Central Administrative Tribunal - Chandigarh
Dr. Manish Arora And Ors. vs Union Of India (Uoi) And Ors. on 7 November, 2006
Equivalent citations: 2007(2)SLJ198(CAT)
ORDER Jasbir S. Dhaliwal, Member (J)
1. As the issues raised in both these O.As. and the relief claimed are interconnected, it is considered convenient to dispose of these O.As. by one common order.
2. The facts, as pleaded in O.A. 350/CH/2005 are that in response to advertisements issued by the respondent-department on 28.8.2004, 29.8.2004 and 9.2.2005, inviting applications for the Posts of Assistant Professors and Lecturers in Painting/Applied Art/ Graphics (Printmaking)/Sculpture etc., applicants applied and after going through the process of selection on the basis of interview, were selected and appointed on various dates. The appointment is on contract basis and on fixed salary of Rs. 12,000 in case of Assistant Professor and Rs. 8,000 for Lecturer plus dearness allowance thereon. It is stipulated in the order of their appointment, (copy of such order is at A-5)", that their appointment was for the period upto 30.6.2005 or till their services are required, whichever is earlier and that they will not be entitled for salary for the period of vacation/preparatory holidays or examination days, as also to the benefits available to regular/ad hoc employees.
3. Applicants claim that even since their appointment, they are performing their job with utmost sincerity and to the satisfaction of the respondents. They have been teaching Master in Fine Arts (MAF) classes which work is of regular nature and there is need of regular Assistant Professors/Lecturers. But the respondents are resorting to appointing persons on contract basis just to deny them the benefits of regular service and the applicants being in need of service, have no other option except to accept the exploitary terms and conditions offered to them. They are being given notional breaks during vacations/ preparatory holidays/examination days, despite the fact that the issue stands settled by judgments not only of this Court, but of High Court and the Supreme Court, holding that the contractual employees should not be relieved till regular appointments are made and they be paid even for the period of vacations etc. Plead that the policy of hire and fire i.e. the practice of engaging teachers on fixed terms at the start of the session and relieving them before vacation and reengage after vacation has been deprecated by Courts, including this Court in the case of Meenakshi Walia and Ors. v. U. T. Chandigarh in O.A. 1196/CH/96, decided on 2.7.98, which decision has been upheld by the Punjab and Haryana High Court and the Supreme Court. In an identical case in O.A. No. 80-CH of 2004, decided by this Court, direction has been given to the respondents to continue to employe the applicants therein till they are replaced by regularly selected appointees. Their case is that though the respondents were under an obligation to extend the benefit of the above judgment to them also being similarly placed, but they have strong apprehension that they will be relieved by the respondents on expiry of their term on 30.6.2005, when regular work is there for them and respondents are in need of Assistant Professors/Lecturers. Applicants have, therefore, prayed for directions to the respondents to fill up the vacancies of Assistant Professors/ Lecturers in Applied Art, Graphics, Sculpture, Painting etc. on regular basis and also to consider them and to continue to engage them till they are replaced by regularly selected persons. It is further prayed that they be not dis-engaged during vacation/holidays/ examination days and be paid salary for the same. Applicants 1,2,3,5, and 7 are said to have not been paid for the vacation period from 25.12.2004 to 2.1.2005, which has been demanded with interest @ 18% from the due date till actual payment.
4. Vide order passed on 20.4.2005, this Court had directed the respondents to maintain status quo qua the applicants, which order has continued to operate after being extended from time to time.
5. In O.A. 438/CH/2005, applicant No. 1 is working as Lecturer on ad hoc basis, while respondents No. 2 to 4 are regular Lecturers. They have challenged the selection and appointment of the applicants in O.A. 350 ibid on the ground that the same has been made without sanction of posts and in violation of the rules approved by the UGC/AICTE, by an illegally constituted Selection Committee, which did not have subject experts. Moreover, the said posts being in Gazetted Class-I category, the selection was to be made through the UPSC, but neither, the UPSC nor the Human Resource Development Ministry have been consulted. It is relevant to point out here that in the above selection. Applicant No. 1 had also participated but was not selected, while applicants 2 to 4 could not appear as they were informed that since they were working on probation against lien posts, they cannot be considered for appointment. The precise submission of the applicants is that they were qualified to teach the Postgraduate classes and could have been appointed in place of the applicants in O.A. 350 ibid but these applicants have been denied the chance to teach Postgraduate students and thus gain experience. According to these applicants, this has been done by the official respondents with a pre-planned motive to induct their favourites and let them have experience so that as and when regular posts are created, respondents 8 to 15 could stake their claim to the posts and the present applicants could be declared ineligible for want of required experience. Hence, these applicants have prayed for quashing the appointment of private respondents 8 to 15 and for a direction to the respondents to make appointment to the posts of Assistant Professors/Lecturers through the Union Public Service Commission.
