advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Wednesday, February 6, 2013

SERVICE MATTER, - whether the respondents, who were appointed to the teaching post, namely, Assistant Professors/Lecturers in different subjects and continued as such for more than two decades, would be entitled to get the benefit of pension under the University Pension Regulations, 1990 (for short “the Regulations”) framed by the University of Rajasthan which came into force with effect from 1.1.1990, regard being had to the language employed in Regulation 2 that deals with the scope and application of the Regulations read with Regulations 22 and 23 that stipulates the conditions of qualifying service and the period that is to be counted towards pension in addition to the fact that the University had accepted the contribution to the Pension Fund as defined in Regulation 3(5), despite the stand and stance put forth by the University that the respondents were not regularly appointed to the posts in question in accordance with the provisions contained in Section 3(3) of the Rajasthan Universities’ Teachers and Officers (Selection for Appointment) Act, 1974 (for brevity “the Act”) and, hence, are not entitled to the benefit provided under the Regulations.=The language of Regulation 23 is couched in a different manner. It fundamentally deals with the computation of the period of service of an employee. That apart, Regulation 23(b) uses the words “if he is confirmed”. It is a conditional one and it relates to officiating services. Both the concepts have their own significance in service jurisprudence. The respondents were not in the officiating service and by no stretch of imagination, they could have been treated to be confirmed because the words “if he is confirmed” required an affirmative fact to be done by the University. The High Court, as we find, has applied the doctrine of deemed confirmation to the case at hand which is impermissible. In this context, we may, with profit, refer to the decision in Head Master, Lawrence School, Lovedale v. Jayanthi Raghu and another[11] wherein it has been ruled thus: - “A confirmation, as is demonstrable from the language employed in the Rule, does not occur with efflux of time. As it is hedged by a condition, an affirmative or positive act is the requisite by the employer. In our considered opinion, an order of confirmation is required to be passed.”- Consequently, the appeals are allowed and the orders passed by the High Court are set aside. However, if any amount has been paid on any count to any of the respondents in the appeals pursuant to the orders passed by the High Court, the same shall not be recovered on any count. There shall be no order as to costs.


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 919   OF 2013
                (Arising out of S.L.P. (C) No. 35974 of 2011)


University of Rajasthan and another                ... Appellants

                                   Versus

Prem Lata Agarwal                                           ...Respondent
                                    With

                       CIVIL APPEAL NO. 920   OF 2013
                (Arising out of S.L.P. (C) No. 7156 of 2012)


University of Rajasthan and another                ... Appellants

                                   Versus

Dr. (Mrs.) Vijaya Kabra                                ...Respondent

                                    With

                       CIVIL APPEAL NO. 921    OF 2013
                (Arising out of S.L.P. (C) No. 33969 of 2011)


University of Rajasthan and another                ... Appellants

                                   Versus

Dr. Janki D. Moorjani                                 ...Respondent


                                    With

                       CIVIL APPEAL NO. 922   OF 2013
                (Arising out of S.L.P. (C) No. 18020 of 2012)

University of Rajasthan                            ... Appellant

                                   Versus

Dr. B.K. Joshi                                              ...Respondent

                                    With

                       CIVIL APPEAL NO. 923   OF 2013
                (Arising out of S.L.P. (C) No. 20637 of 2012)


University of Rajasthan and another                ... Appellants

                                   Versus

Dr. M.C. Goyal                                              ...Respondent








                               J U D G M E N T


Dipak Misra, J.



      Leave granted in all the special leave petitions.


   2. The controversy that arises for consideration in this batch of appeals
      is
whether the respondents, who were appointed to the  teaching  post,
      namely,  Assistant  Professors/Lecturers  in  different  subjects  and
      continued as such for more than two decades, would be entitled to  get
      the benefit of pension under the University Pension Regulations,  1990
      (for short “the Regulations”) framed by the  University  of  Rajasthan
      which came into force with effect from 1.1.1990, regard being  had  to
      the language employed in Regulation 2 that deals with  the  scope  and
      application of the Regulations read with Regulations 22  and  23  that
      stipulates the conditions of qualifying service and the period that is
      to be counted towards  pension  in  addition  to  the  fact  that  the
      University had accepted  the  contribution  to  the  Pension  Fund  as
      defined in Regulation 3(5), despite the stand and stance put forth  by
      the University that the respondents were not  regularly  appointed  to
      the posts in question in accordance with the provisions  contained  in
      Section 3(3) of the  Rajasthan  Universities’  Teachers  and  Officers
      (Selection for Appointment) Act, 1974 (for  brevity  “the  Act”)  and,
      hence, are not entitled to the benefit provided under the Regulations.

