31.3.98 is illegal in view of the decision of this Court in the case of Mrs. Anita Kothari vs. State. It has been further prayed that the practice of giving temporary appointment upto the end of the academic session and to give fresh appointment on the commencement of next academic session is illegal as it a mechanism just to deprive the incumbents of emoluments for summer vacation whereas the vacations are part of the academic work and during that period the teachers get time to read new literature and update their knowledge. It has been prayed that the petitioner being qualified to hold the post of Lecturer should be allowed to continue till the regular appointments are made. (4). It has been prayed that the petitioner being qualified to hold the post of Lecturer should be allowed to continue till the regular appointments are made. (4). In the return, the respondents case is that the petitioner was given appointment for a fixed period i.e. upto 31.3.98 or till a candidate duly selected by the R.P.S.C. is made available whichever is earlier and therefore he has acquired to serve upto 31.3.98 only and his service will be terminated in accordance with the terms of appointment. It has been denied that the term of the appointment fixed upto 31.3.98 is illegal. It has been averred that the petitioner accepted the terms of the appointment and therefore now he cannot be permitted to challenge these terms. (5). It is relevant to point out that under the interim orders passed by this Court all the petitioners are continuing in service even after 31.3.98. (6). Mr. Mridul, learned Sr. Advocate appearing for the petitioners contended that the termination of the petitioner on 31.3.98 is not permissible in view of the decisions of the Apex Court and this Court. He cited the following cases : Ratanlal vs. State of Haryana (1), Rajvinder Singh vs. State of Punjab (2), Mrs. Anita Kothari vs. State of Raj. (3) and Lecturers Forum vs. State of Raj. (4). (7). As against this Mr. Singhvi, learned counsel for the respondents contended that the petitioners were appointed for a fixed term and therefore they have no right whatsoever to continue after 31.3.98. He canvassed that neither there is violation of any rule or direction in appointing the petitioners for a fixed term. According to him the petitioners had accepted the terms of the appointment and they should not be permitted to challenge those terms. He submitted that the ratio of the cases cited on behalf of the petitioners is not that in each and every case the court should direct the continuance of the services of the teachers appointed on adhoc basis. He tried to distinguish the cases cited by Mr. Mridul. Relying on the cases of Dr. L.M. Nath vs. Dr. S.K. Kacker & Ors. (5), Deva Ram vs. State of Rajasthan (6), Dr. Aruna Pandey vs. Malviya Regional Engineering College (7), Smt. Shashi vs. State of Raj. (8) and Rajkiya Mahavidhyalaya Aasthai Vyakhyata Sangharsh Samiti vs. State of Raj. (9), Mr. Mridul. Relying on the cases of Dr. L.M. Nath vs. Dr. S.K. Kacker & Ors. (5), Deva Ram vs. State of Rajasthan (6), Dr. Aruna Pandey vs. Malviya Regional Engineering College (7), Smt. Shashi vs. State of Raj. (8) and Rajkiya Mahavidhyalaya Aasthai Vyakhyata Sangharsh Samiti vs. State of Raj. (9), Mr. Singhvi contended that the petitioners who were appointed on adhoc basis do not have a right to continue in service after 31.3.98. (8). I have given the matter my anxious consideration. It is an admitted fact that the appointment of the petitioners was made on adhoc basis. This appointment was made under Rule 29 of the Rajasthan Educational (Collegiate Branch Service) Rules, 1986. Rule 29 reads as follows :- ``29 Urgent Temporary Appointment:–(1) A vacancy in the service which cannot be filled in immediately either by direct recruitment or by promotion under the rules may be filled in by the Government or by the Authority competent to make appointments as the case may be by appointing in an officiating capacity thereto an Officer eligible for appointment to the post by promotion or by appointing temporarily thereto a person eligible for direct recruitment to the service, where such recruitment has been provided under the provisions of these rules. Provided that such an appointment will not be continued beyond a period of one year without referring the case to the Commission for concurrence where such concurrence is necessary; and shall be terminated immediately on its refusal to concur. Provided further that in respect of a post in the service for which both methods of recruitment have been prescribed, the Appointing Authority or the Authority Competent to make appointments, shall not, save with specific permission of the Government in the Department of Personnel, fill the temporary vacancy against the direct rec- ruitment quota by a whole time appointment for a period exceedng three months otherwise than out of persons elibible for direct recruitment and after a short term advertisement as per procedure which may be laid down by the Government from time to time, upto the end of the academic session or till a candidate selected by the Commis- sion is made available, whichever is earlier. (2) xxx). (9). (2) xxx). (9). A reading of the above rule makes it clear that appointment on urgent temporary