Bharti Sharma vs Vice Chancellor, University Of Rajasthan Jaipur

Amitava Roy, C.J.—The judgment and order dated 21.03.2012, rendered in S.B. Civil Writ Petition No. 1377/2002, instituted by the appellant herein, constitutes the subject matter of impugnment in the present appeal. By the decision impugned, the writ petition has been dismissed.

We have heard Ms. Anita Aggarwal, the learned counsel for the appellant and Mr. A.K. Sharma, the learned Senior Counsel assisted by Mr. V.K. Sharma & Mr. Rachit Sharma, Advocates for the respondents.

Briefly stated the foundational facts, essential for the disposal of the instant standoff, are that the appellant/writ-petitioner was engaged by the respondent-University to render services as Lecturer in the Department of History for the session 1995-96 to cover the uncovered workload qua the subject of History by Officer Order No. Estt. 1/95/Hist. /20673-6761, dated 17.11.1995. According to the appellant/writ-petitioner, her engagement was on the terms and conditions mentioned in the letter No. Estt/95/1713-57, dated 28/29.07.1995 of the Registrar of the University, amongst others, stipulating payment @ Rs. 75/-per period with the maximum ceiling of Rs. 4,000/-per month, taking into account the fact that she had obtained Ph. D. from the University of Rajasthan after conducting the research work in the History Department thereof. She started rendering her services from 21.11.1995 and claimed that for the session 1996-97 as well, she was allowed to take classes as per the letter dated 13.11.1996 of the Head of the Department of History & Indian Culture, Faculty of Social Sciences, University of Rajasthan, Jaipur.

As the matter rested at that, several persons appointed as Lecturers in different subjects and specialities purely on casual and ad hoc basis as a stopgap arrangement by the University of Rajasthan on paltry honorarium, being aggrieved by the delay in making the regular appointment of Lecturers and in not appointing them on substantive basis, approached this Court with a batch of writ petitions, remonstrating against the arbitrary and exploitery approach of the institution, contending that whereas on one hand, to meet the extra teaching workload, stopgap arrangements were being and services of qualified Lecturers are extracted on ad hoc basis on the other, their services at the end of the academic session were being terminated, thus, adopting the rule of hire and fire. The respondent-University asserted per contra that the petitioners therein were not regularly appointed Lecturers under the provisions of the Rajasthan University Teachers and Officers (Selection and Appointment) Act, 1974 (for short, hereafter referred to as ''the Act'') and that their appointments were purely on ad hoc basis as a stopgap arrangement to ensure that the students may not suffer. According to it, the petitioners having willfully and voluntarily agreed to work as per the terms and conditions made known to them before accepting the assignment, it was improper on their part to express any grievance against the same.

A Single Bench of this Court in Om Prakash Pareek & 70 Ors. Vs. University of Rajasthan & Another, 1997(1) WLC(Raj.) 676, enfolding the said proceedings by the judgment and order rendered on 11.10.1996, disposed of the same with the following operative directions:-

The respondent University shall get the uncovered teaching workload of the departments (subject-wise) assessed/determined for the academic session 1996-97 through the Work-load Committees if the same has not been done as yet. This exercise shall be completed within two weeks from today.

(i) Such petitioners and others similarly circumstances Lecturers, who possess the requisite academic qualifications as prescribed by the University Grants Commission and approved by the respondent University and have served for two or more academic sessions, shall have first preference to get appointment for the academic session 1996-97. their appointment shall continue till regular selections are made by the University. They shall be paid the minimum of the pay scale prescribed for the regularly appointed Lecturers. Such Lecturers who were in employment of the University in the last academic session ending in March, 1996, shall be treated to be in continuous service without any break and they shall be paid minimum of the pay scale from 1st March, 1996 to be in parity with the decision in Dr. D.C. Dudi''s case. Such Lecturers who have served for two or more academic sessions, but were not in employment in the last academic session, shall be given fresh appointment and they shall be entitled to get the salary from the date of their appointment. The University/constituent Colleges shall be entitled to assign them the same number of period per week as it assigned to a regularly appointed Lecturer as per the Ordinance/Regulations of the University. The Lecturers accepting the assignment will have to submit an undertaking that he/she is not employed at any other place out of the University.

