Central Administrative Tribunal - Mumbai
Dr Dinkar Kisan Chaudhari vs Defence on 23 July, 2024
1 OA No.669/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION NO.669/2023
Date of Decision: 23rd July, 2024
CORAM: HON'BLE JUSTICE M.G.SEWLIKAR, MEMBER (J)
HON'BLE MR. RAJINDER KASHYAP, MEMBER (A)
1. Dr. Dinakr Kisan Chaudhari, Age,41 yrs.,Occ.: Assistant Pro-
fessor,R/at New Mahada, Bhagirathi Building, Flat No.206,
Sector No.8c, Near SNBP International School, Sant Dnya-
neshawar Nagar, Morwadi,Pimpri, Pune - 411018 Contact
No.8788988219
Email address : [email protected]
2. Rupalee Dharmapal Sukhadeve, Age 31 yrs.,Occ.: Assistant
Professor, R/at 703, B wing,DSK frangipani near hotel wood-
land, Sadhu waswani chowk, Pune-411001, Contact
No.7385490010 Email address : [email protected]
3. Mukuandraj Vilasrao Patil, Age,43 yrs.,Occ.: Assistant Profes-
sor, R/at Flat no.09,A wing, Choudhary Palace, Gajanan Na-
gar, 2nd Lane, Dighi, Pune - 411015, Contact No.8484050031
Email address : [email protected] (Deleted Appli-
cant No.3 as per order dated 11.01.2024) .. Applicants
(By Advocate Mr. V.K. Bajpai)
VERSUS
1. Union of India, Through Ministry of Defence,
South Block New Delhi, Pin Code : 110001.
2. E-in Cs Branch/E (Trg), IHQ of MOD (Army),
Pin-908710, C/O 56 APO.
3. HQ ARTRAC (TT-1), Pin-908548 C/O 56 APO.
2 OA No.669/2023
4. College of Military Engineering (CME) Through Commandant/
Principal Dapodi, Pimpri- Chinchwad, Maharashtra-411031.
..Respondents
(By Advocate Mr. N K Rajpurohit)
ORDER
Per:Justice M.G. SEWLIKAR, MEMBER (J)
The applicants have filed this application under Section 19 of the Administrative Tribunals Act seeking following reliefs:-
" 8. a) This Hon'ble Court be pleased to allow this applica- tion.
b) To direct the respondent to regularize the service of the petitioners as Assistant Professors in the College of Military Engineering Pune by giving the effect of perma-
nency in service since first appointment.
c) To direct the respondents herein to grant the benefits of seniority, age relaxation and other consequential benefits including the benefits of pay-fixation and other benefits for purposes of fixation of pension to the applicants from the date of initial appointment of applicants as Assistant Pro- fessors as is granted to similarly situated permanent em- ployees.
d) Respondent be directed to release the arrears of pay and all service benefits as per AICTE regulation 2019/UGC Acts Regulation 2018 from the date of initial appointment.
e) To direct the respondents herein to consider the full time experience of other Private Engineering Institutes for CAS benefits.
f) Respondent be directed to pay the remuneration of extra work and costs of this original application.
3 OA No.669/2023
g) To direct the respondents be directed to release and pay all terminal benefits to the applicant including gratuity, medical aid, Employees Provident Fund (PF) etc.
h) The respondent may be ordered to pay the interest @ 18% per annum on the amount of arrears of pay and re- muneration of extra work from the date of filing the appli- cation till the date of realization of the full and final amount."
2. Facts leading to this application are that applicant no. 1 is a Doctor in Organic Chemistry. He has cleared National Eligibility Test for Lecturers and Assistant Professors. His Qual- ification is BE Mtech. In the year 2017, applicant no. 1 joined respondents' college on hourly basis. In second week of Febru- ary, 2018, advertisement was issued for the post of Civilian Ac- ademic Officers against existing vacant post. Applicant no. 1 ap- plied for the said post. This post was on contract basis for a pe- riod of one year or upto 31st March, 2012 or till regular incum- bents become available whichever is earlier. A Committee was constituted for the purpose of conducting the examinations. Ap- plicant no. 1 appeared for the examination. He cleared the inter- view and accordingly, was appointed as Assistant Professor. Salary for the post of Assistant Professor was Rs. 31,500/-. In the year 2018, again advertisement was published for the post of Civilian Academic Officers. In the year 2019, 2020, 2021, 4 OA No.669/2023 2022, advertisements were published. Applicant no. 1 made ap- plications and he was selected. Applicant no. 2 also cleared the examination, appeared for the interview and she was also ap- pointed as Civilian Academic Officer (CAO).