Same pleas are taken in M.A. 782/2005 with the addition that vide letter dated 21.2.2005 (copy M.A.-3), the All India Council for Technical Education has laid down qualifications for teaching in Degree/Diploma level institutions, according to which for post of Assistant Professor, 5 years' experience is required as Lecturer or equivalent, which the applicants in O.A. 350 do not have and thus, are not eligible to be appointed.
6. M.A. 783/2005 has been filed with a prayed to vacate the ad-interim stay order granted on 20.4.2005. Replies to these M.As. have been filed.
7. Respondents 2 to 5 have filed a written statement, stating that there is no regular or temporary post of Assistant Professor/Lecturer with them and applicants in O.A. 350 are being paid out of Contingent Fund of the College, as per permission granted as a special case, with a view to start MFA classes at the Govt. College of Art, Chandigarh by the Chandigarh Administration. Therefore, the question of making any regular appointment does not arise. As regards the salary for the period of vacations, preparatory holidays/ examination days etc, the stand of the respondents is that they do not have sufficient funds to pay the same and the applicants are bound by the terms and conditions of their appointment. The sanction for the MFA course has been received only for the session of 2004-2005 and no further sanction has been received either from the Punjab University or AICTE, in absence whereof, the respondents are not in a position to allow the applicants to continue. They have thus prayed for vacation of the status quo order and dismissal of the O.A.
8. In reply to O.A. 438 ibid, the respondents have stated that the applicants have no cause of action. They have acted in accordance with law and the O.A. is misconceived. It is pleaded that the Chandigarh Administration introduced Post-Graduate Courses in M.F. A. in four different subjects with the approval of respondent No. 7 and the Punjab University. The matter was taken up with the Ministry of Human Resources for creation of regular posts, but in the meantime, respondent No. 3 accorded approval for filling up four posts of Assistant Professors and four of Lecturers to be engaged on contract basis as a special case. Applicant No. 1 applied for the post of Assistant Professor, but was not selected as he does not possess the degree qualification, while applicants 2 to 4, who are regular Lecturers, did not apply for contract appointment. On sanction of regular posts. Recruitment Rules will be framed and Appointment shall be made through UPSC. Present appointments are as a matter of stop gap arrangement and their expenditure is met out of the contingent grant fund. The Selection Committee comprised of Home Secretary as Chairman, Joint Secretary as Technical Member, Principals of College of Architecture and College of Arts as Members. Respondent No. 5 has acted as subject expert in selection conducted by various Universities, and there is no infirmity in the selection.
9. We have heard the learned Counsel for the respective parties and considered the matter.
10. These two cases are peculiar cases which represent the practices which have been going on for the last many years in various Government departments where appointment to public posts whether regular, or sanctioned or not sanctioned are made in violation of the rules, instructions or policy decisions where persons enter into service on specific contracts of appointments and thereafter apply for obtaining interim orders from the Courts for continuing in the jobs whether the posts are sanctioned or not out of compassion, sympathy or in the name of equity. Judgments had been rendered by the Apex Court from time to time and finding that there were some contradictory views expressed, the matter was referred to a Constitutional Bench and the law has been settled for - this Court as well as the Courts of the country in the case of Secretary, State of Karnataka and Ors. v. Uma Devi and Ors. 2006(3) SLJ 1 (SC) : 2006(l) SCSLJ Page 480. While discussing the law, we propose to borrow from this judgment.
11. Since litigants in the name of compassion, or alleging unfair practices against respondents or on grounds of sympathy have been obtaining orders whether interim or final, we refer to the observations of Farewell, L.J. in Latham v. Richarad Johnson & Nephew Ltd. 1913(1) K.B. Page 398, which have been quoted by the Hon'ble Supreme Court in more than one judgment rendered by it. Lord Justice Farewell had observed that sympathy in favour of a plaintiff should not affect the judgment of the Court as sentiment is a dangerous will of the wisp to take as a guide in the search for legal principles. In the case of Ten Oat Estates (P.) Limited v. U.T. Chandigarh , the Hon'ble Supreme Court had expressed that there was no doubt that the sympathy or sentiments by itself cannot be a ground in passing an order in relation whereto a litigant miserably failed to establish a legal right. Despite an extra ordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, the Court held, it would not pass an order which would be in contravention of a statutory provision. We proceed to examine the facts of these two cases in the light of such observations made by the Hon'ble Supreme Court.