   3. Be it noted, as the main judgment was rendered in  the  case  of  Prem
      Lata  Agarwal,  we  shall  refer  to  the  facts  adumbrated  therein.
      However,  the  initial  dates  of  appointment  and   the   dates   of
      superannuation in case of  every  respondent  as  the  same  would  be
      relevant in the course of delineation  of  the  lis  in  question  are
      stated herein.  Prem Lata Agarwal, Vijaya Kabra,  Janki  D.  Moorjani,
      B.K. Joshi and M.C. Goyal, the respondents herein, were  appointed  on
      5.1.1981, 22.8.1984,  20.8.1985,  16.5.1978  and  5.8.1983  and  stood
      superannuated  on  31.3.2001,  31.8.2007,  30.6.2007,  31.1.2002   and
      30.11.2007 respectively.  Respondent-Prem Lata Agarwal and some others
      were appointed vide Office Order dated 5.1.1981 by the Vice-Chancellor
      in exercise of power vested in him for making the stop gap arrangement
      under Section 3(3) of the Act as Assistant Professors  (Lecturers)  in
      the subject of Chemistry.  It was clearly mentioned in the  letter  of
      appointment that it was ad hoc in nature and it  would  continue  upto
      the last working day of the current academic session or  till  further
      orders, whichever was earlier.  The respondent and others were allowed
      to continue on the basis of the appointment letters issued  from  time
      to time.  It may be noted that their services  were  terminated  every
      year and fresh appointment orders were issued.  In  this  manner,  the
      respondent was allowed to continue upto 31.7.1988.

   4. At that juncture, the ad hoc teachers had invoked the jurisdiction  of
      the High Court seeking  a  mandamus  for  the  regularization  of  the
      services but such a relief was declined.  S.L.P. No. 18993 of 1991 was
      preferred wherein two questions were raised,  namely,  (i)  whether  a
      lecturer duly selected by the selection committee for being  appointed
      temporarily should automatically be confirmed on the post which he was
      holding for the past 7 years on temporary basis after  being  selected
      by a duly constituted selection committee under the provisions of  the
      Act and approved by the syndicate of the university; and (ii)  whether
      apart from the considerations of selection by the selection committee,
      did a lecturer teaching for the  past  7  years  acquire  a  right  to
      continue on that post.  This Court vide order dated 20th April,  1992,
      dismissed the said special leave petition.  Though the  special  leave
      petition was dismissed and their  right  to  be  regularized  was  not
      accepted by this Court, yet they continued in service as the orders of
      termination could not be  implemented.   It  is  worth  noticing  that
      another petition by ad hoc appointees was filed  in  1985  before  the
      High Court wherein they claimed equal pay on the foundation of  parity
      with the regularly appointed Assistant  Lecturers.   The  High  Court,
      vide order dated 1.3.1986, passed the following order:-

          “Consequently, this special appeal is allowed and the order dated
          8.03.1995 passed by the learned Single Judge is hereby set  aside
          and accordingly it is declared that the appellants who have  been
          appointed on honorarium basis to cover the uncovered load of  the
          respective departments are entitled to the salary  equivalent  to
          the minimum of the pay scale of the regularly appointed  lecturer
          of the Rajasthan University from today.  The respondents are also
          restrained from discontinuing services  of  the  appellants  till
          regular appointments  to  the  post  of  lecturers  are  made  in
          accordance with law.  The respondents  shall  be  at  liberty  to
          assign the work to the  appellants,  which  is  assigned  to  the
          regularly appointed lecturers.”



   5. The university,  being  grieved  by  the  aforesaid  order,  preferred
      Special Leave Petition No. 13 of 1998 and number  of  S.L.Ps.  wherein
      this Court passed the following order:-

          “The special leave petitions are dismissed.  It is clarified that
          the continuation of the respondents shall be  only  till  regular
          selections are made  and  it  is  upto  the  University  to  take
          expeditious steps for making regular selections.”



   6. In view  of  the  aforesaid  order,  the  teachers  were  paid  salary
      equivalent to the minimum pay scale of  regularly  appointed  teachers
      and continued in service due to  various  orders  of  the  High  Court
      passed from time to time.  The university, despite its  best  efforts,
      could not obtain the permission of the State Government to fill up the
      vacant posts on regular basis as various litigations  were  continuing
      in the  Court  at  various  stages  as  a  consequence  of  which  the
      respondent and her likes continued in service.

   7. It is apt to note here that the  university  brought  the  regulations
      which  came  into  force  with  effect  from  1.1.1990.    After   the
      regulations came into force, the respondent gave her  option  for  the
      purpose of availing the benefit of pension and, thereafter, there  was
      deduction from her salary in view of the postulates in the regulations
      till her date of retirement, i.e., 31.3.2001.

   8. It is pertinent to  mention  here  that  the  Rajasthan  Universities’
      Teachers (Absorption of Temporary  Teachers)  Ordinance,  2008  (3  of
      2008) was made and promulgated by  the  Governor  with  a  purpose  of
      providing absorption of temporary teachers of long  standing,  working
      in the universities of Rajasthan.  After  the  said  regulations  came
      into existence on 12th  June,  2008,  the  respondent  preferred  Writ
      Petition No. 2740 of 2010 putting forth the grievance that  pensionary
      benefits had been denied to her after retirement.  The learned  Single
      Judge referred to the regulations and took note of the fact  that  she
      had continued in service for a period of 20 years and her  option  for
      grant of pension was accepted by the university and pursuant  to  such
      acceptance  they  deposited  their  contribution   and,   hence,   the
      university was estopped to take a somersault the stand  that  she  was
      not entitled to receive pension under the Regulations of  1990.   That
      apart, the  learned  single  Judge  opined  that  the  nature  of  her
      appointment could not be treated as ad hoc and temporary, regard being
      had to the length of service.  Being of this view, he allowed the writ
      petition and directed the  pensionary  benefits  be  extended  to  her
      within a period of three  months  after  completing  the  formalities.