2.1 It is the case of the applicants that government passed a resolution dated 21st March, 2011 for appointment of CAOs as Assistant Professors / Associate Professors and Pro- fessors for period of one year or upto 31st March, 2012 or till regular incumbents become available, whichever is earlier against the sanctioned vacant posts/ regular posts in College of Military Engineering, Pune, Indian Military Academy Dehradun, Military College of Telecommunication Engineering Mhow, Mili- tary College of Electrical and Mechanical Engineering Secun- derabad, Electrical and Mechanical Engineering School Va- dodra and Rashtriya Military School, Ajmer, Bangalore, Chail and Dholpur. CAOs were appointed on consolidated package of Rs. 31,500/- per month. The Selection Committee was consti- tuted for appointment of CAOs in College of Military Engineering Pune. The Members of the Committee were as under:- 5 OA No.669/2023
a) Deputy Commandant of CME : Chairman
b) Representative of Director General of Military Engineering (DGMT) Integrated Headquarters of Ministry of Defence (Army) : Member
c) An expert in the subject/field from University / Indian Institute of Technology (IIT) : Member
d) Head of Department in the concerned subject : Member
e) Representative of backward classes, an officer of appropriate rank belonging SC/ST Nominee : Member 2.2 In continuation of the above said policy, Government Resolution was again passed on 9th October, 2017 for selection and appointment of CAOs against sanctioned vacant post / reg- ular post on contract basis in accordance with the Recruitment Rules (RRs) prescribed for the respective posts on hire and fire basis on consolidated package. The applicants appeared for the said interview. They were selected and appointed as Assistant Professors in various departments of College of Military Engi- neering (CME) Pune. All of them were appointed on the same 6 OA No.669/2023 consolidated package of Rs. 31,500/- per month. Appointment of the applicants was for a period of one year or till regular in- cumbents become available, whichever is earlier. The respond- ents have not taken any steps for filling the vacant sanctioned posts on regular basis. The sanction of the President was ob- tained while passing the Government Resolution (GR). The ap- plicants fulfill the minimum qualification for recruitment as per Section 5, 5 (1) (a) and 5 (1)(J) of All Indian Council for Technical Education (AICTE). Before joining, the applicants had to un- dergo medical tests and only on clearing the medical tests, they were appointed as CAO. They have signed the contract agree- ments after giving every fresh appointment. There are about 125 sanctioned vacant posts of Assistant Professors / Associate Pro- fessors / Professors on the establishment of respondent no. 4. The applicants have worked on meager salary. They have not been paid increment in terms of Section 2 (8) of AICTE Act, 1987. The revised AICTE / UGC pay scale was extended to other colleges of CAOs who are working on contract basis i.e. Indian Military Academy, National Defence Academy, Army Ca- dets College Wing. However, the applicants are not getting the 7 OA No.669/2023 benefit of the said pay scale. The applicants have requested the respondents to increase their pay. Equal pay for equal work are their fundamental right. It is contended that applicants and oth- ers are working on contract since the year 2011 and 2017. They are married and have to maintain their families. The respond- ents have initiated process for hiring of another set of CAOs through the third party contract. The respondents cannot replace one set of ad hoc employees with another set of ad hoc employ- ees. The applicants have been selected after undergoing regu- lar process of appointment. Their entry into the respondent no. 4's college was not a backdoor entry and, therefore, their ser- vices must be regularized. They have, therefore, filed this OA for claiming the aforesaid reliefs.
3. During the pendency of this OA, name of applicant no. 3 was deleted by the order of this Tribunal dated 11th Janu- ary, 2024.
