Research › Search › Judgment

Rajasthan High Court · body

2006 DIGILAW 546 (RAJ)

Prabhavati v. State of Rajasthan

2006-02-16

RAJENDRA PRASAD VYAS, RAJESH BALIA

body2006
Judgment Rajesh Balia, J.-This appeal survives in respect of the six appellants only out of eleven petitioners who had preferred Writ Petition No. 2485/1991 and that too on a limited controversy about the treatment of services rendered on ad hoc basis prior to their regular selection as Lecturer under the J.N. Vyas University, Jodhpur which took place during the pendency of the writ petition in which all the appellants had been regularly appointed. 2. As we shall presently notice, the petition had been filed in the wake of prolonged continuation of petitioners on ad hoc temporary basis as Lecturer in the University of Jodhpur. The prayers, which were made, at the time of filing of the writ petition, were as under : “(i) by an appropriate writ, order or direction, the respondents may be directed to regularize the services of the petitioners on the posts of Assistant Professors on and from the date of their initial appointment with all consequential benefits; (ii) by an appropriate writ, order or direction, the breaks in the services of the petitioners for different periods as mentioned in Schedule - “A” may kindly be ordered to be declared illegal and it may be ordered to be treated as part of the regular service; (iii) in the alternative and without prejudice to the above, it is submitted that by an appropriate writ, order or direction the provisions of Section 3(2) & 3(3) of the Rajasthan Universities Teachers and Officers (Selection for Appointment) Act, 1974 may be declared illegal and be struck down. It may be declared that those Assistant Professors who are appointed on temporary/ad-hoc basis are entitled to continue in service till the regularly selected Assistant Professors are appointed vice the petitioners; (iv) in the alternative and without prejudice to the above, by an appropriate writ, order or direction, the respondents may be directed to hold regular selections for filling up the posts of Assistant Professor in the respondent University within such period as this Hon’ble Court may deem just and proper; (v) by an appropriate writ, order or direction, the respondents may be directed to pay salary to the petitioners in the regular scale of pay from the date they started teaching in pursuance of the order dated 17.01.1991 with all consequential benefits. The respondents may also be directed to pay salary to the petitioners for the summer vacations, 1991; (vi) by an appropriate writ, order or direction, the order dated 12.04.1991 (Annexure-22) and the order dated 30.04.1991 (Annexure-21) may be declared illegal and be quashed; (vii) any other appropriate writ, order or direction, which may be considered just and proper in the facts and circumstances of the case, may be issued in favour of the petitioners; (viii) costs of the writ petition may be awarded in favour of the petitioners”. 3. During the pendency of writ petition, somewhere in December, 1991 and January, 1992, all the appellants including four other petitioners, came to be regularly selected and appointed as Lecturers in the respective Departments and were later on confirmed. .4. In view of the aforesaid development, prayer as to regularization of the services of the petitioner-appellants on the basis of long officiating, or in the alternative to hold regular selections and make appointments on regular basis, became inapt. Prayer for payment of emoluments from 17.01.1991 until the date appellants actually worked in the pay scale applicable to Lecturers instead of payment on period basis, as was being made by the University, was allowed by the learned Single Judge following an earlier Bench decision of this Court in Narendra Singh’s case. Therefore, that part of the controversy also does not survive. The prayer that survived for consideration was about the treatment of period for which appellants had served prior to the date of regular appointment for the purpose of computation of their length of service in the context of computation of qualifying service for acquiring eligibility for next higher post under career advancement scheme. The dispute now before us is that from the date of first appointment of respective .appellants until 05.05.1990 they were continuously officiating on the respective posts to which they had been appointed and those appointments were against clear vacancies. There is no dispute either before us that had the ad hoc appointments which were given by the competent authority in accordance with the prevalent provisions of the University, continued un-interrupted until the date of regular appointment, the period would have been counted towards qualifying service as well as for other service benefits where the length of service was consideration. There is no dispute either before us that had the ad hoc appointments which were given by the competent authority in accordance with the prevalent provisions of the University, continued un-interrupted until the date of regular appointment, the period would have been counted towards qualifying service as well as for other service benefits where the length of service was consideration. This is also apparent on the basis of notification dated 07.03.1987 issued by the respondent University in terms of the Syndicate Resolution which inter alia relates to the power of condoning interruption in service. Clause 8 of the said Resolution reads that in case of such University employees interruption between his temporary services and permanent services followed by confirmation may be condoned provided that the break is caused due to delay in issue of appointment order and provided further that the break does not exceed six months. It is on this clause that the respondents rely to deny benefits of computation of continuous service by including the past services rendered by the appellants on ad hoc temporary basis after they have been appointed after due selection. Para 7 of the Resolution further stated that condonation of interruption of service could be to the maximum extent of 12 months only. Para 5 of the Resolution further stated that the period of condonation of service shall count only for calculation of total service for terminal benefits and that it shall not provide any other privilege to the employee. These condonation rules applied universally to those who were appointed originally on temporary or permanent basis. 