basis can be made to a maximum period of one year out of the persons eligible for direct recruitment and after a short term advertisement. (10). The following facts emerge from the advertisement, Rules and the appointment orders of the petitioners :– (i) The appointments were made under Rule 29 for a period upto 31.3.98 and even this period could be curtailed if the regularly selected persons from the R.P.S.C. were made available prior to 31.3.98. (ii) There was automatic termination of the services of the petitioner on 31.3.98. (iii) For regular recruitment through RPSC a requisition had already been sent to the R.P.S.C. on 1.9.97. (11). The above conditions clearly indicate that the appointment of the peti- tioners was for a fixed term and it was made as a stop gap arrangement upto 31.3.98. The object of the short term appointment on urgent temporary basis was obvious. Though the requisition for selection had already been sent to the RPSC, yet some time was bound to be taken in the completion of recruitment process. Hence, in order to keep the studies going on the appointments were made. When there is fixed term appointment, it is difficult to accept that the appointees have a right to continue in service even after the expiry of that term. (12). In the case of Dr. L.M. Nath (supra), the Apex Court has observed that where the tenure of the incumbent expires and there is no express order extending the same, the incumbent has no right to continue on the post. It is relevant to state that in that case also in the appointment order, it was clearly stated that Professor L.N. Nath would look after the functions of the Director of the All India Institute of Medical Sciences for a period not exceeding six months or till such time a new Director is appointed. In view of the terms of the appointment, the Honble Apex Court held that Dr. Nath could not continue after 15.10.95. (13). It is to be seen as to in what manner the rulings cited by Mr. Mridul help the petitioners. (14). In view of the terms of the appointment, the Honble Apex Court held that Dr. Nath could not continue after 15.10.95. (13). It is to be seen as to in what manner the rulings cited by Mr. Mridul help the petitioners. (14). In the case of Ratanlal (supra) the facts were that a substantial number of adhoc appointments were made on the existing vacancies which remained unfilled for three to four years and the State Government did not take steps to app- oint teachers in accordance with the Rules. It was noticed by the Apex Court that there was a practice in Haryana in making appointments in this manner and those teachers were denied the benefits available to the regular appointed teachers. It was found that the adhoc teachers were subjected to arbitrary `hiring and firing policy. In these circumstances the Apex Court deprecated the policy of the State Government to make adhoc appointments of the teachers and not to continue them with salary and allowances for the period of summer vacation by resorting to fictional breaks. In that case, it is obvious, it was noticed that the Government was not taking steps to make regular appointments and continuously for years together the same persons were appointed and their services were terminated at the commencement of the summer vacation and they were given reappointment on the commencement of the academic session. The ratio of the case is that where it is found that the Government does not take steps to make appointments on regular basis and resorts to the methodology whereby deprives the teachers of the benefits of the salary in the summer vacations by terminating their services before the commencement of the summer vacation and reappointing them thereafter, the action of the Government is arbitrary and illegal. (15). The Division Bench of this Court in the case of Smt. Shashi (supra) has dealt with the controversy regarding the rights of the teachers appointed under Rule 29 of the Rajasthan Educational Service (Collegiate Branch) Rules, 1971. In that case the petitioners had based their claim on the basis of the Supreme Court decision rendered in the case of Ratanlal (supra). In that case the petitioners had based their claim on the basis of the Supreme Court decision rendered in the case of Ratanlal (supra). It was observed as follows :– ``So far as the case of Ratanlal (supra) is concerned, we may state that it does not appear from the perusal of the judgment that there as any well defined policy/guidelines for making appointments and the practice of making adhoc appointments for short periods, then re-appointing and giving a break was depricated. (16). In the instant case, it is not the case for the petitioners that the State Government did not hold regular appointments in the earlier years or that they were given appointments in earlier years also and their services were terminated at the commencement of the summer vacation. It is significant to point out that the State Government has been vigilant in the performance of its duties as the requisition had already been sent to the RPSC on 1.9.97 for regular selection i.e. more than two months before the petitioners were appointed on 15.11.97. The appointments were obviously made as a stop gap arrangements, as the regular appointments were likely to take some time. (17). In