Allahabad High Court
State Of U.P.Throu.The Secy.Education ... vs Smt. Neelima Srivastava And Another on 7 May, 2018
Author: Devendra Kumar Arora
Bench: Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Case :- SPECIAL APPEAL No. - 743 of 2014 Appellant :- State Of U.P. through Secretary, Education, Lucknow and others Respondent :- Smt. Neelima Srivastava and another Counsel for Appellant :- C.S.C. Counsel for Respondent :- Vikas Singh Hon'ble Dr. Devendra Kumar Arora,J.
Hon'ble Virendra Kumar-II,J.
(Delivered by Hon'ble Virendra Kumar-II, J.)
1. Heard. Mr. Rajiv Singh Chauhan, learned Additional Chief Sanding Counsel for appellants and Mr. Vikas Singh, learned counsel for respondents.
2. This appeal was preferred by the appellants with delay of five months and ten days. The delay in preferring this appeal has been condoned vide order dated 22.07.2015 passed by this Court. Therefore, defect in preferring this appeal has been removed by the appellants.
3. The appellants-State of U.P. and others have preferred this intra court Special Appeal assailing the judgment and order dated 15.05.2014 passed by learned Single Judge in Writ Petition No. 8597 (SS) of 2010 (Smt. Neelima Srivastava Vs. State of U.P. and others). Vide impugned judgment and order dated 15.05.2014 writ petition instituted on behalf of respondent No.1-Smt. Neelima Srivastava has been allowed and order dated 29.01.2007 passed by Joint Director Education VI Region, Lucknow has been quashed. The appellants/respondents in writ petition were directed to pass order for regularization of petitioner within six weeks from the date of a certified copy of this order produced before him. It was also directed that consequential benefits will also be made available to the petitioner within the said period.
4. The appellants have pleaded in grounds of appeal that appointment and service condition of Teacher of Government Intermediate College established by the State Government within the State of U.P. are governed by provisions of U.P. Teaching and Inspecting (Non-Gazetted and Subordinate Gazetted Services and Posts (Appointing Authority) & Separation of Cadre) Rules, 1981 (hereinafter referred to as, 'Rules, 1981') as well as the Uttar Pradesh Subordinate Educational (Trained Graduates Grade) Service Rules, 1983 (hereinafter referred to as, 'Rules, 1983').
5. It is further pleaded that Smt. Safia Khatoon was posted as Music Teacher in Rajkiya Inter College Mahmoodabad, District Sitapur, who proceeded on leave without pay, consequently leave vacancy against the post of Music Teacher arose. The respondent No.1 was given appointment vide order dated 23.07.1984 issued by Regional Inspectress of Girls Schools, VI Region, Lucknow. She joined in temporary leave vacancy on 28.7.1984. Her appointment can be termed as the appointment in 'stopgap arrangement'. It is further pleaded that Smt. Safia Khatoon did not return even after expiry of her leave period and remained continuously on leave for more than two years. The Regional Inspectress of Girls Schools, VI Region, Lucknow vide order dated 16.05.1986 modified the temporary leave vacancy appointment order dated 23.7.1984 and appointment of respondent No.1 was extended until Smt. Safia Khatoon might took charge or up to 20.05.1986.
6. It was specifically mentioned in the order dated 16.05.1986 that after 20.05.1986 this leave vacancy shall be terminated. Smt. Safia Khatoon did not return from her leave, therefore, according to the order dated 16.05.1986, appointment of petitioner in leave arrangement, i.e., stopgap arrangement came to an end on 20.05.1986. The Principal of institution vide order dated 19.05.1986 dispensed the services of respondent No.1 with effect from afternoon of 20.05.1986.
7. It is further pleaded that respondent No.1 had instituted a writ petition bearing Writ Petition No. 3316 (SS) of 1986 challenging the order dated 16.05.1986 before this Court, which was heard on 20.05.1986 without calling any counter affidavit and an interim order dated 20.05.1986 was passed by this Court staying the order dated 16.05.1986. It is specifically mentioned that while passing interim order, this Court directed that this interim order shall automatically lapse on return of Smt. Safia Khatoon.
8. It is specifically mentioned by appellants that in Writ Petition No. 3316 (SS) of 1986, respondent No.1 did not challenge order dated 19.05.1986 regarding her dispensation from service. The appellants, in compliance of interim order dated 20.05.1986 passed by this Court in Writ Petition No. 3316 (SS) of 1986, permitted respondent No.1 to continue on the post of Music Teacher in leave arrangement/ stopgap arrangement.
9. It is further contended that the Director of Education, U.P. Lucknow issued notice dated 30.10.1987 to Smt. Safia Khatoon asking her to join duties, but she did not return to attend her duties, therefore Regional Inspectress of Girls Schools, VI Region, Lucknow published a notice dated 16.01.1988 communicating her that after one month from the date of publication of notice, her services shall be deemed terminated. It is further contended by the appellants that after the termination of services of Smt. Safia Khatoon, leave vacancy changed into permanent/ substantive vacancy and the appointment of respondent No. 1 against leave vacancy came to an end on 30.10.1987 automatically. Since interim order dated 20.05.1986 was still operative therefore, in compliance of same, respondent No.1 was not discontinued and permanent vacancy could not be filled in by the appellants.
10. The appellants have mentioned that in the year 2003, respondent No.1 preferred a Writ Petition No.7890 (S/S) of 2003 (Smt. Neelima Srivastava Vs. State of U.P. and others) before this Court. This Court was pleased to pass an interim order dated 17.12.2003 directing competent authority/ respondent No.2 in the said writ petition to consider and dispose of the representation of respondent No. 1 (Annexure Nos. 12 and 16 in the appeal). The Joint Director of Education, VI Region, Lucknow duly considered representation of the respondent No. 1 and disposed of the same vide his order dated 28.01.2004, which was modified vide subsequent order dated 23.02.2004.
11. In grounds of appeal, the appellants have quoted the order dated 28.01.2004 modified on 23.02.2004 in paragraph no. XIV of this appeal. It was mentioned in this order that respondent No. 1 Smt. Neelima Srivastava is continuing on leave vacancy post of Music Teacher on the basis of interim order dated 20.05.1986 and she is not a regularly appointed teacher, therefore, service benefits, seniority, increments, G.P.F., Group Insurance facility shall be subject to final outcome of Writ Petition No. 3316 (SS) of 1986 and 7890 (SS) of 2003.
12. It is specifically contended by appellants that at the point of time of hearing of Writ Petition No. 3316 (SS) of 1986 and 7890 (SS) of 1986, learned Standing Counsel appearing on behalf of appellants resisted writ petition on the ground that, "the petitioner's appointment was made in stopgap arrangement and no legal right can be said to have accrued in her favour on account of her being continued in services in leave arrangement. She is not having requisite qualification meant for the post; she is not B.Ed."
13. It is further mentioned that this Court allowed Writ Petition vide order dated 23.01.2006 with the following observations:-
"In view of the above, the writ petitions are allowed. The consequences shall follow. The petitioner shall be allowed to continue on the post, held by her. Her case shall be considered for regularization under the relevant regularization rules and appropriate orders shall be passed within three months from the date of presentation of a certified copy of this judgment and order."
14. It is further pleaded that the Joint Director of Education, VI Region, Lucknow duly considered the claim of the respondent No. 1 on the basis of judgment dated 23.01.2006 and provisions of Rule 15 of the Uttar Pradesh Subordinate Educational (Trained Graduates Grade) Service Rules, 1983. He has also considered Rule 18 (4) & (5) of Chapter-VI of aforesaid rules regarding ad-hoc appointments. It was found that there is no provision for making appointment of any other nature, i.e., the appointment in leave vacancy or leave arrangement or stopgap arrangement. He has also considered Rule 4(1)(a) of Regularization Rules, 2001 and upon consideration of representation of respondent No. 1, it was found that since there is no provision for regularization of teachers appointed in leave vacancy, the appointment of respondent No.1 made by the then Regional Inspectress of Girls Schools, VI, Lucknow, who was not competent to make such appointments. There was no provision in the Service Rules for making the appointment of such nature.
15. The appellants also contended that the Joint Director Education, VI Region, Lucknow found that respondent No. 1 was appointed on 23.07.1984 in leave vacancy arrangement. This order was modified on 16.05.1986 to the effect that on joining of Smt. Safia Khatoon or on 20.05.1986, whichever was earlier, appointment of respondent No. 1 shall come to an end. With the aforesaid observations, vide order dated 29.01.2007, he disposed of the representation of respondent No.1. The respondent No.1 continued on the said post on the basis of interim order dated 20.05.1986 passed by this Court in Writ Petition No.3316 (S/S) of 1986. It was found that case of respondent No. 1 was not covered under the provisions of Service Rules, 1983 and provisions of Regularization Rules, 2001.
16. The appellants have specifically contended that learned Single Judge has wrongly relied upon the case of Rudra Kumar Sain and others Vs. Union of India and others : (2000) 8 SCC 25 of Constitution Bench of Hon'ble Apex Court and treated the appointment of respondent No. 1 on adhoc basis, whereas she was appointed in leave arrangement/ stopgap arrangement. Her services were terminated vide order dated 19.05.1986 w.e.f. 20.05.1986. The appellants have further contended that learned Single Judge has committed patent manifest error of law in observing that, "there is nothing on record to show if petitioner's appointment was ever cancelled or withdrawn or any action was ever taken against the then R.I.G.S. for making irregular appointment. Her appointment is not stopgap. The order dated 16.05.986 was produced as Annexure No. 8 along with writ petition filed by respondent No.1. Vide order dated 16.05.1986 appointment of respondent no. 1 in leave arrangement was to be dispensed with whereof 20.5.1986. Thus there is an error on the face of record.
17. It is further pointed out that learned Single Judge has observed that vide order dated 23.01.2006 passed by this Court in her earlier Writ Petition No. 3386 (SS) of 1986 and 7890 (SS) of 2003 that she having been held entitled to hold the post refusal to give benefit of Rules 2001 is not lawful exercise of the power by Joint Director. This finding was wholly erroneous, unjust and against the provisions of Regularization Rules, 2001. The learned Single Judge failed to appreciate that in the judgment dated 23.1.2006, there was no direction to treat the nature of appointment of respondent no. 1 as ad-hoc, rather there was a mere direction to continue the respondent no. 1 on her post, therefore, status of respondent no. 1 has not been changed vide order dated 23.1.2006 i.e. her appointment was in stopgap/leave vacancy.
18. The appellants have also contended that learned Single Judge has committed patently manifest error of law in holding that the "respondent no. 1 is fully eligible and qualified to be appointed as such" and failed to appreciate that respondent no. 1 has been permitted to continue by interim order of this Court. Her continuation on the basis of Court's order does not vest any right in her to seek regularization in view of the law laid down by the Supreme Court in 1998 (8) SCC 529. The exposition of law propounded by Hon'ble Supreme Court in this case is as follows:-
"Merely because a person continues under the interim orders of the court, such continuance on the post cannot and, in this case, does not confer on him any right for continuance, it does not enhance his case for regularization. It is only an interim arrangement pending decision by the court and cannot disturb the position in law or equities".
19. On the basis of this case law, the appellants have contended that respondent no. 1 was engaged in stopgap arrangement and as such she had not right to the post. She was not protected by any rules or under the provisions of Article 311 of the Constitution. She was not entitled to opportunity of hearing while her engagement was dispensed with vide order dated 16.5.1986. The appellants have relied upon various case laws of Hon'ble Supreme Court and this Court, which are mentioned in paragraph no. 29 up to 32.
