Bombay High Court
Geeta Bhaskar Pendse (Mrs.) vs Principal, Ayurved College Sion And ... on 10 April, 1990
Equivalent citations: 1990(2)BOMCR586
JUDGMENT G.H. Guttal, J.
Per G.H. GUTTAL, J.:---
1. The petitioner who was a lecturer in Sanskrit in Ayurved College, Sion, Bombay, impugns the legality of the Order dated 9th December, 1986, made by the College Tribunal, Bombay, in Appeal No. 28 of 1986, confirming the termination of her services by the respondents Nos. 1 & 2 who are, respectively, the Principal and the Management of the College. The respondents Nos. 3, 4 & 5 are respectively the University of Bombay, the Director of Ayurved, Maharashtra State, and the State of Maharashtra. The respondent No. 6 is a lecturer in Sanskrit appointed in the place of the petitioner.
2. The admitted facts may be, briefly, set out :
Pursuant to the advertisement dated 13th October, 1983, and after interviewing the petitioner, the respondents Nos. 1 & 2 appointed her as lecturer in Sanskrit. She worked from 19-3-1984 to 30-4-1984, as her appointment was specifically for this duration. A second advertisement was published on 12-11-1983 for the year 1984-85 inviting applications for the post of lecturer in Sanskrit. In 1984-85, the petitioner was once again interviewed selected and appointed for this post where she worked from 21-8-1984 to 19-4-1985. Pursuant to a third advertisement dated 28th April, 1984, the petitioner was once again appointed from 10-7-1985 to 30-4-1986. During all these three years, the petitioner worked in the college of the respondents Nos. 1 & 2. She did not have in her favour any order of appointment for the duration of the summer vacations (a) from 1-5-1984 to 20-8-1984, and (b) 20-4-1985 to 9-7-85. The vacancy continued to exist even after 1-5-986. However, instead of continuing the petitioner, the respondents Nos. 1 & 2 appointed the respondent No. 6 as lecturer in Sanskrit in the post occupied by the petitioner.
One more fact needs to be stated. The initial appointment of the petitioner was in a clear permanent vacancy of lecturer in Sanskrit. But the vacancy was reserved for the candidates from the Scheduled Castes and Scheduled Tribes. No candidates applied for the post in response to any of the three advertisements. That is why the petitioner was appointed during the second and third years also. The Scheduled Castes and Scheduled Tribes are in this judgment referred to "backward class". The petitioner and respondent No. 6 belong to the "non-backward" classes.
3. A significant fact established before the Tribunal is that the petitioner was held entitled to the salary as Lecturer in Sanskrit for the Summer Vacations of the academic year 1984-85 and 1985-86. The Summer vacations of the academic year 1984-85 means the months of May and June 1985. Similarly, the summer vacation for the year 1985-86 means the months of May and June 1986.
The petitioner by virtue of the finding of the Tribunal received the salary for the months of May and June 1985. The finding of the Tribunal has not been challenged before us by any respondents. Therefore, it cannot be said that in May and June 1985 she was not employed as lecturer in Sanskrit.
4. The petitioner's case rests on the resolutions and directives of the State of Maharashtra and the University of Bombay. Therefore, it is necessary to set out these directives.
On 8-5-1982, the Vice Chancellor of the University of Bombay, in exercise of his powers under section 11(6)(b) of Bombay University Act, issued directives to the affiliated colleges in regard to the reservation of posts for candidates from the Scheduled Castes and Scheduled Tribes. These directives lay down the course to be followed where the candidates belonging to the backward classes are not available. Clause (3)(b) of the directive, in so far as is relevant, reads :
"Even after readvertising the posts three times, if suitable candidates belonging to Backward Classes do not become available, they may be filed in by candidates belonging to the open category".
Meanwhile, on 29th September, 1986, the Government of Maharashtra, Education and Employment Department, issued an order on the subject of appointment of the candidates belonging to classes other than backward classes-non backward classes, for brevity-against the vacancies reserved for candidates belonging to the backward classes. This resolution of the Government issued three directives to the University :
(i) Where a candidate from the backward classes is not available, a candidate from the "non backward" class may be appointed for a year.
(ii) If during the second and third years, a candidate from backward classes is not available, the candidate from the nonbackward class shall be appointed in the second and third years without calling him/her again for interview.
(iii) When the reserved post is deresserved, the appointee who held the post during earlier years shall be confirmed in such post.
Pursuant to the Government's Order dated 29-9-1986 set out above, the Executive Council of the University of Bombay passed Resolution No. 56 dated 27-2-1987. Based on this resolution, the Vice Chancellor of the University issued a circular No. CONCOL/98 of 1987 whereunder certain directives were issued to the affiliated colleges. The circular issued in exercise of the Vice Chancellor's power under section 11(6)(b) of the Bombay University Act issued directives on the lines of the Government circular. However, the following directives are noteworthy :
(i) In the second and third year, the "non backward class" candidate appointed in the previous year shall be continued in the same post, unless his/her employment was terminated for unsatisfactory performance.