   9. Being grieved by the aforesaid order, the university preferred Special
      Appeal (Writ) No. 292 of 2011.  The Division Bench, after adverting to
      the facts and referring to various regulations and the  provisions  of
      the Act, came to hold that the action of  the  university  was  wholly
      unjustified and arbitrary.  The said conclusion of the Division  Bench
      was founded on the base that there was default  on  the  part  of  the
      university in not appointing even a single person in  the  service  of
      the universities of Rajasthan in a regular manner for a  long  period;
      that the university had invited the teachers to give their option  and
      they deposited their contribution in the C.P.F. in the pension scheme;
      that the appointments of the teachers were not in contravention of the
      provisions of the Act; and that they were deemed to  be  confirmed  in
      view of the provisions contained in Regulation 23 of the  Regulations.
      After arriving at the said conclusions, the Division Bench adverted to
      the issue whether  the  teachers  were  entitled  for  the  pensionary
      benefits in terms of the regulations and eventually, interpreting  the
      regulations and placing reliance on the authorities in S.B. Patwardhan
      and another v. State of Maharashtra and  others[1],  D.S.  Nakara  and
      others v. Union of  India  and  others[2]  and  paragraph  53  of  the
      pronouncement in Secretary, State of Karnataka and others v. Uma  Devi
      (3) and others[3], came  to  hold  that  the  appointments  were  made
      following due procedure of law and further the teachers,  having  been
      appointed in the cadre of substantive posts, could not be  denied  the
      pensionary  benefits  under  the  regulations.   Being  grieved,   the
      University is in appeal by way of Special Leave Petitions.

  10. We have heard Mr. Manoj Swarup, learned counsel  for  the  appellants,
      Mr. S.K. Keshote, learned senior counsel for the respondents in  Civil
      Appeals arising out Special Leave Petitions (C) Nos. 35974 of 2011 and
      18020 of 2012, Dr. Manish Singhvi, learned Additional Advocate General
      for the State, and Mr. Sushil Kumar  Jain,  learned  counsel  for  the
      respondents in Civil Appeals arising out Special Leave  Petitions  (C)
      Nos. 33969 of 2011 and 20637 of 2012.

  11. Before we proceed to scrutinize the defensibility of the  judgment  of
      the High Court, it is apposite to survey the scheme of the Act and the
      regulations.  Section 3(3) of the Act, as it  stood  at  the  relevant
      time, being  of  immense  signification,  is  reproduced  in  entirety
      hereinbelow: -

           “3.   Restrictions on appointments of teachers and  officers.  –
           (1) Notwithstanding any thing contained in the relevant law,  as
           from the commencement of this Act, no teacher and no officer  in
           any university in Rajasthan shall be  appointed  except  on  the
           recommendations of the  Selection  Committee  constituted  under
           Section 4.

           2.    Save as  otherwise  provided  in  sub-section  (3),  every
           appointment of a teacher or of an officer in any University made
           in contravention of sub-section (1) shall be null and void.

           3.    Nothing herein contained shall apply to the appointment of
           a teacher or an officer as a stop-gap arrangement for  a  period
           not exceeding one year or to  the  appointment  of  a  part-time
           teacher or of a teacher or officer in the pay scale  lower  than
           that of Lecturer or Assistant Registrar respectively.

           Explanation: The expression “appointed” in sub-section (1) shall
           mean appointed initially and not appointed by way of promotion.”



  12. Section 4 at the  relevant  time  pertained  to  the  constitution  of
      Selection Committees.  It read as follows:-

           “4. Constitution  of  selection  committees.  –  (1)  For  every
           selection of a teacher or of an officer in a  University,  there
           shall be constituted a committee consisting of the following: -

           (i)   Vice-Chancellor of the University concerned, who shall  be
                 the Chairman of the committee;

           (ii)  an eminent educationist to be nominated by the  Chancellor
                 for a period of one year;

           (iii) an eminent educationist  to  be  nominated  by  the  State
                 Government for a period of one year;

           (iv)  one member of the Syndicate to be nominated by  the  State
                 Government for a period of one year; and

           (v)   such other persons as members specified in column 2 of the
                 Schedule for the selection of  the  teachers  and  officers
                 mentioned in column 1 thereof:

           Provided that where the appointment of a teacher is to  be  made
                 in the faculty of agriculture in any University or  in  any
                 University-College   imparting   instruction   of   guiding
                 research in agriculture there shall be one more  expert  to
                 be nominated by the Syndicate  out  of  a  panel  of  names
                 recommended by the Indian Council of Agriculture Research:

           Provided further that the Selection Committee for teaching posts
                 in the faculty of engineering  and  technology  shall  also
                 include an expert to be nominated by the Syndicate out of a
                 panel of names recommended by  the  All  India  Council  of
                 Technical Education.