20. On the basis of these case laws, the appellants have contended that the appointment/continuation in service by interim order, does not create any legal right in favour of the appointee. On the above mentioned grounds, the appellants have sought relief to set aside the impugned judgment and order dated 15.5.2014 passed by learned Single Judge in Writ Petition No. 8597 (SS) of 2010.
21. Respondent n o. 1 has filed counter affidavit. It is pleaded in the counter affidavit that interim order dated 15.5.2014 passed by learned Single Judge in Writ Petition No. 8597 (SS) of 2010 (Smt. Neelima Srivastava Vs. State of U.P. and others) was in accordance with the settled principle of law and on the basis of pleadings exchanged between the parties. It is pleaded that respondent no. 1 was appointed by Regional Inspectress of Girls Schools, according to Rule 3 (a) proviso of Rule 1983, Regional Inspectress of Girls Schools (Women Branch) is the appointing authority. The State Government framed Rules, 1981 and Rules 1983 under proviso to Article 309 of the Constitution.
22. Learned counsel for respondent no. 1 has relied upon a decision of Hon'ble Supreme Court in the case of Rattan Lal Vs. State of Haryana :(1985) 4 SCC 43 and submitted that Hon'ble Supreme Court has deprecated the practice to appoint the Teachers till the end of academic sessions and bare perusal of the order dated 16.5.1986 passed by the Regional Inspectress of Girls Schools, VI Region, Lucknow was nothing but misuse of power to deprive the deponent/ respondent No.1 to earn her salary during summer vacation commencing from 20th May, 1986.
23. It is further contended by respondent No. 1 that after termination of the services of Smt. Safia Khatoon, the appointment of the deponent on the post in question became ad hoc appointment on account of the post becoming permanently vacant and this fact was specifically pleaded by the deponent in paragraph no. 21 of writ petition no. 3316 (SS) of 1986. The appellants denied this fact in paragraph no. 23 of their counter affidavit.
24. It is further submitted that according of Rule 8 (7) of Rules, 1983 qualification for appointment on the post of Assistant Teacher (Music) has been prescribed. She was having requisite qualification from the date of her appointment on 23.7.1984 and certificate to this effect was filed by respondent no. 1 as Annexure No. 2 of Writ Petition No. 3316 (S/S) of 1986 and supplementary affidavit dated 19.12.2010 as Annexure No. SA-1. The respondent no. 1 has also relied upon judgment and order dated 23.01.2006 passed by this Court in Writ Petition No. 3316 (S/S) of 1986 and 7890 (S/S) of 2003.
25. It is further contended that Rule 18 (5) of the Rules, 1983 was omitted vide notification no. 2761/15-2-77(46)-77 dated 6.11.1992. It is further submitted that Rules, 1983 were framed under proviso to Article 309 of the Constitution, which came into force on 28.8.1983. It is further submitted that Rule 3 (j) of the Rules, 1983 defines "Year of Recruitment" which means a period 12 months commencing from 1st July of calender year. It is further mentioned that neither in the counter affidavit to the writ petition nor in the affidavit filed in support of application for interim relief, the appellants have filed any list, which was prepared by following the provisions laid down under Rules, 15, 16 and 17 of the Rules, 1983.
26. It is further contended that the appellants failed to file any list of selected candidates received from the Director of Education, U.P. as mentioned in Rule 18 (4) of the Rules, 1983 despite the fact that the Rules, 1983 are completely silent as to from what source and from what manner the Director of Education U.P. would prepare the list of candidates for ad hoc appointment. Therefore, the reliance placed by the opposite parties/ appellants upon Rules 18 (4), 18 (5) of the Rules, 1983 although Rule 18 (5) of the Rules, 1983 was already omitted in the year 1992, is misplaced and misconceived.
27. It is further submitted that Rule 8 (7) of the Rules, 1983 provides for qualification for appointment on the post of Teacher (Music). It is further submitted that prior to the appointment on 23.7.2014, respondent no. 1 was having requisite qualification for appointment as Assistant Teacher (Music) as laid down under Rule 8 (7) of the Rules, 1983.
28. It is pleaded in supplementary affidavit that respondent no. 1 has passed her graduate and post graduate examination from Kanpur University in the year 1978 and 1980 respectively and passed her Sangit Prabhakar from Prayag Sangit Samiti, Allahabad and Senior Diploma from Prayag Sangit Samiti, Allahabad in the year 1979 and 1982 respectively. Further submission is that Rule 4 of the Regularization Rule, 2001 shows that respondent no. 1 was having requisite eligibility for regularization. It is further contended that judgment and order dated 23.01.2006, passed by this Court in Writ Petition No. 3316 (SS) of 1986 and writ petition no. 7890 (SS) of 2003 attained finality as the same was not challenged and in the present appeal, the appellant cannot question the aforesaid judgment.
29. The respondent no. 1 has mentioned case laws in paragraph no. 23, which has been relied upon by appellants and submitted that these case laws are not applicable in the facts and circumstances of present case because order dated 16.5.1986 was challenged in Writ Petition No. 3316 (SS) of 1986 and judgment dated 23.1.2006 has attained finality. On these ground, it is submitted that special appeal is liable to be dismissed with cost in favour of respondent no. 1.
30. The appellants have filed rejoinder affidavit reiterating their earlier contentions in paragraph no. 7 of rejoinder affidavit, appointment order dated 23.7.1984 of respondent no. 1 has been quoted and relied upon that her appointment was purely temporary being stopgap arrangement in leave vacancy.
31. The respondent no. 1 has filed supplementary affidavit in which it is mentioned that on 31.10.2015 Joint Director of Education VI Region, Lucknow passed an order after considering the judgment and order dated 23.01.2006 passed by this Court in Writ Petition No. 7890 (SS) of 2003, 3316 (SS) of 1986 and judgment and order dated 15.5.2014 passed in Writ Petition No. 8597 (SS) of 2010 and orders dated 11.08.2015 and 25.08.2015 passed by this Court in contempt, i.e., Criminal Misc. Case No. 777 (C) of 2015 whereby services of the respondent no. 1 has been regularized from 17.08.2001 subject to final outcome of present special appeal on the basis of permission granted on 28.10.2015 by the Director, Education.
32. Learned counsel for the respondent No.1 has argued that Rule 4 of Rules, 1981 provides that District Inspector of Schools shall be Appointing Authority of Assistant Teachers and Assistant Mistress in pay scale of Rs. 250-425/-.
33. We have perused Rule-4 of Rules, 1981, as relied upon by the appellants, which provides as follows :
4. Appointing Authority.-The authorities mentioned in Column 1 below shall be appointing authority in respect of the services and posts, within their jurisdiction, mentioned against each in Column 2 :
Column 1 Column 2 Column 3 (1) Director of Education, U.P.
(a) Head Masters/Head Mistress
(b) Deputy Inspector of Schools
(c) Deputy Inspectress of Girls' Schools
(d) Sahayak Nirikshak, Sanskrit Pathshala and all other posts in the subordinate Gazetted, services Rs.
450-950.
450-950.
450-950.
450-950.
(2) Additional Director of Education (concerned) Lecturers in Plains all Divisions excluding Kumaun and Garhwal Divisions 400-750.
(3) Joint Director (Hills) of Education.
Lecturers in Hills (Kumaun and Garhwal Divisions).
400-750.
(4) Regional Deputy Director and Regional Inspectress of Girls' Schools.
(a) Sub-Deputy Inspector of Schools
(b) Assistant Inspectress of Girls Schools
(c) Assistant Teachers and Assistant Mistress 325-575.
325-575.
300-550.
(5) District Inspector of Schools.
Assistant Teachers and Assistant Mistress.
250-425.
(6) Basic Shiksha Adhikari Assistant Teachers and Assistant Mistress in Government Basic Schools.
200-330.
200-320.
Note.-These rules are subject to the provisions of clause (1) of Article 311 of the Constitution, that is to say, no person shall be dismissed or removed by an authority subordinate to that by which he was actually appointed.
34. Learned counsel for respondent No.1 has further argued that appointment of respondent was made by a competent appointing authority, Regional Inspectres of Girls School (Women Branch). We have perused appointment order dated 23.07.1984 issued by Regional Inspectress of Girls School, VI Region, Lucknow regarding respondent No.1, which is being reproduced as under:
dk;kZy; e.Myh; ckfydk fo|ky; fujh{kdk] "k"Ve e.My] y[kuÅ vkns'k la[;k ,u0Mh0¼2½@104@fu;q0@84&85 fnukad 23-07-84 vLFkkbZ vodk'kdkyhu fu;qDRk rnFkZ HkrhZ xzg.k djus dh frfFk ls Jherh uhfyek JhokLro }kjk Jh d`ik 'kadj jk;tknk fgUnw dU;k b.Vj dkyst lhrkiqj dh bafxr vodk'k dkyhu fu;qfDr ¼Lukrd osrudze esa½ laxhr f'kf{kdk gsrq Jherh 'kkfQ;k [kkrwu l0iz0 Lukrd osrudze e.Myh; ckfydk b.Vj dkyst egewnkckn&lhrkiqj ds laoSrkfud vodk'k ds e/; vodk'k izcU/k esa dh tkrh gS ;g fu;qfDr furkUr vko';d gS fd Jherh 'kkfQ;k [kkrwu ds laoSrkfud vodk'k ds mijkUr dk;ZHkkj xzg.k djus dh frfFk ls Lor% lekIr gks tk;sxhA ¼Mk0 dk0 egsUnz½ e.Myh; ckfydk fo|ky; fujh{kdk "k"Ve e.My y[kuÅ
35. On perusal of appointment letter dated 23.07.1984 it reveals that respondent No.1, Smt. Neelima Srivastava was appointed in leave vacancy/ stopgap arrangement in Government Girls Inter College, Mahmoodabad, Sitapur. This leave vacancy occurred because Smt. Safia Khatoon, occupying permanent/ substantive post proceeded on leave. This appointment of respondent No.1 was purely for the period of leave availed by Smt. Safia Khatoon and it is mentioned in this appointment letter that appointment of respondent No.1 would terminate, when Smt. Safia Khatoon would took charge of the post after availing her leave.