5. In this context, the respondents have contended that after continuously serving with the University on ad hoc temporary basis until 05.05.1990, during which period pay and allowances for the summer vacations were also allowed to be drawn by the appellants, they were not re-appointed until 17.01.1991. Thus, there was a clear interruption of service which was also not condonable. Therefore, on facts, the past services rendered on ad hoc temporary basis being not continuous and un-interrupted until regular selections, the same could not be counted for any purpose and the interruption being not condonable, there was no occasion for the University to have exercised power for giving benefit of interrupted service by including the past services. 6. Therefore, on facts, the past services rendered on ad hoc temporary basis being not continuous and un-interrupted until regular selections, the same could not be counted for any purpose and the interruption being not condonable, there was no occasion for the University to have exercised power for giving benefit of interrupted service by including the past services. 6. Learned Counsel for the appellants had contended that non-continuation of services of the appellants until regular selections took place, was contrary to law laid down by the Supreme Court and it was only devised to deny the appellants benefit of salary for the vacation period and of the due services. Since the respondents have acted in breach of the law laid down by the Supreme Court and this Court consistently, the appellants must be deemed to have continued in service notwithstanding inaction on the part of the respondents to make timely orders of continuing with ad hoc appointments and in that view of the matter, the appellants are entitled to the benefit of continued past service on ad hoc temporary basis until their appointment on regular basis. In the alternative, it was also submitted by the learned Counsel for the appellants that at any rate, there was no occasion for the respondents to deny benefit of services rendered by the appellants since their ad hoc appointment from 17.01.1991 until the date of regular appointment, inasmuch as, prior to regular appointment and after the alleged termination of services w.e.f. 30.04.1991, the appellants had again been appointed on ad hoc temporary basis since November, 1991. .7. In support of this contention, learned Counsel for the appellants has drawn our attention to number of documents particularly Annexure-17 dated 12.07.1990. On the commencement of the new session, after termination of the services of the appellants on 05.05.1990 by which applications were invited for ad hoc appointments giving out that the University was in need of ad hoc appointments of Lecturer for the purpose of running the classes against clear existing vacancies notwithstanding that the services of previously continued ad hoc appointees had been terminated on 05.05.1990. On this, it was contended that it was a clear indication that subsequent inaction on the part of the respondents to make appropriate orders for continuing ad hoc appointments was with oblique motive of denying the appellants of their legitimate remuneration for the intervening vacations. On this, it was contended that it was a clear indication that subsequent inaction on the part of the respondents to make appropriate orders for continuing ad hoc appointments was with oblique motive of denying the appellants of their legitimate remuneration for the intervening vacations. In this connection, reliance was placed on the additional reply submitted by the respondent University admitting the applicability of Government decision under Rule 97 RSR for extending the benefit of summer vacation salary to the ad hoc temporary employees which inter alia provided that those ad hoc employees who have been appointed prior to 31st December of the academic session and re-joined their duty within twenty days of the opening of the new session following 31st December before which the incumbent has been appointed, he is entitled to the emoluments of the summer vacations implying that in such circumstances, service is considered to be continuous without interruption. As well as, learned Counsel has also relied on the chain of decisions deprecating non-continuance of ad hoc teachers until regularly selected candidates are available, except for the reason of inefficiency or misconduct. In Rattanlal & Ors. etc. etc. vs. State of Haryana & Ors., AIR 1987 SC 478 , Supreme Court was concerned with a case in which question has been raised whether it is open to the State Government to appoint teachers on ad hoc basis at the commencement of academic year and terminate their services before commencement of next summer vacation or earlier to appoint them again on ad hoc basis at the commencement of new academic yea .and to terminate their services before commencement of the succeeding summer vacation or earlier and to continue to do so year after year. The Court found that such policy of continuing ad hocism followed by the State Government for a long period resulted in breach of Articles 14 and 16 of the Constitution of India and mandated that such a situation cannot be permitted to last any longer. 