The Mahatma Gandhi University vs Smt.Ajantha.K.G on 2 January, 2013

[Cites 28, Cited by 0]

Kerala High Court

The Mahatma Gandhi University vs Smt.Ajantha.K.G on 2 January, 2013

1. aAll the writ appeals are filed by Mahatma Gandhi University and its officials, against the judgments rendered by the learned single Judges of this Court allowing the writ petitions filed by teachers of the Self Financing Institutions established and administered by Mahatma Gandhi University, constituted under the Mahatma Gandhi University Act, 1985 (hereinafter referred to as 'the Act' for short). Since the issues raised are common in nature, the writ appeals were heard together and are disposed of by this common judgment treating W.A. No.727 of 2011 as the leading case. We shall also separately deal with W.P.(C) W.A.794/13 & con. cases -2- No.2148 of 2011.

2. W.A. No.727 of 2011 arises from the judgment in W.P.(C) No.20680 of 2009 which was filed by the first respondent herein. Ext.P1 is the Notification issued by the appellant University on 20.12.1993 inviting applications from eligible candidates satisfying the qualifications prescribed therein to prepare a panel of qualified and experienced teachers to be appointed on contract basis as part-time/full-time Lecturers/Professors/Guest Lecturers/ Guest Professors/Tutors/Technical Assistants in the School of Technology and Applied Sciences for conducting the courses mentioned therein. In response to Ext.P1 Notification, among others, the first respondent herein and petitioners in W.P.(C) No.2148 of 2011 submitted their applications. Finally, Ext.P22(a) and (b) select lists were prepared by the University, in which, the first respondent herein and the petitioners in W.P.(C) No.2148 of 2011 are also included. In the Syndicate Meeting held on 17.02.1994, W.A.794/13 & con. cases -3- it was resolved to accept the recommendations of the selection committee and to approve the panel of teachers. Referring to Syndicate resolution, University issued Ext.P20 order dated 04.03.1994 stating that the appointment of the selected candidates shall be on contract basis for a period of one year initially to act as teachers in the School of Technology and Applied Sciences. In pursuance to Ext.P20, by Annexure-I order in R.P. No.83 of 2011 dated 21.04.1995, along with four others, the first respondent in this appeal was also appointed as lecturer on contract basis in Polymer Technology.

3. Annexure-II in the review petition is an agreement dated 06.03.1998 that was subsequently entered into between the first respondent and the appellant and it is pointed out that following Annexure-I also, a similar agreement was entered into for a period of one year. Annexure-I itself show that the first respondent herein joined the post on 04.03.1995. The three petitioners in W.P. W.A.794/13 & con. cases -4- (C) No.2148 of 2011 also joined the services on 09.05.1994, 07.10.1994 and 07.10.1994 respectively.

4. Ext.P21 is the extract of the minutes of the meeting of the syndicate sub-committee on Self Financing held on 28.10.2004 which shows that, the committee had resolved to recommend to declare the probation of the petitioners in W.P.(C) No.2148 of 2011 with effect from 02.01.2003. Ext.P2 is the order issued by the University on 23.11.2004 which also indicates that the aforesaid three persons were granted UGC/AICTE scale with effect from 01.01.2002. By this order, sanction was also accorded by the Vice Chancellor to declare that the aforesaid three persons have completed probation in the post of Lecturer on the dates indicated in the order. Ext.P3 is the order dated 25.09.2006 issued by the Registrar of University, where, referring to the meetings of the syndicate held on 08.08.2006 and 18.08.2006, the petitioners in W.P.(C) No.2148 of 2011 were also granted pay in the scale of pay of 10000-325-

W.A.794/13 & con. cases -5- 15200 with effect from 01.01.2002.

5. Subsequently, the University issued Ext.P6 order dated 20.10.2006, conveying the sanction accorded by the Vice Chancellor for granting the first respondent herein the scale of pay of 8000-275-13500 with effect from 01.01.2002 as long as the courses/institutions in which he is employed, stands financially viable. The correctness of Exts.P2, P3 and P6 were reiterated by the University in Ext.P15, a reply given to a query under the Right to Information Act. Ext.P3

(a) is a subsequent proceeding issued by the University on 22.08.2007, conveying the sanction accorded by the Vice Chancellor to grant the benefits of leave and other service benefits which are applicable to the lecturers who have been granted revised UGC/AICTE scale of pay to the first respondent herein and the first petitioner in W.P.(C) No.2148 of 2011.

6. Subsequently, the first respondent submitted Ext.P9 representation requesting the Registrar of the W.A.794/13 & con. cases -6- University to declare his probation as on 02.01.2003 through the Director of School of Technology and Applied Sciences. In pursuance to the directions of this Court in Ext.P10 judgment, the representation was considered by the Syndicate at its meeting held on 19.06.2009 and was rejected as per Ext.P11. This decision was communicated to the first respondent by Ext.P13 order dated 14.07.2009. Still later on 03.08.2009, he was also issued Ext.P12 order informing that the scale of pay granted to him was irregular and that the Vice Chancellor has accorded sanction to revoke the scale of pay granted with effect from 25.07.2009. Subsequently, he was issued Ext.P14 communication dated 04.08.2009 asking him to execute agreement of contract with the University. It was in the aforesaid circumstances, the first respondent filed W.P.(C) No.20680 of 2009, seeking essentially a declaration of having successfully completed probation with effect from 02.01.2003 and his entitlement for senior scale with annual W.A.794/13 & con. cases -7- increments, further promotions and other service benefits. He also sought to quash Exts.P12 to P14.