36. Learned Additional Chief Standing Counsel has argued that for considering nature of appointment of respondent No.1, Rule-15 of Rules, 1983 and Rule-18(4) and (5), Chapter-VI would be applicable, which are reproduced as follows:
15&[1] lh/kh HkrhZ }kjk p;u ds fy;s fopkjkFkZ vkosnu&i= vk;ksx }kjk fofgr izi= esa vkefU=r fd;s tk;saxs ftls vk;ksx ds lfpo ls Hkqxrku djus ij izkIr fd;k tk ldrk gSA [2] vk;ksx fu;e 6 ds vuqlkj vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa vkSj vU; Jsf.k;ksa ds vH;fFkZ;ksa dk lE;d izfrfuf/kRo lqfuf'pr djus dh vko';drk dks /;ku esa j[krs gq,] mrus vH;fFkZ;ksa dks] tks visf{kr vgZrk,a iwjh djrs gksa] lk{kkRdkj ds fy;s cqyk;sxk] ftrus og mfpr le>sA [3] vk;ksx vH;fFkZ;ksa dh] mudh izoh.krk&dze esa] tSlk fd lk{kkRdkj ds izR;sd vH;FkhZ dks izkIr vadksa ls izdV gks] ,d lwph rS;kj djsxkA ;fn nks ;k vf/kd vH;FkhZ cjkcj&cjkcj vad izkIr djsa rks vk;ksx muds uke lsok ds fy, mudh lkekU; mi;qDr ds vk/kkj ij ;ksX;rk dze esa j[ksxkA lwph esa ukeksa dh la[;k fjfDr;ksa dh la[;k vf/kd ¼fdUrq 25 izfr'kr ls T;knk vf/kd ugha½ gksxhA vk;ksx lwph f'k{kk funs'kd mRrj izns'k dks vxzlkfjr djsxkA 18&¼4½ fu;qfDr izkf/kdkjh] vLFkk;h ;k LFkkukiUu fjfDr;ksa esa Hkh] mifu;e ¼1½ esa fufnZ"V lwph ls fu;qfDr;ka dj ldrk gSA ;fn bu lwfp;ksa dk dksbZ vH;FkhZ miyC/k u gks rks og ,slh fjfDr esa f'k{kk funs'kd] mRrj izns'k ls izkIr rnFkZ fu;qfDr ds fy;s p;u fd;s x;s vH;fFkZ;ksa dh lwph ls fu;qfDr;ka dj ldrk gsA ,slh fu;qfDr;ka ,d o"kZ dh vof/k ;k bl fu;ekoyh ds v/khu vxyk p;u fd;s tkus rd] buesa ls tks Hkh igys gks( ls vf/kd ugha pysxh] vkSj tgka in vk;ksx ds dk;Z{ks= ds vUrxZr gksa] ogka mRrj izns'k yksd lsok vk;ksx ¼d`R;ksa dk ifjlheu½ fofu;e] 1954 ds fofu;e 5 ¼d½ ds micU/k ykxw gksaxsaA ¼5½ rnFkZ fu;qfDr ds fy;s vH;fFkZ;ksa dk p;u igys gh dh rjg f'k{kk funs'kd] mRrj izns'k }kjk dsUnzh; rkSj ij fd;k tk;xk mudh lwph ds iwjh gks tkus ds i'pkr f'k{kk funs'kd vH;fFkZ;ksa dh lwph fu;qfDRk izkf/kdkjh dks Hkst nsxkA lwph vH;fFkZ;ksa ds fodYi ds vuqlkj laHkkxokj rS;kj dh tk;xhA
37. It is further argued that according to Rule 4(i) of Uttar Pradesh Secondary Education Department Regularisation of Ad hoc Appointment on the Post of Trained Graduate Teachers Rules, 2001 (hereinafter referred to as, 'Regularisation Rules, 2001), such ad hoc appointments of trained teachers shall be considered for regularization. Rule 4(i) is reproduced as follows:
4- & ¢¢¢srnFkZ fu;qfDr;ksa dk fofu;ferhdj.k 4¼1½-& dksbZ O;fDr tks&¼,d½ fdlh jktdh; fo|ky; esa izf'kf{kr Lukrd ds in ij 07 vxLr 1993 ds iwoZ rnFkZ vk/kkj ij lh/ks :i ls fu;qDr fd;k x;k Fkk vkSj bl fu;ekoyh ds izkjEHk gksus ds fnukad ij bl :i esa fujUrj lsok esa gkss S
38. On perusal of Rule 15 of Rules, 1983, it reveals that appointment of permanent post would have to be made by direct recruitment made by U.P. Public Service Commission, respondent No.2, by inviting applications of candidates on prescribed proforma. Qualified candidates would be called for interview and U.P. Public Service Commission will prepare select list according to Rule 15(3) and this select list will be forwarded to Director, Education by the U.P. Public Service Commission.
39. According to Rule 18(4), adhoc appointment can only be made by appointing authority on temporary basis or in vacancies occurring on transfer of employee from the list prepared according to sub Rule 1 and if any candidate of this list would not be available then ad hoc appointments shall be made from the list prepared by Director, Education. These ad hoc appointments may only continue for a period of one year or next selection made, according to rules. These ad hoc appointments, according to Rule 18(5) of Service Rules, 1983 shall be made by Director Education by Central Recruitment. He shall send list of selected candidates to the Appointing Authority region wise. It is vehemently argued by the learned Additional Chief Standing Counsel that respondent No.1 was not ever appointed on permanent post by direct recruitment or by way of ad hoc appointment according to Rule 18 of Rules, 1983.
40. It is pertinent to mention here that the petitioner has not pleaded that she ever appeared in Central recruitment made by the Director Education for ad hoc appointments and her name appeared in any such list prepared after Central recruitment.
41. Learned counsel for the respondent No.1 has relied upon Rule 3(a) and Rule 8 with item No.7 of Rules, 1983. Rule 3(a) is reproduced as below:
3. (a) "appointing authority" means Regional Deputy Director of Education in case of Men's Branch and Regional Inspectress of Girls School in respect of Women's Branch.
42. Rule 3(a) of Rules, 1983 provides that appointing authority for girls school shall be Regional Inspectress of Girls School (Women Branch). Learned counsel for respondent No.1 has pointed out that this appointing authority has been re-designated as Joint Director of Education, VI Region, Lucknow. Rule 8 read with item No.7 of Rules, 1983 prescribes academic qualification as follows :
8. Academic qualification.-A candidate for direct recruitment to the various posts in the service must possess the following qualifications or as specified by the Government, from time to time:
7.
Assistant Master/ Assistant Mistress (Music)
1. Bachelor's Degree from a recognized University or a degree by the Government as equivalent thereto.
2. Knowledge of Vocal and Instrumental Music and Senior Diploma in Music from Allahabad University or Sangeet Visharad from Bhatkhande Sangeet Mahavidyalya or Sangeet Prabhakar Samiti, Allahabad.
43. It is relevant to mention here that Rule 8 item-7 as relied upon by the learned counsel for respondent No.1 shall be read over along with the provisions of Rule 5 which is regarding post of Assistant Mistress(Music) and other posts in L.T. Grade (Women Branch) and reproduced as follows:
_______________________________________________________ PART III - RECRUITMENT ________________________________________________________
5. Recruitment to the various categories of posts in the service shall be made from the following sources:
Designation of posts By direct recruitment through commission By promotion through Commission from amongst the permanent teachers of the Uttar Pradesh Educational (Trained Under Graduate) service
-------------------------------------------------
Who are graduate and who have put at least 5 years service (including temporary service).
Who are working as extension teachers and craft teachers having requisite qualification under pre-orientation scheme .........
.........
.......
Designation of post By direct recruitment through commission By promotion through Commission from amongst the permanent teachers of the Uttar Pradesh Educational (Trained Under Graduate) service
-------------------------------------------------
Who are graduates and who have put at least 5 years service (including temporary service).
__________________________________________________ 1 2 3 __________________________________________________ Per cent Per cent 1. Assistant Mistress (General) 70 30 2. Assistant Mistress(Science) 70 30 3. Assistant Mistress(Language) 70 30 4. Assistant Mistress(Art) 70 30 5. Assistant Mistress(Music) 70 30 6. Assistant Mistress 70 30 7. Assistant Mistress(P.T.) 70 30 8. Craft Mistress(Tailoring) 70 30 9. Craft Mistress(Trading) 70 30 __________________________________________________
44. Rule 8 of Rules, 1983 provides for direct recruitment of a candidate to the various posts in the service and he or she must possess qualifications specified by the Government from time to time which are mentioned in item No.7 relating to Assistant Master/ Assistant Mistress (Music) which is mentioned above. Rule 5 provides 70% posts should be filled up by direct recruitment through Commission and 30% posts should be filled by promotion through Commission.
45. On perusal of appointment letter dated 23.07.1984 nature of appointment of respondent No.1 is reflected to be of stopgap arrangement in leave vacancy of Smt. Safia Khatoon, permanent Assistant Teacher (Music) in L.T. Grade. Her appointment was not in nature of ad hoc appointment according to Rule 18(4) and (5) of Rules 1983. Therefore, qualifications possessed by respondent No.1 does not extend any benefit to her relating to nature of her appointment to change it from stopgap arrangement in leave vacancy to ad hoc appointment according to Rule 18(4) and (5). It is pertinent to mention here that on perusal of record it reveals that order dated 16.05.1986 (Annexure-4) was passed, which is reproduced as under:
dk;kZy; e.Myh; ckfydk fo|ky; fujh{dk] "k"Ve e.My y[kuÅ vkns'k la[;k ,u0Mh0¼2½@56@86&87 fnukad 16-05-86 lanhiu bl dk;kZy; ds vkns'k la[;k ,u0Mh0¼1½@106@84&85 fnukad 23-07-84 }kjk Jherh uhfyek JhokLro dh vodk'kdkyhu fu;qfDr jktdh; ckfydk b.Vj dkyst egewnkckn lhrkiqj esa dh xbZ Fkh ds vfUre vuqPNsn es Þ;g fu;qfDr furkUr vLFkkbZ gS tks Jherh lkfQ;k [kkrwu ds voSrfud vodk'k ds mijkUr dk;ZHkkj xzg.k djus dh frfFk ls Lor% lekIr gks tk;sxh Þ ds LFkku ij Þ ;g fu;qfDr furkUr vLFkkbZ gS tks Jherh lkfQ;k [kkrwu ds dk;ZHkkj xzg.k djus dh frfFk vFkok 20-5-86 dks iw.kZr;k gh lekIr gks tk;sxhA Mk0 n;koUrh [kUuk e.Myh; ckfydk fo|ky; fujh{kd "k"Ve e.My y[kuÅ
46. On perusal of order dated 16.05.1986 it reveals that appointment order dated 23.07.1984 of respondent No.1 was modified to the extent that services of respondent No.1 in leave vacancy shall terminate on taking of charge by Smt. Safia Khatoon(permanent employee) or on 20.05.1986. The competent authority, on 19.05.1986 passed the order (Annexure-5 to the writ petition), terminating services of respondent No.1 with effect from 20.05.1986. The order dated 19.05.1986 is reproduced below:
dk;kZy; iz/kkukpk;Z] jktdh; ckfydk bUVj dkyst] egewnkckn lsok lekfIr dh uksfVl i=kad@12529@ih0,e0@ 1986&87 fnukad 19@8@86 Jherh uhfyek JhokLro] l0v0 vkidh fu;qfDr vodk'k izcU/k esa Jherh lkfQ;k [kkrwu l0v0 ds in ij ek0 ck0 fo0 fujhf{kdk] "k"Ve e.My] y[kuÅ ds vkns'kkuqlkj bl fon~;ky; esa dh xbZ FkhA vr% vkidh lsok;sa fnukad 20&5&1986 ds vijkUg ls lekIr dh tkrh gSA viBuh;
¼jktdh; ckfydk bUVj dkyst½ egewnkckn lhrkiqj
47. Therefore, during period from 23.07.1984 up to 20.05.1986 appointment of respondent No.1 remained in nature of stopgap arrangement of leave vacancy of Smt. Safia Khatoon. She was not ever appointed as ad hoc employee according to Rules, 1983 and she never applied according to Rule 5 in the selection made by U.P. Public Service Commission before termination of her purely temporary services on the basis of her appointment made in leave vacancy. She had also not applied to Director Education for central recruitment of candidates for her ad hoc appointment.
48. Learned counsel for respondent No.1 has relied upon the order dated 20.05.1986 passed by this Court in C. M. A. No. 6116 (W) of 1986 in Writ Petition No. 3316 of 1986, Smt. Neelima Srivastava Vs. Regional Inspector of Girls School, Lucknow and another.
49. We have perused the order dated 20.05.1986 passed by this Court, which is reproduced as follows:
Issue notice to opposite party No.2. Meanwhile the operation of the impugned order dated 16.5.1986 contained in Annexure I shall remain stayed. This interim order shall automatically lapse on return of Smt. Safia Khatoon.
