Rajasthan High Court - Jaipur
Dr. Ram Narain Sharma And 18 Ors. vs University Of Rajasthan And Ors. on 23 May, 1996
Equivalent citations: 1997(1)WLC286, 1996(1)WLN645
JUDGMENT V.K. Singhal, J.
1. All these writ petitions are disposed of by this common order since the controversy involved in all of them is similar.
2. The petitioners were appointed as teachers on part-time/ honorarium basis. A policy was evolved by the University of Rajasthan by which the Head of the Departments were permitted to engage services of the retired teachers/Ph.D. Holders/ Research Scholars for taking classes to un-covered workload of the Department on honorarium basis. In respect of the year 1995-96. The instructions were issued on 21.9.1995 by the Registrar to the Head of the Departments. Teaching Department/ Principals of the University constituents colleges and Director PIM/SASC. University of Rajasthan, Jaipur. Besides the various conditions it was contemplated that the PH.D. holders would be paid Rs.75/- per period basis up to a ceiling of Rs. 4,000/- per month and at least two periods per day will be assigned. The Research Scholars were to be paid Rs. 40/- per period upto the ceiling of Rs.2,200/- per month and minimum two periods per day will be assigned. The policy was again continued with minor modifications for the academic session 1995-96 vide circular dated 27/29.7.1995. All these petitioners where appointed under the said policy and the sanction of Vice-Chancellor was also given. The writ petitions were filed proving for regular appointment to the post of Lecturer/Assistant Professor and restraining the respondents from dis-continuing the services.
3. In the case of Jai Narain Vyas University, Jodhpur v. Narendra Singh Rathore D.B. Civil Special Appeal No.537/95 decided on 19.7.1995 the Division Bench of this Court considered the claim of the part-time teachers and it was observed that if the University is taking work from these part- time teachers, in almost the same manner like the regularly appointed teachers, then there is hardly any basis for paying a lesser amount to them only because they are termed as part-time teachers engaged on period basis.
4. This judgment was considered by another Division Bench of this Court in the case of Dr. D.C. Dudi and Ors. V. University of Rajasthan and Anr. D.B. Special Appeal (Writ) No. 295/1995 decided on 1.3.1996 and it was observed that the appellants who have been appointed on honorarium basis to cover the un-covered work-load of the respective departments are entitled to the salary equivalent to the minimum of pay scale of the regularly appointed lecturers of the Rajasthan University from today i.e. 1.3.1996. The respondents were also restrained from dis-continuing the services of the appellants till regular appointments to the post of lecturer are made in accordance with law. The respondents were also left at liberty to assign the work to the appellants which is assigned to the regularly appointed lecturers.
5. On the basis of the above decisions, it is submitted that the services of the petitioners cannot be terminated till the academic session 1995-96 is over and that they are entitled for the salary equivalent to the minimum pay scale of the regularly appointed lecturers of the Rajasthan University, at least from the date the order was passed by the Division Bench.
6. Learned counsel for the respondents has submitted that the appointment to those lecturers was in order to meet out the emergency situation of non-availability of the qualified lecturers and, therefore, this stop gap arrangement for the fixed period was made. Neither they are entitled for equal pay for equal work nor are entitled for regularisation as for the post of Assistant Professor (Lecturer) the selection has to be made in accordance with the Ordinance/Rules made in this regard.
7. It may be observed that in the case of Narendra Singh Rathore v. Jai Narain Vyas University, Jodhpur, S.B. Civil Writ Petition No. 4601/1994 decided on 26.5.1995, the learned Single Judge declared that they are entitled to salary equivalent to the minimum pay scale of regularly appointed Lecturers of the University from the date of filing of the petition. This Judgment was affirmed by the Division Bench in D.B. Special Appeal No. 537/95 (referred to above). In the matter of Dr. D.C. Dudi (supra) the benefit of salary equivalent to the minimum pay scale of regularly appointed Lecturers of the Rajasthan University was given from 1.3.1996 and thus, the two benches have taken different views.
8. With regard to regularisation of service or not terminating the services of these part-time Lecturers till regularly selected candidates from Rajasthan Public Service Commission are available, no such plea was taken in the case of Narendra Singh Rathore, referred to above, while another Division Bench in the case of Dr. D.C. Dudi, referred to above, has directed that the respondents are restrained from discontinuing the services till the regular appointments to the post of Lecturer are made in accordance with law. Besides this, it is also observed that the respondents are at liberty to assign the work which is assigned to the regularly appointed lecturers.
