A.V.S.N.B. Shankaran and Others vs Central Institute of English and Foreign Languages and Others

P.S. Mishra, C.J.—Petitioner-appellants 1 and 2 were appointed in 1986 and the third petitioner-appellant was appointed in 1987 as L.D.C.-cum-Typist in the establishment of the first respondent - Central Institute of English and Foreign Languages. They were recruited, it is not in dispute, by the procedure of inviting nominations from the Employment Exchange and interview before appointment, but, it is said, were given purely temporary appointment. They, however, it is not in dispute, were given three months extension each time with break to introduce terminals of the appointment and termination of service in a manner that although they have been continued ever since their appointment in their respective posts of L.D.C-cum-Typist, they are still not absorbed in the service and according to the first respondent, are thus purely temporary employees having ad hoc contractual appointment from time to time. It is alleged, however, that the first respondent sought sponsoring of names for regular appointments as L.D.C-cum-Typist and, it is alleged, in December, 1988 the Employment Exchange forwarded the names from which candidates were selected viz., 2nd to 9th respondents and the first respondent recruited them to the permanent appointment of L.D.C-cum-Typist. It is noticeable that the first respondent - institution is founded by the University Grants Commission and according to its pleadings, as per the recruitment rules for the non-teaching staff vacancies in group C and D, it is alleged, L.D.C-cum-Typist come under group C or D, have to be filled from the candidates selected out of the candidates sponsored by the Employment Exchange. According to the first respondent when a decision was taken to fill up the regular post in group C and D, it proceeded accordingly to seek sponsoring of the candidates by the Employment Exchange and thus followed the procedure thereafter to interview them and select from the panel sponsored by the Employment Exchange.

It is seen thus from the facts above that the first respondent got the petitioners from a panel sponsored by the Employment Exchange when it assessed the vacancies, but before making any regular appointments, selected them for temporary appointments and continued them in service. But to retain the temporary character of their respective appointments, first respondent introduced intermittently break in service, whereas in the case of respondents 2 to 9 when selected from out of the panel sponsored by the Employment Exchange, they have been given permanent appointment. The facts above have posed mainly two questions viz., (1) whether when work has regularly been available and the petitioners-appellants have been found suitable for the rank and have been engaged continuously eversince their initial appointment intermittent break for showing the appointments given to them as ad hoc or temporary, is an honest act of the employer and if it is not an honest act of the employer, whether such break in service has to be ignored to treat the petitioners-appellants to have been holding their respective posts continuously for the purposes of benefits of service as holders of the rank or the position of L.D.C-cum-Typist and for the said reason are entitled to reckon their respective seniority in the rank of L.D.C-cum-Typist with effect from the date of initial appointment and continuous service; and (2) Whether by virtue of their continuous service and the rank held by them ever since their initial appointment as L.D.C-cum-Typist, the petitioners - appellants are entitled to equality in the scale of pay and all consequential service benefits along with the persons who are recruited allegedly substantively and appointed or posted against permanent vacancies. To maintain, however, as a class persons who have been recruited in service but have been continued with intermittent breaks and those who have been posted against the substantive vacancies, first respondent has stated that the vacancies for the temporary posts were being filled from out of the panel prepared each year from out of the candidates sponsored by the Employment Exchange and selection for inclusion of names in such panel for temporary recruitments, such vigorous tests were not applied as were applied to the case of those who were recruited on substantive basis and posted against permanent vacancies. Learned single Judge has adverted to the case of the first respondent and recorded in the impugned judgment as follows:

"The Original policy of R-l institute to fill up the permanent vacancies in group C and D was by way of selection from out of the candidates sponsored by the Employment Exchange. But R-l institute changed the policy in 1988 whereby it is filling up the posts in the regular vacancies by selection from out of the candidates sponsored by the Employment Exchange, applicants who applied in pursuance of the advertisement issued by R-l institute and also the candidates working under R-l in the temporary vacancies."

Adverting to the contentions of the parties, learned single Judge has noted as follows:

"The learned counsel for the petitioners argued that from 1986-87, the petitioners were working in R-l institute without any blemish and as they were selected after the written test in English, test in type-writing and also viva-voce and as they were sponsored by the Employment Exchange, it is unreasonable to direct the petitioners again to undergo the same tests. But in view of their needs, it is pleaded for R-l, that more able candidates are required to discharge the duties in their institute and hence they decided to call for applications from candidates who were not sponsored by the employment exchange and at the same time they had taken care to give weightage to the competent and efficient candidates who are working in the temporary vacancies in their institute."