50. On perusal of this order it reveals that impugned order dated 16.05.1986 passed by appointing authority was challenged in this writ petition and the operation of impugned order dated 16.05.1986 was stayed, but it is specifically mentioned in this order that this interim order shall automatically lapse on return of Smt. Safia Khatoon.
51. The appellants have taken specific plea in para-14 of grounds of this special appeal that in Writ Petition No. 3316 of (S/S) of 1986, respondent No.1 had never challenged the order dated 19.05.1986 passed by the appointing authority regarding dispensation of her services.
52. It is further pleaded that Director, Education, Uttar Pradesh, Lucknow issued notice dated 30.10.1987 to Smt. Safia Khatoon (permanent employee) but she did not return to attend her duties. Therefore, Regional Inspectress of Girls School, VI Region, Lucknow published a notice on 16.01.1988 (Annexure-7 to the writ petition) communicating her that after one month from the date of publication of notice her services shall be deemed to be terminated.
53. It is also mentioned in para-17 of the grounds of appeal that after termination of services of Smt. Safia Khatoon, leave vacancy changed into permanent/ substantive vacancy and the appointment of respondent No.1 against leave vacancy came to an end on 10.10.1987 automatically. But the respondent No.1 continued on the basis of interim order dated 20.05.1986.
54. Learned Additional Chief Standing Counsel has argued that this substantive post was to be filled by direct recruitment through U.P. Public Service Commission and on termination of leave vacancy the respondent No.1 was never appointed on ad hoc basis according to Rules, 1983, therefore, continuation of Smt. Neelima Srivastava on the basis of interim order dated 20.05.1986 cannot be termed as ad hoc appointment. The nature of her appointment shall legally remained of stopgap arrangement in leave vacancy. It is further argued that learned Single Judge, vide impugned order dated 15.05.2014, relying upon the case law of Rudra Kumar Sain and others Vs. Union of India and others : (2000) 8 SCC 25 of Constitutional Bench of Apex Court, has recorded perverse finding that appointment of respondent No.1 not being a stopgap arrangement and she has a right to hold post. The findings recorded by the learned Single Judge in the impugned judgment dated 15.05.2014 is reproduced as follows:
Petitioner has been teaching since 23.7.1984. This Court has held (vide order dated 23.01.2006 as mentioned in the body of judgment) her appointment not being a stopgap arrangement. It has been further held that she has a right to hold post. This judgment has not been challenged and became final between parties. Learned Standing Counsel has failed to point out any contrary order.
Case of respondents that there was no provision to make appointment and Regional Inspectress of Girls School, Lucknow had no power to make appointment, cannot be considered in view of above judgment of this Court. There is nothing on record to show if petitioner's appointment was ever cancelled or withdrawn or any action was ever taken against then R.I.G.S. for making irregular appointment.
Regularization Rules, 2001 applicable to such cases, find mention in the impugned order. Fact remains that petitioner has been teaching since 1984. Her appointment is not stopgap. She having been held entitled to hold the post, refusal to give benefit of Rules, 2001 is not lawful exercise of the power by Joint Director. No regular appointment has been made. She is fully eligible and qualified to be appointed as such.
In view of the discussion and the directions of this Court mentioned above, petitioner is clearly found entitled for regularization.
In these circumstances, a quietus be given to long drawn litigation. Consequently, writ petition is allowed. Order dated 29.1.2007 passed by Joint Director Education, VI Region, Lucknow is quashed. Respondents are directed to pass order for regularization of petitioner within six weeks from the date a certified copy of this order is produced before him. Consequential benefits will also be made available to petitioner within above period.
55. It is relevant to mention here that there is no provision for appointment in leave vacancy on ad hoc basis according to Rules, 1981 or Rules, 1983. Therefore, the learned Single Judge, by judicial verdict could not change the nature of appointment of respondent No.1 from stopgap arrangement made in leave vacancy of Smt. Safia Khatoon to one of ad hoc appointment against substantive vacancy. The appointment of respondent No.1, not being ad hoc appointment, therefore, respondent No.1 is not entitled to get benefit of Regularization Rules, 2001.
56. Learned counsel for respondent No.1 has relied upon the judgment dated 23.01.2006 passed by this Court in Writ Petition No. 3316 (S/S) of 1986 and Writ Petition No. 7890 (S/S) of 2003 and argued that in Writ Petition No. 7890 (S/S) of 2003 a prayer was made by respondent No.1 to regularize her services and to grant increments to her as per Pay Commission reports of the year 1986, 1996 and 2006 with a further direction to consider her case for Selection Grade and pay arrears of salary because appellants paid to her salary at the minimum of the pay scale along with the allowances and no increments, etc., was added in the salary of petitioner. The appellants/opposite parties sanctioned the increments to the petitioner but did not pass any order on regularization due to pendency of earlier Writ Petition No. 3316 (S/S) of 1986. On 23.02.2014 this order was recalled by the appellants. In this regard Prayer-IV-A was added in the Writ Petition No. 7890 (S/S) of 2003.
57. It is vehemently argued by the learned counsel for respondent No.1 that judgment dated 23.01.2006 has attained finality as no special appeal was filed against this order. This Court directed the appellants to consider her for regularization under the relevant regularization rules and direction was given that appropriate orders shall be passed within three months from the date of presentation of the certified copy of this judgment and order. The claim of regularization of petitioner was rejected by the appellants. The order passed on 29.01.2007 has been challenged in Writ Petition No. 8597 (S/S) of 2010 which was allowed by this Court vide impugned judgment and order dated 15.05.2014.
58. We have perused the judgment and order dated 23.01.2006 passed in Writ Petition No. 3316 (S/S) of 1986 and Writ Petition No. 7890 (S/S) of 2003. These both writ petitions were heard and decided by a common judgment and order dated 23.01.2006. This Court after hearing both the parties has observed as follows:
After hearing learned counsel for the parties and perusing the record, it is abundantly clear that the petitioner has more than twenty-one years' experience of working as Assistant Teacher Music, L.T.grade in the Government Inter College, Mahmoodabad, Sitapur. As per documents placed on record, she is having all requisite educational qualifications as required in the Intermediate Education Act. She might have been appointed in a leave arrangement but by virtue of his continuous satisfactory services, she has now acquired a right to hold the post and continue in the institution, and at this stage, it would not be appropriate to treat her as an appointee in stop-gap arrangement.
In view of above, the writ petitions are allowed. The consequences shall follow. The petitioner shall be allowed to continue on the post, held by her. Her case shall be considered for regularization under the relevant regularization rules and appropriate orders shall be passed within three months from the date of presentation of a certified copy of this judgment and order.
59. On perusal of judgment and order dated 23.01.2006 it reveals that order dated 19.05.1986 was never challenged, either in Writ Petition No. 3316 (S/S) of 1986 or Writ Petition No. 7890 (S/S) of 2003 instituted by respondent No.1. She continued on the basis of interim order dated 20.05.1986 passed by this Court in Writ Petition No. 3316 (S/S) of 1986 wherein notice dated 16.05.1986 given to the respondent No.1 for her disengagement was only challenged. Learned Standing Counsel had resisted these writ petitions and submitted that petitioner's appointment was made in stopgap arrangement and no legal right can be said to have been accrued in her favour on account of her being continued in services in leave arrangement. She is not having requisite qualification meant for the post; she is not B.Ed.
60. After considering the arguments of learned counsels this Court vide judgment dated 23.01.2006 has only directed that petitioner shall be allowed to continue on the post held by her. Her case shall be considered for regularization under the relevant regularization rules and appropriate orders shall be passed within three months from the date of presentation of a certified copy of the judgment and order.
61. Appellants, on the basis of directions given vide judgment and order dated 23.01.2006 passed by this Court and on the basis of judgment and order passed in Writ Petition No. 3316 (S/S) of 1986 and Writ Petition No. 7890 (S/S) of 2003, have considered the representation of respondent No.1 regarding her regularization and the Joint Director, Education, VI Region, Lucknow has rejected representation for regularization by considering the facts and circumstances and nature of appointment of respondent No.1 and applicable rules vide detailed order dated 29.01.2007, which is being reproduced as follows:
fjV ;kfpdk la[;k 7890¼,l0,l0½@2003 uhfyek JhokLro cuke mRrj izns'k ljdkj o vU; rFkk muls lEcU) fjV ;kfpdk la[;k 3316¼,l0,l0½@1986 uhfyek JhokLro cuke e.Myh; ckfydk fo|ky; fujh{kdk "k"B e.My&y[kuÅ o vU; esa ikfjr ekuuh; mPp U;k;ky; y[kuÅ ihB ds vkns'k fnukad 23&01&2006 ds vuqikyu es izdj.k dk fuLrkj.k&
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jktdh; ckfydk b.Vj dkyst egewnkckn&lhrkiqj esa fu;fer :i ls dk;Zjr Jherh lfQ;k [kkrwu l0v0 ds voSrfud vodk'k ij tkus ds QyLo:i ;kfpuh Jherh uhfyEkk JhokLro dh Lukrd osru dze esa vodk'kdkyhu izca/k ds :i esa l0v0 laxhr xk;u ds in ij e.Myh; ckfydk fo|ky; fujh{kdk y[kuÅ ds vkns'k la[;k fu&2@104@fu;q0@84&85 fnukad 23&7&84 }kjk ;g mYys[k djrs gq, dh x;h Fkh fd ;g fu;qfDr furkUr vLFkkbZ gS tks Jherh lfQ;k [kkrwu ds voSrfud vodk'k ds mijkUr dk;ZHkkj xzg.k djus dh frfFk ls Lor% lekIr gks tk;sXkhA Jherh uhfyek }kjk fnukad 28&7&84 dks mDr vodk'kdkyhu fjfDr ds izfr dk;ZHkkj xzg.k dj fy;k x;kA e.Myh; ckfydk fo|ky; fujh{kdk "k"B e.My& y[kuÅ ds vkns'k ,u0Mh&1@56@86&87 fnukad 16&5&86 }kjk iwoZ fuxZr vkns'k fnukad 23&7&84 esa fuEuor la'kks/ku fd;k x;k Þ Jherh uhfyek JhokLro dh vLFkkbZ vodk'k dkyhu fu;qfDr Jherh lfQ;k [kkrwu ds dk;ZHkkj xzg.k djus dh frfFk vFkok 20&5&86 esa ls tks igys gks ls lekIr gks tk;sxhAÞ ;kfpuh }kjk e.Myh; ckfydk fo|ky; fujh{kdk y[kuÅ ds vkns'k fnukad 16&5&86 ds fo:) ekuuh; mPp U;k;ky; esa fjV ;kfpdk la[;k 3316¼,l0,l0½@1986 ;kftr dh x;h ftleas ekuuh; mPp U;k;ky; dk vkns'k fnukad 20&5&86 fuEuor izkIr gqvk& "Issue notice to opposite party no.2. Meanwhile the operation of the impugned order dated 16.5.1986 contained in annexure 1 shall remain stayed. This interim order shall automatically lapse on return of smt. Safia Khatoon."
