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Madhya Pradesh High Court · body

2003 DIGILAW 1284 (MP)

K. P. Shrivastava v. State of M. P.

2003-11-24

DEEPAK VERMA, S.K.SETH

body2003
ORDER Seth, J.--1. This writ petition is directed against the Order dated 30.12.2000 passed by the M.P. State Administrative Tribunal in O.A. No. 792 of 1993. The said O.A. was filed by the petitioner to assail the order dated 25.2.1993 Annexure P-2, whereby petitioner's service as Lecturer in Law stood terminated w.e.f. 16.12.1992. 2. Relevant facts which are necessary for the disposal of this writ petition lie in a narrow compass. Petitioner was given an ad hoc appointment on the post of Lecturer in Law by the Principal, Government K.P. College, Dewas vide order dated 27.8.1980. Said ad hoc appointment continued with short intermittent breaks. Vide order dated 28.4.1984, petitioner was once again given ad hoc appointment, on the strength of which petitioner continued in service as ad hoc Lecturer in Law. Petitioner came forward with the case that abruptly, the Principal of the College terminated his service w.e.f. 16.12.1992. Petitioner, therefore, filed the Original application for reinstatement in service and for payment of entire arrears of salary. After service of notice, respondents filed reply and opposed the original application of the petitioner. 3. Learned Tribunal, after hearing learned counsel for applicant and State Government, found no merit and substance in the original application, accordingly dismissed the same. Learned Tribunal found that as the petitioner was not holding a regular appointment on the post of Lecturer in terms of M.P. Educational Service (Collegiate Branch) Recruitment Rules, 1967 (hereinafter referred to "1967 Rules" for short) but was having only an ad hoc appointment on 31.3.1986, therefore his case was considered under M.P. Regularisation of Ad hoc Appointment Rules, 1986, framed in exercise of powers conferred by proviso to Article 309 of the Constitution of India. Tribunal also found that like many ineligible ad hoc appointees, petitioner also lacked in the essential qualifications prescribed for the post of Lecturer, therefore, State Government offered two options to petitioner, viz. (1) accept .appointment in the School Education Branch and obtain requisite qualification within four years to have review of the case for appointment on the Post of Assistant Professor in the Collegiate Branch or (2) continue to work as Assistant Professor and obtain the requisite qualification prescribed for the post of Assistant Professor, Law by 30.10.1992 failing which ad hoc appointment would come to an end automatically w.e.f. 16.11.1992. Since petitioner opted for the second option but failed to acquire the prescribed qualification within four years' period, Tribunal found no illegality in the action taken by the respondents in not allowing the petitioner to work any further. Accordingly, Tribunal dismissed the original application but directed respondents to pay the salary for the period during which petitioner had actually worked beyond 16.11.1992. 4. Shri B.A. Nigam, learned counsel for the petitioner contended before us that the view taken by the Tribunal is unsustainable in law. It was submitted that petitioner was appointed after due selection as petitioner fulfilled and possessed necessary educational qualifications prescribed under 1967 Rules in the year 1980. It was submitted by learned counsel, that the petitioner in the year 1987 could not be asked or forced to obtain a higher qualification introduced in the 1967 Rules w.e.f. 2.3.1987, vide Notification No. F. 21-4-86-A-XXXVIII dated 28th February 1987 published in M.P. Rajpatra dated 2.3.1987. According to him this would amount to retrospective application of subsequent changes in the 1967 Rules after petitioner had entered the service in the year 1980. As regards the undertaking furnished by petitioner, contention was that the same was not furnished voluntarily inasmuch as looking to scarcity of government jobs and large unemployment, petitioner in order to save his job gave the undertaking which, under the facts and in the circumstances of case, can be described as furnishing undertaking under duress. Thus, according to learned counsel, respondents cannot take advantage of undertaking given by the petitioner so as to end his service career after taking work from him for the past thirteen years. Thus, according to learned counsel for the petitioner, writ petition deserves to be allowed and impugned orders deserve to be set aside with a direction to take back the petitioner in service and to pay him entire arrears of salary. Learned counsel for petitioner in support of his contentions placed strong reliance on the following decisions of the Supreme Court reported in AIR 1990 SC 371 ; AIR 1992 SC 2130 ; AIR 1992 SC 677 ; AIR 1994 SC 55 , (1991) 3 SLR 712 and AIR 1988 SC 344 . Learned counsel for petitioner in support of his contentions placed strong reliance on the following decisions of the Supreme Court reported in AIR 1990 SC 371 ; AIR 1992 SC 2130 ; AIR 1992 SC 677 ; AIR 1994 SC 55 , (1991) 3 SLR 712 and AIR 1988 SC 344 . On the other hand, Smt. Meena Chaphekar, learned Government Advocate while supporting the Order of the Tribunal, submitted that in view of provisions of M.P. Regularisation of Ad-hoc Appointments Rules, 1986 (hereinafter referred to as 1986 Rules for short) and the undertaking furnished by the petitioner, he was given four years' time to acquire the qualification as introduced in 1967 Rules w.e.f. 2.3.1987 by way of amendment. It was also contended that having failed to obtain requisite qualification even after availing the