Rajasthan High Court - Jaipur
Anita Kothari vs State Of Rajasthan And Ors. on 20 August, 1990
Equivalent citations: 1990(2)WLN17
Author: A.K. Mathur
Bench: A.K. Mathur
JUDGMENT A.K. Mathur, J.
1. This writ petition and other writ petitions mentioned in the Schedule annexed with the judgment involve a common question of law and fact. Therefore, they are disposed of by the common order.
2 In order to appreciate the controversy involved in the matter, the facts given in the case of Mrs. Anita Kothari D.B. Civil Writ Petition No. 1908/89 are taken into consideration, for convenient disposal of all the writ petitions.
3. Petioner is post-graduate in English. She entered the service of the Government of Rajasthan as Lecturer in English in the year 1982. At the relevant time the Rules were in force are known as Rajasthan Educational Service Collegiate Branch) Rules 1971, here in after referred to as the Rules of 1971. Petitioner continued on the post of lecturer and her order was revieved every year after academic session and she continued till she was relieved in the year 1989. She filed the present writ petition that she had been in service for more than 7 years and Public Service Commission has not advertised the post. She further submitted that she had to face the ordeal of appearing before the temporary selection committee every year for her recruitment. Meanwhile the new Rules known as Rajasthan Educational (Collegiate Branch) Rules, 1986(here in after referred to Rules of 1986 were promulgated, superseding earlier Rules of 1971. The validity of provisions of these Rules of 1986 were challenged in these writ petitions, but Mr. Maheshwari and Mr. Mridul learned Counsel for the petitioner has submitted that they don't pro-pose to challenge the validity of these Rules.
4. The principal submission of the learned Counsel is that not with standing that there are number of posts existing, the Public Service Commission has not been able to make a regular recruitment and this adhocism is going on for a pretty long time. Learned Counsel submitted that it has raised a human problem that same lecturers who had remained in service for 7 and 8 years may not even get a fresh temporary appointment in the ensuing academic session. This kind of uncertainty is creating a de-establisation condition in the whole lot. Learned Counsel submitted that at least till the selected candidates are not made available by the Rajasthan Public Service Commission till that time, incumbents should be allowed to continue. In this connection learned Counsel has invited our attention to decisions of Hon'ble Supreme Court (which we will refer here in after).
5. Mr. Mridul and Mr. Maheshwari submitted that on account of giving the employment to these teachers upto academic session, these teacher even deprived the salary of the summer vacation. Learned Counsel submitted that this is not but exploiting the helplessness of these teachers. In this connection our attention was invited to Rattanlal and others etc. etc. Peti-tioners v. State of Haryana and others respondents , where this practice was deprecated. It was observed:
We strongly depreciate the policy of the State Government under which 'ad hoc, teacher 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 accord-ance with the rules This judgment was followed by the Division Bench of this Court in case of Chanda Tamoly v. The Panchayat Samlti Mandal and Anr. D.B. Civil Writ Petition No 2795/87) decided on June 15, 1988. In this case also a question of termination of the ad hoc teachers in Panchayat came up for consideration and this Court directed as under:
In the result, all these writ petitions are allowed and we direct that that all the petitioners whose services have been terminated shall be entitled to one month's salary in the minimun pay scale admissible to the cadre with Dearness Allowance admissible in accordance with law but will not be entitled to grade increment and they will be re-employ-ed in the next accademic sessions to continue till the regular selections take place (of course subject to availability of vacancies). Amongst these class of persons if trained teachers are available then priority shall be given to the trained teachers. Those teachers nose teachers who are already serving shall be paid the minimum of pay scale admissible to the particular cadre concerned with Dearness Allowance or Additional Dearness Allowance admissible according to law. They will continue till regular selections take place. They will not be entitled to salary for the vacation period as well. The State Government is also directed to set the untrained teachers trained in view of the communication referred to above so that these lowly paid teachers may improve their prospects for the employment in phased programme. No order as to costs.
6. Return has been filed by the State and the State has taken the position that it is true that the temporary appointments are reviewed every year, in the light of the administrative instructions issued by the Government and the formula devised therein, learned Counsel submitted that if these persons are allowed to continue then it will cause a great hardship to fresher who have just completed their necessary academic qualification with the merit and they will be deprived of the appointment. In this connection Mr. Joshi has invited our attention to D. B. Judgment of this Court given in Smt. Shashi etc. etc. v. State of Rajasthan and Ors. 1988 RLR (2) 233.
7. We have considered the rival submissions and perused the record.
8. The service condition of Collegiate Branch is governed by the Rajasthan Educational Service (Collegiate Branch) Rules, 1986. The recruitment to the service has to be made according to the procedure laid down in these Rules. Rule 7A reads as under:
7. Determination of Vacancies.--(1)(a) subject to the provisions of these rules, the Appointing Authority shall determine as soon as possible after 1st April every year, the actual number of vacancies occurring as on 1st April and also anticipated during the financial year;
(b) Where a post is to be filled in by a single method as prescribed in the Schedule, the vacancies so determined shall be filled in by that method;
(c) Where a post is to be filled in by more than one method as pre-scribed in the rules or schedule the apportionment of the vacancies, determined under clause (a) above, to each such method shall be done maintaining the prescribed proportion for the over all number of posts already filled in. If any fraction of vacancies is left ever, after apportionment of the vacancies in the manner prescribed above the same shall be apportionment to the quota of various methods prescribed in a continuous cyslis order giving presence to the promotion quota.
(2) The Appointing Authority shall also determine the vacancies of earlier years, yearwise which were required to be filled in by promotion, if such vacancies were not determined and filled earlier in the year in which they were required to be filled in.