           (2)   The eminent educationists nominated under clause (ii)  and
           clause (iii) of sub-section (1) and the member of the  Syndicate
           nominated under clause (iv) of the  said  sub-section  shall  be
           members of every  Selection  Committee  constituted  during  the
           course of one year from the date of his nomination:

                  Provided  that  the  member  for  a  Selection  Committee
           nominated under clauses (ii), (iii) or (iv) of  sub-section  (1)
           shall continue to be the member  of  every  Selection  Committee
           even after the expiry of his term until a  fresh  nomination  is
           made by the Chancellor or, as the case  may  be,  by  the  State
           Government subject,  however,  that  fresh  nomination  of  such
           member for Selection Committee shall be made within a period not
           exceeding three months from the date of expiry of his term.

           (3)   No person shall be eligible to be nominated as  an  expert
           on any Selection Committee in any one year  if  he  has  been  a
           member of any two Selection Committees during the course of  the
           same year.”



  13. Section 5 of the Act  at  the  time  of  appointment  dealt  with  the
      procedure of Selection Committee.  It was as follows: -

           “5.   Procedure of Selection Committee – (1)  The  Syndicate  of
           the University concerned shall prescribe, by rules,  the  quorum
           required for the meeting of a selection committee required to be
           constituted under section 4 which shall not be  less  than  one-
           half of the members of each selection committee.

           (2).  The selection committee shall make its recommendations  to
           the Syndicate.  If the Syndicate disapproves the recommendations
           of  the  selection  committee,  the   Vice-Chancellor   of   the
           University concerned shall submit such recommendations alongwith
           reasons for disapproval given by the syndicate to the Chancellor
           for his consideration and the decision of the chancellor thereon
           shall be final.

           (3)    Every  selection  committee  shall  be   bound   by   the
           qualifications laid down in the relevant law of  the  University
           concerned for the post of a teacher or, as the case may  be,  of
           an officer.”



  14. We may note with profit that the 1974 Act was amended by Act No. 24 of
      1976 and Act No. 18 of 1984 and afterwards, many insertions were made.
       We have reproduced the provisions after the 1976 Act was brought into
      existence.  Section 4 which dealt with the constitution  of  selection
      committee was renumbered by Act No.  18  of  1984  as  Section  5  and
      Section 5 which dealt with the procedure of  selection  committee  was
      amended by Act No. 9 of 1977 and Act No. 18 of 1984 and was renumbered
      as Section 6.   Certain  amendments  were  carried  out  in  the  said
      provision by which the quorum required for the selection committee was
      changed and sub-section (4)  was  added  on  15.11.1984.   For  proper
      appreciation, we reproduce the said sub-section (4): -

           “(4)  The Selection Committee, while making its  recommendations
           to the Syndicate under sub-section (2) shall prepare a  list  of
           candidates selected by it in order of merit  and  shall  further
           prepare a reserve list in the same order and to  the  extent  of
           50% of the vacancies in the posts of teachers  or  officers  for
           which the Selection Committee was constituted under  sub-section
           (1) of Section 5 and shall forward the main list in the  reserve
           list along with its recommendations to the Syndicate.”



  15. Presently, we shall refer to the relevant regulations.   Regulation  2
      that deals with the scope and application reads as follows:-

          “Reg. 2 : Scope and Application :

             i) These regulations  shall  apply  to  all  persons  regularly
                appointed to the service of the University of  Rajasthan  on
                or after 1.1.1990.

            ii) These regulations shall also apply to all existing employees
                – both teaching and non-teaching- who opt for pension scheme
                under these regulations within the period specified in  Reg.
                4 for exercising option. In case of  employees  who  do  not
                exercise option within the  specified  period,  it  will  be
                deemed that the concerned employee has opted for the pension
                scheme under these regulations.

          Provided that these regulations shall not apply to :

          a) Persons employed on contract or part-time basis,


          b) Persons on deputation to the University.

          c) Purely temporary and daily wages staff.


          (d)     Re-employed pensioners.”



      Thus, from the aforesaid, it is quite clear that the  regulations  are
only applicable to the persons who have been regularly appointed and do  not
take in its sweep the persons employed on contract or  part-time  basis  and
purely temporary and daily wages staff.

  16. Regulation 3(5) defines ‘pension fund’.  It is as follows:-

          “Reg. 3(5) “Pension Fund” means the fund created for the  purpose
          of  transferring  the  total  accumulated  amount  of  University
          contribution in C.P.F. (including the amount of loan taken out of
          it) and interest thereon as on  date  of  commencement  of  these
          regulations and monthly contribution made thereafter  in  respect
          of such employees who opted or  are  deemed  to  have  opted  the
          pension scheme under these regulations.  The pension paid to  the
          retired employees shall be charged to this Fund.”