bl izdkj e.Myh; ckfydk fo|ky; fujh{kdk "k"B e.My&y[kuÅ ds vkns'k fnukad 16&5&86 dks LFkfxr djrs gq, ;kfpuh dh vLFkkbZ vodk'kdkyhu fu;qfDr] Jherh lfQ;k [kkrwu dh okilh ij Lor% lekIr gks tkus dk vkns'k ikfjr fd;k x;kA bl izdkj ;kfpuh fnukad 28&7&84 ls 20&5&86 rd e.Myh; ckfydk fo|ky; fujh{kdk y[kuÅ }kjk iznRr vkns'k ds vuqlkj vLFkkbZ vodk'kdkyhu fjfDr ds izfr rFkk 20&5&86 ls v|kof/k rd ekuuh; mPPk U;k;ky; ds vkns'k fnukad 20&5&86 ds vuqikyu esa dk;Zjr gSaA iqu% ;kfpuh }kjk ekuuh; mPp U;k;ky; esa ,d vU; fjV ;kfpdk la[;k 7890¼,l0,l0½@2003 ;ksftr dh x;h ftlesa ekuuh; mPp U;k;ky; }kjk fnukad 17&12&2003 dks ;g vkns'k ikfjr fd;k x;k fd ;kfpuh ds izR;kosnu tks layXud la[;k 12 o 16 ds :i esa ;kfpdk ds lkFk layXu gS dk fuLrkj.k vkns'k dh izfr ,oa ;kfpuh ds izR;kosnu dh izkfIr ds 4 lIrkg dh vof/k esa fd;k tk;A ekuuh; mPp U;k;ky; ds vkns'k fnukad 17&12&2003 ds vuqikyu esa rRdkyhu la;qDr f'k{kk funs'kd "k"B e.My&y[kuÅ ds vkns'k la0 fu&3@13871&77@2004&05 fnukad 28&01&2004 ds }kjk Jherh lfQ;k [kkrwu rRdkyhu lgk;d v/;kfidk ds }kjk v|kof/k rd ;ksxnku izLrqr u fd;s tkus dh n'kk esa mDr in ij mudk /kkj.kkf/kdkj lekIr ekurs gq, mDr in ds izfr ekuuh; mPp U;k;ky; ds vkns'k fnukad 20&5&86 ds vUrxZr dk;Zjr ;kfpuh Jherh uhfyek JhokLro dks Lukrd osrudze esa fu;qfDr dh frfFk ls okf"kZd osru o`f) iznku fd;s tkus] lkewfgd thou chek ,oa th0ih0,Q0 dh dVkSrh vkns'k fuxZr dh frfFk ls@ekl ds ns; osru ls djus dk vkns'k ikfjr fd;k x;kA ftls rF;xksiu ds vk/kkj ij la;qDr f'k{kk funs'kd "k"B e.My&y[kuÅ ds vkns'k la0 fu&3@14917@2003&04 fnukad 25&02&2004 }kjk la'kks/ku djrs gq, okf"kZd osru o`f)] th0ih0,Q0 ,oa lkewfgd chek dVkSrh lEcU/kh vuq"kkaafxd ykHkksa ls oafpr dj fn;k x;kA fjV ;kfpdk la0 7890¼,l0,l0½@2003 ,oa mlls lEc) fjV ;kfpdk la0 3316¼,l0,l0½@1986 esa ekuuh; mPp U;k;ky; dk vkns'k fnukad 23&01&2006 dks fuEuor izkIr gqvk& "In view of above, the writ petitions are allowed. The consequences shall follow. The petitioner shall be allowed to continue on the post, held by her. Her case shall be considered for regularization under the relevant regularization rules and appropriate orders shall be passed within three months from the date of presentation of a certified copy of this judgment and order."
mDr vkns'k dh izfr layXu dj ;kph ds izkFkZuk i= fnukad 10&03&2006 }kjk v/kksgLrk{kjh ds dk;kZy; esa] fnukad 13&03&2006 dks miyC/k djk;k x;kA ekuuh; mPp U;k;ky; ds vkns'k fnukad 23&01&2006 ds vuqikyu esa izdj.k ls lEcfU/kr i=koyh dk voyksdu ,oa ijh{k.k fd;k x;k ftlesa ik;k x;k fd ;kfpuh Jherh uhfyek JhokLro dh fu;qfDr jktdh; dU;k b.Vj dkyst egewnkckn&lhrkiqj esaa Lukrd osrudze esa fu;fer :i ls dk;Zjr Jherh lfQ;k [kkrwu lgk;d v/;kfidk] lkekU;] ds voSrfud vodk'k ij tkus ds QyLo:i gq;h]vYidkfyd fjfDr ds izfr vodk'k dkyhu izca/k ds :i esa furkUr vLFkkbZ :i ls dh x;h Fkh tks Jherh lfQ;k [kkrwu ds voSrfud vodk'k ds mijkUr dk;ZHkkj xzg.k djus dh frfFk vFkok fnukad 20&5&86 tks Hkh igys gks ls Lor% lekIr gks tk;sxhA blds fo:) ;kfpuh }kjk ekuuh; mPp U;k;ky; esa ;ksftr fjV ;kfpdk la[;k 3316¼,l0,l0½@1986 esa ikfjr ekuuh; mPp U;k;ky; ds vkns'k fnukad 20&5&86 ds vuqikyu esa dk;Zjr gSA ekuuh; mPp U;k;ky; ds miZ;qDr vkns'k fnukad 23&01&2006 ds vuqikyu esa ;kfpuh dks mlds }kjk /kkfjr in ij cuk;s j[kus vkSj fofu;ferhdj.k gsrq lqlaxr fu;eksa ds vUrxZr fu;qfDRk ds fofu;ferhdj.k ij fopkj dj mi;qDr vkns'k ikfjr djus dk vkns'k fn;k x;k gSA jktdh; ek/;fed fo|ky;ksa es izf'kf{kr Lukrd f'k{kdksa dh lsok fu;ekoyh ¼m0iz0 v/khuLFk f'k{kk ¼izf'kf{kr Lukrd Js.kh½lsok fu;ekoyh½ 1983 ykxw gS tks m0iz0 'kklu dh vf/klwpuk la[;k 4946@15&2&83&27¼46½&77 fnukad% 16 tqykbZ 1983 }kjk izo`Rr gq;hA mYys[kuh; gS fd bl lsok fu;ekoyh ds Hkkx 5 esa HkrhZ dh izfdz;k mfYyf[kr gSA fu;e 15 esa lh/kh HkrhZ dk izko/kku gS rFkk HkrhZ yksd lsok vk;ksx m0iz0 }kjk fd;s tkus dk izko/kku gSA fu;e 15 fuEufyf[kr gS%& lh/kh HkrhZ dh izfdz;k 15&¼1½ lh/kh HkrhZ }kjk p;u ds fy, fopkjkFkZ vkosnu&i= vk;ksx }kjk fofgr izi= es vkefU=r fd;s tk;saxs ftls vk;ksx ds lfpo ls Hkqxrku djus ij izkIr fd;k tk ldrk gSA ¼2½ vk;ksx fu;e 6 ds vuqlkj vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa vkSj vU; Js.kh ds vH;fFkZ;ksa dk lE;d izfrfuf/kRo lqfuf'pr djus dh vko';drk dks /;ku esa j[krs gq,] mrus vH;fFkZ;ksa dks] tks visf{kr vgZrk, iwjh djrs gksa] lk{kkRdkj ds fy;s cqyk;sxk ftrus og mfpr le>sA ¼3½ vk;ksx vH;fFkZ;ksa dh] mudh izoh.krk&dze esa] tSlk fd lk{kkRdkj ds izR;sd vH;FkhZ dks izkIr vadksa esa ls izdV gks] ,d lwph rS;kj djsxkA ;fn nks ;k vf/kd vH;FkhZ cjkcj cjkcj vad izkIr djsa rks vk;ksx muds uke lsok ds fy, mudh lkekU; mi;qDrrk ds vk/kkj ij ;ksX;rk dze esa j[ksxkA lwph esa ukeksa dh la[;k fjfDr;ksa dh la[;k vf/kd ¼fdUrq 25 izfr'kr ls T;knk vf/kd ugha½ gksxhA vk;ksx lwph f'k{kk funs'kd m0iz0 dks vxzlkfjr djsxkA fu;ekoyh ds Hkkx N% ds fu;e 18¼4½ esa rnFkZ fu;qfDr dk mYys[k gSA mDr nksuks izdkj dh fu;qfDr;ksa ds vfrfjDr vU; fdlh izdkj dh fu;qfDr fd;s tkus dh O;oLFkk mi;qZDr lsok fu;ekoyh esa ugh gSA fu;e 18 fuEufyf[kr gS& 4& fu;qfDr izkf/kdkjh] vLFkkbZ ;k LFkkukiUu fjfDr;ksa esa Hkh mi fu;e ¼1½ esa fufnZ"V lwph ls fu;qfDr;ka dj ldrk gSA ;fn bu lwfp;ksa dk dksbZ vH;FkhZ miyC/k u gks rks og ,slh fjfDr esa f'k{kk funs'kd] mRrj izns'k ls izkIr rnFkZ fu;qfDr ds fy, p;u fd;s x;s vH;fFkZ;ksa dh lwph ls fu;qfDr;ka dj ldrk gSA ,slh fu;qfDr;ka ,d o"kZ dh vof/k ;k bl fu;ekoyh ds v/khu] vxyk p;u fd;s tkus rd buesa ls tks Hkh igys gks] ls vf/kd ugha pysxh] vkSj tgka in vk;ksx ds dk;Z {ks= ds vUrxZr gks] ogka mRrj izns'k yksd lsok vk;ksx ¼d`R;ksa dk ifjlheu½ fofu;e 1954 ds fofu;e 5¼d½ ds micU/k ykxw gksaxsA 5&rnFkZ fu;qfDr ds fy, vH;fFkZ;ksa dk p;u igys gh dh rjg f'k{kk funs'kd mRrj izns'k }kjk dsUnzh; rkSj ij fd;k tk;sxk] mudh lwph ds iwjh gks tkus ds i'pkr f'k{kk funs'k vH;fFkZ;ksa dh lwph fu;qfDr izkf/kdkjh dks Hkst nsxkA lwph vH;fFkZ;ksa ds fodYi ds vuqlkj lEHkkxokj rS;kj dh tk;sXkhA lsok fu;ekoyh 1983 esa rnFkZ fu;qDr izf'kf{kr Lukrd f'k{kdksa ds fofu;ferhdj.k fd;s tkus gsrq fu;ekoyh mRrj izns'k ljdkj dh vf/klwpuk la[;k 3643@15&2@ 2001&27¼40½@93 fnukad 17&8&2001 dks izo`Rr gq;h tks mRrj izns'k ek/;fed f'k{kk foHkkx izf'kf{kr Lukrd f'k{kd ds in ij rnFkZ fu;qfDr;ksa dk fofu;ferhdj.k fu;ekoyh 2001 dgh tkrh gSA bl fu;ekoyh esa Hkh vodk'kdkyhu fu;qfDr fd;s x;s fdlh izf'kf{kr Lukrd ds fofu;ferh dj.k fd;s tkus dh dksbZ O;oLFkk ugh gSA bl fu;ekoyh esa rnFkZ fu;qfDr;ksa dks fofu;ferhdj.k gsrq fu;e 4 esa O;oLFkk nh x;h gS tks fuEuor gS& rnFkZ fu;qfDr;ksa dk fofu;ferhdj.k 4 ¼1½ dksbZ O;fDr tks&¼1,d½ fdlh jktdh; fo|ky; esa izf'kf{kr Lukrd ds in ij 07 vxLr 1993 ds iwoZ rnFkZ vk/kkj ij lh/ks :i ls fu;qDr fd;k x;k Fkk vkSj bl fu;ekoyh ds izkjEHk gksus ds fnukad ij bl :i esa fujUrj lsok esa gks( ¼nks½ ,slh rnFkZ fu;qfDr ds le; izf'kf{kr Lukrd ds in ij fu;fer fu;qfDr ds fy, fofgr visf{kr vgZrk;sa j[krk gks% vkSj ¼rhu½ ;FkkfLFkfr bl :i esa rhu o"kZ dh lsok dj pqdus ds i'pkr iwjh dh pqdk gks% LFkkbZ ;k vLFkkbZ fjfDr esa] tks Hkh miyC/k gks] lqlaxr lsok fu;ekoyh ;k vkns'kks ds vuqlkj ,slh fjfDr esa fdlh fu;fer fu;qfDr fd;s tkus ds iwoZ] mlds vfHkys[kksa vkSj mi;qDrrk ds vk/kkj ij fu;fer fu;qfDRk ds fy, ml ij fopkj fd;k tk;sxkA ¼2½ bl fu;ekoyh ds v/khu fu;fer fu;qfDr;ka djus esa vuqlwfpr tkfr;ksa] vuqlwfpr tu tkfr;ksa vkSj vU; Jsf.k;ksa ds vH;fFkZ;ksa ds fy, vkj{k.k HkrhZ ds le; izo`Rr ljdkj ds vkns'kksa ds vuqlkj fd;k tk;sxkA ¼3½ mi& fu;e ¼1½ ds iz;kstu ds fy, fu;qfDRk izkf/kdkjh ,d p;u lfefr xfBr djsxkA ¼4½ fu;qfDr izkf/kdkjh fu;qfDr ds vkns'k ds fnukad% ls ;Fkk vo/kkfjr T;s"Brk ds dze eas vH;fFkZ;ksa dks j[krs gq,] vkSj ;fn nks ;k vf/kd vH;FkhZ ,d lkFk fu;qDRk gks rks ml dze esa] ftlesa muds uke mDr fu;qfDr vkns'k esa O;ofLFkr gksa] vH;fFkZ;ksa dh ik=rk lwph rS;kj djsxkA lwph p;u lfefr ds le{k mudh pfj= iaft;ksa vkSj muls lEcfU/kr ,sls vU; vfHkys[kksa ds lkFk ftlls mudh mi;qDrrk ds fu.kZ;k djus ij vko';d fopkj fd;k tk lds] j[kh tk;sxhA ¼5½ p;u lfefr mi&fu;e ¼4½ esa fufnZ"V muds vfHkys[kksa ds vk/kkj ij vH;fFkZ;ksa ds ekeyksa ij fopkj djsxhA ¼6½ p;u lfefr] p;fur vH;fFkZ;ksa dh ,d lwph rS;kj djsxh] lwph esa ukeksa dk T;s"Brk dze esa j[kk tk;sxk] vkSj bls fu;qfDr izkf/kdkjh dks vxzlkfjr djsxhA orZeku esa ;kfpuh ds izdj.k ds fuLrkj.k mi;qZDr of.kZr fu;ekoyh ds vUrxZr fd;k tkuk gS D;ksafd mi;qZDr of.kZr fu;ekoyh orZeku esa izo`Rr gSA vfHkys[kksa ds voyksdu ls ;g Li"V gS fd ;kfpuh dh fu;qfDr fnukad% 23&7&84 dks vodk'kdkyhu O;oLFkk ds vurxZr rRdkyhu e.Myh; ckfydk fo|ky; fujh{kdk "k"B e.My y[kuÅ }kjk dh x;h Fkh] tc fd bl izdkj ls fu;qfDr fd;s tkus ds fy,] u gh dksbZ fu;ekoyh izo`Rr Fkh vkSj u gh e.Myh; ckfydk fo|ky; fujhf{kdk "k"B e.My y[kuÅ blds fy, vf/kd`r FkhA izkjEHk esa ;kfpuh dh fu;qfDr fnukad% 23&7&84 dks dh x;h Fkh] ckn esa fnukad%16&5&86 ds vkns'k ls iwoZ vkns'k fnukad% 23&7&84 la'kksf/kr fd;k x;k rFkk ;kfpuh dks Jherh lfQ;k [kkrwu ds vodk'k ls vkus ij dk;ZHkkj xzg.k djus dh frfFk vFkok 20&5&86] tks Hkh igys gks] lekIr gks tk;sxh] vkns'k fd;k x;kA bl vkns'k ls {kqC/k gksdj ;kfpuh us fjV ;kfpdk la[;k 3316¼,l,l½@1986 ;ksftr dh ftlesa ekuuh; mPp U;k;ky; dk vkns'k fnukad 20&5&86 fuEuor izkIr gqvk& "Issue notice to opposite party no.2. Meanwhile the operation of the impugned order dated 16.5.1986 contained in annexure 1 shall remain stayed. This interim order shall automatically lapse on return of smt. Safia Khatoon."