9. Learned counsel for the respondents has submitted that if these directions are complied with, a problem would arise as to how many persons could be retained or continued because it is an established principle of law that if the work is not available with the employer, he is entitled to terminate the services and these part-time lecturers were given the work load not equivalent which was being performed by the regularly appointed lecturers and the number of lecturers differ from person to person and they are given full work the result would be that certain candidates would become surplus.
10. Learned counsel for the petitioner submits that the argument of the learned counsel for the respondents is dehon: the record and is only academic because they were performing the duty exactly similar to the regularly appointed lecturers.
11. The arguments of learned counsel for both the parties have been heard. The employer is entitled to have the stop gap arrangement when ever an emergent situation arises, but in the garb of such emergent situation back door entry cannot be permitted. The Rules have been framed for appointments of lecturers. The appointments of the lecturers should be in accordance with those rules and if any temporary appointment for the fixed period has been given then no right is accrued in its favour for regularisation of service. Even in the judgment given by the Division Bench it has been directed that they should be allowed to continue till the regularly appointed lecturers are made available in accordance with rules. The petitioners have no right for regularisation as at the most the appointment could be considered as temporary and that too for a fixed period. Whether this practice is fair or un-fair is not being examined at this stage because it is now pointed out that the appropriate Ordinance has already been framed and now the University is in a position to have the regular selections in accordance with the rules. It is also stated on behalf of the respondents that "the services of these petitioners have already been terminated on differet dates.
12. I have considered over the matter. With regard to payment of minimum pay scale in the matter of Dr. Narendra Singh Rathore v. University of Rajasthan. The minimum pay scale was given from the date of filing of the writ petition while in the case of Dr. D.C. Dudi, the benefit was given from the date of judgment. The matter could have been referred to the larger bench, but the facts which have now been stated by the learned counsel for the respondents are that the petitioners are not performing the same duties as the regularly appointed Assistant Professors. Besides the responsibility which regularly appointed employee has to discharge, the number of lecturers are less. The Apex Court in the case of State of West Bengal and Ors. v. Hari Narayan Bhowal and Ors. , the decision of Delhi Veterinary Association v. Union of India was taken into consideration this point where it was observed as under-
The degree of skill, strain of work, experience involved, training required, responsibility under taken, mental And physical requirements, disagreeableness of the task, hazard attendant on work and fatigue involved are, according to the Third Pay Commission, some of the relevant factors which should be taken into consideration in fixing pay scales. The method of recruitment, the level at which the initial recruitment is made in the hierarchy of service or cadre, minimum educational and technical qualifications prescribed for the post, the nature of dealings with the public, avenues of promotion available and horizontal and vertical relativity with other jobs in the same service or outside are also relevant factors.
13. The decision in the case of State of UP. v. J.P. Chaurasia was also considered and it was found that where two posts are equal or should any the equal pay, depends on several factors. It does not depend Just upon either the nature of work or the volume of work done. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts. The quantity of work may be the same but the quality may be different. That cannot be determined by relying upon averments in affidavits of interested parties. It must be determined by expert bodies like Pay Commission, who would be the best judges, to evaluate the nature of duty, responsibility and all relevant factors. It was observed in State of West Bengal v. Hari Narain (referred to above) as under-
It need not be impressed that the principle of equal pay for equal work' can be enforced only after the persons claiming satisfy the court that not only the nature of work is identical but in all other respects they belong to the same class and there is no apparent reason to treat equals as unequals. Unless a very clear case is made out and the court is satisfied that the scale provided to a group of persons on the basis of the material produced before it amounts to discrimination without there being any justification, the court should not take upon itself the responsibility of fixation of scales of pay, especially when the different scales of pay have been fixed by Pay Commission or Pay Revision Committees, having persons as members who can be held to be experts in the field and after examining all the relevant material. It need not be emphasised that in the process undertaken by the court, an anomaly in different services may be introduced, of which the court may not be conscious, in the absence of all the relevant materials being before it. Till the claimants satisfy on material produced, that they have not been treated as equals within the parameters of Article 14, courts should be reluctant to issue any writ or direction to treat them equal, particularly when a body of experts have found them not to be equal.
14. Another decision of State of West Bengal v. Madan Mohan Sen. 1993 Supp. (3) SCC 243 was also referred and it was observed that it was pointed out in that case that merely because the academic qualifications and physical requirements of both are similar or that the Agragamies are also given certain fire-fighting training along with other training, it cannot be said that they perform similar duties, functions and responsibilities as the Fireman. In the case of Shyam Babu Verma v. Union of India the claim for equal pay by a group of Pharmacists was rejected saying that the classification made by a boby of experts after full study and analysis of the work, should not be disturbed except for strong reasons which indicate that the classification made was unreasonable.