4. Respondents filed their reply. They contend that the term of appointment of the applicants has already been over and they are no more in service. Therefore, there is no question of 8 OA No.669/2023 regularization of their services. As on date, no recruitment is done through UPSC. Therefore, the posts of CAO were filled on provisional basis / contractual basis and once contractual period was over, their services were terminated. Every year, a fresh appointment was issued for appointment purely on contract ba- sis on fixed remuneration. They further contend that services of all appointed CAOs were terminated on 31st March, 2023. Ad- vertisement was issued on 28th February, 2023. The applicant had applied but was not appointed / selected. Advertisement was again issued on 27th July, 2023 on Clock Hour Basis, in which applicant's subject i.e. Chemistry was not included and, therefore, he had not applied. In the advertisement published in the leading newspapers it was specifically mentioned that the appointment will be purely on contract basis for duration of one year which may be extendable by six months and the renumer- ation will be Rs. 31,500/- per month. There is no provisions / orders for regularizing the applicants who are appointed on con- tract basis. They further contend that the applicants are not en- titled to regularization because the post on which the applicants are seeking regularization is to be filled through UPSC and the 9 OA No.669/2023 applicants were not appointed through the UPSC. The appli- cants are employed on contract basis and, therefore, they are not entitled to benefits which regular employees are entitled to. They, therefore, prayed for the dismissal of this OA.
5. Applicants did not file rejoinder.
6. We have heard learned counsel for the applicants and learned counsel for the respondents.
7. Learned counsel for the applicants submitted that the applicants were appointed against sanctioned posts. They had to undergo written examination. They faced interview and after conducting medical examination, they were selected as CAO. Every year this procedure was followed. This shows that they were appointed by following the recruitment rules and, therefore, their appointment was by following due process of law. They were appointed against sanctioned posts. They have put in more than three years of service and, therefore, they are entitled to be regularized. He further contended that the appli- cants have been appointed on contract basis. The respondents 10 OA No.669/2023 have issued the advertisement for appointment of CAOs on con- tract basis. It is settled principle of law that one set of ad hoc employees cannot be replaced by another set of ad hoc employ- ees. Therefore, the respondents cannot be permitted to appoint another set of ad hoc employees. For this purpose, he placed reliance on the case of Manish Gupta & Anr. Etc. versus Pres- ident, Jan Bhagidari Samiti & Ors, Civil Appeal Nos 3084- 3088 of 2022 (Supreme Curt) and Murad Ali Sajan & Ors ver- sus UT of J&K Ors, WP(C) No. 2635/2022.
7.1 Learned counsel for the applicants further con- tended that the respondents have published advertisement on contract basis in violation of Regulation 13 of UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Educa- tion, 2018 (UGC Regulations). He submitted that in view of Reg- ulation 13, the teachers should be appointed on contract basis only when it is absolutely necessary and when the student- teacher ratio does not satisfy the laid-down norms. He submitted that the number of such appointments should not exceed 10% 11 OA No.669/2023 of the total number of faculty positions in a College / University. The fixed emoluments paid to such contract teachers should not be less than the monthly gross salary of a regularly appointed Assistant Professor. He submitted that the advertisement has been issued in violation of this Regulation. The respondents are not filling the post of CAOs on regular basis. Since 2011, the appointments to UPSC are not made and the colleges are being run on the teachers appointed on contract basis. He submitted that in terms of this provision, the applicants are entitled to sal- ary equal to the monthly gross salary of a regularly appointed Assistant Professors. He submitted that the applicants were in need of job and therefore, they were not in a bargaining position with the respondents. Taking undue advantage of this position, the applicants have been appointed on contract basis with a sal- ary much less than the salary paid to the regularly appointed employees. This is opposed to public policy and, therefore, the applicants are entitled to regularization and salary equal to the permanent employees.