blh vkns'k ds vuqikyu esa ;kfpuh vkt rd dk;Zjr gSA pwafd 1983 dh lsok fu;ekoyh esa vodk'k dkyhu fu;qfDr fd;s tkus lEcU/kh dksbZ O;oLFkk @micU/k ugha gSa ifj.kke Lo:i fofu;ferhdj.k fu;ekoyh 2001 ds izkfo/kkuksa ls ;kfpuh dk izdj.k vkPNkfnr ugha gksrk gSA bl izdkj ;kfpuh fofu;ferhdj.k dh ik= ugha gS rnuqlkj ekuuh; mPp U;k;ky; ds vkns'k fnukad% 23&01&2001 ds vuqikyu esa ;kfpuh ds izdj.k dk fuLrkj.k fd;k tkrk gSA ¼losZUnz fodze cgknqj flag½ la;qDr f'k{kk funs'kd "k"B e.My&y[kuÅA The Joint Director, Education has thus considered the matter/ contentions of regularization of the petitioner and found that she was not entitled to be regularized.
62. This order was challenged by respondent No.1 in Writ Petition No. 8597 (S/S) of 2010.
63. Learned counsel for respondent no. 1 has relied upon following case laws and paragraphs, which read as under:-
In the case of Rattan Lal and others v. State of Haryana and others, reported in [1985 SCC (L&S) 938], Hon'ble Apex Court has held in para-3 as follows:
"3. We strongly deprecate the policy of the State Government under which "ad hoc" teachers are denied the salary and allowances for the period of the summer vacation by resorting to the fictional breaks of the type referred to above. These "ad hoc" teachers shall be paid salary and allowances for the period of summer vacation as long as they hold the office under this order. Those who are entitled to maternity or medical leave, shall also be granted such leave in accordance with the rules".
In the case of Rabinarayan Mohapatra v. State of Orissa and others, reported in [(1991) 2 SCC 599], Hon'ble Apex Court has held in the following paragraphs as under:
2. Rabinarayan Mohapatra the appellant was appointed as Hindi Teacher in Bani-gochha, M.E. School (Orissa) for a period of 89 days or till a candidate selected by the State Selection Board was made available. He joined the school on July 12, 1982. The appointment was made by the District Inspector (Schools) on the recommendation of the managing committee of the school. He continued to serve the school with repeated spells of 89 day-appointments and one day break in between the spells, till May 25, 1986. He was not paid the salary for the period of summer vacations during all these years. Although the appellant continues to serve the school to-date under orders of the managing committee yet his appointment after 1986 has not been approved by the educational authorities. The managing committee even passed a resolution on July 6, 1987, requesting the educational authorities of the State of Orissa to approve the continuous appointment of the appellant as Hindi Teacher but no action was taken by the said authorities.
3. The appellant filed a writ petition under Article 226 of the Constitution of India before the Orissa High Court claiming regularisation as Hindi Teacher with effect from July 12, 1982. The only argument raised before the High Court was that the appellant was entitled to be regularised in terms of the provisions of Section 3 of the Orissa Aided Educational Institutions (Appointment of Teachers Validation) Act, 1989 (hereinafter called ''the Validation Act'). The relevant part of Section 3 of the Act is reproduced hereinafter:
"3. Validation of certain appointments.-- Notwithstanding anything contained in the Education Act or in the Rules or Regulations framed thereunder,--
(a) graduate teachers, intermediate and matriculate teachers, physical education teachers and classical (sic) teachers and Hindi teachers of aided schools appointed by the managing authorities of such schools on ad hoc basis on or after December 1, 1976 but not later than December 31, 1984;
(b)***
(c)*** who have continuous service as such teachers or lecturers for a period of at least one year without any break or with a break or breaks in one or more aided schools or colleges and who are continuing as such teachers or whose services have been terminated after December 31, 1984 save for misconduct or, ... shall, for all intents and purposes, be deemed to have been validly and regularly appointed, and no such appointment shall be challenged in any court of law merely on the ground that the appointment was made otherwise than in accordance with procedure laid down in the Education Act and the Rules and Regulations framed thereunder: ...."
6. The Validation Act has been enacted by the Orissa legislature with the obvious object of granting relief to those members of teaching community who are being exploited for years together by keeping them in short spell appointments like 89 day-appointments as here with one day break and in the process denying them their rightful dues and other service benefits. In spite of repeated deprecations by this Court the practice continues to be followed by various State Governments in the country. Under the Constitution the State is committed to secure right to education for all citizens. Bulk of our population is yet illiterate. Till the time illiteracy is effaced from the country the resolution enshrined in the Preamble cannot be fulfilled. Education is the dire need of the country. There are neither enough schools nor teachers to teach. Insecurity is writ large on the face of the teaching community because of nebulous and unsatisfactory conditions of service. In order to make the existing educational set up effective and efficient it is necessary to do away with ad hocism in teaching appointments. An appointment on 89 day basis with one day break which deprives a teacher of his salary for the period of summer vacation and other service benefits, is wholly arbitrary and suffers from the vice of discrimination. The Validation Act covers the field up to December 31, 1984. The State of Orissa will do well to consider the cases of all those who have completed one year or more as ad hoc teachers after December 31, 1984 and come out with a scheme or any other appropriate measure to regularise their services.
8. The appellant was appointed on July 12, 1982 and has been working with the approval of the authorities for almost 4 years with short breaks. The managing committee is still utilising his services though there is no approval by the educational authorities for the period subsequent to 1986. It is nobody's case that his services were ever terminated on grounds of inefficiency or misconduct. The case of the appellant is, thus, fully covered by Section 3 of the Validation Act. We are of the view that the High Court erred in denying the benefit of the Validation Act to the appellant on the ground that his initial appointment for 89 days was conditioned by the stipulation that he would continue until replaced by a candidate from the select list. The High Court read into the Act what was not there. In response to the notice issued in the special leave petition the managing committee through its Secretary-cum-Head Master has stated that the appellant is still continuing to serve as Hindi Teacher in the school under the orders of the managing committee.
9. We, therefore, set aside the judgment of the High Court and direct the respondents to treat the appellant as the regularly appointed Hindi Teacher in the school with effect from July 12, 1982. The appellant shall be entitled to his salary, including the salary for summer vacations and other breaks which must be taken as non est, from the date of his regular appointment i.e. July 12, 1982. The respondents are directed to pay the arrears of salary and other emoluments due to the appellant as a result of his regularisation within a period of 3 months from today.
In case of Secretary, State of Karnataka v. Umadevi reported in [(2006) 4 SCC 1], Constitutional Bench of Apex Court has held in para-53 as under :
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.
In the case of State of Karnataka v. M.L. Kesari, reported in [(2010) 9 SCC 247], Hon'ble Apex Court in paras-7 to 11 has held as follows:
7. It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi (3) [(2006) 4 SCC 1] , if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
9. The term "one-time measure" has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3)[(2006) 4 SCC 1] , each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.