15. With regard to Equal Pay for Equal Work, the Apex Court in the case of State of M.P. v. Pramod Bhartiya 1992(5) SLR 643 has taken into consideration the provisions of Equal Remuneration Act, 1976. The definition of equal pay for equal work both for man and woman under the said Act was as under-
Some work or work of a similar nature means work in respect of which the skill, effort and responsibility required are the same, when performed, under similar working conditions, by a man or woman and the difference, if any, between the skill, effort and responsibility required of a man and those required of a woman are not of practical importance in relation to the terms and conditions of employment.
16. In the case of Vijay Kumar and Ors. v. State of Punjab and Ors. , where the dispute was with regard to equal pay for equal work for part-time lecturers, it was observed by the Apex Court that they were working for more hours every day as compared to regularly appointed lecturers and, therefore, are entitled to be paid minimum of pay scale prescribed for regularly appointed lecturers duties of which post they were discharging during the period their appointment as part-time lecturers subsisted. In the present matter it has not been established that they were discharging the duties more than regularly employed lecturers and even to the extent the lecturers were given by the regularly employed lecturers. On the contrary it is stated by the respondents that the number of lectures given was much less than the regularly employed lecturers.
17. The petitioners were working as part-time lecturers and even the total number of classes taken are stated to be different than the regularly employed Assistant Professors and thus it is a factual dispute. Even non-teaching staff after office hours was permitted to give lectures under this scheme.
18. The decision in the case of Dr. Dudi is based on the alleged concession. In the case of Narendra Singh Rathore. 21 lecturers were given per week, while in the present case the number of period undertaken are stated to be much less i.e. from 5 to 15.
19. It was in respect of teachers who were continuing for 8- 10 years with one day break that the Apex Court in Karnataka State Birah College Stop gap lecturers Association v. State of Karnataka directed for regularisation and from the date of judgment salary equal to that admissible to teach was granted as they were appointed against permanent post. Since, the decision of Dr. Dudi is based on this decision of Apex Court direction to make the payment or salary from the date of decision could have been considered but it is informed that the services have already been terminated as such no relief on that ground could be given.
20. In Chandigarh Administration v. Anita Sood 1995 Suppl. 3 SCC 693 where the classification was on the basis of academic qualifications, experience, quality and standard of teaching, it was held teaching assistants cannot be granted pay scale of lecturers on the ground that they teach same subject to same/similar students as being done by lecturers.
21. In view of the above decisions, since the factual dispute has been raised, I do not consider that a case is made out for directing the respondents to pay even the equal pay for on the basis of equal work. The respondents have failed to establish that they are performing the same duties.
22. Allahabad High Court in the case of Dr. S.N. Upadhyaya v. Vice-chancellor Kashi Vidyapith, Varanasi and Ors. 1991(7) SLR 466 has considered the matter with regard to temporary appointment as in the present case wherein also the prayer that for regularisation was made. The Court fund that it was an emergency power exercised by the Vice Chancellor and the selection was not made in accordance with the rules by which the regular selection is being made and hence, the petitioners were not entitled to avail the benefit of regularisation. This judgment is fully applicable to the facts of present case. It was held by the Apex Court that part time temporary lecturers are not entitled for regularisation.
23. Another prayer which has been made is that their services should not be dis-continued and the order of termination should be allowed to be quashed. The appointment of the petitioners was on urgent temporary basis for a fixed period. It is in the nature of ad hoc appointment in which the regular procedure for selection has not been followed and as such the petitioners have not acquired any right. The services have already been terminated and, therefore, they cannot be directed to be reinstated now. In the selection now to be made they would be free to apply so that they may be considered on merit. It is however, observed that the respondents shall not hence forth continue the scheme of temporary appointment of the nature under which these petitioners were given the appointments and no appointment in future shall be made; under this scheme as it cannot be permitted to employ temporarily every year and terminate the services at the end of the year and then re- employ again on temporary post. If it is found that in the next session the scheme is extended or appointment is given on temporary or adhoc basis without following the procedure under the rules/Ordinance, the petitioner would be given the preference and full work would be undertaken from them so that they may claim equal pay for equal work on the basis of inaction of the respondent to employee Assistant Professor. The State Government is however, directed not to give the grant in aid on such appointments so that the University be compelled to follow the procedure. It will be the responsibility of the respondents to make the selection timely in accordance with the rules so that unnecessary litigation which is the creation of the respondents themselves may not continue in future. The question of absorption of the petitioners on the basis of services rendered cannot be considered though, it will be for the respondents while the applications are invited to take into consideration the experience as one of the factor which the petitioners and the like have in comparision to other candidates. A copy of this order may be sent to the Secretary Finance for compliance.
24. All the writ petitions are dismissed with the above observations.