8. In this connection, the Court noticed that a substantial number of such ad hoc appointments were made in the existing vacancies which have remained unfilled for 3-4 years. The Court also noticed the practice followed by the State of Haryana that it was appointing teachers for quite some time on ad hoc basis for short periods without any justifiable reason. In this connection, the Court noticed that a substantial number of such ad hoc appointments were made in the existing vacancies which have remained unfilled for 3-4 years. The Court also noticed the practice followed by the State of Haryana that it was appointing teachers for quite some time on ad hoc basis for short periods without any justifiable reason. In some cases, appointments were made for a period of six months only and they were renewed after a break of few days. If the teachers had been appointed regularly, they would have been entitled to the benefits of summer vacation alongwith the salary and allowances payable in respect of that period and to all other privileges such as casual leave, medical leave, maternity leave, etc. available to all the Government servants and such benefits are denied to those ad hoc appointees unreasonably on account of this pernicious system of appointment adopted by the State Government. In the aforesaid circumstances, State Government directed the respondent State apart from taking immediate steps to fill up in accordance with the relevant rules the vacancies in which teachers appointed on ad hoc basis were then working, and allowed all those teachers who were holding those posts on ad hoc basis to remain in those posts till the vacancies were duly filled up. 9. It was pointed out by the learned Counsel for the appellants that the fact situation in the present case is no different. Admitted position is that until 05.05.1990, all the appellants were serving continuously on ad hoc basis who had been given appointment in the like manner of giving periodical appointments and terminating their services before close of the academic session and then re-appointing them after start of the new session. In these circumstances, it is contended by the learned Counsel that, in view of the clear directions such persons who were continuing for a long time ought to have been allowed to remain in those posts till vacancies were duly filled up except in cases of termination of services on account of inefficiency and misconduct. That being not the position, termination of ad hoc temporary appointments of the appellants on 05.05.1990, in the first instance, and thereafter on 30.04.1991 in the second instance were bad in law and contrary to the directions of the Supreme Court. 10. That being not the position, termination of ad hoc temporary appointments of the appellants on 05.05.1990, in the first instance, and thereafter on 30.04.1991 in the second instance were bad in law and contrary to the directions of the Supreme Court. 10. To buttress this argument, learned Counsel; further referred to Sri Rabinarayan Mohapatra vs. State of Orissa & Ors., JT 1991 (2) SC 82, in which the Court reiterated the principle enunciated in Rattan Lal’s case (Supra), and quoted with approval the deprecation of the policy of the State of Haryana in giving appointment to the teachers in the manner stated above. In that case ultimately, the Court gave direction for regularisation of services of those who had two years or more continuous service prior to 312.1984 by extending benefit of validation of certain appointments and further directed that the State of Orissa will do well to consider the cases of all those who have completed one year or more as ad hoc teachers after 312.1984 and come out with a scheme or any other appropriate measure to regularize their services. 11. Reference was also made to two decisions of the Supreme Court, in which Supreme Court has directed respondent State authorities to continue ad hoc appointees in service until persons regularly selected by the Public Service Commission were appointed to the posts presently held by the incumbents enjoying those posts and also further directed that the services of such ad hoc employees would not be permitted to be terminated by transferring regularly recruited person from any institution to the institution where such ad hoc employee is working. Termination would be valid only when direct recruitment through Public Service Commission are made to such posts. Judgment s in Raj Bala & Ors. vs. State of Punjab & Anr., Civil Original Jurisdiction Writ Petition No. 125 of 1987 and Rabindersingh vs. State of Punjab & Ors., 1988 SCC (Suppl.) 428, have been referred and followed in the Bench decision of this Court in Mrs. Anita Kothari etc. etc. vs. State of Rajasthan & Ors., 1990 (1) RLR 87. These Judgment s according to the learned Counsel were very much in existence when services of the appellants were terminated for the first time and were not continued until regularly selected candidates were appointed. Anita Kothari etc. etc. vs. State of Rajasthan & Ors., 1990 (1) RLR 87. These Judgment s according to the learned Counsel were very much in existence when services of the appellants were terminated for the first time and were not continued until regularly selected candidates were appointed. Thus, it is contended that since the petitioners were entitled to continue in service until regularly selected candidates joined, the posts held by them, termination of their service or causing break in their service prior to that was invalid. It is not a case of interruption of service but the prayer is for setting aside such interruption and for issuing necessary directions as consequence of interruption of service is being created illegally. .12. Learned Counsel for the respondents has urged in this regard that there is no arbitrariness or lack of bona fide on the part of the respondents. It was pointed out by the learned Counsel