10. At the end of six months from the date of decision in Umadevi [(2006) 4 SCC 1] , cases of several daily-wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision inUmadevi [(2006) 4 SCC 1] , will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 ofUmadevi [(2006) 4 SCC 1] has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi [(2006) 4 SCC 1] , but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi [(2006) 4 SCC 1] , the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi [(2006) 4 SCC 1] , are so considered.
11. The object behind the said direction in para 53 of Umadevi [(2006) 4 SCC 1] is two fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi [(2006) 4 SCC 1] was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/ instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi [(2006) 4 SCC 1] ] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi [(2006) 4 SCC 1] or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi [(2006) 4 SCC 1] as a one-time measure.
In the case of Amarendra Kumar Mohapatra v. State of Orissa and others, reported in [(2014) 4 SCC 583] in the following paragraphs has held as follows:
1- Common questions of law arise for consideration in these appeals which were heard together and shall stand disposed of by this common order. The primary issue that falls for determination touches the constitutional validity of what is described as the Orissa Service of Engineers (Validation of Appointment) Act, 2002 by which appointment of 881 ad hoc Assistant Engineers belonging to Civil, Mechanical and Electrical Engineering Wings of the State Engineering Service have been validated, no matter all such appointments were in breach of the Orissa Service of Engineers Rules, 1941. The High Court of Orissa has in a batch of writ petitions filed before it struck down [Budheswar Mohapatra v. State, WP (C) No. 11093 of 2006, decided on 15-10-2008 (Ori)] the impugned legislation on the ground that the same violates the fundamental rights guaranteed to the writ petitioners under Articles 14 and 16 of the Constitution. We shall presently formulate the questions that arise for determination more specifically but before we do so, we consider it necessary to set out the factual matrix in which the entire controversy arises.
21. We have heard the learned counsel for the parties as also those appearing for the interveners. The following three questions of law arise for consideration:
21.2. (ii) If the impugned enactment simply grants regularisation, does it suffer from any constitutional infirmity?
21.3. (iii) Does Section 3(2) of the impugned legislation suffer from any unconstitutionality, insofar as the same purports to grant Stipendiary Assistant Engineers seniority with effect from the date they were appointed on ad hoc basis?
35. A Constitution Bench of this Court in State of Karnataka v. Umadevi [State of Karnataka v. Umadevi (2006) 4 SCC 1 : 2006 SCC (L&S) 753] ruled that regularisation of illegal or irregularly appointed persons could never be an alternative mode of recruitment to public service. Such recruitments were, in the opinion of this Court, in complete negation of the guarantees contained in Articles 14 and 16 of the Constitution. Having said so, this Court did not upset the regularisations that had already taken place, regardless of whether such regularisations related to illegal or irregular appointments. The ratio of the decision in that sense was prospective in its application, leaving untouched that which had already happened before the pronouncement of that decision. This is evident from the following passage appearing in the decision: (SCC p. 42, para 53) "53. ... We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
The above is a significant feature of the pronouncement of this Court in Umadevi case [State of Karnataka v. Umadevi , (2006) 4 SCC 1 : 2006 SCC (L&S) 753]
36. The second and equally significant feature of Umadevi case [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] is the exception which this Court made in para 53 of the decision permitting a one-time exception for regularising services of such employees as had been irregularly appointed and had served for ten years or more. The State Government and its instrumentalities were required to formulate schemes within a period of six months from the date of the decision for regularisation of such employees. This is evident from a reading of para 53 of the decision which is reproduced in extenso: (SCC p. 42) "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [State of Mysore v. S.V. Narayanappa, AIR 1967 SC 1071] , R.N. Nanjundappa [R.N. Nanjundappa v. T. Thimmiah, (1972) 1 SCC 409] and B.N. Nagarajan [B.N. Nagarajan v. State of Karnataka, (1979) 4 SCC 507 : 1980 SCC (L&S) 4] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly [Ed.: The word ''irregularly' has been emphasised in original.] appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date."
(emphasis supplied)
38. Equally important is the fact that even after declaring the true legal position on the subject and even after deprecating the practice of appointing people by means other than legitimate, this Court felt that those who had served for ten years or so may be put to extreme hardship if they were to be discharged from service and, therefore, directed the formulation of a scheme for their regularisation. This was no doubt a one-time measure, but so long as the appointment sought to be regularised was not illegal, the scheme envisaged by para 53 of the decision (supra) extracted above permitted the State to regularise such employees. Dr Dhavan argued that the appellant Stipendiary Engineers had, by the time the decision in Umadevi case [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] was pronounced, qualified for the benefit of a scheme of regularisation having put in ten years as ad hoc Assistant Engineers and fifteen years if their tenure was to be counted from the date of their employment as Stipendiary Engineers. He contended that even in the absence of a Validation Act, Stipendiary Engineers appointed on ad hoc basis as Assistant Engineers, who had worked for nearly ten years to the full satisfaction of the State Government would have been entitled to regularisation of their services in terms of any such scheme.
43. As to what would constitute an irregular appointment is no longer res integra. The decision of this Court in State of Karnataka v. M.L. Kesari [(2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826] , has examined that question and explained the principle regarding regularisation as enunciated in Umadevi case [State of Karnataka v. Umadevi, (2006) 4 SCC 1 : 2006 SCC (L&S) 753] . The decision in that case summed up the following three essentials for regularisation: (1) the employees have worked for ten years or more, (2) that they have so worked in a duly sanctioned post without the benefit or protection of the interim order of any court or tribunal, and (3) they should have possessed the minimum qualification stipulated for the appointment. Subject to these three requirements being satisfied, even if the appointment process did not involve open competitive selection, the appointment would be treated irregular and not illegal and thereby qualify for regularisation. Para 7 in this regard is apposite and may be extracted at this stage: (M.L. Kesari case[(2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826] , SCC p. 250) "7. It is evident from the above that there is an exception to the general principles against ''regularisation' enunciated in Umadevi (3) [State of Karnatakav. Umadevi, (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in a duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular."
60. We have in the light of the above no hesitation in holding that the legislation under challenge does not suffer from any constitutional infirmity and that the High Court was in error in having struck it down.
61. Having said that we are of the opinion that even when the challenge to the constitutional validity of the impugned enactment fails, the degree-holder Junior Engineers currently working as ad hoc Assistant Engineers are entitled to the relief of regularisation in service, having regard to the fact that they have rendered long years of service as Assistant Engineers on ad hoc basis for 17 to 18 years in some cases. While it is true that those in service degree-holders working as Junior Engineers were not the beneficiaries of the legislation under challenge, the fact remains, that they were eligible for appointment as Assistant Engineers on account of their being degree-holders. It is also not in dispute that they were appointed against substantive vacancies in the cadre of Assistant Engineers no matter by utilising the direct recruit quota. Even in the case of Stipendiary Engineers the vacancies were utilised out of the 67% quota meant for direct recruitment. What is, however, significant is that the utilisation of the quota reserved for direct recruitment for appointing Stipendiary and Junior Engineers as Assistant Engineers has not been assailed either before the High Court or before us. On the contrary the contention urged on behalf of Junior Engineers degree-holders who are still working as Junior Engineers was that the remainder of vacancies comprising 5% of the cadre strength should be utilised to appoint the eligible degree-holder Junior Engineers. We shall presently deal with that contention.
77. In the light of what we have said above, we do not see any illegality or constitutional infirmity in the provisions of Sections 3(2) or 3(3) of the impugned legislation.
In the case of Rudra Kumar Sain and others v. Union of India and others reported in [(2000) 8 SCC 25] Hon'ble Apex Court in para-15 to 20 has held as follows:
18. In P. Ramanatha Aiyar's Law Lexicon (2nd Edn.) the word "ad hoc" is described as: "For particular purpose. Made, established, acting or concerned with a particular (sic) and or purpose." The meaning of word "fortuitous event" is given as "an event which happens by a cause which we cannot resist; one which is unforeseen and caused by superior force, which it is impossible to resist; a term synonymous with Act of God".
19. The meaning to be assigned to these terms while interpreting provisions of a service rule will depend on the provisions of that rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter se seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as "ad hoc" or "stopgap". If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as "fortuitous" in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a "stopgap" arrangement and appointment in the post as "ad hoc" appointment. It is not possible to lay down any strait-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stopgap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the questions of inter se seniority of officers in the cadre.
20. In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be "stopgap or fortuitous or purely ad hoc". In this view of the matter, the reasoning and basis on which the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be "fortuitous/ad hoc/stopgap" are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.
64. Learned counsel for respondent has mainly relied upon para-16 to 19 of Rudra Kumar Sain and others Vs. Union of India and others (supra) and para-53 of the Secretary, State of Karnataka v. Umadevi (supra) and argued that since substantive post/ permanent post of Assistant Teacher (Music) was not filled up by the school according to service rules for a long time. The petitioner served on this post for about 33 years till conclusion of argument of this petition and at the point of time of decision of Writ Petition No. 8597 (SS) of 2010 (Smt. Neelima Srivastava Vs. State of U.P. and others) vide order dated 15.05.2014 about 30 years of service on the post of Assistant Teacher (Music) in the institution in question. She is qualified to hold this post. The nature of her appointment should be deemed to be in nature of ad hoc appointment on this post and it was not the stopgap arrangement, because Smt. Safia Khatoon did not join her duties and her services were terminated. On the basis of principle of equity this benefit be extended to the petitioner to hold this post.
Learned Additional Chief Standing Counsel for appellants has relied upon a decision in which Hon'ble Apex Court in para-3 to 5 in case of Santosh Kumar Sonkar Vs. State of U.P. and others reported in (2001) 2 UPLBEC 1429 has held as under:
3. The facts in brief are that petitioners were engaged on daily wages during 1986 due to the exigency of workload by U.P. Madhyamik Shiksha Parishad (for short called the 'Parishad') for getting 'certificates' prepared. The appointment of the petitioner was primarily by way of stop gap arrangement in order to clear the backlog. These persons were discontinued in the year 1987.
4. Petitioners filed writ petition No. 1505 of 1992, which was allowed on 22.4.1992 in terms of judgment and order in connected writ petition Nos. 4953 of 1989, 11144/1988 and 26515 of 1990 (writ paragraphs 4 and 5 of the petition). The Parishad filed Special Leave Petition against aforementioned judgment and order and the said Special Leave Petition was decided by Supreme Court vide judgment and order dated August, 19, 1992 (Annexure-2 to the Writ Petition).
5. From the perusal of the judgment of the Apex Court it is absolutely clear that petitioners had no vested statutorily enforceable right of regularization/absorption on the basis of their working on stop-gap basis. The only right, which the persons like the petitioners can claim on parity is the direction of the Supreme Court in its above order.
In the case of National Fertilizers Ltd. and others Vs. Somvir Singh reported in (2006) 5 SCC 493, Hon'ble Apex Court has held in para-11 to 15 as follows:
11. Mr. Bhaskar P. Gupta, learned Senior Counsel appearing on behalf of the appellant submitted that the matter relating to regularisation of services recruited on ad hoc basis is no longer res integra in view of the recent Constitution Bench decision of this Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others [2006 (4) SCALE 197].
12. Mr. Ashok Mathur, learned counsel appearing on behalf of the Respondents, on the other hand, submitted that the appointments of the Respondents may be irregular but not illegal and in that view of the matter, the impugned judgments need not be interfered with.
13. The respondents herein were appointed only on applications made by them. Admittedly, no advertisement was issued in a newspaper nor the employment exchange was notified as regard existence of vacancies. It is now trite law that a 'State' within the meaning of Article 12 of the Constitution of India is bound to comply with the constitutional requirements as adumbrated in Articles 14 and 16 thereof. When Recruitment Rules are made, the employer would be bound to comply with the same. Any appointment in violation of such Rules would render them as nullities. It is also well-settled that no recruitment should be permitted to be made through backdoor.