(ii) That the petitioners (Lecturers) and other similarly situated persons having a term of service for a period less than two academic sessions, shall have a second preference subject to the availability of teaching work load after adjusting those Lecturers who had served for two or more academic sessions with the University. In other words, they will have no right to be appointed or to continue in service if no uncovered workload is available in their respective subjects. If uncovered teaching workload is available in the subject/subjects then such person who had taught in the last academic session, shall have preference in appointment/continuing in service and they shall also be paid minimum of the pay scale and deemed to be in continuous service from the last academic session. Such Lecturers shall also be entitled to get minimum of regular pay scale from 1st March, 1996.

After adjusting such Lecturers, if any uncovered teaching workload is available in any subject or subjects, fresh appointments shall be made amongst those Lecturers who had earlier served in the University. All such appointees shall be entitled to get the minimum of the regular pay scale from the date of their appointment.

Note: Ph. D. holders and Research Scholars shall be treated at par in making appointments, but in case of a Research Scholar, if he accepts the assignment, he will have to forgo scholarship for the period her remains in service as Lecturer on minimum of the pay scale.

After above adjustments, still if there remain uncovered teaching workload in any subject, the University shall be free to engage retired teachers of the University i.e. of the University of Rajasthan, having requisite academic qualifications on such terms and conditions to be decided by the University, including payment of remuneration as per period basis. The retired teachers have already played their innings and they should feel that their service was being taken to take benefit of their experience for the benefit of the students as a social work.

Having trapped all the above resource, if person having requisite academic qualification is not available in any subject, the University shall be free to engage any person having lesser qualification on such terms and conditions to be specified by the University, including payment of remuneration as per period basis.

Incidentally, the appellant/writ-petitioner also approached this Court at or about the same time with S.B. Civil Writ Petition No. 5253/1996, seeking an appropriate writ, order or direction to the respondent-University and its functionaries to take appropriate steps for evolving a scheme or otherwise taking steps to absorb her in its service on permanent basis and also to consider her case in the light of the directions contained in the judgment and order dated 11.10.1996 and to award to her all consequential benefits. A direction was also sought for to restrain the respondent-University from discontinuing her services. According to the appellant/writ-petitioner, no reply was filed by the respondent-University. Be that as it may, by the judgment and order dated 14.09.2001, this petition was disposed of by leaving her at liberty to file an appropriate representation with the observation that if she did so, a decision would be taken by the Vice Chancellor of the University within two months with due intimation to her. The submission made by the learned counsel for the respondent-University to the effect that in case the appellant/writ-petitioner did make a representation to the Vice Chancellor, her case would be duly considered and examined by the University and all efforts would be made to protect her rights, was recorded in the order. The appellant/writ-petitioner did make a representation, which was rejected and the decision to this effect was communicated to her vide letter dated 22.12.2001, communicating to her, in substance, that her request for appointment to the post of Lecturer in History, was not admissible as there was no uncovered workload in the department, as assessed by the Workload Committee for the session 2000-2001. Being aggrieved, the appellant/writ-petitioner has returned to this Court seeking judicial intervention.

The respondent-University, in its reply, has pleaded that in compliance of the directions embodied in the judgment and order dated 11.10.1996 in Pro Prakash Pareek(supra), it had appointed a committee, which, on due scrutiny of the requisite information/documents submitted by the appellant/writ-petitioner, did not recommend her name as she had not secured 55% marks in her Masters level examination i.e. M.A. (History), which was an essential condition of eligibility under the Ordinance 141-B of the University. It was stated further that the representation dated 28.09.2001 of the appellant/writ-petitioner was also duly examined by the University, but as there was no uncovered workload in the department of History, as assessed by the Workload Committee, she was not appointed. It was pleaded further that Section 3(iii) of the Act, which empowered the University to make ad hoc appointments as a stopgap arrangement, had been deleted w.e.f. 01.01.2003 vide the Rajasthan University Teachers and Officers (Selection and Appointment) (Amendment) Act, 2003 and that thus, there did exist thereafter no provision permitting such ad hoc appointments.

In her rejoinder, the appellant/writ-petitioner brought on record, amongst others, the Budget Proposals (Non-Plan-2000-2001) of the respondent-University indicating, inter alia, vacancy in 8 posts of the Assistant Professor in the department of History, to demolish the respondent-University''s plea of want of uncovered workload, as represented.