the report of the case of Rajvinder Singh (supra) the detailed facts are not stated. However it is obvious that it was found by the Supreme Court that the State of Punjab was following a practice to appoint fresh people every time. It terminated the appointments of the persons on the commencement of the vacation. The Supreme Court in these circumstances directed that the petitioner should be continued in service till the date the regularly selected candidates by the P.S.C. are appointed to the post. It seems that it came to the notice of the Apex Court that the Government was not taking steps to appoint teachers through P.S.C. and methodology was adopted of hiring and firing. It is in these circumstances the Supreme Court directed that the services of the adhoc teachers should not be terminated. The position is certainly different in the instant case. In the instant matter, it is not averred that the respondents were following a practice of appoint- ing fresh people every time and regular selections have not been made since long. (18). In the case of Mrs. The position is certainly different in the instant case. In the instant matter, it is not averred that the respondents were following a practice of appoint- ing fresh people every time and regular selections have not been made since long. (18). In the case of Mrs. Anita Kothari (supra) also it was noticed by this Court that the petitioner continued on the post of Lecturer as her appointment was revived every year after academic session and she had put in seven years of service but the P.S.C. had not advertised the posts. Not only this, even the mandate given by this Court in an earlier case was not complied with. It is in these circumstances, this Court in view of the decision of the Apex Court in the case of Rajvinder Singh (supra) directed the continuance of services of the adhoc employees till the directly recruitted R.P.S.C. recruitees are made available. (19). The position in the case of Lecturers Forum (supra) is not very different. In that case also, the facts were that the State Government had adopted the methodology for making temporary appointment for few months in the whole academic session and then repeating the same in the next session and there was no regular appointment to the post. It was noticed that the petitioners in the writ petition of Lecturers Forum were working as Lecturers for 10 to 4 years and some of them were appointed even in the year 1982. In these circumstances, this Court following the decision of Rajbala vs. State of Punjab (Civil Original jurisdiction writ petition no. 125/87) and Rajbinder Singh vs. State of Punjab (supra) directed that the services of the temporary Lecturers shall not be terminated till candidates selected by the R.P.S.C. are made available. (20). The case is clearly distinguishable. In that case, as stated above the practice of making adhoc appointments was going on for several years and the State Government had not taken steps for making regular appointments and there- fore it could not be ascertained as to how many years or months would be taken by the State Government in making regular appointments. In these circumstances, the Court directed that the services of the adhoc appointees be not terminated till the regularly selected candidates are available. In the instant case, the P.S.C. has already issued notification on 17.12.97 which is Anx. In these circumstances, the Court directed that the services of the adhoc appointees be not terminated till the regularly selected candidates are available. In the instant case, the P.S.C. has already issued notification on 17.12.97 which is Anx. 3 on record whereby the appli- cations for appointment to the post of Lecturers have been invited and the last date of submitting the application was 9.2.98. It is obvious that concrete steps have been taken by the respondents in making regular appointments and there is no reason to accept that such appointments would not be made by the time, the academic session commences. (21). During the course of arguments, Mr. Mridul pointing out that while deciding the case of Lecturers Form vs. State of Raj. (supra) one more writ petition Jagmohan Mathodiya vs. State of Raj. was decided and the facts of that case indicate that the petitioners of that case were appointed for the first time, argued that the fact situation in the instant matters is similar. In my opinion, the contention is not acceptable. The special facts in that writ petition were that the rules of recruitment of teaching staff of the institutions were under preparation for a number of years and the same had not been finalised till the disposal of the writ petition and it was brought to the notice of the court that methodology of the temporary appointment was being resorted to for last many years and every time the services of the Lecturers were terminated at the commencement of the session. It is in back ground of these circumstances this Court decided that writ petition in the same manner as that of the Lecturers Forum vs. State of Rajasthan. (22). In the instant cases, there are clear service rules. The petitioners have been appointed on urgent temporary basis under Rule 29 with a specific condition that the appointments will continue latest by 31.3.98 and in the