7. In the writ petition, the first respondent placed reliance on Exts.P19, the judgment in W.P.(C) No.1499 of 2009. That writ petition was filed by one Smt.Bijamma Thomas, who was also appointed similarly and in the judgment, accepting her entitlement for treatment on a par with the petitioners in W.P.(C) No.2148 of 2011, who were granted regular scale of pay, her claim for scale of pay was upheld. This judgment was confirmed by a Division Bench of this Court by dismissing W.A. No.1707 of 2009 filed by the University and the Apex Court also rejected the Special Leave Petition filed as per Exts.P23 and 24 respectively. Still later, as per Ext.R1(c) order, the Supreme Court dismissed a petition filed seeking review of Ext.P24 order. The directions of this Court were implemented by the University by issuing Ext.P25 order dated 23.10.2010. In essence, the contention urged was that the first respondent being W.A.794/13 & con. cases -8- situated similarly to the petitioner in W.P.(C) No.1499 of 2009, was also entitled to scale of pay.

8. However, the University resisted the case of the first respondent contending that he was appointed in the Self Financing Institution established by it. According to the University, the sole income of the self financing institutions was the fees collected from the students and that since its viability is uncertain, it has not created any post or permanent cadre and has consciously decided to make appointments only on contract basis for specified periods on consolidated pay. Therefore, according to the University, the entitlement of the first respondent was only to continue as a contract appointee and his rights and obligations are those which flowed from the terms of the contract between the parties. According to the University, in the circumstances, the first respondent cannot claim entitlement for declaration of his probation or any monetary benefits other than that is provided in the agreement or permanency in service.

W.A.794/13 & con. cases -9-

9. In the judgment under appeal, the learned single Judge held that since successful completion of probation of the petitioners in W.P.(C) No.2148 of 2011 has been declared and in the absence of any qualitative or other distinction between the first respondent and the petitioners in the aforesaid writ petition, he was entitled to be treated similarly in all respects. The learned single Judge also found that in all respects, the first respondent was similarly placed as the petitioner in W.P.(C) No.1499 of 2009 in whose favour Ext.P19 judgment has been rendered by this Court. Proceeding further, the learned single Judge has also referred to the judgment of the Apex Court in State of Karnataka v. Umadevi [2006 (4) SCC 1] and held that the first respondent was entitled to the directions contained in paragraph 53 of the judgment. The University sought review of the judgment by filing R.P. No.83 of 2011. That was also dismissed by the learned single Judge by his order dated 08.02.2011. It is in these circumstances, this appeal W.A.794/13 & con. cases -10- is filed.

10. In this appeal the University relies on Annexure-IV order dated 17.12.2010, issued by its Self Financing Section stating that the syndicate has initiated steps to cancel the scale of pay granted to contract lecturers of all Self Financing Institutions and that no teacher appointed on contract in the Self Financing Institutions run by the University shall be granted scale of pay. It is also stated that to hear the affected teachers, a committee of four members of the syndicate has been appointed. Annexure-V is the report of the committee, recommending to the syndicate to revoke its decisions to grant scale of pay and consequential benefits to contract employees. Though this order refers to ten such contract employees including the petitioners in W.P.(C) No.2148 of 2011, the name of the first respondent in this appeal, does not find a place among them. The report concludes with the recommendation that the excess amount allegedly paid shall also be recovered at W.A.794/13 & con. cases -11- the earliest. Annexure-VI is the extract of the minutes of the Syndicate Meeting held on 17.01.2011 approving the report of the sub-committee and also resolving to communicate the decision of the affected teachers and principals.

11. While the University has filed the appeal as above, when Annexures IV, V and VI were communicated, being affected thereby, the petitioners in W.P.(C) No.2148 of 2011 have filed the said writ petition essentially for quashing the aforesaid decisions of the University and to declare that the entire action of the University in cancelling the scale of pay and other service benefits granted was unjust, illegal, arbitrary and violative of the principles of natural justice. Since the issues involved are common, the writ petition was referred to be heard along with the appeals and is accordingly before us.

12. We heard the learned Senior Counsel appearing for the appellant University, learned Senior Counsel appearing for the first respondent in W.A. No.727 of 2011 W.A.794/13 & con. cases -12- and other learned counsel appearing for the contesting respondents, apart from the learned Senior Counsel who appeared for the petitioner in W.P.(C) No.2148 of 2011.

13. The main contention raised by the learned Senior Counsel for the University was that the appointment being contractual and not against any sanctioned post there cannot be declaration of probation or grant of scale of pay to the appointees. According to the learned counsel, the rights, if any, of the contract appointees is only to continue in service for periods and on terms that are mutually agreed between the parties. Senior Counsel also contended that Exts.P19 and P23 judgments of this Court upholding the entitlement of Smt.Bijamma Thomas, cannot be treated as binding precedent for the reason that the case was wrongly decided. According to him, Article 14 cannot be pressed into service to perpetuate an illegality. Learned counsel contended that having regard to the doubtful and uncertain financial viability of the Self Financing Institutions which W.A.794/13 & con. cases -13- survive on self generated income for its survival, the University has consciously not created any regular cadre and that such a policy decision of the University could not have been faulted by this Court. According to him, the Act and statutes are inapplicable to such institutions and therefore, the appointees could not draw any support from the statutory provisions. Counsel invited our attention to the pleadings of the first respondent and contended that the whole case was set up by him on a plea of parity with the petitioners in W.P.(C) No.2148 of 2011 and contended that since the benefits erroneously granted to those petitioners were cancelled by the University as per Annexures-IV, V and VI, the very basis of the case and the judgment is lost.