The learned Single Judge, by the impugned judgment and order, noticing the above factual background, in details and following an in-depth analysis of the rival pleadings, declined the reliefs prayed for by the appellant/writ-petitioner. It was held that as per the directions contained in the judgment and order dated 11.10.1996, determination of the uncovered workload was made the condition precedent, to permit accommodation of the teachers/lecturers involved. The learned Single Judge was of the view that as the writ petition of the appellant/writ-petitioner was decided in the year 2001, assessment of the uncovered workload could not necessarily relate to the period prior thereto to ascertain as to whether she could be continued in the next session or not? It was observed that permissibility of continuing the appellant/writ-petitioner subject to availability of uncovered workload, thus, was to be reckoned from the year 2001 and the Workload Committee having decided in the negative, the impugned decision of the respondent-University could not be faulted with. The appellant/writ-petitioner''s plea of discrimination based on the imputation of continuance of retired persons, was dismissed for want of specific pleadings and testifying documents to that effect. The learned Single Judge, however, taking note of the existing 8 vacancies in the department of History, observed that the respondent-University was expected to hold selections to fill up the same in accordance with law. That in such an eventuality, the appellant/writ-petitioner would be entitled to participate in the process subject to eligibility, was recorded as well. It was observed further that in view of the time lag, she ought not to be debarred on the ground of overage. Necessary direction for payment of her unpaid salary, as alleged, was also made.

Ms. Aggarwal has emphatically argued that the appellant/writ-petitioner''s representation, not having been decided in accordance with the letter and spirit of the order dated 14.09.2001, passed in S.B. Civil Writ Petition No. 5253/1996 as well as one dated 11.10.1996, rendered in Om Prakash Pareek(supra), the decision conveyed by the letter dated 22.12.2001, is patently illegal and not sustainable in law. Apart from contending that the respondent-University had unjustifiably digressed from the assurance given to this Court that the appellant/writ-petitioners representation would be decided in compliance of the directions contained in the judgment and order rendered in Om Prakash Pareek(supra), she asserted that the purported determination of uncovered workload for the session 2000-01, as the basis of the impugned decision, is wholly fallacious and lacks in bonafide. The learned counsel has argued that the respondent-University had dealt with the representation mechanically, thus, denying the appellant/writ-petitioner her inviolable right of having the same considered in accordance with law. Ms. Aggarwal, referring to the existing vacancies in the post of Assistant Professor in the department of History, asserted further that the plea of lack of uncovered workload is, thus, a complete myth, rendering the impugned decision palpably arbitrary and invalid. The learned counsel has alleged discrimination contending that, amongst others, incumbent Dr. Mrs. Sangeeta Sharma, who had been permitted to take classes along with her vide letter dated 13.11.1996 of the Head of the Department of History & Indian Culture, Faculty of Social Sciences, University of Rajasthan, has since been retained, Ms. Aggarwal stoutly denied the imputation that the appellant/writ-petitioner was deficient in her eligibility and pleaded malafide against the respondent-University.

Mr. Sharma, in reply, while contending that the appellant/writ-petitioner, having regard to the nature of her engagement, has no right in law either to claim regularization or automatic appointment under the Act, submitted with reference to the directions in Om Prakash Pareek(supra), that as at all relevant times, the appellant/writ-petitioner had not completed two academic sessions of teaching, she had no right to be appointed or to continue in service, if no uncovered workload was available in her subject. Dismissing the letter dated 13.11.1996, permitting the appellant/writ-petitioner to take classes in the academic session 1996-97 as inconsequential, the learned Senior Counsel urged that following the deletion of Section 3(iii) of the Act, ad hoc appointments have been rendered impermissible. Mr. Sharma maintained that the representation of the appellant/writ-petitioner had been duly examined and decided in accordance with the directions in Om Prakash Pareek(supra), and the order dated 14.09.2001 and that the Workload Committee, having on due scrutiny ascertained that there was no uncovered workload in the department of History, the impugned decision is unassailable. Apart from contending that the appellant/writ-petitioner was unqualified for the post of Lecturer, the learned Senior Counsel insisted that at this distinct point of time in the year 2014, in any view of the matter, direction for her restoration in service ought not to be made.