opportunity; petitioner now cannot be allowed to turn around to contend that despite lack of requisite qualification, his ad hoc appointment de'hors the recruitment rules should be regularized and he be allowed to continue in service as regular employee. She, therefore, submitted that the Tribunal rightly rejected the original application and writ petition being devoid of any merit and substance deserves the same fate. 5. We have heard learned counsel for parties at length and carefully examined the record. Before dealing with the rival submissions, it would be pertinent to point out that there was no dispute at the Bar that post of Lecturer as it was known in the year 1980, before it was re-designated as Assistant Professor, in the Collegiate Branch, is the lowest rung of the ladder of hierarchy and the direct recruitment thereof is governed by 1967 Rules. It is also not disputed by learned counsel for petitioner that for regular recruitment, M.P. Public Service Commission is the authorised agency to prepare select list from which the State Government issues regular appointment orders. It is also not' disputed that petitioner did not face any selection process conducted by PSC for his regular appointment as lecturer and right from inception petitioner continued to hold only an ad hoc appointment like many persons in other services under the State Government. 6. It is also not' disputed that petitioner did not face any selection process conducted by PSC for his regular appointment as lecturer and right from inception petitioner continued to hold only an ad hoc appointment like many persons in other services under the State Government. 6. As a one time measure, 1986 Rules were notified in official gazette on 5.6.1986 for regularization of ad hoc appointments of those who were appointed on ad hoc basis before 31.3.1986 and working on the said date on the posts in the departments as mentioned in the Schedule appended to 1986 Rules. Post of Assistant Professor was one of such posts, which was covered by 1986 Rules. These 1986 Rules, which were to remain in force up to 30.6.1987, envisaged constitution of departmental screening committees for preparation of select list for the regular appointment by the appointing authority. One of the eligibility criteria under Rule 5(iii) of 1986 Rules was that the incumbent must possess requisite qualification prescribed for regular appointment in the existing recruitment rules applicable to the post held by him on ad hoc basis (emphasis added by us). Rule 13 of 1986 Rules provided for immediate termination of ad hoc appointment of those, who were either not found suitable by the screening committee or ineligible in terms of Rule 5 of 1986 Rules. 7. Perusal of Order of the Tribunal reveals and it is undisputed before us that the Screening Committee considered case of petitioner and found him ineligible in terms of Rule 5(iii) of 1986 Rules, therefore, instead of resorting to Rule 13, State Government offered two options. Petitioner opted for the second option as mentioned above and gave undertaking to acquire the prescribed qualification by 16.11.1992 while working as ad hoc Lecturer/Assistant Professor. After considering rival submissions, in the considered opinion of this Court, outcome of the case would depend upon the meaning of expression "requisite qualification prescribed for regular appointment in the existing recruitment rules applicable to the post held by him on ad hoc basis" as it occurs in Rule 5(iii) of 1986 Rules. According to learned counsel for petitioner, it means the qualifications that were prescribed at the time of his initial ad hoc appointment in the year 1980, whereas according learned Government Advocate, it would embrace subsequent amendments made from time to time in 1967 Rules. According to learned counsel for petitioner, it means the qualifications that were prescribed at the time of his initial ad hoc appointment in the year 1980, whereas according learned Government Advocate, it would embrace subsequent amendments made from time to time in 1967 Rules. In the aforesaid context, it would be necessary to notice what were the qualifications prescribed for the post in the year 1980 and what were the qualifications prescribed as on 31.3.1986 which was the cut-off date for consideration of the screening committee. 8. By Notification No. F-1-180-78-E-V-LA W-XX dated 27th February 1980, published in official gazette on 21.3.1980, certain amendment were inserted in Schedule III of 1967 Rules and for the post of Lecturer in Law following essential qualifications were prescribed: "(5) Law -(a) A doctorate degree in Law or published research work of equivalent standard. (b) A second class Master's degree in Law. (c) At least 50% marks at the High School/Higher Secondary/ Pre-University Examination, as the case may be, and at the LL.B. examinations: Provided that a candidate possessing above qualifications is not available or is not considered suitable a person possessing following qualification may be recruited: (i) A second class Master's degree in Law. (ii) At least 50% marks at the High School/Higher Secondary/ Pre-University Examination, as the case may be, and at the LL.B. examinations." (See Annexure P-14). 9. (ii) At least 50% marks at the High School/Higher Secondary/ Pre-University Examination, as the case may be, and at the LL.B. examinations." (See Annexure P-14). 