14. Insofar as the appointees who are the contesting respondents in the other writ appeals are concerned, from the judgments under appeal in those cases, we find that except in W.P.(C) No.20060 of 2009 against which W.A. No.574 of 2013 is filed, in all other cases, relief has been W.A.794/13 & con. cases -14- granted following the principles laid down in Exts.P19 and P23 judgments. Insofar as W.P.(C) No.20060 of 2009 is concerned, the learned single Judge has followed the judgment in W.P.(C) No.20680 of 2009, against which W.A. No.727 of 2011 is filed, which in turn is rendered placing reliance on Exts.P19 to P23 judgments also.

15. Though in the judgment in W.P.(C)20680/2009, against which W.A.727/11 is filed, benefits that were granted to the petitioners in W.P.(C)2148/11, is also relied on, the issue raised in W.P.(C)2148/11 is the correctness of the subsequent decision of the University to cancel the benefits granted. While examining the case of the petitioners in W.P.(C)2148/11, it needs to be borne in mind that even the University does not have a case that the petitioners herein are in any manner differently placed as compared to the beneficiary of Exts.P19 and P23 judgments. Therefore, having regard to the finality that Exts.P19 and P23 judgments have attained and also that the directions in W.A.794/13 & con. cases -15- the judgment have been implemented by the University by issuing Ext.P25 order, if the contention of the University that these judgments cannot be accepted as binding precedents is rejected, the petitioners herein should succeed solely in view of Exts.P19 and P23 judgments.

16. We have considered the submissions made. The first contention raised by the learned Senior Counsel for the appellant is that the appointments are contractual and are not against sanctioned posts and that, therefore, the appointees have no right for declaration of probation of such appointment and that such appointees have no right to claim scale of pay. In support of his contention, Senior Counsel referred us to Chapter 3 Statute 13 of the Mahatma Gandhi University Statutes, 1997 (hereinafter referred to as 'the Statutes' for short) which, inter alia, provide that every teacher of the University shall be on probation for a total period of one year on duty within a continuous period of two years. On this basis, his contention was that a contract W.A.794/13 & con. cases -16- appointee in a Self Financing Institution is not a teacher of the University to be entitled to have his probation declared.

17. These contentions were sought to be supported by the learned Senior Counsel by referring to us judgments of the Apex Court. He relied on the judgment of the Apex Court in State of M.P. And others v. Yogesh Chandra Dubey and Others [(2006) 8 SCC 67] to contend that scale of pay is available only to a person appointed to a post. Reference was also made to State of Haryana and Others v. Charanjit Singh and Others [(2006) 9 SCC 321] to contend that equal pay for equal work is not a concept which can be claimed by a contract appointee. He also relied on the judgment in Secretary, State of Karnataka v. Umadevi [(2006) 4 SCC 1] and, particularly, to paragraphs 43 to 48 to contend that the claims raised in the writ petition have no foundation since the appointment is not to a sanctioned post. Reference was also made to the judgment of the Apex Court in State of W.A.794/13 & con. cases -17- Haryana and another v. Tilak Raj and Others [(2003) 6 SCC 123] to contend that only to holders of definite posts can claim scale of pay. We were also referred to the judgment of the Apex Court in Indian Drugs and Pharmaceuticals Ltd. v. Workmen, Indian Drugs and Pharmaceuticals Ltd. [(2007) 1 SCC 408] to tell us that the temporary employees have no right to claim equal pay. He also referred us to the Apex Court judgment in Nand Kumar v. State of Bihar and Others [(2014) 5 SCC 300] to argue that the temporary appointment is not an appointment to a post and, therefore, the claim for permanency cannot be sustained.

18. In this context, we should make reference to Section 2(7) of the Act which defines 'college' as an institution maintained by, or affiliated to the University, in which instruction is provided in accordance with the provisions of the Statutes, Ordinances and Regulations. Section 2(30) defines 'teacher of the University' as a person W.A.794/13 & con. cases -18- employed as teacher in any institution maintained by the University. Section 5 of the Act lays down the 'powers of the University' and Sub Section (xxiii) thereof authorises the University to establish, maintain and manage colleges, institutions of research and other institutions of higher studies. Chapter 3 of the University Statutes make provisions for 'teachers of the University' and the manner of appointment of teachers, the Selection Committee for appointment of teachers and mode of appointment of teachers are specified in Statutes 3, 4 and 6 of this Chapter. From these statutory provisions itself, it is clear that the University is entitled to establish and maintain educational institutions and appoint teachers.

19. It is the admitted case of the University, that an establishment of the Self Financing Institutions, it had issued notifications inviting applications for appointment of teaching staff. The first of such advertisement is Ext.P1, dated 20.12.1993 in W.A.727/11 and it was followed by W.A.794/13 & con. cases -19- several other notifications. Ext.P1, like all other notifications, contained the qualifications to be satisfied by the candidates. In pursuance to the notification, the eligible applicants were considered and subjected to a selection process, which resulted in the select lists already referred to as Exts.P22(a) and (b). The Syndicate approved the select lists and recommended the candidates for appointment. It was on that basis the first respondent in W.A.727/11 was appointed by Annexure-I order, dated 21.4.1995. Contesting respondents in the other writ appeals and the petitioners in W.P.(C)2148/11 also entered service. Similarly, the University itself says that agreements were entered into with the appointees. The period of the agreement has expired in many cases and several of the appointees including the first respondent in W.A.727/11, are continuing in service. In fact the first respondent in W.A.727/11, who commenced his service as Lecturer, is now working as the Head of the Department of Polymer W.A.794/13 & con. cases -20- Science in the School of Technology and Applied Sciences.