meantime the P.S.C. has also advertised the posts and the selection process is in progress. That being so the ruling does not help the petitioners. (23). It has been held by the Apex Court in the case of State of Punjab vs. Surinder Kumar (10) that a decision is available as a precedent only if it decides a question of law. That being so the ruling does not help the petitioners. (23). It has been held by the Apex Court in the case of State of Punjab vs. Surinder Kumar (10) that a decision is available as a precedent only if it decides a question of law. In the case of Mittal Engineering vs. Collector, Central Excise (11) it has been held that a decision cannot be relied in support of a proposition that it did not decide. In the case of Madhav Rao Scindia vs. Union of India (12) the Constitution Bench observed as follows :- ``It is difficult to regard a word, a clause or a sentence occurring in a judgment of this Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment. Similarly in the case of C.I.T. vs. Sun Engineering Works (13) their lordships have observed that a judgment should be construed as a whole in the light of the ques- tions involved in the case and not words or sentence from the judgments divorced from the context. (24). Thus a judgment becomes precedent when a question which was in controversy was decided by the Court. In none of the cases cited by Mr. Mridul there was a fact situation that the appointments were made for a fixed term and at the same time process for regular appointment had been commenced and yet the court directed that the services of the imcumbent would continue. The observations made in the cases are to be read in the context and the peculiar facts of those cases. As already stated, in all these cases, the Courts had noticed that the Govern- ment had not taken steps to make regular appointments and as a practice short term appointments were made after terminating the services of the appointees and they were again appointed after summer vacation. This is certainly not the fact situation in the instant cases. (25). There is no rule or any other statutory provision which gives a right to the petitioners to continue in service. Mr. Mriduls contention was that law laid down by the Apex Court in the case of Ratanlal (supra) gives a right to the petitioners to continue in service in view of Article 141 of the Constitution of India. (25). There is no rule or any other statutory provision which gives a right to the petitioners to continue in service. Mr. Mriduls contention was that law laid down by the Apex Court in the case of Ratanlal (supra) gives a right to the petitioners to continue in service in view of Article 141 of the Constitution of India. With respects, I may say that the Honble Apex Court has not laid down that in all cases where the teachers are appointed for a short term period upto the commen- cement of the vacation their services should be continued. The decision was given on the peculiar facts of the case before their lordships. It is relevant to state that the Honble Apex Court has very wide powers in giving directions in any matter for doing complete justice by virtue of Article 142 of the Constitution of India, which cannot be done by this Court. The following observations of the Apex Court in the case of State of Punjab vs. Surindar Kaur (supra) deserve to be reproduced: ``The Constitution has, by Art. 142, empowered the Supreme Court to make such orders as may be necessary ``for doing complete justice in any case or matter pending before it, which authority the High Court does not enjoy. The jurisdiction of the High Court while dealing with a writ petition, is circumscribed by the limitations discussed and declared by the judicial decisions, and it cannot transgress the limits on the basis of whims or subjective sense of justice varying from Judge to Judge. (26). It may be that because of the termination of the services the petitioners would not get salary for the vacation period but that cannot be the ground to direct the respondents to continue the petitioners in service who were given appointments under Rule 29 of the Rules of 1971 for a period not beyond 31.3.98. Keeping in view that the process of recruitment through R.P.S.C. has commenced there cannot be any justification to give directions to the respondents to continue the services of the petitioners during summer vacation. (27). It is not without significance to state that the Govt. Servants other than teachers become entitled to avail of privilege leave with full pay on earning the same which is not more than 30 days in 12 months of service. (27). It is not without significance to state that the Govt. Servants other than teachers become entitled to avail of privilege leave with full pay on earning the same which is not more than 30 days in 12 months of service. The teachers in lieu of the privilege leave are allowed to avail of vacation. The petitioners have put in 3 months service only. There cannot be any justification in directing their continuance in the summer vacation just to make them entitled to salary for the vacation period. (28). Consequently, there is no merit in this writ petition and the writ petitions mentioned in the Schedule which are hereby dismissed. The Schedule shall form part of the judgment.