12 OA No.669/20237.2 Learned counsel for the applicants further submitted that the applicants are discharging the same duties as are per- formed by the regularly appointed employees. Therefore, they are entitled to the pay which the regularly appointed employees are getting. He contended that the applicants apart from con- ducting practicals are discharging important work of officiating the examinations, conducting courses, supervision duties, Con- tinuous Internal Assessments of students, exam paper setting, evaluation of answers sheets of Test-I, Test-II, Mid Term Exam, End Semester Exam and are working as a member of commit- tees, Instruction in laboratory, renovation of laboratory, prapara- tion of Multiple Question Paper (MCQ) for Entrance Exams and preparation of study material for various courses, representing in various seminars and official meetings, etc. He contended that this shows that the applicants are discharging the same du- ties as are being performed by a regularly paid employees. The applicants had applied elsewhere but their experience certificate issued by respondent no. 4 was not considered as a valid expe- rience by the Colleges of University of Delhi. Therefore, their ca- 13 OA No.669/2023 reer has been spoiled. They are becoming age barred. The ap- plicants are, therefore, entitled to be regularized. For this pur- pose, he placed reliance on the following cases:-
i) Sachin Ambadas Dawale & Ors vs. State of Maharash-
tra & Anr. CAW No. 2811/2012 in Writ Petition No. 2046 of 2010.
ii) Sheo Narain Nagar & Ors. versus State of Uttar Pra- desh & Ors, Civil Appeal No. 18510 of 2017.
iii) Vilas Pawar s/o Shri Raghunath Pawar & Ors. versus Union of India & Ors, in OA Nos. 701/2017 & 145/2019 (Central Administrative Tribunal, Mumbai Bench, Mumbai) dated 01st July, 2022.
iv) Sabha Shankar Dube versus Divisional Forest Officer & Ors, Civil Appeal No. 10956 of 2018.
v) State of Punjab & Ors. vs. Jagjit Singh, 2017 (1) SCC
148.
vi) Narendra Kumar Tiwari versus State of Jharkhand, Civil Appeal No. 7423-7429 of 2018.
14 OA No.669/2023
vii) Ganesh Digamber Jambhrunkar & Ors. versus State of Maharashtra & Ors, 2023 (1) AIR Bom R 75 (Bombay High Court).
viii) Pramod Anantrao Pathre & Ors versus State of Maharashtra through Secretary & Ors, 2007 (109) Bom.L.R.962 (Bombay High Court).
8. Learned counsel for the respondents submitted that the applicants have exhibited an agreement and, therefore, they are bound by the agreement. In the agreement, it is stipulated that the appointment will be for a period of one year. Every year fresh advertisement was published and applicants applied for the same and they were selected. The applicants made applica- tions for the post of Assistant Professors in pursuant to the ad- vertisement dated 28th February, 2023. They applied but they were not selected. Thus, they are not in service. He submitted that once they executed the agreement, they are not permitted to challenge the terms of the agreeement. They are, therefore, estopped from challenging the terms of the agreeement. For this 15 OA No.669/2023 purpose, he placed reliance on the case of State of Maharash- tra & Others versus Anita and Another, (2016) 8 SCC 293. Learned counsel further urged that working for a long period on a contractual basis does not create a vested right to regulariza- tion. For this purpose, he placed reliance on the case of Ganesh Digamber Jambhrunkar & Ors. versus The State of Maha- rashtra & Ors, 2023 LiveLaw (SC) 801. He contended that the Constitution Bench of Supreme Court has overruled the judge- ment of State of Haryana versus Piara Singh, (1992) 4 SCC 118 that one set of ad hoc employees cannot be replaced by another set of ad hoc employees. He submitted that the judge- ment in the case of Pramod Anantrao Pathre (supra) cannot be considered as in that case it was a split verdict on account of which it was referred to Third Judge and the Third Hon'ble Judge has rendered the judgement that an ad hoc or templorary em- ployee should not be replaced by another ad hoc or a temporary employee but must be replaced only by a regularly selected em- ployee has been overruled by the judgement of Constitution Bench of Supreme Court in the case of State of Karnataka ver- 16 OA No.669/2023 sus Umadevi, (2006) 4 SCC 1. He contended that the appli- cants are not in service and, therefore, there is no question of regularization.
8.1 Learned counsel for the respondents further submit- ted that the applicants are bound by the agreement. In adver- tisement, it was specifically mentioned that for Assistant Profes- sors, consolidated pay would be Rs. 31,500/-. Once they accept the same, they are estopped from challenging the same.
9. We have given thoughtful consideration to the sub- missions made by the learned counsels for the respective par- ties and have perused the pleadings of the parties and all the annexures and have gone through all the case laws cited by the respective parties.