(ii) If, in response to the advertisement in the third year, no application is received from candidates from the backward classes, "the authorities shall start the process of dereservation of the reserved post".
(iii) After the process of dereservation is completed, the appointment of the "non backward class" teacher shall be deemed to be on probation with effect from the date of his initial appointment.
(iv) However, the restrospective probation set out in (iii) above follows only if the teacher "has held continuous appointment for two years".
(v) The appointment referred to at (iii) and (iv) shall be confirmed from the date of completion of two years of continuous appointment.
5. The State of Maharashtra and the University of Bombay whose regulations are being construed by us have made no affidavit to dispute the facts stated above. The respondents Nos. 1 and 2 also have not disputed the correctness of the facts set out above.
6. The effect of the directives summarised above is that if the petitioner held the appointment as lecturer in Sanskrit continuously for two years, (a) she is deemed to be on probation from 19-3-1984, the date of her first appointment; and (b) she is deemed to have been confirmed in the post of lecturer in Sanskrit from 19-3-1986.
7. The question is whether notwithstanding the breaks in the petitioner's service between the two academic years, she was in continuous service of the respondents Nos. 1 and 2.
"Continue" means "keep up", 'maintain', "non stop". Continuous appointment means appointment uninterrupted in time. Are there any facts which lend continuity to the appointment of the petitioner ?
In the context of employment, the word "appoint" means "assign to office" or "designate to hold an office".
Literally understood, the employment of the petitioner was broken by the two periods set out by us in paragraph 2 above during which she had no order of appointment to cover the summer vacations. But there are certain undisputed facts which suggest that the respondents Nos. 1 and 2 never considered that the petitioner was divested of the office held by her during the aforesaid periods.
She did work during vacations and received the salary for the months of May and June, 1985. This reveals the intention of the respondent Nos. 1 and 2 to treat her as employed during the vacations also. Secondly, the petitioner was reappointed in the same post which was reserved for the backward classes during the second and third years also. A third telling fact is that the petitioner was appointed in a clear permanent post and not in a temporary vacancy. Although the petitioner's employment was broken during the vacations, the post always existed. Therefore, the intention of the respondents Nos. 1 and 2 was to appoint the petitioner continuously in a vacancy which was permanent. The break during the vacations was an expedient adopted by the respondents Nos. 1 and 2 to save expenses and was not intended to put an end to the employment of the petitioner. The respondents Nos. 1 and 2 intended to continue the appointment of the petitioner year after year. Subject to the availability of a candidate belonging to the backward classes her appointment was intended to be continuous.
8. It is against the background of these circumstances that the question of the continuous nature of the petitioner's appointment should be considered.
9. The word "continuous" cannot be construed mechanically. An interruption in point of time may break the state of continuity. But we are dealing with the scheme of the resolutions of the Government and the University which do not conceive continuity in time alone. The scheme is that the same teacher be appointed in the second and third years and directs the colleges to appoint the same lecturer again without advertising the post or interviewing her. If such interruptions are construed to break the continuity in employment, the resolutions will be ineffective. In our opinion, the resolutions of the Government and the University intend only one result:- The candidate from the non backward classes, when appointed in a clear vacancy, shall hold the office during each of the three years, unless a candidate from the backward classes by his/her appointment brings about a break in the continuity.
The submission that merely by not appointing the petitioner during the vacations, she ceases to hold the office continuously defeats the very purpose of the elaborate directions issued by the University. Such a result is opposed to the directions issued by the Government and the University.
10. There is another factor which suggests that the petitioner, for the purpose of the statutory directives issued by the University, held continuous appointment. The resolution of the University indicates what may put an end to the continuity of an employee during the second and third years. After laying down that a reserved post may be filled in by appointing a non-backward class candidate, clause (1) enjoins the colleges to invite applications from persons belonging to non backward classes. But what should a college do if a suitable non backward class teacher has already been appointed in the first year in accordance with the same resolution? The applications from candidates from non back-ward classes candidates for the second and third years shall be invited only if "the suitable non-backward class teacher already appointed in the first year is not available for reappointment------". In other words, where a candidate like the petitioner is available in the 2nd and 3rd years, no outsider belonging to non-backward classes can be considered for appointment in the second and third years. This is a clear indication that a teacher belonging to the non-backward category holding the post in the first year, continues in the second and third years. This chain of appointment may be broken in two contingencies :
(i) the candidate who held the post in the first year is not available in the second year;
OR
(ii) her services were terminated for unsatisfactory performance.
In other words, the right to continued appointment recognised by the University is not considered to have been interrupted unless one of the two events set out above occur. Therefore, it follows that a teacher once appointed in the first year is intended to be continuously appointed unless her services have been terminated for unsatisfactory performance. The words "for unsatisfactory performance" have been deliberately used. They exclude the cases of termination for any other reason like saving expenses of salary for the period of vacations. The termination of employment for unsatisfactory performance or unavailability of the teacher are the only factors which are considered to interrupt the continued appointment.