  17. Regulation 4 deals with the exercise of option.  The relevant part  of
      the said regulation is reproduced below:-

          “Reg. 4 : Exercise of Option :

          All existing employees who were in service on 1.1.1990 shall have
          to exercise their option  in  writing,  either  for  the  pension
          scheme under these  regulations  or  for  continuance  under  the
          existing  C.P.F.  Scheme,  within  3  months  from  the  date  of
          notification of these regulations and shall submit  the  same  to
          the Comptroller of  Finance/Finance  Officer  in  the  prescribed
          form.”



  18. Be it noted, though there are three provisos to regulation 4, yet  the
      same need not be referred  to  as  they  are  not  necessary  for  the
      adjudication of the present case.

  19. Regulation 22 provides for  calculation  of  qualifying  service.   It
      reads as follows:-

          “Reg. 22 :  Conditions of Qualifying Service:

                 The service of an employee does not  qualify  for  pension
           unless it conforms to the following conditions:

           1)  It is a paid service of a regularly appointed employee under
              the University.

           2) The employment is in substantive,  temporary  or  officiating
              capacity.”


  20. Regulation 23 which has been taken aid of by the High Court to  confer
      the benefit of pension on the respondent is as follows: -

           “Reg. 23:

           a) The service of an employee transferred from  a  temporary  to
              permanent post shall be counted, if the  post  was  at  first
              created experimentally or temporarily.

           b)  The  officiating  services  of  an   employee,   without   a
              substantive appointment, in a post which  is  vacant  or  the
              permanent incumbent of which does not draw any  part  of  the
              pay or count service, shall be counted  if  he  is  confirmed
              without interruption in his service.”



  21. Regulation 47 provides for creation of the pension  fund.   It  is  as
      under:-

        “Reg 47 : Creation of the Pension Fund :

            In case of all such employees who opt for the pension scheme and
        are governed under these regulations, the total  accumulated  amount
        of University contribution in C.P.F. (including the amount  of  loan
        taken out of it) and interest there on as on 1st January  1990  will
        be transferred to the pension fund created under these  regulations.
        Thereafter,  the  University’s  share  of  monthly  contribution  in
        respect of all such employees, as aforesaid will be deposited in the
        pension fund every month latest by 10th of the next month.”



  22. On a studied scrutiny, it is found that  the  High  Court  has  placed
      reliance on Section 3(3) of the Act and the regulations which we  have
      reproduced  hereinabove  to  arrive  at  the   conclusion   that   the
      respondents were entitled to  be  treated  as  regular  teachers  and,
      therefore, it was obligatory on the part of the University  to  extend
      the benefit of pension.  The provisions of the Act,  when  read  in  a
      conjoint manner, make  it  crystal  clear  that  the  legislature  had
      imposed restrictions on the appointment, provided for the constitution
      of Selection Committee and also laid down the procedure  of  the  said
      committees.  The intention of the legislature is, as it seems  to  us,
      to have teachers appointed on the basis of merit, regard being had  to
      transparency, fairness, impartiality and total objectivity.  Under sub-
      section (2), it has been clearly postulated that any appointment  made
      barring the arrangement under sub-section (3) of Section  3  would  be
      null and void.  The language is clear and categorical.  The  exception
      that had been carved out  under  Section  3(3)  is  for  an  extremely
      limited purpose.  It permits stop-gap arrangements and only covers  ad
      hoc or part-time teachers with a small duration.  It  is  intended  to
      serve the purpose of meeting the situation where an emergency  occurs.
      It was never intended to clothe any authority with the power  to  make
      any appointment beyond what is prescribed therein.  The scheme of  the
      aforesaid provisions go a long way to show that  the  legislature,  in
      fact, had taken immense care to see that no one gets a back door entry
      and the selections are made in a seemly manner.   A  proper  schematic
      analysis of the provisions enumerated hereinabove do not envisage  any
      kind of ad hoc appointment  or  part-time  appointment  to  remain  in
      continuance.  As is demonstrable from the  factual  depiction  in  the
      present batch of cases, some of the respondents continued with certain
      breaks and also due to intervention of the court.   That  apart,  this
      Court had not acceded to their prayer  of  regularization.   The  only
      direction that was issued in Special Leave Petition (c)  No.  3238  of
      1997 and other connected matters, was  that  they  would  continue  in
      service till the regular selections were made.  It is noteworthy  that
      a distinction has to be made and we are obliged to do  so  because  of
      the language employed in the provisions between a regular teacher  and
      an ad hoc teacher or a part-time teacher who continues to work in  the
      post sometimes due to fortuitous circumstances and  sometimes  due  to
      the interdiction by the court.  Their  initial  appointment  could  be
      regarded as legal for the limited purposes of Section 3(3) of the Act.
       That would only protect the period fixed therein.   Thereafter,  they
      could not have been allowed to continue, as it was  only  a  stop  gap
      arrangement and was bound to be so under the statutory scheme.   Their
      continuance thereafter by operation of law has to be regarded as  null
      and void regard being had to the language employed in Section 3(2)  of
      the Act.