10. In terms of the letter dated 29th March, 2011, selec- tion and appointment of Civilian Academic Officers (CAOs) on contract basis was approved by the President. The appointment was to be made for a period of one year or upto 31st March, 2011 or till regular incumbents become available, whichever is earlier. It states that a contract agreement shall be signed between the 17 OA No.669/2023 contracted appointee and an officer authorized on behalf of the Commandant of Director. This letter further states that the Civil- ian Academic Officers shall be paid renumeration of consoli- dated package of Rs. 31,500/- for Assistant Professors. Pursu- ant to this letter, advertisement was published in the year 2017. The applicants applied for the same. They were selected and they executed the agreement. The term of the contract shows that the applicant will be in service under the agreement for the period with effect from 11th April, 2022 to 31st March, 2023 or till regular appointee becomes availaible to the college, whichever is earlier. This clearly shows and it is also not disputed that the applicants were appointed on contract basis by the respond- ents. In the case of Ganesh Digamber Jambhrunkar (supra), the petitioners wanted to be regularized in the post for which regular recruitment process has started. Supreme Court after consider- ing the judgement in the case of Sheo Narain Nagar (supra) framed the issue as to whether by working for a long period of time on contractual basis, the petitioners have acquired any vested legal right to be appointed in the respective post on reg- ular basis. It has been held as under:-
18 OA No.669/2023
"We do not find their continuous working has created any legal right in their favour to be absorbed. In the event there was any scheme for such regularization, they could have availed of such scheme but in this case they are seem to be none. The High Court has rejected their claim mainly on the ground that they have no right to seek regularization of their service. We do not think any different view can be taken."
11. This clearly shows that the Apex Court has held that continuous working for a long period of time on contractual basis does not create any legal right in their favour to be absorbed. In these circumstances, it cannot be said that the applicants are entitled to be absorbed just because they worked on contractual basis for a period of three years.
12. In para 14, 15 and 16 of the case of Sachin Amba- das Dawale (Bombay High Court) (supra), it has held thus:-
"14. In the facts of the present case, the Government did not hold selection through MPSC for a period of more than 10 years and selected the Lecturers only through the selection process as provided under the said Gov- ernment Resolution and the petitioners were duly se- lected through that process. The respondent - State has extracted the work from the petitioners for years to-19 OA No.669/2023
gether. Now, by efflux of time and on account of the re- spondent - State not holding the selection process for years together, many of the petitioners have become over-aged and would not be in a position to participate in the selection process through MPSC. It could be clearly seen that the issue before the Apex Court in case of Sec- retary, State of Karnataka & Ors. V/s. Umadevi & Ors (supra) was pertaining to the appointments which were made clandestinely and without advertisement and the persons were appointed without following due selection process. The facts of the present case are totally differ-
ent. In the present case the petitioners have been ap- pointed after the posts were advertised, they were se- lected in a selection process by Committee of Experts duly constituted as per the said Government Resolution. In that view of the matter, the law laid down by the Apex Court in the case of Secretary, State of Karnataka & Ors. V/s. Umadevi & Ors. (supra) would not be appli- cable to the facts of the present case.
15. The submission of the Government of Maharashtra that whether the posts should be filled in on regular basis or contractual basis is a matter of policy and falls within the domain of the Government of Maharashtra (em- ployer), does not appeal to us. It being an admitted posi-
tion that the posts, in which these employees have been appointed and continued for a considerable length of time, on contractual basis, are regular and full time posts; the appointments in these posts cannot be at the whims and fancies of the Govern- ment of Maharashtra. The State cannot adopt a policy of hire and fire or use and throw.
16. In our view the submissions made on behalf of the respondents relying on the judgment in the case of Sec- retary, State of Karnataka & Ors. -V/s. Umadevi & Ors. (supra) would not be applicable in the facts of the present case. It is undisputed that the posts, in which the petitioners are working, are sanctioned posts. As dis- cussed earlier, the Government of Maharashtra had Is- sued the resolution dated 2nd August, 2003 by which the Selection Committee came to be constituted for the se- 20 OA No.669/2023
lection of the candidates. The respondents have not dis- puted that though the petitioners were initially appointed for a fixed term, they are continued in service. It is not disputed that the leave facility is made available by the resolution dated 18 February, 2006 to such employees. The respondents have stated in their affidavit that the monthly pay to these employees has been increased. It is not disputed that the petitioners are having the qualifi- cations required for the posts in which they are working. The respondents have not disputed that the appoint- ments for the teaching posts are taken out of the purview of the MPSC as informed by the communication dated 29th March, 2008."
