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2007 DIGILAW 213 (PNJ)

Sumangal Roy v. Union Of India

2007-02-06

HEMANT GUPTA, MOHINDER PAL

body2007
Judgment Hemant Gupta, J. 1. This order shall dispose of Civil Writ Petition Nos. 10319-CAT of 2001; CWP No. 10852-CAT of 2001; CWP No. 11024-CAT of 2001; 11039-CAT of 2001; CWP No. 10320-CAT of 2001; CWP No. 10286 of 2001 and CWP No. 11978-CAT of 2004 filed by the 9 lecturers appointed on adhoc basis in the Government College of Arts, Chandigarh in the year 1989. 2. Though the challenge in each of the writ petition is to the separate order passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short `the Tribunal), but all orders are co-related, passed on the basis of one or the other case. Since the facts are identical, we dispose of all the writ petitions by a common order. However, for the facility of reference, the facts are taken from Civil Writ Petition No. 10319- CAT of 2001. 3. Vide advertisement dated 5.8.1989 (Annexure P.3) posts of two lecturers in the pay scale of Rs. 700-1600/- were advertised. The petitioner Sumangal Roy applied in response to such advertisement and was selected after interview by a duly constituted Selection Committee vide letter of appointment dated 28.12.1989 (Annexure P.4). 4. At this stage, it may be noticed that the selections were made vide separate advertisements in respect of different seven posts existing in the College of Arts, whereas two posts were filled up on the basis of requisition from the Employment Exchange but all the nine candidates were appointed on the basis of the recommendations of the Selection Committee. All the petitioners joined in the year 1989/90. 5. In the letter of appointment given to the petitioner, it was mentioned that the appointment is to the post of lecturer `Group-A on adhoc basis. It was further contemplated that such appointment is for a period of six months or till the post is filled up on regular basis, through the Union Public Service Commission (for short `the UPSC), whichever is earlier and service rendered on the said post would not be counted for regular appointment. 6. Earlier, the petitioner Sumangal Roy and six other adhoc lecturers invoked the jurisdiction of the Tribunal by filing an Original Application under Section 19 of the Administrative Tribunals Act, 1985 (for short `the Act), seeking regularization of their services. 6. Earlier, the petitioner Sumangal Roy and six other adhoc lecturers invoked the jurisdiction of the Tribunal by filing an Original Application under Section 19 of the Administrative Tribunals Act, 1985 (for short `the Act), seeking regularization of their services. The said application was disposed of by the Tribunal allowing the applicants to make a representation about their grievance and the same was directed to be disposed of within 30 days of receiving of representation. Subsequently,three separate Original Applications were filed before the Tribunal. In the said applications, the applicants sought directions to the respondents to consider them for regularisation and pending consideration their claim for regularisation, a direction was sought to be issued to the respondents to permit the applicants to continue on the post of lecturer with all consequential benefits. The said applications were disposed of by the Tribunal on 5.6.1991 vide order Annexure P.11, wherein relying upon the judgments of the Honble Supreme Court, the respondents were directed to permit each of the applicants to continue in service till the vacancies in question are filled up on the basis of the recommendations of the UPSC. 7. Subsequently when the respondents inserted an advertisement (Annexure P.12) on 25.3.2000 to fill up the posts of lecturer in Government College of Arts, the petitioners again invoked the jurisdiction of the Tribunal. The said applications filed by the petitioners have been dismissed by the Tribunal on different dates, which are subject matter of challenge in this group of cases. 8. Learned counsel counsel for the petitioner has pointed out that at the time of appointment of the petitioners in the year 1989-90, the statutory Rules, which were applicable in respect of advertisement were the Punjab Government College of Arts and Craft Service (Class-III) Recruitment Rules, 1975 (hereinafter referred to as `1975 Rules). The post of lecturer in the Government College of Arts and Crafts Chandigarh is not required to be filled up on the basis of the consultation with the Public Service Commission, being Class-III Posts, in terms of the aforesaid Rules. The post of lecturer in the Government College of Arts and Crafts Chandigarh is not required to be filled up on the basis of the consultation with the Public Service Commission, being Class-III Posts, in terms of the aforesaid Rules. The entire controversy seems to have started with the issuance of the letter dated 1.10.1986 (Annexure P.8), wherein Ministry of Human Resource Development had communicated to the Home Secretary, Chandigarh Administration, Chandigarh that the teaching faculty of College of Arts, Chandigarh, will consist of Principal and Lecturers and the posts of Lecturer carrying pay scale of Rs.700-1600/- have been classified as Group-A