20. As we have already stated, probation of the appointees was declared, they were granted leave and other service benefits on a par with the regular appointees. They were also granted regular scale of pay and senior scale. It is on that basis that these employees continued in service all these years and it is at this distance of time, University is contending that the Self Financing Institutions are established by it outside the provisions of the Act and the Statutes and that the appointments made being not against any specific posts, the appointees are not entitled to have their probation declared and paid regular scale of pay. At the same time, Ext.P27(a) and (b) show that the third petitioner in W.P.(C)2148/11 and Dr.Krishnakumar, another similarly appointed teacher, were nominated to the Board of Studies of the appellant University and its Academic Council. Section 28 of the University Act show that such nomination to Board of studies was recognising that the nominee is a W.A.794/13 & con. cases -21- teacher of the University. Similarly, Ext.P27(d) shows his inclusion in an inspection team constituted by the University. All these show that the University itself has considered these teachers, as teachers of the University.

21. The principles laid down in the judgments relied on by the learned Senior Counsel for the University are not open to doubt. But, we cannot loose sight of the principle that a judgment is an authority for what it actually decides and not for what logically follows therefrom. Insofar as these cases are concerned, admitted factual position is as explained by us in the earlier paragraphs. In such circumstances, the question is whether the University can, at this distance of time, wash its hands off and resist the claim of the employees, who include teachers who have rendered more than 20 years of service, and are even heading Departments in the Self Financing Institutions established and maintained by the University, in terms of Section 5(xxiii) of the University Act itself.

W.A.794/13 & con. cases -22-

22. We have already referred to the relevant statutory provisions, which entitled the University to establish colleges such as the Self Financing Institutions. University is also entitled to appoint necessary teaching staff in these institutions. Even if it is accepted that before such appointment, the University should have obtained any prior sanction/approval of the Government and that same was not obtained, such failure of the University cannot cause any prejudice to appointees. University has, specified the method of appointment and qualifications and both these requirements have been satisfied by the appointees. In such circumstances, the University cannot now raise the aforesaid contentions nor can the appointments be treated as irregularly made, to call the teachers back door entrants.

23. According to us in the above factual background, the principles laid down by the Apex Court in the judgment in Nihal Singh and Others v. State of Punjab and Others [(2013) 14 SCC 65] are a complete answer to the W.A.794/13 & con. cases -23- above noted contention urged by the University. Nihal Singh (supra) was a case where having regard to the large scale unrest in the State of Punjab, State resorted to appointment of Special Police Officers on daily wages under Section 17 of the Police Act, 1861, which authorised the State to make such appointments to meet excess manpower requirements to tide over specified contingencies. In this case, a large scale appointment was made for the specific purpose of providing police guard to various branches of the banks situated in the State of Punjab. On appointment, depending upon the requirements of the banks, the Senior Superintendent of Police deployed the Special Police Officers to various branches of the banks in the State and they were paid the agreed daily wages by the banks concerned. These appointees approached the Punjab and Hariyara High Court seeking appropriate directions for regularisation of their services. Though the writ petitions were dismissed, the High Court directed consideration of their cases in accordance W.A.794/13 & con. cases -24- with law. Accordingly, their claims were considered and were rejected by the Senior Superintendent of Police, Amritsar. The order passed was again challenged before the High Court and the Writ petitions were dismissed. Appeals were filed before the Apex Court.

24. In the appeals, the claim for regularisation was resisted by the State relying on Umadevi's case (supra). State also contended that the appointments were made to meet the excess man power requirement to provide security to the banks in the State and such appointments were not to any sanctioned post or on regular scale of pay. These contentions were rejected by the Apex Court holding that neither the Government of Punjab nor the Public Sector Banks can continue such a practice consistent with their obligation to work in accordance with the Constitution and that the State and its instrumentalities cannot use Umadevi's case (supra) as a licence for exploitation. Accordingly, the Apex Court directed the State of Punjab to regularise the services of the appellants by creating necessary posts within a period of three months. Paragraphs 18 to 39 of W.A.794/13 & con. cases -25- the judgment being relevant, are extracted hereunder:

"18. Coming to the judgment of the Division Bench of the High Court of Punjab & Haryana in LPA No. 209 of 1992 where the claims for regularisation of the similarly situated persons were rejected on the ground that no regular cadre or sanctioned posts are available for regularisation of their services, the High Court may be factually right in recording that there is no regularly constituted cadre and sanctioned posts against which recruitments of persons like the appellants herein were made. However, that does not conclusively decide the issue on hand. The creation of a cadre or sanctioning of posts for a cadre is a matter exclusively within the authority of the State. That the State did not choose to create a cadre but chose to make appointments of persons creating contractual relationship only demonstrates the arbitrary nature of the exercise of the power available under Section 17 of the Act. The appointments made have never been terminated thereby enabling various banks to utilise the services of employees of the State for a long period on nominal wages and without making available any other service benefits which are available to the other employees of the State, who are discharging functions similar to the functions that are being discharged by the appellants.

19. No doubt that the powers under Section 17 are meant for meeting the exigencies contemplated under it, such as, riot or disturbance which are normally expected to be of a short duration. Therefore, the State might not have initially thought of creating either a cadre or permanent posts.