9. According to Sub-rule (1)(a) of Rule 7A the Appointing Authority has to determine the vacancies of every year which are required to be filled in. It lays down a mandate on Appointing Authority to determine the vacancies as soon as after 1st April of every year, the actual number of vacancies accurred as on 1st April and also likely to accruing the financial year. Against these vacancies recruitment has to be made as per Part-IV of the Rules. The direct recruitment in the service under these Rules has to be made through the Public Service Commission. Therefore, the combined reading of the part and Part IV of the Rules is that a duty has been cast under these Rules on the Appointing Authority to determine the vacancies every year and make the recruitment through the Public Service Commission But we regret to say that duty has not been discharged by the Appointing Authority. The resultant position is that the ad hocism is continuing since 1980 till this date. Mr. Joshi has filed a chart before us in which he has pointed out that the Service Commission did make the recruitment in some subjects, in the year 1984, 1986 and 1988. But only one recruitment was made by the R.P.S.C. in the law in the year 1988. In subject like English no recruitment against general quota has been made since 1984. Be as, it may, no useful purpose would be served in pursuing this line of approach because the fact remains that today there are number of subjects in which the R.P.S.C. has not been able to make recruitment for the last 4 to 5 years On account of the R.P.S.C not been able to make the recruitment more than 211 lecturers are working temporary and ad hoc basis. So much so that this Court while disposing of the writ petition of Smt. Shashi (supra) directed the State Government to complete the process of recruitment by filling substantive vacancies in various subjects expeditiously. That mandate has not been complied with till this date. It was directed in aforesaid case that For the reasons aforesaid we find no merit in any of the writ petitions and they all are dismissed. We how ever direct the non-petitioner to fill all substantive vacancies and vacancies which are likely to continue for years in various subjects under Part IV of the rules and to resort to Rule 29 of the rules only when making urgent temporary, ad hoc appointments become necessary.
10. Now in order to meet this unprecedented situation there is no option but to adopt the course adopted by the Supreme Court in a situation like the present one. Hon'ble Supreme Court in Raj. Bala to State of Punjab (Civil Original Appellate Jurisdiction Case No. 125/87) where in the Hon'ble Supreme Court directed as under:
IN THE SUPREME COURT OF INDIA Civil Original Jurisdiction WRIT PETITION No. 125 OF 1987 Raj Bala and Ors. ............. ...Petitioner Vs.br> State of Punjab and Anr. .......Respondents ORDER Heard counsel for both the sides. It appears that a similar matter has been disposed of by this court on August 24, 1987, in Writ Petition No 317 of 1987 wherein this court directed:
After hearing learned counsel for the parties, we allow the writ petition and direct the respondents to continue the petitioners in service until persons regularly selected by the Punjab Service Commission are appointed to the posts presently held by the petitioners and join these posts. These petitioners who have been appointed to posts in leave vacancies will continue in these posts until the employees who have proceeded on leave return and join these posts.
We dispose of this writ petition by adopting that order subject to one clarification that the State of Punjab would not be permitted to terminate the services of any of the petitioners by transferring a regular recruit from another institution to any institution where any of the petitioners may be serving. Termination would be valid only when direct recruits through the Public Service Commission are recruited to such posts.
Sd/- RANGANATH MISRA, J Sd/- S. RANGANATHAN, J.
This was followed by another judgment in Raiblndersingh v. State of Punjab and Ors. (1988 SCC (Suppl.) 428). It reads as under:
The petitioner is an ad hoc lecturer. He was appointed for a term. His grievances is that he is likely to be removed from service so that he may be deprived of his vacation salary It appears to the practice of the respondents is to appoint fresh people every time.
This court in number of writ-petition (WP Nos. 125 of 1987 and 317 of 1987) has allowed the ad hoc teachers to continue in service until persons regularly selected by the P.S.C are appointed to the posts. The respondents ought to extend the benefit of that order to all other ad hoc lecturers It is not proper to drive them to this court for securing similar relief. We make it clear that the petitioner and other similar ad hoc teachers are entitled to the benefit of the order of this court. These observations, in our opinion, are sufficient to safeguard the interest of the petitioner. The writ petition is accordingly disposed of.
A similar situation is before us also that on account of failure of respondent to determine the vacancies year-wise and make recruitment in terms of Part-IV of the Rules a stagnation has been ordered and number of teachers has to face recruitment every year.
11. Therefore, in order to meet this situation we adopt the same course as was adopted by Hon'ble Supreme Court in aforesaid two cases and direct the respondents State to allow petitioners to continue in service till the regularly recruited candidates become available from RPSC. These persons who have been appointed to post in leave vacancies will continue in these posts until the employees who have proceeded on leave returned and Joined the post. It is further directed that the State would not terminate the services of petitioner by transferring a regularly recruited from another institution to any institution where any of the petitioner may be serving. Termination of these incumbents will only be followed when directly recruited RPSC recruiters are made. We further direct that in the event of the regularly selected candidates are available then the temporary persons should be terminated according the last come first go.
12. Mr. Joshi has pointed out that there is a likelihood of declaring same posts surplus. If that situation arises, the Government will proceed in the matter in accordance with law.
13. Mr. Mridul and Mr. Maheshwari also stated that there might tee same cases where persons have not approached this Court, then in that case the State Government shall consider the applications if filed within 3 months from today sympathically to employ such persons who are similarly situated and their services have been terminated. The respondent shall also pay the salary of the vacation to petitioners and persons similarly situated which has been wrongly deprived to them. No order as to costs.