posts. Though the advertisement (Annexure P.3) was issued after the aforesaid circular but the Rules, which were applicable on the aforesaid date were the 1975 Rules only. It was only on 25.11.1999 that the Chandigarh Administration framed its own Rules i.e. Government college of Arts, Chandigarh Administration, Lecturer (Group-A) Rules, 1997. The said Rules have been appended with the writ petition as Annexure P.9. As per the Rules framed in 1997, the post of lecturer is required to be filled in consultation with the UPSC. 9. The case of the petitioners is that the communication Annexure P.8 dated 1.10.1986 classifying the post of lecturer as Group-A, will not override the statutory Rules applicable at the time when the petitioners were appointed as lecturers. Any Instructions, which are not in consonance with the Statutory Rules cannot be given effect to and, therefore, at the time of appointment of the petitioners, the post of Lecturer was Class-III post and that they have been appointed against such posts after advertisement and by selection by the duly constituted Selection Committee. 10. The petitioners have placed reliance upon an order passed by the Honble Supreme Court in Dr. Gagon Inder Kaur & Others v. Union Territory of Chandigarh & Others, decided on 17.10.1995 (Annexure P.17). In the said case, the petitioners were appointed as Lecturers (College Cadre) in the year 1985- 86 on adhoc basis. At the time of appointment, the Rules applicable were Punjab Subordinate Education Service Rules, 1937. The post of lecturer was a Class-III post and was not falling within the purview of Public Service Commission. The New Recruitment Rules in respect of lecturers were notified on 21.2.1991. It was the case of the Administration that they are required to be appointed in consultation with the UPSC. The post of lecturer was a Class-III post and was not falling within the purview of Public Service Commission. The New Recruitment Rules in respect of lecturers were notified on 21.2.1991. It was the case of the Administration that they are required to be appointed in consultation with the UPSC. The Honble Supreme Court held that though the lecturers have been appointed on adhoc basis, but really it is an appointment on regular basis. It was held that since the Rules of 1937 were in force at the time of appointment, therefore, consultation with the UPSC was not required for the post of lecturer. It was held to the following effect :- "In view of the facts mentioned above, it appears that the appointment of the petitioners and other Lecturers in the Union Territory of Chandigarh, who were appointed on adhoc basis during the period 1977 till the publication of the 1990 Rules, though described as an adhoc appointment is really an appointment on regular basis made in accordance with the procedure that was required to be followed for making a regular appointment under the Punjab Rules of 1937 which were in force at that time. The said appointments have been described as being adhoc in nature on the erroneous impression that consultation with the U.P.S.C. was necessary after 1977 for making regular appointment on the post. Since the Punjab Rules of 1937 had continued in force, with UPSC was not required for the post of Lecturer which continued to be a Class-III post till the publications of the 1990 Rules on February 21, 1991. It is no doubt true that as a result of the retrospective effect given by Rule 1(iii) of the 1990 Rules Class II Status (Group-B) has been conferred on lecturers with effect from April 1, 1975 and as a result the post of Lecturer has to be treated as Class-II post with effect from April 1, 1975 and the said post has come under the purview of the UPSC by virtue of the UPSC (Consultation) Regulations, 1958 which only exclude Class III and IV posts from the purview of UPSC. The said retrospective amendment cannot, in our opinion, have the effect of depriving the petitioners of their right of having been substantively appointed on the post of lecturer prior to the coming into force of the 1990 Rules on February, 21, 1991. The said retrospective amendment cannot, in our opinion, have the effect of depriving the petitioners of their right of having been substantively appointed on the post of lecturer prior to the coming into force of the 1990 Rules on February, 21, 1991. Since we are of the opinion that the appointment of the petitioners on the post of Lecturer was made under the Punjab Rules of 1937, which were in force at that time, and the said appointment, though described is being adhoc in nature was regular appointment (emphasis supplied), the petitioners and other lecturer similarly situated would not be effected by the retrospective effect given by Rules 1(iii) of the 1990 Rules so as to require the appointment of the petitioners to be regularised in consultation with the UPSC. The writ petition is accordingly allowed and it is directed that the appointment of the petitioners and other Lecturers similarly situated who were appointed prior to the publication of the 1990 Rules on February 21, 1991, though described as being adhoc in nature shall be treated as regular appointment and the said lecturers shall be given the benefits accruing to them on that basis, we do not express any opinion as regards appointments on the post of Lecturers that were made after coming into force of the 1990 Rules on February 21, 1991. No costs". 