12. In both the cases, applicants are yearning to get regular appointment to the post of Assistant Professors and Lecturers for the post-graduate course in Master of Fine Arts as started by the Chandigarh Administration with the help of the Principal, Government College of Arts, Chandigarh. It is apparent from the pleadings that neither the University with which provisional affiliation has been taken nor AICTE has given a definite approval for the said course nor any sanction has been given for the posts to which applicants in O. A. No. 350/CH/2005 were appointed or applicants in O.A. No. 438/CH/2005 are staking their claims. Even the AICTE had found that the Principal of the College is forcing its hands by start of course without his meeting with the requisite conditions for start of such course in any institution. In Annexure R-2 dated 31.1.2005, the Council for Technical Education granted the approval for the year 2004-05 as a special case with a view to protect the interests of the students who had already been admitted as they were likely to suffer in the case of non-grant of approval. It was directed that the institution shall take immediate steps to fulfill all prescribed norms including the faculty with a warning to the Principal not to create such a crises in future. The respondent College, however, went ahead with the said course in the next year as well and also promoted the students to second year due to which the Council and the University felt completed to grant extension. Annexure A-15 dated 29.7.2005 is a letter from the Council mentioning that they have found on appraisal that Government College of Arts, Chandigarh, is suffering from several deficiencies which they had listed out of which non-availability of faculty is the most serious one. Faculty needs no elaboration as it refers to Professors and Lecturers in a particular department who constitute faculty. It is thus, obvious that there is no regular sanctioned faculty nor any regular sanctioned posts for which applicants in the case of Dr. Manish Aroraetc, were recruited on contractual basis for a fixed term and had continued working on the extension of the Council and continuance of the said course of MFA in the four subjects. We have to view the claims of the applicants in both the O.As. in view of such starch facts and to examine as to whether any rights have been acquired by applicants of either of these two 0. As.
13. Applicants in the case of Manish Arora and others got selected and were given appointment vide offers of appointments, copies of which are Annexure A-5, which clearly laid down the terms and conditions mentioning that the assignment given to them will be upto 30.6.2005 or till their services are required, whichever is earlier and that they shall have no claim for adhoc /regular appointment available at the institution. Their appointment will be cancelled if final approval from the Punjab University/AICTE is not received. It is apparent that this is a contractual appointment for teaching on an assignment when no regularly sanctioned posts exists and these have been created only for running the course and teaching the students which had already been started and admission given.
14. Much sympathy a Court may have with the appointees, yet, the Court cannot ignore the law. In the case of the State of Punjab and Ors. v. Surinder Kumar and Ors. 1991 (Supp.) (3) SCR 553, while the Apex Court was considering the powers of the High Court for issuing directions for regularization of services of persons temporarily appointed to the post of Lecturers, it was held that the specific terms on which appointments were made should normally be enforced and the appointees have no right to claim a direction for going beyond the said specific terms. In the case of Director, Institute of Management Development of U.P. v. Pushpa Srivastava , the Court held that when the appointments were purely on ad hoc or contractual basis and for a limited period, on the expiry of the said period, the right to remain on the post came to an end even if the persons had been allowed to continue beyond such period. In the case of Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra and Ors. , the Court held that the persons had no right for asking of reinstatement or re-engagement once it is seen that they weread hoc ox temporary employees. It has also been held in another case that one pre-condition has always to be considered by the Court that initial entry of an employee must be weighed against a available sanctioned vacancy by following the rules and regulations. Any appointment made either against the statutory rules or on ad hoc or contractual basis did not confer on the appointees any right to the posts. In the case of The Workmen of Bhurkunda Colliery v. The Management of Bhurkunda Colliery , it was held that the pre-dominant view of the Courts now is that such appointees did not get a right for re-engagement even. On the conditions and terms of contract, the Court held that considering the nature of their appointment, such contractual appointees do not acquire any right and the Courts should not ordinarily issue directions for their permanent continuance or absorption or regularization unless the recruitment itself was made regularly in terms of constitutional scheme. It has been noticed in a number of cases, the employees had been coming to the Courts claiming that they were unequal party to the contract appointment as they had no choice on the terms of appointment. The Court in the case of Uma Devi and Ors. has held that if the Court were to void a contractual employment of this nature on the grounds that the parties were not having equal bargaining power that too would not enable the Court to grant any relief to that employee for continuance. Since employment temporarily, contractually or casually cannot be stopped and atleast are the modes of granting employment and noticing that innumerable citizens are in search of employment, such employees are not compelled to go for employment being offered on certain terms and conditions. The Court held that it is in that context that one has to proceed on the basis that the employment was accepted fully knowing that nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned known the nature of his employment that it is not an appointment to the post in the real sense of the term. In Para 36 of this report, the Apex Court negatived argument that since one has been working for summer time in the post, I will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up. It held that such an argument would have to fail if appointment is required to be made in consultation with the Public Service Commission, in contractual or otherwise made appointment shall not confer any right on him if appointed without following the requisite legal conditions.
