Bhanwar Lal Jat and Others vs State of Rajasthan and Others

Mohammad Rafiq, J.—All these writ petitions have been filed by the petitioners who were appointed as Lecturers/Teachers in different subjects under the scheme Teacher Research Fellowship, as substitute in place of regularly recruited Lecturers/Teachers. They were appointed as substitute in the vacancies caused by regularly recruited Lecturers/Teachers proceeding to undertake research work or for doing M. Phil or Ph.D. under "Teacher Return Fellowship" (for short, ''the TRF'') sponsored to them by University Grants Commission (for short, ''the UGC''). Learned counsel for the petitioners argued that even when Lecturers/Teachers, in whose temporary vacancies petitioners are appointed as substitute, continue to pursue their research work under the TRF, the respondent State has not been making payment to them for full duration of their fellowship. The respondent-State has been deducting the salary payable to the petitioners for the period of summer vacations, i.e. when the colleges close on completion of academic session for summer break and reopen at the commencement of another academic session.

Learned counsel for the petitioners invited attention of the Court towards Clause 6.4 of the Guidelines for the Special Scheme of Faculty Development Programme for Colleges for the XI Plan (2007-2012) and contended that according to aforesaid scheme the UGC makes provisions for payment of minimum scale of pay to the Substitute Lecturers/Teachers, therefore there is no reason for not making such payment to the petitioners. Action of the respondents is highly arbitrary, unreasonable and violative of Arts. 14 and 16 of the Constitution of India.

It is contended that the respondents have been illegally insisting upon the petitioners at the time of their appointment and also at the time when they are seeking extension of appointment for the next academic sessions to furnish undertaking to the effect that they shall not claim salary for vacations and this is made condition precedent for their rejoining at the commencement of new academic session. Such a practice is wholly illegal and arbitrary.

Learned counsel for petitioners relied on judgments of this Court in Dr. Abha Singh vs. State of Rajasthan & Ors., S.B. Civil Writ Petition No. 5221/2009, decided vide judgment dt. 22.05.2009, and Mukesh Kumar Sharma & Ors. vs. State of Rajasthan & Ors., Writ Petition No. 2524/2009 decided on 22.05.2009, and argued that this Court in aforesaid matters have already held the termination of contract of Substitute Lecturers/Teachers during continuation of vacancies, as arbitrary and illegal. The Division Bench upheld the same view. This practice of the respondents tantamount to violation of provisions of Art. 14 of the Constitution. According to UGC guidelines, the Substitute Lecturers/Teachers have to be continued for full duration of research Fellowship. Reliance is placed on a division bench judgment of this Court in Satish Sharma & Ors. vs. State of Rajasthan & Ors., Special Appeal (Writ) No. 569/2011 decided vide judgment dt. 25.07.2011, in which it was held that temporary Lecturers/Teachers cannot be deprived of salary of the vacations and should be deemed to have continued throughout.

Shri Inderjeet Singh, learned Additional Advocate General appearing for respondents, opposed the writ petitions and submitted that the petitioners are appointed as Substitute Lecturers/Teachers on year to year basis for duration of academic session till regular Lecturers/Teachers rejoin their duties. They are paid on fixed remuneration basis. Their appointments as Substitute Lecturers/Teachers are in TRF scheme. They cannot claim either regularization or regular salary. Their appointments are made on contract basis. Such appointees do not have any right to insist on continuation during vacations or otherwise claim regularization of service.

Shri Inderjeet Singh, learned Additional Advocate General, has cited judgment of a coordinate bench of this Court in a bunch of writ petitions leading one being--Ms. Savita Samriya vs. State of Rajasthan & Ors., 2009 (4) WLC (Raj.) 574, and argued that in aforesaid judgment similar circular/Order dt. 04.07.2008 issued by the Director of the College Education, whereunder remuneration for summer break was denied to Substitute Lecturers/Teachers, was considered and upheld. This Court in aforesaid judgment has held that Substitute Lecturers/Teachers shall not be entitled to claim salary for summer vacations.

Learned Additional Advocate General, in support of his arguments, has also relied on judgments of the Supreme Court in Govt. of A.P. and Others Vs. K. Brahmanandam and Others, , State of Haryana and Others Vs. Shakuntla Devi, , Veer Kunwar Singh University Ad hoc Teachers Association and Others Vs. The Bihar State University (C.C.) Service Commission and Others, and State of Madhya Pradesh and Others Vs. Ku. Sandhya Tomar and Another, .