11. At this stage, it may be noticed that the Rules notified in respect of the Lecturers, were given retrospective effect but the Rules notified in the year 1997 by the Chandigarh Administration by the Government College of Arts, do not contemplate any retrospective effect. It has been pointed out by the learned counsel for the petitioner that in terms of the said order, many Lecturers appointed in the year 1985-86 have been conferred the status of regular employees. It is pointed out that in Sahib Singh and others v. U.T. of Chandigarh, decided on 13.8.1984 (Annexure P.18), the Honble Supreme Court has disposed of the writ petition with the directions that the petitioners, who have been appointed on adhoc basis will continue on such post till the Government makes regular appointments on the basis of the recommendations of the UPSC but on the basis of the judgment in Dr. Gagon Inder Kaurs case (supra), the petitioners in Sahib Singhs case (supra), were also conferred with the status of regular employees vide order Annexure P.18/A. 12. The learned Tribunal distinguished the judgment in Dr. Gagon Inder Kaurs case (supra) in Sanjeev Sonis case, on the ground that the same is the judgment given by the Honble Supreme Court in exercise of its jurisdiction under Article 142 of the Constitution of India and that too in its peculiar facts. It was further found that the claim of the petitioner for regularization stood already declined in the case in Anita Guptas case i.e. order dated 5.6.1991 (Annexure P.11). It was further held that the application is barred by the principle of resjudicata as in the earlier application, the Tribunal has given a direction to allow the applicants to continue on the post till the vacancy is filled on the basis of the recommendations of the UPSC. The said judgment has attained finality, therefore, the argument that the consultation with the UPSC is not required, has to be rejected as this aspect has to be deemed to have been covered under the judgment given in the earlier application i.e. order dated 5.6.1991 (Annexure P.11). The original applications of Ishwar Dayal & others and that of Nirmal Parkash & another, were dismissed on the basis of the order passed in Sanjeev Sonis case. The learned Tribunal, however, in Sumangal Roys case, apart from following its view in Sanjeev Sonis case, found that the post of lecturer in the Govt. College of Arts is a technical post and is governed by All India Council for Technical Education Act, 1987 and the guidelines framed thereunder. However, in the aforesaid judgment, it was found that the finding has been recorded in Sanjeev Sonis case that the standard prescribed by the University Grants Commission for recruitment are not applicable in respect of appointment made by the Administration. 13. When the matter came up for hearing before this Court on 4.12.2001, the Court passed the following order :- "We have heard learned counsel for the parties and perused the record. The interim order is made absolute to last till the final disposal of the writ petition. The case may be listed for hearing in due course. 13. When the matter came up for hearing before this Court on 4.12.2001, the Court passed the following order :- "We have heard learned counsel for the parties and perused the record. The interim order is made absolute to last till the final disposal of the writ petition. The case may be listed for hearing in due course. In the meanwhile, the Chandigarh Administration may send a proposal to the concerned department of the Government of India and the Union Public Service Commission for considering the cases of the petitioners regularisation of service keeping in view the following facts :- (i) The petitioners did possess the prescribed qualifications at the time of their initial appointment. (ii) They had been appointed after advertisement of the posts and on all-India basis. (iii) They were appointed on the recommendations made by the Selection Committee constituted by the Chandigarh Administration. (iv) They have continuously served in the Government College of Arts, Chandigarh without any blemish. (v) That, it took more than nine years to the Chandigarh Administration, the Union Public Service Commission and the Government of India to finalise the recruitment rules. On the receipt of the proposal from the Chandigarh Administration, the issue of regularisation of the services of the petitioners and other similarly situated persons may be considered in a joint meeting of the officers of the Government of India, Union Public Service Commission and Chandigarh Administration and appropriate decision may be taken by them for regularisation of services by considering their service record as one time measure". In pursuance of such directions of this Court, the matter was considered in the meeting chaired by Shri S.K. Srivastava, Additional Secretary to UPSC on 1.3.2003. The said meeting was attended by the representative of the Ministry of Human Resource Development, Govt. of India; Chandigarh Administration and the Department of Personnel