14. It was contended that for Class IV employees, the Employment Exchanges were not required to be notified in view of Section 3(1)(d) of the 1959 Act. Section 3(1)(d) of the 1959 Act reads as under:
"3. Act not to apply in relation to certain vacancies.-(1) This Act shall not apply in relation to vacancies,-
(a) -(c) * * *
(d) in any employment to do unskilled office work;"
In the case of Secretary, State of Karnataka Vs. Umadevi (supra), Hon'ble Supreme Court has held in the following paragraphs as follows:
43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.
52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College [(1962) Supp. 2 SCR 144]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.
54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.
65. Learned Additional Chief Standing Counsel for appellants has vehemently argued that nature of appointment of respondent, Smt. Neelima Srivastava was purely temporary in stopgap arrangement of leave vacancy of Smt. Safia Khatoon. Appointment dated 23.07.1984 came to an end on her disengagement on leave vacancy vide order dated 19.05.1986 after termination of service of Smt. Safia Khatoon. The respondent No.1 continued on this post on the bais of interim order dated 20.05.1986 passed by this Court. She was never appointed as adhoc according to Services Rules, 1981 or Service Rules, 1983. There is no provision for appointment in leave vacancy according to the service rules or for the regularization of an employee appointed on leave vacancy.
66. Learned counsel for appellants relied upon the decision of Hon'ble Supreme Court in State of Karnataka v. Umadevi (supra) also to substantiate his arguments.
67. We have perused the exposition of law propounded by Hon'ble Supreme Court in State of Karnataka v. Umadevi (supra). In para-53 of this case law, Hon'ble Supreme Court has only protected those employees, whose appointment was irregular and was not illegal. Such employees were duly qualified persons and appointed on duly sanctioned vacant posts. These employees should have continued to work for ten years or more, but without intervention of orders of the Courts or Tribunals. The question of regularization of services of such employees may have to be considered on merits in eye of law of principles settled by Apex Court in the light of this judgment. On perusal of para-53, appointments of such employees, whose appointments were irregular, were only protected on the basis of this case law, only if they were duly qualified persons and appointed against sanctioned posts and continued to work for ten years or more. But specific condition was stipulated that they must continued on the post without intervention by the orders of the Courts or of Tribunals. (emphasis supplied by us)
68. In the present case, Smt. Neelima Srivastava was admittedly appointed on 23.07.1984 in leave vacancy occurred of the post of Assistant Teacher (Music) in the institution in question because permanent Assistant Teacher (Music) Smt. Safia Khatoon proceeded on leave and did not join her duties. The services of respondent No.1, Smt. Neelima Srivastava was disengaged vide order dated 19.05.1986 w.e.f. 20.05.1986. A notice was issued to the respondent No.1 on 16.05.1986 which was challenged in Writ Petition No. 3316 (S/S) of 1986. This Court vide order dated 2.05.1986 stayed the order dated 16.05.1986 and specifically directed that this interim order shall automatically lapse on return of Smt. Safia Khatoon and on the basis of this interim order respondent No.1 continued on the leave vacancy of the post of Assistant Teacher (Music).
69. It is pertinent to mention here that Writ Petition No. 3316 (S/S) of 1986 and Writ Petition No. 7890 (S/S) of 2003 were decided by a common order dated 23.01.2006 by which it was only directed that petitioner shall be allowed to continue on the post held by her. Her case shall be considered for regularization under the relevant rules and appropriate orders shall be passed within three months. On perusal of order dated 23.01.2006 it reveal that disengagement of respondent No.1 vide order dated 19.05.1986 w.e.f. 20.05.1986 was never challenged by the respondent No.1 in these writ petitions instituted by her. She simply continued on the post in leave vacancy on the basis of interim order/ restrain order dated 20.05.1986, i.e., by intervention of this Court. Due to this reason department could not filled up substantive post vacated by Smt. Safia Khatoon according to Service Rules, 1983.
70. There is no substance in argument of learned counsel for respondent No.1 that this post was kept vacant by appellants for longtime, therefore, she should be given benefit of long period of her service on this leave vacancy post and it should be deemed that she held this post on ad hoc basis.
71. Therefore, her appointment comes in the category of 'litigious employment' as held by Hon'ble Supreme Court in para-43 of case law of Secretary, State of Karnataka Vs. Umadevi (supra). Relevant observations of Hon'ble Supreme Court are reproduced as follows:-
It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
(emphasis supplied by us)
72. Appointment order dated 23.07.1984 of respondent No.1 reveal that she was appointed in leave vacancy against the Service Rules, 1981 and the Service Rules, 1983 applicable to the post held by her. Her appointment was purely temporary in leave vacancy and there is no provision for adhoc appointment in the leave vacancy according to these services rules. There is also no provision in Regularization Rules, 2001 for regularization of such employees appointed in leave vacancy.
Therefore, respondent No.1 was appointed illegally against the service rules, vide order dated 23.07.1974 by the Regional Inspectress of Girls Schools, VI Region, Lucknow. Her appointment was not irregular appointment on ad hoc basis as argued by learned counsel for the respondent No.1. Her appointment was illegal in nature of stopgap and it was purely temporary in leave vacancy of Smt. Safia Khatoon. Her appointment was not approved by the U.P. Public Service Commission as required by Service Rules. She was never appointed on ad hoc basis according to Service Rules, 1981 or Rules, 1983. Therefore, case law of Rudra Kumar Sain and others Vs. Union of India and others (supra) also does not extend any benefit to respondent No.1 on the basis of interpretation of Hon'ble Constitutional Bench of Apex Court in case of Secretary, State of Karnataka Vs. Umadevi (supra) in para-43.
73. Hon'ble Apex Court in para-16 and 19 of Rudra Kumar Sain and others Vs. Union of India and others (supra) has interpreted the words 'ad hoc', 'stopgap' and 'fortuitous'. It is specifically mentioned by the Apex Court in para-19 that the meaning to be assigned to these terms, while interpreting the provisions of a service rule will depend on the provisions of that rule and the context in and the purpose for which the expressions are used. Therefore, appointment of respondent No.1 cannot be termed as ad hoc appointment, because there is no provisions in the Service Rules of 1981 or 1983 for appointment in leave vacancy as stopgap arrangement.
74. As observed by us, that respondent No.1 continued on the post of Assistant Teacher (Music) on the basis of interim order dated 20.05.1986 passed by this Court only, her appointment is "litigious appointment". No enforceable right to hold this post is created legally in her favour. Therefore, on the basis of principles of equity also no benefit can be extended to the respondent No.1 to hold this post deeming it as ad hoc appointment. Her appointment was made by Regional Inspectress of Girls Schools against the Service Rules, 1981 and Service Rules, 1983. She is not entitled to be regularized, therefore, there is no infirmity in the order dated 29.01.2007 passed by Joint Director, Education, VI Region, Lucknow by rejecting her representation for regularization.
75. As far as learned counsel for respondent No.1 has argued that vide order dated 31.10.2015, Regional Committee considered matter of regularization of the respondent No.1 and she has been regularized from 17.08.2001. We have perused order dated 31.10.2015 (Annexure-S.A.1). It is mentioned in this order that respondent No.1 had instituted Contempt Petition No. 777 (C) of 2015, when appellants did not comply judgment and order dated 15.05.2014 passed by this Court in Writ Petition No. 8597 (S/S) of 2010. Orders dated 11.08.2015 and 25.08.2015 passed in contempt writ petition were also considered by Director Education and he granted permission on 28.10.2015, which is reproduced below:
"fjV ;kfpdk la[;k&8597@,l0,l0@2010 Eksa ikfjr fu.kZ; fnukad 15-05-2014 ,oa voekuuk ;kfpdk la[;k&777 ¼lh0½@2015 esa ikfjr vUrfje vkns'k fnukad 11-08-2015 rFkk fnukad 25-08-2015 ds vuqikyu gsrq fo'ks"k vihy la[;k&743@2014 esa ikfjr gksus okys fu.kZ; ds v/khu dk;Zokgh djus dh vuqefr iznku dh tkrh gS] rFkk Lis'ky vihy ds Rofjr fuLrkj.k gsrq ,DlisMkbV ,Iyhds'ku rRdky nkf[ky djuk lqfuf'pr djsaA"
It is pertinent to mention here that Director Education has suggested specifically to regularize the respondent No.1 till the decision of present special appeal.
76. We have perused the order dated 31.10.2015. Specific finding has been recorded on consideration of Service Rules, 1983 and Regularization Rules, 2001 that since petitioner/respondent No.1 was appointed in leave vacancy on 23.07.1984 and her services came to an end on 20.05.1986, therefore, she was not entitled for regularization.
77. On perusal of this order dated 31.10.2015 it reveal that regularization of respondent No.1 was done from date 17.08.2001, subject to final outcome of present special appeal. It was also directed to Regional Committee that application be moved before this Court for expeditious disposal of this appeal and to act upon in compliance of judgment and above mentioned judgment and order dated 15.05.2014 and orders dated 11.08.2015 and 25.08.2015 passed in contempt proceedings. Hence, the Regional Committee, under duress and fear of orders dated 11.08.2015 and 25.08.2015 passed by this Court in Contempt Petition No. 777 (C) of 2015 had regularized service of petitioner from date 17.08.2001, which was subject to decision of this appeal. Service Rules, 1981 or Service Rules, 1983 were not considered by the learned Single Judge while Writ Petition No. 8597 (S/S) of 2010 was decided by impugned judgment and order dated 15.05.2014.
78. It is also pertinent to mention here that the learned Single Judge has considered only fact of length of service of respondent No.1, whereas her appointment was in leave vacancy and it was terminated w.e.f. 20.05.1986 vide order dated 19.05.1986. Order dated 19.05.1986 has been passed by Competent Authority to disengage her from the services on post of leave vacancy. This fact was not considered that her appointment being made against service rules and it was illegal and not irregular. Therefore, order dated 31.10.2015 passed by Regional Committee does not extend any benefit to the respondent No.1.
79. Learned counsel for respondent/ petitioner lastly argued that on the basis of principle of equity, benefit of regularization be extended to the petitioner.
It is pertinent to mention that the respondent/ petitioner was appointed in leave vacancy on 23.07.1984 without any advertisement of post and open competition. Her services came to an end on 20.05.1986. She continued on the post on the basis of interim order dated 20.05.1986 passed by this Court. She never opted direct recruitment or central recruitment on ad hoc basis. The principles of equity does not apply to the persons who are afraid of open competition and entered into service by back door entry. There is no substance in the argument of learned counsel for respondent No.1 in this regard.
80. On the basis of above discussions and exposition of law of the Apex Court in the case of Secretary, State of Karnataka Vs. Umadevi (supra), learned Single Judge, vide impugned order dated 15.05.2014 has held against the Service Rules, 1981 and Service Rules, 1983 that appointment of respondent No.1 was ad hoc appointment and it was not stopgap appointment in leave vacancy of permanent employee, Smt. Safia Khatoon. Therefore, the impugned judgment dated 15.05.2014 delivered by the learned Single Judge is not sustainable in law and is liable to be set aside. Case laws relied upon by learned counsel for respondent No.1 does not extend any help to her.
81. Therefore, this special appeal succeeds and the impugned judgment and order dated 15.05.2014 passed in Writ Petition No. 8597 (S/S) of 2010 is accordingly set aside.
82. Parties shall bear their own costs.
Order Date:- 7.5.2018 Virendra/Mustaqeem