13. The Bombay High Court clarified the judgement of Sachin Ambadas Dawale (supra) on 27th April, 2017 and held thus:-
" It could thus be seen that, in the peculiar facts and cir- cumstances of the case, the petitioners in the present pe- tition were selected in pursuance of the Government Res- olution dt. 25.7.2002 after following the due selection pro- cess by the Selection Committee duly constituted under the said Government Resolution and on account of inac- tion on the part of the State Government in not holding the selection process through the MPSC for a period of more than 10 years, many of the petitioners had become age bar and as such, they were deprived of opportunity of un- dergoing selection process through MPSC, we had found that a special case was made out for regularization of ser- vices of the petitioners therein. We may specify that we had restricted the claim of the petitioners who were al- ready in service when they had approached the Court. By no stretch of imagination, the said judgement could be ap- plicable to the persons who had already left the job and taken chances."21 OA No.669/2023
14. It was clarified vide order dated 27th April, 2017 that the claim had been restricted to the extent of the petitioner who were already in service when they had approached the Court. In the case at hand, when the applicants approached this Tribu- nal, they were not in service. In para 4 of the reply, the respond- ents have specifically averred that the advertisement was is- sued on 28th February, 2023 in Times of India and other news papers. It is further averred that the applicant had applied but was not appointed / selected. In the application, the applicants have specifically averred in para 4.49 of OA that their services will come to an end on 31st March, 2023. Accordingly, the ser- vices of the applicant came to an end on 31st March, 2023 and the applicants filed this OA on 19th April, 2023. This clearly shows that the applicants were not in service on the date when this application was presented in this Tribunal. Therefore, the case of Sachin Ambadas Dawale (supra) has no application to the facts of the present case. Moreover, the appointments are to be made on the sanctioned permanent posts through UPSC. The applicants have not been selected through UPSC. In addi- tion to this, all eligible persons may not apply thinking that the 22 OA No.669/2023 posts are to be filled on contractual basis and not on permanent basis. For this reason also, applicants cannot be regularized.
15. The applicants, therefore, are not entitled to be reg- ularized. This takes us to another question as to whether it is permissible for the government to replace one set of contractual employees by another set of contractual employees. For this purpose, the applicant has relied on the following cases:-
i) K.J. Dabhi & Ors vs Union of India and ors. (Writ Peti-
tion No. 6681 of 2018) dated 22nd April, 2029.
ii) Mahesh Madhukar Wagh & Ors vs State of Maharash- tra & ors, Writ Petition No. 5548 of 2019 dated 30th April, 2019 (Bombay High Court).
16. In the case of Pramod Anantrao Pathre and Oth- ers (supra), it is seen that it was a split verdict. In para 48, it has been observed thus:-
"48. We have today delivered our separate judgments in the above Writ Petitions. As we have differed on the question of law which falls for our consideration it will be necessary to have the matter heard by another judge. The point of law upon which we have differed is as under:23 OA No.669/2023
Whether the judgment of the Supreme Court in the case of State of Haryana and others Vs. Piara Singh and others etc. etc., in so far as it held that an ad hoc or temporary employee should not be replaced by an- other ad hoc or temporary employee but, must be re- placed only by a regularly selected employee has been overruled by the Constitution Bench judgment of the Supreme Court in the case of Secretary, State of Kar- nataka and Others Vs. Umadevi and Others."
17. Learned counsel for the respondents has placed on record the verdict rendered by Division Bench after the judge- ment of Third Judge in the matter of Pramod Anantrao Pathre (supra). We would like to reproduce the entire order:-
"This group of writ petitions was initially heard by Division Bench consisting of Justice S.J.Vazifdar and Justice P.R.Borkar. On 3rd May, 2007 both delivered separate judgments. There was difference of opinion so far as fol- lowing question of law is concerned and, therefore, the following point of law was directed to be referred to third Judge by the Hon'ble the Chief Justice vide an order dated 3rd May, 2007:
". Whether the judgment of the Supreme Court in the case of State of Haryana V. Piara Singh (1992) 4 SCC 118 in so far as it held that an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee but, must be replaced only by a reg- ularly selected employee has been overruled by the Con- stitution Bench judgment of the Supreme Court in the case of State of Karnataka and ors. v. Umadevi (2006) 4 SCC 1."