W.A.794/13 & con. cases -26-

20. But we do not see any justification for the State to take a defence that after permitting the utilisation of the services of a large number of people like the appellants for decades to say that there are no sanctioned posts to absorb the appellants. Sanctioned posts do not fall from heaven. The State has to create them by a conscious choice on the basis of some rational assessment of the need.

21. The question is whether this Court can compel the State of Punjab to create posts and absorb the appellants into the services of the State on a permanent basis consistent with the Constitution Bench decision of this Court in Umadevi (3) case5. To answer this question, the ratio decidendi of Umadevi (3) case5 is required to be examined. In that case, this Court was considering the legality of the action of the State in resorting to irregular appointments without reference to the duty to comply with the proper appointment procedure contemplated by the Constitution: (SCC pp. 17-18, para 4) "4. ... The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commissions or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get W.A.794/13 & con. cases -27-

employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called `litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution. Whether the wide powers under Article 226 of the Constitution are intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution, has to be seriously pondered over."

It can be seen from the above that the entire issue pivoted around the fact that the State initially made appointments without following any rational procedure envisaged under the scheme of the Constitution in the matters of public appointments. This Court while recognising the authority of the State to make temporary appointments engaging workers on daily wages declared that the regularisation of the employment of such persons which was made without following the procedure conforming to the requirement of the scheme W.A.794/13 & con. cases -28- of the Constitution in the matter of public appointments cannot become an alternate mode of recruitment to public appointment.

22. It was further declared in Umadevi (3) case5 that the jurisdiction of the constitutional courts under Article 226 or Article 32 cannot be exercised to compel the State or to enable the State to perpetuate an illegality. This Court held that compelling the State to absorb persons who were employed by the State as casual workers or daily- wage workers for a long period on the ground that such a practice would be an arbitrary practice and violative of Article 14 and would itself offend another aspect of Article 14 i.e. the State chose initially to appoint such persons without any rational procedure recognised by law thereby depriving vast number of other eligible candidates who were similarly situated to compete for such employment.

23. Even going by the principles laid down in Umadevi (3) case5, we are of the opinion that the State of Punjab cannot be heard to say that the appellants are not entitled to be absorbed into the services of the State on permanent basis as their appointments were purely temporary and not against any sanctioned posts created by the State.

24. In our opinion, the initial appointment of the appellants can never be categorised as an irregular appointment. The initial appointment of the appellants is made in accordance with the statutory procedure contemplated under the Act. The decision to resort to such a procedure was taken at the highest level of the State by conscious choice as already noticed by us.

W.A.794/13 & con. cases -29-

25. The High Court in its decision in LPA No. 209 of 1992 recorded that the decision to resort to the procedure under Section 17 of the Act was taken in a meeting dated 24-3-1984 between the Advisor to the Government of Punjab and senior officers of the various banks in the public sector. Such a decision was taken as there was a need to provide necessary security to the public sector banks. As the State was not in a position to provide requisite police guards to the banks, it was decided by the State to resort to Section 17 of the Act. As the employment of such additional force would create a further financial burden on the State, various public sector banks undertook to take over the financial burden arising out of such employment. In this regard, the written statement filed before the High Court in the instant case by Respondents 1 to 3 through the Assistant Inspector General of Police (Welfare & Litigation) is necessary to be noticed. It is stated in the said affidavit:

"2. That in meeting of higher officers held on 27-3- 1984 in Governor House, Chandigarh with Shri Surinder Nath, IPS, Advisor to the Governor of Punjab, in which the following decisions were taken:

(i) That it will not be possible to provide police guard to banks unless the banks were willing to pay for the same and additional force could be arranged on that basis, it was decided that police guards should be requisitioned by the banks for their biggest branches located at the district and sub-divisional towns. They should place the requisition with the District SSPs endorsing a copy of IG CID. In the requisition, they should clearly state that the costs of W.A.794/13 & con. cases -30-

guard would be met by them. It will then be for the Police Department to get additional force sanctioned. This task should be done on a top priority. In the meantime depending upon the urgency of the need of any particular branch, the Police Department may provide from police strength for its protection.

(ii) For all other branches guards will be provided by District SSP after selecting suitable ex-servicemen or other able-bodied persons who will be appointed as Special Police Officer in terms of Section 17 of the Police Act. Preference may be given to persons who may already be in possession of licensed weapons. All persons appointed as SPO for this purpose will be given a brief training for about 7 days in Police Lines in the handling of weapons taking suitable position for protection of branches. These SPOs will work under the discipline and control and as per the Police Act, they will have the same powers, privileges and protection and shall be amenable to same penalty as ordinary police personnel."

It can be seen from the above that a selection process was designed under which the District Senior Superintendent of Police is required to choose suitable ex-servicemen or other able- bodied persons for being appointed as Special Police Officers in terms of Section 17 of the Act. It is indicated that the persons who are already in possession of a licensed weapon are to be given priority.

26. It is also asserted by the appellants that pursuant to the requisition by the Police Department W.A.794/13 & con. cases -31- options were called upon from ex-servicemen who were willing to be enrolled as Special Police Officer (SPOs) under Section 17 of the Police Act, 1861.6

27. Such a procedure making recruitments through the employment exchanges was held to be consistent with the requirement of Articles 14 and 16 of the Constitution by this Court in Union of India v. N. Hargopal7.