The pleaded facts and the documents on record have been examined. The contrasting arguments have received our consideration.

There is no wrangle at the Bar that the initial engagement of the appellant/writ-petitioner had been for the academic session 1995-96, pursuant to a policy of permitting the Head of the Department to avail the services of teachers/scholars for taking classes to cover the uncovered workload of the concerned department on honorarium basis. Noticeably, the said engagement was limited to the academic session 1995-96. By the letter dated 13.11.1996 of the Head of the Department of History & Indian Culture, Faculty of Social Sciences, University of Rajasthan, however as the said communication reveals, the appellant/writ-petitioner and one Dr. Mrs. Sangeeta Sharma were allowed to take classes for the next session in compliance of the decision in Om Prakash Pareek(supra). S.B. Civil Writ Petition No. 5253/1996, instituted by the appellant/writ-petitioner, would clearly indicate that at that point of time, she had not completed two years of academic session. This writ petition, to reiterate, was disposed of on 14.09.2001, permitting her to make a representation to the Vice Chancellor of the respondent-University for consideration. Apart from requiring the said authority to dispose of the representation, if filed, within a period of two months, this Court did not make any further observation or issue additional directions.

A plain reading of the directions rendered in Pro Prakash Pareek(supra), would reveal that this Court had obligated the respondent-University to get the uncovered teaching workload of the departments(subject-wise) assessed for the academic session 1995-96 through the Workload Committees, if not already done. Clause 2(ii) of the directions is applicable to the appellant/writ-petitioner, as on the date of the judgment i.e. 11.10.1996, she had not completed two academic sessions in teaching. As per the observations made in that clause, she had no right to be appointed or to continue in service, if no uncovered workload was available in her subject i.e. History. Noticeably, though by that time, the decision rendered in Pro Prakash Pareekfsupra), had attained finality, the appellant/writ-petitioner did not insist for any order of this Court in S.B. Civil Writ Petition No. 5253/1996 that her case was duly covered thereby. Instead she was contented with the liberty granted to her to file a representation to have the same considered by the respondent-University. However, undeniably the submission of the learned counsel for the respondent-University that her case would be considered and examined and that all efforts would be made to protect her rights, was recorded in the order dated 14.09.2001.

Be that as it may, even assuming that her case was covered by the decision rendered in Pro Prakash Pareek(supra), her claim for appointment/engagement and/or retention on the basis of determination of uncovered workload for the academic session 1995-96, conducted in the year 2001, cannot be sustained. The decisive significance of the academic session 1995-96 for the purpose of ascertaining the uncovered workload in different subjects, as comprehended in Om Prakash Pareek(supra), decided on 11.10.1996, thus, in our comprehension, is of no definitive relevance in the process of consideration of her representation. Not only, no such direction was made by this Court in the order dated 14.09.2001, as observed by the learned Single Judge, her entitlement to be continued in her engagement as a stopgap arrangement prior to 2001, the year of disposal of S.B. Civil Writ Petition No. 5253/1996, defies logic. The scrutiny of the uncovered workload in the department of History undertaken by the Workload Committee for the academic session 2000-01, in compliance of the order dated 14.09.2001 of this Court, thus, cannot be repudiated to be arbitrary and illegal. There is no overwhelming material on record that this finding of the Workload Committee is wrong and/or unsupported by the contemporaneous facts. The existence of vacancies in the year 2000-01 in the post of Assistant Professor in the department of History, University of Rajasthan, per se, does not unfailingly demonstrate existence of uncovered workload in that subject. On the other hand, it may equally be supportive of the assessment of the Workload Committee contrary thereto. As it is, appointment to any post is generally within the discretion and domain of the employer. In the instant case, by order dated 14.09.2001, this Court had directed the respondent-University to consider and dispose of the appellant/writ-petitioner''s representation, if filed. Reading between the lines, the letter dated 22.12.2001 does not exhibit that the process undertaken had either been in derogation thereof, or in disregard to the letter and spirit of the judgment in Om Prakash Pareek(supra).

In the above view of the matter, on a cumulative consideration of all relevant aspects, we are, thus, of the unhesitant opinion that the impugned judgment and order does not call for any interference in the instant appeal.

The appeal is dismissed.