  23. Be it stated, the High Court has placed reliance on  Section  3(3)  to
      come to the conclusion that as they were appointed legally,  they  are
      entitled  to  be  regularized  in  terms  of  paragraph  53   of   the
      pronouncement in Uma Devi (supra).  Before we proceed to deal with the
      question whether  the  protection  granted  to  certain  employees  in
      paragraph 53 in Uma Devi (supra) would be applicable  to  the  present
      case or not, we think it appropriate to refer to  certain  authorities
      in the field.

  24. In University of Kashmir and others v. Dr. Mohd. Yasin and  others[4],
      the question arose whether the  continuance  of  a  lecturer  made  in
      violation of the ordinance of the university would confer any right on
      him solely on the ground that he had de facto continued subsequent  to
      the statutory cessation of office and whether the principle of implied
      employment could be attracted.  The  Court,  after  referring  to  the
      powers and duties and the canalisation by the statutory body like  the
      University, came to hold that when the  selection  committee  had  not
      considered or recommended the respondent therein for  appointment  and
      there was no suggestion that  the  university  council  appointed  the
      respondent to the post of Professor, regard being had to the said fact
      situation, the ad hoc arrangement  by  which  the  respondent  therein
      remained to teach did not acquire any legal validity because the Vice-
      Chancellor went through the irregular exercise of extending his period
      of probation.  We think it apt to quote an  instructive  passage  from
      the said judgment: -

          “When a statute creates a body and vests it  with  authority  and
          circumscribes its powers by specifying limitations, the  doctrine
          of implied engagement de hors the provisions and powers under the
          Act  would  be  subversive  of  the  statutory  scheme  regarding
          appointments of officers and cannot be countenanced by the Court.
          Power in this case has been vested in the University Council only
          and the manner of its  exercise  has  been  carefully  regulated.
          Therefore, the appointment of the respondent could be  made  only
          by the Council and only in the mode prescribed by the statute. If
          a Vice-Chancellor by administrative drift allows such  employment
          it cannot be validated on any theory of factum valet.  We  cannot
          countenance the alleged continuance  of  the  respondent  in  the
          University campus as tantamount  to  regular  service  under  the
          University with the sanction of law. In short, the respondent has
          no presentable case against the direction to quit.”



  25. In  Anuradha  Mukherjee  (Smt)  and  others  v.  Union  of  India  and
      others[5], this Court, while dealing  with  the  issue  of  seniority,
      opined that when an employee is appointed de hors the Rules, he cannot
      get seniority from the date of his initial appointment  but  from  the
      date on which he is actually selected and appointed in accordance with
      the Rules.

  26. In State of Haryana v.  Haryana  Veterinary  &  AHTS  Association  and
      another[6], while dealing with the issue of regular service under  the
      Haryana Service  of  Engineers,  Class  II,  Public  Works  Department
      (Irrigation Branch) Rules, 1970, a  three-Judge  Bench  observed  that
      under the Scheme of the said Rules, the service  rendered  on  ad  hoc
      basis or stop-gap arrangement could not be held to be regular  service
      for grant of revised scale of pay.

  27. In R.S. Garg v. State of U.P. and others[7], while  dealing  with  the
      concept of recruitment, this Court has categorically  laid  down  that
      the expression “recruitment” would mean recruitment in accordance with
      the Rules and not dehors the same and if an appointment is made dehors
      the Rules, it is not an appointment in the eye of law.

  28. Coming back to the decision in  Uma  Devi  (supra),  the  Constitution
      Bench, after survey of all the decisions  in  the  field  relating  to
      recruitment process and the claim for regularization, in paragraph 43,
      has held that consistent with the scheme for public employment, it  is
      the duty of the court to necessarily hold that unless the  appointment
      is in terms of the relevant rules, the same would not confer any right
      on the appointee.  The Bench further proceeded to  state  that  merely
      because a temporary employee or a casual wage worker is continued  for
      a time beyond the term of his appointment, he would not be entitled to
      be absorbed in regular  service  or  made  permanent,  merely  on  the
      strength of such continuance, if the original appointment was not made
      by following a due process of selection as envisaged by  the  relevant
      rules.  After so stating,  it  has  been  further  ruled  that  merely
      because an employee had continued under  cover  of  an  order  of  the
      court, he would not be entitled to any right to be  absorbed  or  made
      permanent in service.

  29. It is worthy to note that while repelling the contention pertaining to
      the legitimate expectation of a person to be  regularized,  the  Court
      held that  when  a  person  enters  a  temporary  employment  or  gets
      engagement as a contractual or casual worker and the engagement is not
      based on a proper selection as recognized by  the  relevant  rules  or
      procedure, he is aware of the consequences of  the  appointment  being
      temporary, casual or contractual in  nature.   Such  a  person  cannot
      invoke the theory of legitimate expectation for being confirmed in the
      post when an appointment to the post could be made only by following a
      proper procedure.