Shri Kishore Gour, learned counsel appearing for the respondent UGC, has argued that in order to achieve the objectives of the TRF, the UGC framed the Guidelines for the Special Scheme of Faculty Development Programme for Colleges for the XI Plan (2007-2012). The objective of the Teacher Fellowship under Faculty Development Programme is to provide an opportunity to the teachers of the colleges to pursue their academic/research activities leading to the award of M. Phil/Ph.D. Degree. Learned counsel in this connection referred to detailed counter affidavit filed on behalf of the respondent UGC, according to which the Lecturers/Teachers substituted for research fellowship will continue to receive full salary from parent institution/college during the period of such fellowship and the salary and Substitute Lecturer/Teachers appointed by University/Colleges in place of teachers for award of research fellowship, would be reimbursed by the UGC.

On hearing rival submissions and perusing the material on record especially the counter affidavit filed on behalf of the UGC, two facts that clearly emerge are that as per the Clause 3.7 of the X Plan Guideline for Faculty Improvement Programme, a teacher fellow will continue to receive his/her full salary from the parent institution/college during the period of Teacher Fellowship and that said scheme will also be applicable to the teachers who are entitled to Study Leave with full pay. However, it would be open to them either to up for the Teacher Fellowship under Faculty Improvement Programme or Study Leave given by the Universities/Parent Institutions. Clause 4.3 of the X Plan Faulty Improvement Plan is relevant for the purpose of present controversy, which is reproduced here as under:--

"The salary of the substitute teacher, appointed by the university/college in place of a teacher selected for award of teacher fellowship, will be reimbursed by the UGC. The university/college will make a fresh appointment of a Substitute Teacher in accordance with the prescribed procedure of the UGC, on the minimum pay scale prescribed for a Lecturer. If the substitute teacher is appointed on a pay scale higher than the minimum pay scale of a Lecturer, the grant towards reimbursement of the salary of the substitute teacher will be paid by the UGC in the minimum scale and the balance amount will be met by the respective university/institute/college or by the respective State Government. If the post vacated by the Teacher Fellow is filled by transfer or deputation, such a substitute''s salary will not be reimbursed. The substitute teacher must be appointed on a full time basis. The commission will not pay the salary of the substitute if appointed on a part time basis, unless there are substantial reason for the same.

The grant will be paid to the University/College for the salary of the substitute teacher on receipt of joining report of the Teacher Fellow along with the following information relating to the substitute teacher:--

(i) Name of the Substitute teacher

(ii) Date of Birth

(iii) Qualification

(iv) Experience

(v) Date of Joining

(vi) Details of pay including allowances payable per month in the approved pay scale

(vii) Amount payable up to the end of the tenure of fellowship

(viii) A certificate from the Registrar/Principal of University/college that the appointment of the substitute has been made in accordance with the procedure prescribed by the University/State Government and

(ix) Specific approval letter of the affiliating University/State Government regarding the appointment of the substitute.

In case it is not possible to appoint a substitute at the initial stage, or, if the appointment of a substitute is delayed, then lectures may be arranged on the basis of honorarium with Rs. 250/- per lecture subject to a maximum of Rs. 5,000/- per month. All efforts should be made for an early appointment of a substitute teacher."

Similarly, the guidelines for Special Scheme of Faculty Development Programme for colleges for the Eleventh Plan (2007-2012), incorporated an identical clause No. 6.4, which reads as under:--

"6.4 Salary of the Substitute Teacher.--The college will make a fresh appointment of a Substitute Teacher in accordance with the prescribed procedure of the UGC, in the minimum pay scale prescribed for a lecturer (with no increments). If the Substitute Teacher is appointed on a pay scale higher than the minimum pay scale of a Lecturer, the grant towards reimbursement of the salary of the Substitute Teacher will be paid by the UGC in the minimum scale and the balance amount will be met by the respective Institute/College or by the respective State Government. Moreover, substitute Teachers will not be entitled to yearly increments. The salary, claim of Substitute Teachers, where posts are filled by transfer or deputation, will not be considered. The Substitute Teacher must be appointed on a full-time basis. The salary of the substitute Teacher will be paid by the UGC in advance on receipt of the joining report of the Teacher Fellow and salary claim for the Substitute Teacher, along with the following information:

(i) Name of the substitute Teacher

(ii) Date of Birth

(iii) Qualifications (UGC Guidelines may be adhered to)

(iv) Experience

(v) Date of Joining

(vi) Details of pay including allowances payable per month in the approved pay scale

(vii) Amount payable during the financial year

(viii) A certificate from the Principal that the appointment of the Substitute'' Teacher has been made in accordance with the procedure prescribed by the University/State Government

(ix) Specific approval letter of the affiliating University/State Government regarding the appointment of the, Substitute Teacher. In case it is not possible to appoint a Substitute Teacher at the initial stage, or, if the appointment of a Substitute Teacher is delayed, then lectures may be arranged on the basis of honorarium of Rs. 250/- per lecture, subject to a maximum of Rs. 10,000/- per month. Approval of affiliating University/State Government will not be necessary. However, all efforts should be made for the early appointment of a Substitute Teacher."

A conjoint reading of aforequoted provisions of the two programmes make it clear that the concerned college has been authorized to make appointment of substitute Teacher in a college in the minimum pay scale of Lecturer with no increments, and the UGC has undertaken to reimburse this payment in such minimum pay scale made to Substitute Teacher to the concerned College/Institute. If any amount in excess of the minimum pay scale is paid by the concerned Institute/College, it shall be borne by the State Government. There are, however, exceptions to this, firstly if the post in question is filled in by transfer or deputation and secondly the Substitute Teachers is appointed on part time basis and not on full time basis such reimbursement would not be made by UGC in any one of these two eventualities.

The judgment of this Court in Ms, Savita Samriya, supra, may not be an impediment for granting the desired relief to the petitioners because in that judgment neither of aforesaid provisions i.e. Claus 4.3 of the X Plan Faculty Improvement Programme and Cause No. 6.4 of the guidelines for Special Scheme of Faulty Development Programme for Colleges for the Eleventh of Plan (2007-2012), were considered and, therefore, the Court could not be apprised of the fact that UGC had undertaken to reimburse the payment/remuneration made to Substitute Teachers for the full duration of research fellowship awarded to the substantive Lecturers, in the vacancies caused by whose absence they are engaged. The judgments of the Supreme Court cited by learned Additional Advocate General are also distinguishable both on facts and law as in none of them the aforesaid scheme of UGC fell for consideration.

Substitute Teachers are engaged in view of the above specific stipulation made in the Programme on commitment of UGC to pay their remuneration. The insistence of respondent-State that the Substitute teachers should furnish an undertaking not to claim the remuneration for the period of summer vacation as condition precedent for their re-engagement at the commencement of next academic sessions, is wholly illegal and arbitrary. The UGC in their counter-affidavit filed in the writ petitions, has not disputed the claim of the Substitute Teachers for payment of remuneration even during summer vacations, such unreasonable practice adopted by the respondents-State gives rise to the menace of hire and fire as also pick and choose. This practice may even envisage inviting fresh applications at the commencement of every new academic session. Discontinuation of Substitute Lecturers/Teachers at the end of Sessions may leave the scope for the respondents to engage another contractual Lecturers/Teachers in place of earlier once, who had been hitherto rendering the services. Their engagement, even if made on contract basis on the minimum of the pay scale in which the salary of substantive Lecturer/Teacher is otherwise payable, should be for full duration of the research fellowship awarded to the teacher concerned.

In view of the above discussions, all the writ petitions succeed and are allowed with following directions:--

that the practice of the respondents in obtaining undertaking from the Substitute Lecturers/Teachers not to claim remuneration for summer vacation in declared illegal and unconstitutional;

that the petitioners shall be entitled to remuneration at the minimum of the pay scale, otherwise payable to Substantive Lecturers/Teachers, even for the period of summer vacations;

that engagement of substitute Lecturers/Teachers shall be made for full duration of the research fellowship awarded to substantive Lecturers/Teacher in whose vacancies they are engaged;

that the arrears payable consequent upon implementation of this judgment, shall be reimbursed to State Government after it has made such payment by the UGC;

that the respondent-State shall pursuant to the order, pay unpaid salary of summer vacations to the petitions within a period of two months from the date a copy of this judgment is produced before them.

Writ petitions are accordingly disposed of. This also disposes of stay applications. Since this disposes of bunch of writ petitions, registry is directed to place one copy each of this judgment in other writ petitions of the bunch.