15. In view of the above discussion, notwithstanding some judgments to the contrary by the Benches of C.A.T. earlier, and in view of the law now explained by the Constitution Bench of the Supreme Court in the case of Uma Devi (supra), we hold that the condition of appointment of applicants on fixed term basis cannot be declared to be illegal or unconstitutional and thus, cannot be quashed. We have to hold that they have not acquired any right to be continued on the respective posts till all the posts in their category are filled up on regular basis. We would however, hasten to add that the respondents should not be unfair and unethical on this aspect while considering the claim of the applicants if they have the jobs for which the applicants were selected and their work and conduct is found to be satisfactory, even if the applicants may not have developed a right to continue on the said job, they may be allowed to continue till their services are required by the respondents keeping in view interests of the students in mind. In any case, a contractual appointee should not normally be replaced by another set of contractual appointees unless the work and conduct of the earlier appointee is found to be not satisfactory or lacking in any aspect.
16. Applicants in the case Manish Arora and Ors. has sought directions to fill the existing and future vacancies of Assistant Professors and Lecturers in the subjects mentioned in the O.A. including the posts on which they are presently working on regular basis and consider the applicants as per their eligibility and suitability and considering the length of service they have already put in. We cannot issue any such mandamus as it is the common case of the parties that there are no sanctioned posts so far available, there is no other sanctioned and approved faculty. Whatever is being practiced by the respondents is only in the nature of stop gap arrangements obtaining approval of the AICTE and affiliation from the University from one year to another. One can only express a desire that if the respondents intend to run the MFA courses in the subjects aforesaid, in the perpetuity, they should get regular affiliation from the University for those course and the approval of the AICTE and thereafter should get regular rules of recruitment for the said posts duly notified and proceed to make regular appointments as per the rules. Running such important courses in the institutions on adhocism without there being a regular faculty is neither in the interest of education nor would be in the interest of the taught. As and when these conditions are fulfilled and posts are advertised, if the applicants apply, they should be considered as per their eligibility and suitability along with other candidates from the public who may apply.
17. The law has been settled by the Hon'ble Supreme Court in the category of teachers that if they are engaged for teaching for the academic year, they are not to be relieved during vacation period, preparatory holidays or any other holidays and are to be paid their salary. Our attention has been drawn to a memo dated 22.11.2005 indicating a decision by the respondents that all these applicants shall be paid salary even for the vacations and holidays period. We were informed that the respondents are implementing the said decision. If the course is continued, respondents may consider continuing the applicants on their jobs as directed above.
18. The applicants in the case of Sumangal Roy and Ors. are a category who were already working in the respondent College and have been assigned jobs of teaching in the classes which already exist. So far no rules of recruitment for selection and appointment to the post of Assistant Professors and Lecturers for the post graduate classes appear to have been framed and notified. In any case, we notice that applicant No. 1 Shri Sumangal Roy had applied for contractual employment against which the applicants in the case of Manish Arora and Ors. were selected and in which the name of Shri Roy could not find a place. He cannot now turn around and question the said selection having been un-successful in the same as he would be estopped by his own act and conduct by doing so. Applicants No. 2 to 4 in this case had never applied for contractual employment even though the posts were advertised for whatever reason they may have taken a decision not to apply. We have not been shown any vested right, under any rule, where they can claim a right of promotion or right of appointment merely because they are already teaching some classes in the said College and merely on the grounds that they are qualified to teach post graduate classes. It is a policy decision taken by the Chandigarh Administration to have teachers for the post graduate MFA courses by way of direct recruitment. If the applicants in the case of Sumangal Roy apply, they have a right to be considered as one of them has already been so considered. Those who had not applied cannot now claim any right. We do not find any legal grounds for quashing the appointments of the persons selected and appointed who are impleaded as respondents No. 8 to 15 in the case of Sumangal Roy. It is true that regular sanctioned posts are not available and that is the reason for contractual appointments. Yet for carrying on the work of teaching, this will not be impermissible We, however, would hold that appointment in future to such posts should be made strictly in accordance with the guidance and directions given by the AICTE and the HRD Ministry and selection should normally be by a duly constituted Selection Committees as the posts of teaching - MFA courses are definitely comparable to class-I posts. One would not like appointments to such posts-even if these are temporary in nature and against temporarily created posts-to be manned by persons who arc not qualified and who have not been selected in the manner regular candidates are required to be selected. UGC and AICTE had been created and they have been issuing instructions for keeping certain level of education in various educational institutions and that cannot be allowed to be scuttled by some adhocism being practiced. Since the appointments of Manish Arora and others have already been held to be no appointments to any posts and are being treated in the nature of stop gap arrangement, it is directed that whenever appointment to the posts are made in future even in the nature of temporary appointments as given to Manish Arora and others, the above directions shall be kept in mind. We, however, hold that the applicants in the case of Summangal Roy and Ors. have not been able to make out a case for allowing the relief as prayed for by them in their O.A., the same is, therefore, dismissed with the observations and directions as given above.
19. Both the O.As. are disposed of in the terms above mentioned.