There are many other aspects of the controversy between the parties which are referred to by the learned single Judge in the impugned judgment, but for the purposes of the contentions before us and for a comprehensive view as to the nature of the appointment given to the petitioner- appellants and to the respondents 2 to 9, it is not necessary, it is conceded at the Bar, to take notice of other ancillary events. What is required to be seen, however, in the instant case, as noticed above, is whether first respondent has any reasonable cause to recruit on temporary basis persons such as the petitioner - appellants, put them for process of selection, empanel them and appoint them and take work from them regularly, but only for the purpose of keeping the temporary character of their appointment, introduced breaks which at a glance, appear to have no purpose other than counting days of appointment afresh from the so-called appointment with a break which is relevant for no other purpose. There is no merit in the contention of the first respondent and nothing has been shown for any such inference that petitioner-appellants have been discharging only temporary works as and when available or that they were in rank other than the ranking later given by them to respondents 2 to 9. In the process of recruitment also the main criteria of sponsoring names by the Employment Exchange is fulfilled. Whether it is the so-called temporary appointment as the first respondent had chosen to give to the appellants herein or the so-called appointment which has been given by the first respondent to respondents 2 to 9 and in spite of assertion that the process of selection in the case of appellants was not that vigorous as was in the case of respondents 2 to 9, there is nothing on record for the inference that there has truly been any substantive departure of process of selection of empanelling in the list of temporary employees or in the list of the permanent employees. It is indeed thus in view a case of an employer keeping on the one hand appellants engaged for work of permanent nature by introducing intermittent break in service and keeping them thus as temporary employees without any just reason. For all practical purposes, the appellants are recruited for work which has continuously been available and they have been working continuously and breaks in service introduced are deliberate, and it seems intended only to distinguish them from those who are given substantive appointment. There is yet another aspect which would bother any right thinking person, in view, in cases of recruitment by the procedure of the names being sponsored by the Employment Exchange and while those who are sponsored earlier are given temporary appointment and those who are sponsored later given substantive appointment. It has been established beyond doubt in the instant case, that because the appellants were sponsored by the Employment Exchange and thus were shown to have been appointed as L.D.C-cum-Typists by the first respondent, when fresh names were called for making substantive appointments, the appellants were not shown in the list of names sponsored by the Employment Exchange. Employment Exchange in fact treated them to have already been appointed in service and their names accordingly stood struck off from the list of unemployed enrolled by the Employment Exchange. Had the first respondent cared to inform the Employment Exchange that temporary appointments of the appellants stood terminated or it had not given such appointment to them which would deprive them of the right of being in the list of unemployed with the Employment Exchange, they, when the Employment Exchange later forwarded the names, would have been included in the list and thus, when the respondents 2 to 9 were considered for regular appointment, the appellants too could have been accordingly considered. We find good reason on the basis of the above to hold that intermittent breaks in service have to be ignored and the appellants have to be treated to have been in continuous service without any break. Respondents 2 to 9 who are recruited in no manner would be affected by such reckoning of continuous service in favour of the appellants as their appointment would remain in tact, unaffected by the continuity of the appellants in service except insofar as consequential maintenance of common gradation list may create one way or the other.

One of the settled principles of law is that when temporary and permanent posts are kept on par and in the same service and those who are called temporary discharge the same duties as those who are called permanent and the temporary post has no independent existence except that it is called temporary and in the sense that such temporary posts form part of the cadre strength, persons appointed and holding such posts continuously are treated as substantively appointed. The Supreme Court has adverted to this aspect of the matter in the case of O.P. Garg and others, Vs. State U.P. and others, and pointed out that seniority in such a situation cannot be linked with the so-called substantive appointment in service. Although we have found earlier in our judgment that there has hardly been any difference in the procedure of recruitment of the appellants, who are called temporary and respondents 2 to 9 who are called permanent, assuming that there has been any such difference in The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, a five Judge Bench of the Supreme Court has pointed out, once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. But in case his initial appointment is made by following the procedure laid down by the rules and the appointee continues in the post uninterrupted till the regularisation of his service in accordance with the rules, the period of his officiating service will be counted for reckoning seniority. In Jacob M. Puthuparambil and others Vs. Kerala Water Authority and others, , it is pointed out that employees who have been working on the establishment since long and who possess the requisite qualifications for the job as obtaining on the date of their employment must be allowed to continue on their jobs and their services should be regularised. In the words of the Supreme Court, it is unfair and unreasonable to remove people who have been rendering service since sometime as such removal has serious consequences. The family of the employee which has settled down and accommodated its needs to the emoluments received by the bread winner will face economic ruination if the job is suddenly taken away. Besides, the precious period of early life devoted in the service of the establishment will be wholly wasted and the incumbent may be rendered aged barred'' for securing a job elsewhere. It is indeed unfair to use him, generate hope and a feeling of security in him, attune his family to live within his earnings and then suddenly to throw him out of job. Such behaviour would be an affront to the concept of job security and would run counter to the constitutional philosophy, particularly the concept of right to work in Article 41 of the Constitution.

For the reasons as above, it is a fit case, in our opinion, to accept the case of the appellants that for all purposes they have been recruited for permanent work and they have continued in service to entitle them to reckon their engagement as substantive and permanent and have secured as that of the respondents 2 to 9. For the reason above, it is not possible to hold in agreement with the view taken by the learned single Judge that the cases of the appellants are required to be considered afresh for their substantive appointment.

In the result, the appeal is allowed to the extent indicated above and the impugned judgment is accordingly modified. The prayer in the writ petition is granted to the extent that appellants shall be treated on par with the respondents 2 to 9 and accordingly be extended all benefits of the regular service as L.D.C-cum-Typist and their seniority shall accordingly be fixed reckoning from the date of their initial recruitment. The Writ Petition is ordered accordingly.