Training, Govt. of India. The Department of Personnel and Training has given its comments that the said Department will have no objection if the UPSC/Joint Committee takes a decision to consider the regularisation of those 9 lecturers. However, the Committee recorded the following note:- "5. Thereafter, the Committee considered the tabulated details of the 9 Lecturers (Annexure-II) indicating details of the educational qualifications etc. held by petitioners as produced by the Chandigarh Administration, in terms of the interim directions of the Honble High Court of Punjab & Haryana dated 4.12.2001. However, the Committee recorded the following note:- "5. Thereafter, the Committee considered the tabulated details of the 9 Lecturers (Annexure-II) indicating details of the educational qualifications etc. held by petitioners as produced by the Chandigarh Administration, in terms of the interim directions of the Honble High Court of Punjab & Haryana dated 4.12.2001. The committee observed as follows :- (i) That all the nine Lecturers whose cases are under consideration for regularisation of their adhoc services possess the essential qualification prescribed for the post of Lecturer in the Chandigarh College of Art at the time of their initial appointment as per the then Recruitment Rules. They also have the essential educational qualifications as per new Recruitment Rules dated 26.11.1999. (ii) That out of nine Lecturers, seven had been appointed through open advertisement on an All India basis but the remaining two Lecturers had been appointed not through open advertisement on an all-India basis but through sponsorship from the Employment Exchange. (iii) That they were appointed on the recommendations made by the Selection Committee constituted by the Chandigarh Administration. (iv) The Chandigarh Administration has certified that they have continuously served in the Govt. College of Art Chandigarh without any blemish. (v) Regarding delay in notification of the Recruitment Rules, the Committee noted the M/o HRD (Administrative Ministry for the Chandigarh Administration) took more than 4 years for notification of the Recruitment Rules for the post of Lecturer in the Chandigarh Govt. College of Art, after approval by the UPSC. 6. In the aforementioned background, the Committee took note of the following critical points for taking a decision on the issue of regularisation :- (a) DOP&T in their advice have observed that the order of the Honble High Court is not a firm direction but is of an advisory nature and hence by implication the Committee has to finally decide on the issue of regularisation after taking into account all connected issues. (b) DOP&T in their advice have also referred to the Government policy as laid down in OM NO. 28036/1/2001-Estt.(D) dated 23.7.2001 which inter-alia reiterated their earlier guidelines that persons appointed on ad-hoc basis to a grade are to be replaced by persons approved for regular appointment as per the provisions of the Recruitment Rules and in accordance with the prescribed procedure at the earliest possible. 28036/1/2001-Estt.(D) dated 23.7.2001 which inter-alia reiterated their earlier guidelines that persons appointed on ad-hoc basis to a grade are to be replaced by persons approved for regular appointment as per the provisions of the Recruitment Rules and in accordance with the prescribed procedure at the earliest possible. In no case, such an officer appointed on ad-hoc basis should be regularised unless and until there are specific court directions to that effect and such matters have to be referred to the Department of Legal Affairs and Department of Personnel & Training. (c) It was also noted that as a matter of policy and the uniform practices followed, UPSC does not regularise the ad-hoc services of officers appointed by different agencies of the Government unless there are clear directions from Honble High Court/Central Administrative Tribunal to that effect. It was observed that the Chandigarh Administration has at no time consulted UPSC, a Constitutional Body set up for such purposes, whilst appointing the ad-hoc Lecturers which it was required to do so as per the Recruitment Rules. Such a disregard of the rules by various agencies of the Government would entail by passing of a Constitutional Authority like the Union Public Service Commission which has been set up for such purposes and would open a back door for ad-hoc recruitment without following proper procedures of consultation with the Commission. (d) It was also observed that not all the 9 candidates were appointed through open advertisement. 