2. Consequently, the matter was referred to third Judge and Justice R.M. Sawant by his judgment pro- nounced on 20th December, 2007 has agreed with the view expressed by Justice P.R.Borkar. After the opinion of the third Judge is received, these matters should have 24 OA No.669/2023 been placed before the Division Bench consisting of Jus- tice S.J.Vazifdar and Justice P.R.Borkar. However, Jus- tice S.J.Vazifdar is not available for holding Court sitting at Aurangabad and in view of proviso to rule 6 of Chapter I of the Bombay High Court Appellate Rules, 1960 and section 98 of the Code of Civil Procedure, this matter is placed before this Division Bench for pronouncing the fi- nal judgment and order.
3. In view of the above, it is held that the judgment of the Supreme Court in the case of State of Haryana v. Piara Singh (1992) 4 SCC 118 in so far as it held that an ad hoc or temporary employee should not be replaced by another ad hoc temporary employee, but must be re- placed only by a regularly selected employee has been overruled by the Constitution Bench judgment of the Su- preme Court in the case of State of Karnataka and others v. Umadevi (2006) 4 SCC 1. In the circumstances, the petitioners are not entitled to any of the reliefs claimed and, therefore, the petitions deserve to be dismissed."
18. From these judgements, it is clear that the principle that an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee, but must be replaced by a regularly selected employee has been overruled by the Constitution Bench of the Supreme Court in the case of State of Karanataka and Others versus Umadevi and Others, (2006) 4 SCC 1. Similarly in the case of Gangadhar Pillai ver- sus Siemens Ltd. (2007) 1 SCC 533, it has been held thus:-
"31. The learned Senior Counsel placed strong reliance upon a decision of this Court in Chief Conservator of For- ests v. Jagannath Maruti Kondhare wherein this Court was considering the question of appointment of a person 25 OA No.669/2023 in the social forestry services. The Bench inter alia notic- ing the decisions of this Court in State of Haryana v. Piara Singh opined that they are entitled to regularisation of ser- vices. Piara Singh has since been overruled by a Consti- tution Bench of this Court in Secy., State of Karnataka v. Umadevi."
19. Even if it is accepted for the sake of argument that one set of ad hoc employees / contractual employees cannot be replaced by another set of ad hoc / contractual employees, it still does not enure to the benefit of the applicants because as indi- cated earlier, the applicants did not approach the Court when they were in service. They approached the Tribunal only after their services came to an end. In this view of the matter, their submissions cannot be accepted.
20. Now the question is of "equal pay for equal work". The applicants placed reliance on the case of Sabha Shanker Dube Vs. Divisional Forest Officer and Ors. in Civil Appeal No.10956/2018 (SC) decided on 14.11.2018 for the proposition of an employee engaged for same work cannot be paid less than another who performs the same duties and responsibilities. In para Nos.9 and 10, it has been held thus :-
"9. On a comprehensive consideration of the entire law on the subject of parity of pay scales on the principle of equal 26 OA No.669/2023 pay for equal work, this Court in Jagjit Singh (supra) held as follows:
"58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self- respect and dignity, at the cost of his self- worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation."
10. The issue that was considered by this Court in Jagjit Singh (supra) is whether temporary employees (daily wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and likewise) are entitled to the minimum of the regular pay scales on account of their performing the same duties which are discharged by those engaged on regular basis against the sanctioned posts. After considering several judgments including the judgments of this Court in Tilak Raj (supra) and Surjit Singh (supra), this Court held that temporary employees are entitled to draw wages at the minimum of the pay scales which are applicable to the regular employees holding the same post."