  30. The Court, eventually, in  paragraph  53,  issued  certain  directions
      relating to regularization of irregular appointments.  We think it apt
      to reproduce the relevant part from the said paragraph: -

           “One aspect needs to be clarified.  There  may  be  cases  where
           irregular appointments (not illegal appointments)  as  explained
           in State of Mysore v. S.V. Narayanappa[8], R.N.  Nanjundappa  v.
           T. Thimmiah[9] and B.N. Nagarajan v. State of Karnataka[10]  and
           referred to in para 15 above, of duly qualified persons in  duly
           sanctioned vacant posts might have been made and  the  employees
           have continued to work for ten years or  more  but  without  the
           intervention of orders  of  the  courts  or  of  tribunals.  The
           question of regularisation of the services of such employees may
           have to be considered on merits in the light of  the  principles
           settled by this Court in the cases abovereferred to and  in  the
           light of this judgment. In that context, the Union of India, the
           State Governments and their instrumentalities should take  steps
           to regularise as  a  one-time  measure,  the  services  of  such
           irregularly appointed, who have worked for ten years or more  in
           duly sanctioned posts but not  under  cover  of  orders  of  the
           courts or of tribunals and should further  ensure  that  regular
           recruitments are undertaken  to  fill  those  vacant  sanctioned
           posts that require to be filled up,  in  cases  where  temporary
           employees or daily wagers are being now employed.”



  31. To appreciate what has been  stated  in  the  said  paragraph,  it  is
      imperative to refer to paragraph 15 of the  judgment  wherein  it  has
      been held thus: -

           “Even at the threshold, it is necessary  to  keep  in  mind  the
           distinction between regularisation and conferment of  permanence
           in service jurisprudence. In State of Mysore v. S.V. Narayanappa
           this Court stated that it was a misconception to  consider  that
           regularisation meant  permanence.  In  R.N.  Nanjundappa  v.  T.
           Thimmiah this Court dealt with an argument  that  regularisation
           would  mean  conferring  the  quality  of  permanence   on   the
           appointment. This Court stated: (SCC pp. 416-17, para 26)

                 “Counsel  on  behalf  of  the  respondent  contended   that
                 regularisation  would  mean  conferring  the   quality   of
                 permanence on the appointment whereas counsel on behalf  of
                 the  State  contended  that  regularisation  did  not  mean
                 permanence but that it was a case of regularisation of  the
                 rules  under  Article  309.  Both   the   contentions   are
                 fallacious. If the appointment itself is in  infraction  of
                 the rules or if it is in violation of the provisions of the
                 Constitution illegality cannot be regularised. Ratification
                 or regularisation is possible of an act which is within the
                 power and province of the authority but there has been some
                 non-compliance with procedure or manner which does  not  go
                 to the root of the appointment.  Regularisation  cannot  be
                 said to be a mode of  recruitment.  To  accede  to  such  a
                 proposition would be to introduce a new head of appointment
                 in defiance of rules or it may have the effect  of  setting
                 at naught the rules”.”



  32.  From  the  aforesaid  delineation,  it  is  quite  vivid   that   the
      Constitution Bench made a distinction between an  illegal  appointment
      and an irregular appointment and for the said purpose, as noted above,
      reliance was placed on the earlier decision  in  T.  Thimmiah  (supra)
      which makes a distinction between the power of ratification  which  is
      possible within the power of the  authority  and  some  non-compliance
      with the procedure or the manner which does not go to the root of  the
      appointment.

  33. We have already analysed the scheme of Section 3 and stated that there
      could not have  been  continuance  of  the  service  after  the  fixed
      duration  as  provided  under  Section  3(3)  of  the  Act  and   such
      continuance is to be treated as null and void.  That is  how  the  Act
      operates in the field.  That apart, regular selection was required  to
      be made by a High Powered Committee as provided under Section  4.   It
      is also pertinent to state that the Act lays down the procedure of the
      selection committee not leaving it to any  authority  to  provide  the
      same by rules or regulations.

  34. In view of the aforesaid, the  irresistible  conclusion  is  that  the
      continuance after the fixed duration goes to the root of  the  matter.
      That apart, the  teachers  were  allowed  to  continue  under  certain
      compelling circumstances and by interdiction by courts.   Quite  apart
      from the above, this Court had categorically declined to accede to the
      prayer for regularization.  In such a situation, we  are  afraid  that
      the reliance  placed  by  the  High  Court  on  paragraph  53  of  the
      pronouncement in Uma Devi (supra) can be said  to  be  justified.   In
      this regard, another aspect, though an ancillary  one,  may  be  worth
      noting.  Prem Lata Agarwal and B.K. Joshi had retired on 31.3.2001 and
      31.1.2002, and by no stretch of imagination,  Uma  Devi  (supra)  lays
      down that the cases of any category  of  appointees  who  had  retired
      could be regularized.  We may repeat at the cost  of  repetition  that
      the protection carved out in paragraph 53 in Uma  Devi  (supra)  could
      not be extended  to  the  respondents  basically  for  three  reasons,
      namely, (i) that  the  continuance  of  appointment  after  the  fixed
      duration was null  and  void  by  operation  of  law;  (ii)  that  the
      respondent continued in the post by intervention  of  the  court;  and
      (iii) that this Court had declined to  regularize  their  services  in
      1998.