9. In the year 1982, by Notification No. F-1-8-82-78-E-XXXVIII dated 9th July 1982, published in official gazette on 13.7.1982, again changes in Schedule III of 1967 Rules were made and for the post of Lecturer in Law, essential qualification prescribed was as under: "(2) Lecturer For Lecturers in all subjects other than Music and Drawing and painting- (A) Consistently good academic record with at least 1st or high second class (B in seven point scale) Master's Degree in a relevant subject or an equivalent degree of foreign university, and (B) An M. Phil, degree or recognised beyond Master's level or published work indicating the capacity of a candidate for independent research work : Provided if the PSC is of the view that the research work of a candidate as evident either from his thesis or from his published work, is of a very high standard, they may relax any of the above qualifications: Provided further that if a candidate possessing above qualfications is not available or not considered suitable, the Govt., on the recommendations of PSC may appoint a possessing a consistently good academic record as above subject to his obtaining M.Phil. Degree or a recognized degree beyond Master's degree within five years of his appointment failing which is future increments may be withheld until he obtains that degree or give evidence of equivalent published work of high standard. N.B. Preference may be given to candidates who have teaching experience of degree and P.G. classes in the concerned subject on a full-time and regular basis of at least one year." (See Annexure P-20) 10. Once again in the year 1987, by Notification No. F-12-4-86A-XXXVIII dated 28th February 1987, published in official gazette on 2.3.1987, changes in Schedule III of 1967 Rules were made and for the post of Lecturer in Law (redesignated as Assistant Professor), essential qualification prescribed was as under: "(D) Law LL.M. degree with Note : These qualifications may not be insisted upon when a University appoints practising advocate as Part Time Lecturer. Explanation : For determining "good academic record" the following criteria shall be adopted: (i) A candidate holding a Ph. D. Degree should posses a high second class Master's degree; or (ii) A candidate without a Ph. Explanation : For determining "good academic record" the following criteria shall be adopted: (i) A candidate holding a Ph. D. Degree should posses a high second class Master's degree; or (ii) A candidate without a Ph. D. degree should posses a high second class Master's degree and second class in Bachelor's degree; or (iii) A candidate holding a Ph.D. degree but possessing second class Master's degree should have obtained First class in Bachelor's degree." 11. Now coming back to the rival submissions of learned counsel for parties, from the material available on the record, it is clear that petitioner did not possess prescribed essential qualification at no point of time, either at the time of initial ad hoc appointment, or when subsequent changes were introduced by way of amendment. Contention of learned counsel for petitioner that he was given initial ad hoc appointment by relaxing qualifications, in absence of any cogent material is neither here nor there. To relax the qualification, in the considered opinion of this Court, there has to be an express order. The petitioner has not placed any such order on record. It is now very well settled in law that under recruitment rules, qualifications for a post are prescribed in order to fulfil objects. In absence of essential qualification whole object would be defeated. The qualifications are necessary in the interest of and for the attainment of the object, namely imparting education to students. It is equally also well settled that employer has a right to amend the qualification prescribed for a post. In this view of the matter, the expression "requisite qualification prescribed for regular appointment in the existing recruitment rules applicable to the post held by him on ad hoc basis" occurring in Rule 5(iii) of 1986 Rules is very clear and in the considered opinion of this Court, relevant date for ascertaining the relevant qualification would be 31.3.1986 and not 27.8.1980 when petitioner was given ad hoc appointment for the first time. Undisputedly petitioner did not possess the qualification, therefore, he exercised the option to obtain the requisite qualification within specified time failing which he had agreed for the termination of ad hoc appointment. Contention that undertaking was obtained under duress or that the conditions of service were amended retrospectively has no force. Tribunal has rightly found that petitioner cannot be permitted to challenge non-regularization of his ad hoc appointment through indirect method. Contention that undertaking was obtained under duress or that the conditions of service were amended retrospectively has no force. Tribunal has rightly found that petitioner cannot be permitted to challenge non-regularization of his ad hoc appointment through indirect method. Claim in this regard is highly belated inasmuch as cause of action in this arose in the year 1987. If the petitioner wanted to continue in government service he was free to exercise first option which would have allowed him to continue in government service though in the school education branch of the Department. Thus, we find no merit and substance in the writ petition. Reliance placed on various decisions by the learned counsel for petitioner, as noticed in preceding paragraph, are also of no avail, in view of the specific provision contained in the Statutory Rules, viz. 1986 Rules which were framed in exercise of powers conferred by proviso to Article 309 of the Constitution and which were not the subject matter of consideration of Supreme Court in the cited decisions. 12. In view of the foregving discussion, we find that the entire writ petition is devoid substance; it is accordingly dismissed, but no orders as to costs. ...........................