11. The persons like the petitioner who are selected for appointment are necessitous persons who are not in a position to bargain with their prospective employers. Their need of a job is such a compelling factor that it deprives them of the freedom to bargain. On the other hand, the respondent Nos. 1 and 2 and other colleges have been urge to evade the consequences of the resolution of the Government and the University which grant to the teachers the benefit of confirmation. The economic compulsion of the necessitous candidates leave no alternative but to accept the "interrupted" appointment even though the vacancy is permanent and the continued appointment can be made with the rules. Nevertheless, such adhoc appointments contrived with a view to evade the consequences of the rules are frequently made by the Educational Institutions.
12. Our approach to this case must progress along the path lit by the current judicial thought expounded by the Supreme Court.
Ratanlal and others v. State of Haryana and others, was a case of break in services effected so as to deny the employees the salary for the summer vacation and other benefits to which regular teachers are entitled. The Supreme Court characterised the practice of such ad-hoc appointment as pernicious". We have no doubt that such a policy followed by the respondent Nos. 1 and 2 is not only pernicious, but is also contrary to the plain intendment of the rules. The University has laid down the rules, so that a teacher who completes two years service becomes a permanent teacher. The respondents Nos. 1 and 2, by resorting to the unreasonable and arbitrary practice, have attempted to escape the consequence of the rules. We deprecate this practice.
In Rajbinder Singh v. State of Punjab and others, 1988 (Supp.) Supreme Court Cases 428, the Supreme Court directed the Government to continue the employment of adhoc teachers until regular appointment were made.
The case of Sushil Kumar Uadunath Jha v. Union of India, , is closer to this case. The teacher was appointed on probation in a permanent post. His services were terminated two years later during the summer vacation (1-3-1968/23-6-1968). But fresh appointment was made from June 24,1968. The terms of this appointment, which was a fresh contract of service, stipulated that he would not be entitled to continuity of service by reason of the interruption caused by the termination of the first employment. The teacher accepted his contract. His request for candonation of the breake in service was turned down.
Notwithstanding the contract whereunder the teacher had accepted the break in continuity of employment, the Supreme Court held that the teacher who had no job was in no position to bargain for a better deal and in the straightened circumstances in which he found himself he was compelled to accept whatever was dictated to him.
In Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly, , the Supreme Court held that having regard to the unequal positions of employer and employees, an unconscionable term in the appointment letter constituting the contract of employment is void under section 23 of the contract.
13. Thus, the trend of judicial thinking is that adhoc appointments, arbitrary "hire and fire, policies, exploitative term in employment contracts, unconscionable terms in service contracts are illegal. The judgment of the Supreme Court in Sushil Kumar Yadunath Jha lays down the judicial policy in cases of contrived interruptions in employment. The interruptions in employment, even if accepted by a teacher, are illegal because the jobless teacher is in no position to bargain with the strong mighty employer.
14. A careful analysis of the decisions of the Supreme Court brings into focus the judicial endeavour to bring the gap between the formal equality of parties to make a contract-as the petitioner did with the respondent Nos. 1 and 2 and the actual inequality and lack of freedom caused by stark differences of economic bargaining power. For instance, the petitioner no doubt possessed the external form of equality, for, no one physically forced her to accept the job and its incident of break during the vacations, denying to her, in the process, the benefit of confirmation. But the reality was that her economic compulsions left no alternative. The trend of thought set by the Supreme Court by creative law making attempts to bridge the gap between formal equality in contract and the socio-economic realities of our times. The importance of this endeavour is the reconciliation of the discrepancy between the formal postulates of equality and freedom in contract and the socio-economic reality which manifests itself in the contrived situations created by employers. We have, no doubt, that vital developments. In modern law recognises that there never is, absolute freedom of contract between unequal parties.
15. In the circumstances of this case and having regard to the true meaning of the Resolutions of the Government and the University, the respondents Nos. 1 and 2 cannot hold the petitioner by the physical interruption of employment during the vacations.
16. In our opinion, therefore, notwithstanding the break in the actual employment of the petitioner, she was continuously in employment from 19-3-1984 to 30-4-1986. It follows that the consequences laid down by the Government in its Resolutions dated 29-9-1986 and of the University dated 27-3-1987 must follows. These circulars make it clear that the petitioner who was appointed for two consecutive years must be deemed to have been on probation right from the time of the first appointment.
Since we have held that she was in continuous service for more than two years, she is deemed to have been confirmed in the post of lecturer in Sanskrit in the college of the respondents Nos. 1 & 2.
17. The petition, therefore, succeeds. Rule is made absolute in terms of prayer (a). We make the following order :
(i) The respondents Nos. 1 and 2 shall forthwith reinstate the petitioner in the post of lecturer in Sanskrit and treat her as if she has been in continuous employment from 19-3-1984.
(ii) The respondent Nos. 1 and 2 shall pay to the petitioner the full back-wages, seniority and other benefits.
(iii) The respondents Nos. 3, 4 and 5 shall give effect to this order by making appropriate sanctions including grant of money, if necessary.
(iv) The petitioner shall get costs of this petition from the respondents Nos. 1 and 2.
(v) The orders made above shall be complied with by the respondents Nos. 1 and 2 within six weeks from today. The operation of this order shall be stayed for a period of two weeks from today.