  35. Though we have dealt with the statutory scheme, yet as the High  Court
      has heavily relied on various regulations to extend  the  benefit,  we
      think it seemly to advert to the approach of the High  Court  to  find
      out whether it has appositely appreciated the purpose and  purport  of
      the regulations.  The High Court, as is manifest from the orders,  has
      made a distinction between a permanent employee and  purely  temporary
      appointee and observed that the services of the respondent  could  not
      be termed to be purely temporary or daily wages.
In that context,  it
      has  referred  to  Regulation  22  which  uses  the  words  “regularly
      appointed  employee”.   We  may  reproduce  the  said  part   of   the
      ratiocination:-




           “Regulation 2(ii) is applicable to all existing employees
except
           the persons appointed on contract or part time basis; persons on
           deputation; purely temporary and  daily  wages  staff;
and  re-
           employed pensioners.
The case of the petitioners is not covered
           under any of the aforesaid four categories.
Even otherwise,  it
           cannot be said that appointments of the petitioners were made as
           stop gap arrangements.
They have continued for  more  than  two
           decades and therefore, they cannot in any manner  be  termed  as
           “purely temporary”.
Also the word “purely temporary”  contained
           in regulation 2(ii)(c) is used in company with daily wages staff
           and there is distinction in  concept  of  purely  temporary  and
           temporary as provided in regulation 2  and  22  of  the  pension
           scheme purely temporary is  not  covered  whereas  temporary  or
           officiating appointment is covered  under  the  purview  of  the
           pension regulation.”






  36. The aforesaid analysis, according to us, is not  correct  inasmuch  as
      the regulations do not take in their sweep  an  employee  who  is  not
      regularly appointed.  
The distinction  between  temporary  and  purely
      temporary, as made by the High Court, does not commend  acceptance  as
      there is an inherent fallacy in the same inasmuch as  Regulation  2(i)
      clearly  provides  “regularly  appointed  to  the   service   of   the
      University” which has been reiterated in Regulation 22.  
In  fact,  as
      we perceive, the High Court has proceeded  on  the  basis  that  their
      services have to be treated  as  regular.   
Once  it  is  not  regular
      service, the infrastructure collapses as a consequence  of  which  the
      superstructure is bound to founder and, hence, the distinction made by
      the High Court is flawed.

  37. The High Court, as has been stated earlier, has pressed  into  service
      Regulation 23 and relying on the same, it has held that  the  services
      of the respondents shall be deemed to have been confirmed  as  in  the
      instant cases the University has never opined that their services were
      not satisfactory.
The language of  Regulation  23  is  couched  in  a
      different manner.  It fundamentally deals with the computation of  the
      period of service of an employee.  
That apart, Regulation  23(b)  uses
      the words “if he is confirmed”.   It  is  a  conditional  one  and  it
      relates to officiating services.  
Both the  concepts  have  their  own
      significance in service jurisprudence.  
The respondents  were  not  in
      the officiating service and by no stretch of imagination,  they  could
      have been treated  to  be  confirmed  because  the  words  “if  he  is
      confirmed” required an affirmative fact to be done by the  University.
      The High Court, as  we  find,  has  applied  the  doctrine  of  deemed
      confirmation to the case at hand  which  is  impermissible.
 In  this
      context, we may, with profit, refer to the decision  in  Head  Master,
      Lawrence School, Lovedale v. Jayanthi Raghu and another[11] wherein it
      has been ruled thus: -



           “A confirmation, as is demonstrable from the  language  employed
           in the Rule, does not occur with  efflux  of  time.   As  it  is
           hedged by a condition, an affirmative or  positive  act  is  the
           requisite by the employer.  In our considered opinion, an  order
           of confirmation is required to be passed.”





      Thus analyzed, the conclusion of the High Court which  also  rests  on
the interpretation of the regulations does not commend acceptation.

  38. Consequently, the appeals are allowed and the  orders  passed  by  the
      High Court are set aside.  However, if any amount has been paid on any
      count to any of the respondents in the appeals pursuant to the  orders
      passed by the High Court, the same  shall  not  be  recovered  on  any
      count. There shall be no order as to costs.


                                                             ……………………………….J.
                            [K. S. Radhakrishnan]



                                                             ……………………………….J.
                                                     [Dipak Misra]
New Delhi;
February 05, 2013

-----------------------
[1]    AIR 1977 SC 2051
[2]    (1983) 1 SCC 305
[3]    (2006) 4 SCC 1
[4]    (1974) 3 SCC 546
[5]    (1996) 9 SCC 59
[6]    (2000) 8 SCC 4
[7]    (2006) 6 SCC 430
[8]    (1967) 1 SCR 128
[9]    (1972) 1 SCC 409
[10]   (1979) 4 SCC 507
[11]   (2012) 4 SCC 793

-----------------------
32


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.