28. The abovementioned process clearly indicates it is not a case where persons like the appellants were arbitrarily chosen to the exclusion of other eligible candidates. It required all able- bodied persons to be considered by the SSP who was charged with the responsibility of selecting suitable candidates.

29. Such a process of selection is sanctioned by law under Section 17 of the Act. Viewed in the context of the situation prevailing at that point of time in the State of Punjab, such a process cannot be said to be irrational. The need was to obtain the services of persons who had some experience and training in handling an extraordinary situation of dealing with armed miscreants.

30. It can also be noticed from the written statement of the Assistant Inspector General of Police (Welfare & Litigation) that preference was given to persons who were in possession of licensed weapons. The recruitment of the appellants and other similarly situated persons was made in the background of terrorism prevailing in the State of Punjab at that time as acknowledged in the order dated 23-4-2002 of the SSP. The procedure which is W.A.794/13 & con. cases -32- followed during the normal times of making recruitment by inviting applications and scrutinising the same to identify the suitable candidates would itself take considerable time. Even after such a selection the selected candidates are required to be provided with necessary arms and also be trained in the use of such arms. All this process is certainly time-consuming. The requirement of the State was to take swift action in an extraordinary situation.

31. Therefore, we are of the opinion that the process of selection adopted in identifying the appellants herein cannot be said to be unreasonable or arbitrary in the sense that it was devised to eliminate other eligible candidates. It may be worthwhile to note that in Umadevi (3) case5, this Court was dealing with appointments made without following any rational procedure in the lower rungs of various services of the Union and the States.

32. Coming to the other aspect of the matter pointed out by the High Court -- that in the absence of sanctioned posts the State cannot be compelled to absorb the persons like the appellants into the services of the State, we can only say that posts are to be created by the State depending upon the need to employ people having regard to various functions the State undertakes to discharge.

"Every sovereign government has within its own jurisdiction right and power to create whatever public offices it may regard as necessary to its proper functioning and its own internal administration."8

33. It is no doubt that the assessment of the need to employ a certain number of people for W.A.794/13 & con. cases -33- discharging a particular responsibility of the State under the Constitution is always with the executive government of the day subject to the overall control of the legislature. That does not mean that an examination by a constitutional court regarding the accuracy of the assessment of the need is barred.

34. This Court in S.S. Dhanoa v. Union of India9 did examine the correctness of the assessment made by the executive government. It was a case where the Union of India appointed two Election Commissioners in addition to the Chief Election Commissioner just before the general elections to the Lok Sabha. Subsequent to the elections, the new Government abolished those posts. While examining the legality of such abolition, this Court had to deal with an argument10 whether the need to have additional Commissioners ceased subsequent to the election. It was the case of the Union of India that on the date posts were created there was a need to have additional Commissioners in view of certain factors such as the reduction of the lower age-limit of the voters, etc. This Court categorically held that: (SCC p. 585, para

27) "27. ... The truth of the matter as is apparent from the record is that ... there was no need for the said appointments...."

35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the W.A.794/13 & con. cases -34- instant case demonstrate that there is need for the creation of posts, the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State.

36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is--the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks.

37. We are of the opinion that neither the Government of Punjab nor these public sector banks can continue such a practice consistent with their obligation to function in accordance with the Constitution. Umadevi (3)5 judgment cannot W.A.794/13 & con. cases -35- become a licence for exploitation by the State and its instrumentalities.

38. For all the abovementioned reasons, we are of the opinion that the appellants are entitled to be absorbed in the services of the State. The appeals are accordingly allowed. The judgments under appeal are set aside.

39. We direct the State of Punjab to regularise the services of the appellants by creating necessary posts within a period of three months from today. Upon such regularisation, the appellants would be entitled to all the benefits of services attached to the post which are similar in nature already in the cadre of the police services of the State. We are of the opinion that the appellants are entitled to the costs throughout. In the circumstances, we quantify the costs to Rs 10,000 to be paid to each of the appellants."

25. The principles laid down in this judgment, according to us, fully answer the contentions of the University regarding the contractual nature of appointment, absence of regular cadre and ineligibility for scale of pay. Therefore, the aforesaid contentions of the University are only to be rejected and we do so.

26. The second question is whether there is any substance in the contention of the University that Exts.P19 W.A.794/13 & con. cases -36- and P23 judgments being illegal cannot be followed as binding precedent. As we have already stated, the procedure adopted by the University to appoint petitioner in W.P.(C)1499/09, the first respondent in W.A.727/11 and the other teachers in all these cases, are exactly similar. The terms and conditions of these appointments are also not different. In Ext.P19 judgment, this court upheld the entitlement of the petitioner therein for regular scale of pay, on the basis of the benefits that were granted to the petitioners in W.P.(C)2148/11. The University challenged Ext.P19 judgment by filing W.A.1709/09. Rejecting all its contentions, the writ appeal was dismissed by Ext.P23 judgment rendered on 15.3.2010. The Apex Court declined to grant leave to appeal against Ext.P23 and rejected the SLPs as per Ext.P24 order. The University sought review of the order of the Apex Court and review petition was also dismissed as per Ext.R1(k) order, dated 19.7.2011. In the meanwhile, by Ext.P25 order, dated 23.10.2010, the W.A.794/13 & con. cases -37- University implemented the judgment of this court and scale of pay was granted to Smt.Bijamma Thomas, which she is enjoying even today.