21. From this judgment, it is clear that the employees who are discharging the same work are entitled to the same pay which regular employees are drawing. The question is whether 27 OA No.669/2023 the respondents are discharging the same duties as that of permanent employees. The applicants have alleged in para 4.19 as under :
"4.19 Applicants and others were representing the central government through Ministry of Defence (MOD) from various departments of CME as Assistant Professors that keeping them on contract with meager consolidated package (Rs. 31500/- p.m.) is amounting to exploitation, requested for regularizing their services from first date of appointment and extend them benefits equivalent to the permanent employees. The reason for this demand is that the Applicants have been performing exactly the same types of duties as compared to regular staff apart from regular teachings and conducting practical including the important work of officiating the examinations, conducting courses, supervision duties, Continuous Internal Assessments (CIA) of students, exam paper setting, evaluation of answers sheets of Test-I, Test-II, Mid Term Exam, End Semester Exam and working as a member of committees, Instruction in laboratory, renovation of laboratory, Preparation of Multiple Question Paper (MCQ) for Entrance Exams and preparation of study material for various courses, representing in various seminars and official meetings etc. Hereto annexed and marked as Annexure A-10 is a certified copy of weekly training programme and orders for extra works."
22. The reply of the respondents to these averments is in para 16 which reads thus :-
"16. With reference to Para 4.19 of the OA I say and submit that, being a part of charter of duties of Civilian Academic Officers (CAOs), it applies for all Instructional staff. "28 OA No.669/2023
23. Thus, the respondents do not dispute that the applicants are discharging the same duties as are discharged by the regular employees.
24. The learned counsel for the applicants pointed out the provisions of Regulations 13 of UGC Regulations. We deem it appropriate to reproduce it for facility of reference :
"13.0. Appointments on Contract Basis :
The teachers should be appointed on contract basis only when it is absolutely necessary and when the student- teacher ratio does not satisfy the laid-down norms. In any case, the number of such appointments should not exceed 10% of the total number of faculty positions in a College/University. The qualifications and selection procedure for appointing them should be the same as those applicable to a regularly-appointed teacher. The fixed emoluments paid to such contract teachers should not be less than the monthly gross salary of a regularly- appointed Assistant Professor. Such appointments should not be made initially for more than one academic session, and the performance of any such entrant teacher should be reviewed for academic performance before reappointing him/her on contract basis for another session. Such appointments on contract basis may also be resorted to when absolutely necessary to fill vacancies arising due to maternity leave, child-care leave, etc."
25. This shows that the respondent No.4 can appoint teachers on contract basis only when it is absolutely necessary. In any case, the number of such appointments should not exceed 10% of the total number of vacant posts 29 OA No.669/2023 in a College/Universities. The fixed emoluments to such contract teachers should not be less than monthly gross salary of a regularly appointed Assistant Professors.
26. This provision clearly shows that the respondents are permitted to appoint teachers on contract basis but their salary should not be less than the gross salary of regularly appointed Assistant Professor. The applicants have not mentioned as to how much salary regularly appointed Assistant Professor is drawing. But suffice it to say that a regularly appointed Assistant Professor must be drawing more than what the applicants were being paid.
27. The learned counsel for the respondents submitted with vehemence that the applicants had entered into agreement and they are now estopped from claiming higher salary. We have gone through the terms of the agreement. It is nowhere mentioned in the agreement that the applicants shall draw only salary of Rs.31,500/- per month. It is true that in the Advertisement published, the salary was shown to be Rs.31,500/-. However, it is settled position of law that there cannot be estoppel against law. Respondents could 30 OA No.669/2023 not have published an advertisement showing less salary than the salary which Assistant Professors draw. In view of this matter, the applicants are entitled to gross salary which Assistant Professors are drawing.
28. In view of the above, the position that emerges is that the applicants cannot be regularized in terms of the judgment of the Apex Court in the case of Ganesh Digambar Jambhrunkar (supra), however, they are entitled to the gross salary which the Assistant Professors in the college of respondent No.4 are drawing. Hence, we pass the following order :
(a) OA is partly allowed. The relief of regularization is rejected.
(b) The respondents are directed to pay the gross salary per month as admissible to the Assistant Professors from the date of their appointment till their termination.
(c) Rest of the reliefs are rejected.
(d) Pending MAs, if any, stand closed. No costs.
(Rajinder Kashyap) (Justice M.G.Sewlikar) Member(A) Member (J) nk.