that soon after appellants’ appointment on ad hoc basis for the academic session 1989-90 came to an end on 05.05.1990, an advertisement for regular selection was issued on 21.05.1990 and anticipating regular selections to be made shortly in pursuance thereof , no ad hoc appointments were made with the commencement of new session. However, the said notification was challenged by way of a writ petition as earlier notification of 1989 was challenged, which has been set aside by Judgment of this Court rendered in December, 1989. Therefore, .postponing of giving appointment was attributable to reasonable cause existed and therefore, the principle enunciated in the aforesaid Judgment s cannot further the caused of the appellants. In this connection, it was pointed out that second advertisement issued on 21.05.1990 was also subsequently set aside and again, they had to resort to fresh advertisement which ultimately fructified in regular appointments to be offered in December, 1991. It is in the aforesaid circumstances that when the second advertisement dated 21.05.1990 was set aside and the respondents had to again resort to fresh advertisement by starting the process de novo, having resorted to fresh short term ad hoc appointment in January, 1991 until the process for regular selection could be initiated again. That being the position, it was contended by Mr. That being the position, it was contended by Mr. Bhandari that interruption in service being not caused on account of any arbitrary action on the part of the respondents but on account of the pendency of litigation, to await regular selections which had already been mooted by the respondents, break in service cannot be considered to be arbitrary and unreasonable so as to be ignored and there being uncondonable interruption in service to the credit of the appellants, they are not entitled to consider their termination of services at the end of academic session 1989-90 to be automatically invalid nor such termination in the like circumstances, at the close of session 1991, could be ignored. 13. Having given our careful consideration to the rival contentions, we are of the opinion that notwithstanding that the appellants might have sought a mandamus for continuing in service until regularly selected candidates were available and other litigations were pending, there is nothing to support them seeking mandamus that even those persons whose services had come to an end on ad hoc basis could be allowed to be reappointed for being continued until regularly selected candidates are available. The precedents submitted by the learned Counsel for the appellants do support the view that in a case where the incumbents were already continuing on the post, they have been allowed to continue until regularly selected candidates had been appointed and for those who were not continuing on the posts, instead of directing them to be re-appointed and directing them to be continued, the Courts have to safeguard their interest to the extent that no ad hoc appointment could be made without considering their cases for ad hoc appointments if the competent authority so desired to have appointments on ad hoc basis in future. That was the direction given in Rattan Lal’s case but no direction was given for re-appointing persons whose services had already come to an end and were not holding the post when the matter was being considered for terminating services and were not holding regular appointments. 14. Yet, another factor which militates against the appellants’ claim is that they had not challenged termination of their services vide order dated 05.05.1990 or termination of services on 30.04.1991 until they were re-appointed. 14. Yet, another factor which militates against the appellants’ claim is that they had not challenged termination of their services vide order dated 05.05.1990 or termination of services on 30.04.1991 until they were re-appointed. The primary relief claimed in the writ petition was about their continuance in service on regular basis by regularisation on directing the respondents for completing process of regular selections. Treatment of the period of break in service as part of continuous service was not independent of the direction for regularisation with effect from the date of initial appointment. Since regular appointments were made during the pendency of the writ petition, which included appellants also, prayer for regularisation from back date had become redundant. Apart from regularisation of the past services as regular or resorting to the power of the respondents in condoning such interruption by exercising their authority in this regard, by no other methodology, the period during which they were employed in the University could be counted as continuous officiation on the post. Essential pre-requisite for condoning the break in service rendered on ad hoc temporary basis with the regular services did not exist. We have noticed above that in the first instance, termination of the ad hoc appointment took place on 05.05.1990 and fresh appointments were not made until 17.01.1991. In the circumstances, ad hoc appointment was not offered notwithstanding advertisement to that effect was issued in July, 1990. It cannot be said that the respondents had acted arbitrarily in awaiting completion of the process of advertisement issued for regular recruitment for a short period and finding that the process had been interrupted on account of quashing of the said advertisement, they resorted again to give appointment on ad hoc basis for the remainder period of the academic session and did not resort to fresh ad hoc appointments in the new session in anticipation of regular selections being made thereafter. In these circumstances, we are of the opinion that appellants are not entitled to relief prayed for in the appeal. The appeal fails and is hereby dismissed. No costs.