27. Although the University has no case that the beneficiary of these Exts.P19 and P23, Smt.Bijamma Thomas, is in any manner differently situated, the contention raised is that having regard to the law relied on by the Apex Court, she being a contract appointee, she was not entitled to scale of pay. Therefore, the judgment ordering to grant scale of pay to her does not lay down the law correctly. According to the learned counsel, since Article 14 of the Constitution cannot be made use of to perpetuate an illegality, the appointees cannot claim the benefit of the judgment or parity with the beneficiary of Exts.P19 and P23. To support his contention that there is no equality in illegality, counsel placed reliance on the judgment of the Apex Court in Kulwinder Pal Singh and Another v. State of Punjab and Others [(2016) 6 SCC W.A.794/13 & con. cases -38- 532].

28. It is trite that no one can claim equality in illegality and Article 14 cannot be pressed into service to perpetuate an illegality. But in the facts of this case, we can only reject this contention raised by the University. Reading of Exts.P19 and P23 judgments show that this court has dealt with each of the contentions raised by the University on merits and rejected all such contentions. These, include the contention of the University that the petitioner therein was only a contract appointee, and that she was not appointed to any sanctioned post disentitling her for scale of pay. These are the very same contentions which are again repeated before us. These contentions are already rejected by this court and the Apex Court, which not only dismissed the SLP but also rejected the review petition. In such a case, the University cannot now contend that the judgment is an illegality and, therefore, is not a precedent and hence the benefit thereof cannot be claimed by similarly placed W.A.794/13 & con. cases -39- others.

29. Equally unworthy is the contention of the University that Ext.P19 judgment was rendered solely on the basis of the reliefs that were granted to the three petitioners in Writ Petition No.2148/11 and that with the cancellation of those benefits as per Annexures IV, V and VI referred to above, the judgment and the claim itself have no basis. While in this context, we should take note of the factual aspect that cancellation of the benefits to the petitioners in Writ Petition No.2148/11 was pursuant to Annexure IV, Resolution of the Syndicate passed in its meeting held on 17.12.2010. This was long after Ext.P23 judgment, rendered by this court on 15.3.2010 and Ext.P24 order was passed by the Apex Court on 13.8.2010. To our mind, University cannot nullify the judgments of this court by subsequent cancellation of the orders relied on by this court and the Apex Court and that too long after the litigation has attained finality. Such a conduct itself, to say the least, is W.A.794/13 & con. cases -40- unbecoming of an instrumentality of the State. Therefore, we see no reason to accept the plea now urged by the University that Exts.P19 and 23 are illegal and that the plea of parity cannot be raised relying on these judgments.

30. Even otherwise, if at all the University had a case, that Ext.P23 judgment of the Division Bench of this court upholding Ext.P19 judgment suffered from illegalities or mistakes, it was open to the University to seek review of the judgment by filing an appropriate application before this court. This right available to the University has been recognised by this court in the judgment in Koshy Daniel v. Rajan, P.S. And others (ILR 2013 (1) Kerala 577). That was also not done by the University. In such circumstances, plea of the University that the judgment suffers from illegality and, therefore, cannot be relied on as a precedent, is only to be rejected.

31. Once the aforesaid contention of the University is rejected, the question to be considered is whether similarly W.A.794/13 & con. cases -41- situated persons are entitled to successfully claim the benefit of these judgments. This issue is no more res integra and we need in this context refer only to the judgment of the Apex Court in State of Uttar Pradesh and Others v. Arvind Kumar Srivastava and Others [2015 (1) SCC 347] where the relevant legal principles have been summarised thus:

"22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under.

22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

22.2. However, this principle is subject to well- recognised exceptions in the form of laches and W.A.794/13 & con. cases -42- delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India3). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."

32. We have not been pointed out any of the W.A.794/13 & con. cases -43- circumstances enumerated by the Apex Court in paragraphs 22.2 and 22.3, in order not to apply to these cases the principles laid down in para 22.1. According to us, therefore, the principles summarised by the Apex Court in Paragraph 22.1 are fully applicable to the facts of these cases. Therefore, the first respondent herein is fully entitled to rely on and claim the benefit of Exts.P19 and 23 judgments of this court.

33. Yet another contention that was pressed into service by the learned counsel for the University was that the University has consciously decided not to create any post or cadre in the Self Financing Institutions. This, according to the University was for the reason that it is not receiving any financial or other assistance from any other source and that Self Financing Institutions are surviving only on the income generated by way of the fee collected from the students. According to the University, a situation could arise in future, when on account of dearth of students and W.A.794/13 & con. cases -44- consequently, income the institutions might become unviable. Therefore, according to the University, having regard to the uncertainty in the viability and continuance of the establishment, such a decision was taken. In sum and substance, the contention raised is that since the decision of the University to make contractual appointments is a bonafide and conscious one, the appointees cannot claim continuance in service or regular scale of pay or other service benefits.