7. The Committee further considered the question of other similarly situated persons besides the petitioners as directed by the Honble High Court. The Committee was finding it difficult to define the similarly placed persons and as such desired that in case Court directed regularisation of such Lecturers, the same may be limited to Lecturers of the Govt. College of Art, Chandigarh in the same grade and fulfilling the conditions at para 5 and on the basis of open advertisement or else it will throw open the flood gates to various ad- hoc appointments which will compromise the constitutional functioning of the Commission. College of Art, Chandigarh in the same grade and fulfilling the conditions at para 5 and on the basis of open advertisement or else it will throw open the flood gates to various ad- hoc appointments which will compromise the constitutional functioning of the Commission. Keeping in view all these factors in mind, the Committee was of the considered view that the issue may be once again referred by the Chandigarh Administration and Ministry of HRD to the Honble High Court of Punjab and Haryana bringing the same to their kind attention so as to pass appropriate orders as they may deem fit and proper in the case". It is thereafter that the matter has been placed before us for final hearing. Learned counsel for the respondents could not dispute the five reasons recorded by this Court in order dated 4.12.2001 i.e. the petitioners did possess the prescribed qualifications at the time of their initial appointment; they had been appointed after advertisement of the posts and on all-India basis; they were appointed on the recommendations made by the Selection Committee constituted by the Chandigarh Administration; they have continuously served in the Government College of Arts, Chandigarh, without any blemish and that it took more than nine years to the Chandigarh Administration, the Union Public Service Commission and the Government of India to finalise the recruitment rules. Learned counsel for the petitioner has vehemently argued that at the time of advertisement and appointment of the petitioner in the year 1989-90, it was 1975 rules, which were applicable. The petitioners were appointed in pursuance of a public advertisement and after considering all the applicants, they were appointed in pursuance of the recommendations of the Selection Committee. At that point of time, the posts against which the petitioners were appointed were the Class-III posts in terms of the statutory Rules. They were described as Group-A in the appointment orders only on the basis of communication (Annexure P.8) dated 1.10.1986. Since the posts advertised were Class-III posts in terms of the statutory Rules, therefore, consultation with the UPSC was not necessary. That was the only reason, which prevented the Administration from making the appointment of the petitioner on regular basis. On 25.11.1999 New Rules have been framed wherein the post of lecturer was made part of Group-A and thus, consultation with the UPSC became necessary. That was the only reason, which prevented the Administration from making the appointment of the petitioner on regular basis. On 25.11.1999 New Rules have been framed wherein the post of lecturer was made part of Group-A and thus, consultation with the UPSC became necessary. Since, the petitioner was appointed much before the framing of the new Rules, therefore, the consultation with the UPSC could not be the basis to treat the petitioners as adhoc appointees. 14. The reasoning given by the Tribunal that the order passed in Dr. Gagon Inders case (supra) is the order passed by the Honble Supreme Court in the peculiar facts of the case and under the inherent jurisdiction of the Court, is not correct. The Court has considered the fact that the appointments in the said case in Chandigarh Administration, were made prior to publication of 1990 Rules. Therefore, such appointment is in terms of the old Rules and, therefore, even if the appointment is termed adhoc but substantially it is a Regular appointment. The said judgment has been given effect to by the Administration in respect of College Lecturers. Thus, the distinction pointed out by the Tribunal is actually not made out as the said judgment covers the entire issue involved in the present case. 15. In respect of the reasoning given by the learned Tribunal that the appointment in the Govt. College of Arts is a technical appointment and is governed by the All India Council for Technical Education Act, is again not tenable. Firstly, there was no such stand of the respondents in reply that appointment to such post is governed by the said Act. Still further, it has been pointed that no guidelines have been framed by the All India Council for Technical Education in respect of the teachers working in the Fine Arts. Therefore, in the absence of any such guidelines, the provisions of the Act would not be applicable in the case in hand. 16. In view of the above, we are of the opinion that the orders passed by the learned Tribunal are not sustainable in law. Consequently, the same are set aside. It is held that the appointment of the petitioners, though titled as adhoc, is in fact regular appointment and, therefore, the respondents are directed to treat the petitioners as regular appointees from the date of their initial appointment. Consequently, the same are set aside. It is held that the appointment of the petitioners, though titled as adhoc, is in fact regular appointment and, therefore, the respondents are directed to treat the petitioners as regular appointees from the date of their initial appointment. The respondents are directed to grant all consequential benefits to the petitioner in accordance with law, expeditiously, preferably within a period of three months. The writ petitions stand disposed of in the above terms.