34. Insofar as the argument of uncertain financial viability now pressed into service by the University is concerned, first of all, there is absolutely no basis for that plea. On the other hand, Exts.R1(d), (e) and (b), produced by the first respondent along with the counter affidavits filed by him, show that except for the year 2013-2014 in all other years substantial excess income has been generated in the Self Financing Institutions. It is also seen from the affidavit, dated 3.10.2013, filed by the first respondent that the Self W.A.794/13 & con. cases -45- Financing Institutions having a fixed deposit of about four crores. Ext.P21 in Writ Petition No.2148/11 also substantiates such a conclusion. The plea that the funds generated from the Self Financing Institution do not become part of the University fund constituted under Section 46 of the University Act, also is belied by the averments in the statement filed by the State Government in the W.P.(C) 21182/13 against which writ appeal is filed. In paragraph 7 of this statement, the Government have stated thus:

"It is submitted that the averments to the effect that the salaries for the newly created posts are met from the Self Financing Funds are false and misleading. The University Fund is defined in Section 46 in Chapter VII of the Act and includes "all grants and loans received from the State Government, the Government of India, the University Grants Commission and from any other source, all revenues of the University, all fees received, all incomes such as rent and profits derived from properties and funds vested in the University, all endowments and donations received from any source whatsoever, all other miscellaneous receipts of the University and all deposits, remittances and service funds, received in connection with the affairs of the University shall form one consolidated fund styled The Mahatma Gandhi University Fund and shall be employed for W.A.794/13 & con. cases -46- the purposes and in the manner laid down in this Act and in the Statues, Ordinances, rules, bye-laws and orders made thereunder: Provided that separate accounts may be maintained for specific purposes".

As is clear from the definition, all revenues of the University and all income has to be accounted for in the University Fund."

35. Apart from the above, acceptance of the contention of the University that uncertain financial viability entitled it to continue adhocism in the matter of appointment would have serious and dangerous consequences. Employment of workmen as casual and temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen has been recognised as an unfair labour practice falling within the item 10 of the Fifth Schedule to the Industrial Disputes Act. If such permanent adhocism is impermissible in the case of the workmen under the Industrial Disputes Act, we see how such a system is permissible for an instrumentality of the State like the University and that too in the employment of its teaching W.A.794/13 & con. cases -47- staff. Further approval of such a system would be an incentive to other establishments, including Government establishments, to resort to such permanent adhocism. In any case, even if the institution becomes financially unviable in future and if the staff are rendered surplus or unnecessary, it is always permissible to get rid of the unnecessary man power by retrenchment in accordance with law. Therefore, the uncertain future financial unviability argued by the University not only has no factual basis but also cannot be a justification to continue permanent adhocism in the matter of appointment of teaching staff in the Self Financing Institutions. As held in Nihal Singh (supra), the University cannot continue such a practice consistent with its obligations to function in accordance with the Constitution.

36. Another contention pressed into service by the learned Senior Counsel for the appellant was that reliefs sought by the first respondent in W.A.727/11, were on W.A.794/13 & con. cases -48- parity with the petitioners in W.P.(C)2148/11 and that since by Annexures IV to VI, the benefits granted to them have been cancelled, the very foundation of the case is lost. First of all, as we have already stated, the judgment under appeal was rendered long prior to Annexures IV to VI. Therefore, even if the factual position relied on by this court has been unilaterally altered by the University, that cannot nullify the judgment rendered by this court in exercise of its authority derived under the Constitution. Secondly, reliefs were not sought entirely based on parity with the petitioners in W.P.(C)2148/11 and instead the first respondent asserted his entitlement for declaration of probation and other reliefs, on other grounds as well. In such circumstances, this plea now raised by the learned counsel is only to be rejected.

37. Before concluding, we may also refer to the judgment of the Apex Court in State of Punjab and Others v. Jagjit Singh and others [ILR 2016 (4) Kerala 419] where the Apex Court has recognised the entitlement W.A.794/13 & con. cases -49- for equal pay for equal work for contract appointees also, on a par with regular employees. In this judgment, the Apex Court held thus:

"57. Having traversed the legal parameters with reference to the application of the principle of 'equal pay for equal work', in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of 'equal pay for equal work' summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned Counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, W.A.794/13 & con. cases -50- that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the Appellants, that the Respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of 'equal pay for equal work' would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post."

These principles are fully applicable to the facts of this case.

38. The upshot of the above discussion is that the W.A.No.727 of 2011 filed by the University impugning the judgment of the learned Single Judge in W.P.(C)20680/09 is devoid of merits and is only to be dismissed.

39. Insofar as the other writ appeals are concerned, as we have already stated, relief has been granted to the writ petitioners primarily on the basis of Exts.P19 and 23 judgments. In the course of our judgment in W.A.727/11, W.A.794/13 & con. cases -51- we have already rejected the contention raised by the learned Senior Counsel for the University that these judgments cannot be followed as precedent and we held that the first respondent in the writ appeal is entitled to seek relief relying on the judgments. For that reason itself, the judgments which are challenged in the other writ appeals, which are rendered relying on Exts.P19 and 23 judgments, deserve to be sustained.

40. Writ Petition No.2148/11 has been filed by the three teachers who were also appointed on the basis of Ext.P1 notification, dated 20.12.93. In the writ petition, as we have already noticed, their challenge is against the decision of the University to withdraw the scale of pay and other benefits that were granted to them. Even the University does not have a case that these petitioners are in any manner differently situated as compared to the petitioner in Exts.P19 and P23 judgments. Therefore, the petitioners herein are also entitled to the benefit granted to W.A.794/13 & con. cases -52- the petitioner in Exts.P19 and P23 and P24. If that be so, the withdrawal of the scale of pay and other benefits granted to the petitioners herein are also unsustainable and the writ petitioners are entitled to the reliefs sought for. Therefore, the impugned orders in Writ Petition 2148/11 are set aside.

In the result, the writ appeals are dismissed and the Writ Petition No.2148/11 is allowed as prayed for. No order as to costs.

Sd/-

ANTONY DOMINIC JUDGE Sd/-

SHIRCY V. JUDGE kns/-


                           //TRUE COPY//

                                              P.S. TO JUDGE

W.A.794/13 & con. cases    -53-

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