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Judgment
S.K. Phaujdar, J.—The nine Petitioners in this case are assistant teachers in different subjects in the Nagar Palika Balika Inter College, Kathgodam. District Nainital. They have made a prayer for a direction or order in the nature of mandamus commanding the Respondents to regularise their services as teacher in the concerned institution and to pay salary to them together with other admissible benefits as are given to regular teachers. On presentation of the writ petition, there was an interim direction dated 8.2.1994 that until further orders the services of the Petitioners would not be terminated. This order was passed with reference to a Government Order dated 8.1.92.
The institution in question is run by the Nagar Palika, Haldwani. It was initially a High School and subsequently it was upgraded as an Intermediate College in the year 1989. Their appointment letters were for a period of 60 days and the Petitioners were to make applications to continue as teachers. In terms of such arrangement, the Management/Chairman of the institution went on issuing sanction letters from time to time to each of the Petitioners. The latest sanction was granted on 27.12.1993 for a period of 58 days. No regular appointment had been made against the substantive vacancies. The Petitioners were discharging their duties as teachers in all earnest without any complaint from any quarters. The Petitioners relied on a Government Order dated 8.1.92, as per Annexure 11 to the writ petition, to say that employees like the Petitioners who had been working in the local units such Nagar Palika Balika Inter College under the Nagar Palika, Haldwani would be entitled to be regularised if they had completed three years of service from 11.3.1989, and if they had worked for 240 days in a year. The Petitioners were appointed prior to 11.3.1989 and were working for about 5 years on the date of filing of the writ petition and they claimed that they should be regularised in terms of the said Government Order. The Petitioners also alleged that they were not being paid the salary and other benefits as were admissible to regular teachers. They were threatened with termination of services which prompted them to come to the court to seek relief.
A counter-affidavit was filed by the Executive Officer of the concerned Nagar Palika. It was accepted that the institution was aided by the Government. It was not, however, accepted that a large number of posts of teachers was sanctioned for the institution on its upgradation. It was asserted that the Petitioners were not appointed against any sanctioned vacant posts. They were, rather, engaged purely on daily wage basis. They were appointed on a clear stipulation that their appointment or engagement was automatically terminable on the expiry of the period indicated but such periods were extended from time to time in view of the exigency of work. It was stated that no such exigencies existed and each engagement was a fresh one and was not in continuity with the earlier engagements. It was stated that the Government Order quoted by the Petitioners was not applicable to their cases. No counter-affidavit was filed by the other Respondents.
The Government Order referred to in the writ petition is Annexure 11 to the writ petition. It was issued by the Secretary, Government of Uttar Pradesh and was directed to all the District Magistrates. It related to daily wage employees working under local bodies on 11.10.1989. This Government Order directed that the daily wage employees working under the local bodies on 11.10.1989 and who had on that date completed three years'' service and had worked for 240 days in each year would be adjusted against the future vacancies and their services would not be terminated. This Government Order may not come to the rescue of the present Petitioners. They were employed on different dates in 1989 and were no doubt working on 11.10.1989. under the Haldwani Nagar Palika but they had not completed three years on that date. The policy of the Government is, however, clear in paragraph 2 thereof that all daily wage employees working on 11.10.1989 would not be retrenched unless such employee kept absent for a long time or were unfit from administrative point of view. In this connection, it was argued on behalf of the Respondents that when the appointments were not made through a regular selection process, then regularisation of these teachers would encourage backdoor entry in service. It was argued on behalf of the Respondents that in this connection, there was no direction from the Education Department. The learned Counsel for the State indicated that the State would be liable to pay only when a post is sanctioned. The Petitioners, according to the learned standing counsel, had never averred that the posts were sanctioned. The responsibility of payment may not, therefore, be fastened with the State Government under the Payment of Salaries Act. In this connection, reliance was placed on the decision of the Supreme Court in the case of Karnataka State Private College Stop-Gap Lecturers Association Vs. State of Karnataka and Others, . It was in relation to an institution receiving cent per cent grant-in-aid, controlled, financially and administratively by the Education Department of the State Government of Karnataka. Certain teachers were appointed temporarily for three months or less by the institution which was a privately managed degree college. They sought regularisation of their services invoking the principle of equitable estoppel arising from the employers assurance due to their continuous service as temporary teachers for years with a break of a day or two every three months. The Supreme Court in that case issued certain directions in paragraphs 6 and 7 of the judgment (as reported). The directions were:
The provision in the relevant order of one days break in service was struck down,
The payment of fixed salary to the temporary teachers was declared to be invalid but with prospective effect. A temporary teacher was directed to be paid salary that was admissible to a regularly appointed teacher.
Such temporarily appointed teachers were to continue till the purpose for which they were appointed was exhausted or if it was in waiting of regular selection, then till such selection was made.
The management was directed to take steps to fill up the posts in accordance with rules and delay in filling up such vacancies would not entitle the management or the Director to terminate the services of the temporary teachers except for adequate reasons but the Government was entitled to take such steps including supersession of management or stop grant-in-aid if permitted under the law to compel the institution to comply with the Rules.
The services of temporary teachers who have worked for three months including the breaks till the date of judgment would not be terminated. The teachers would be absorbed as and when regular vacancies arise. If regular selection has been made, the Government shall create additional posts to accommodate such selected candidates. The temporary teachers were to continue in service even during vacation.
Reliance was placed on a decision of this High Court in the case of Km. Manisha Verma (1993) 2 UPLBEC 1106. It was a case of certain ad hoc appointment of teachers in a Central School. Such ad hoc appointments were permissible under the Rules. For making ad hoc appointments, two conditions were there, (1) that a selected panel was not available or (2) a selected panel was not prepared. The ad hoc appointment was not to go beyond six months or for the period during which a selected panel for a particular post is not prepared. The court observed that in general, vacancies must be filled in so that adhocism does not continue. If the vacancies are not filled, then giving the intermittent stopgap appointments of ad hoc teachers was bad and suffered from constitutional discrimination. The court directed that the ad hoc teachers will only be replaced by a freshly empanelled recruits selected by direct recruitment from the selected panel. But the ad hoc teachers will not be replaced by transferred teachers. They will be entitled to salary and allowances admissible to regularly appointed teachers. Such of the ad hoc teachers who have worked for three months including the breaks shall not be terminated and they shall be absorbed as and when regular vacancies arise. If regular selection had been made the management shall create additional posts to accommodate such selected candidates. The ad hoc teachers were directed to continue in service even during vacation.
In the case at our hand, no doubt, the teachers were appointed on daily wage basis but there is no averment that the posts were ever sanctioned or created by the State Government. It has only been urged that continual ad hoc appointments on daily wage basis for a period covering five years would indicate that each vacancy was a substantive one. The law relating to creation of posts and responsibility of payment so far Uttar Pradesh is concerned may now be seen.
The Act that covers administration of Intermediate Colleges is the U.P. Intermediate Education Act, 1921 (U.P. Act No. II of 1921). Section 7(12) of this Act empowers the Board of High School and Intermediate Examination to do all such other acts and things as may be requisite in order to further the objects of the Board as a body constituted for regulating and supervising the High School and Intermediate Education. Section 7AA speaks of employment of part-time teachers. Under this section, notwithstanding anything contained in this Act, the management of the institution is empowered to employ, from its own resources, as part-time teachers for imparting instructions in any subject. No part-time teacher is to be employed in an institution unless such conditions, as may be specified by the State Government by order in this behalf, are complied with. It further provides in Clause (5) that the part-time teacher or a part-time instructor shall be paid such honorarium as may be fixed by the State Government by general or special orders in this behalf. In the course of arguments before me, no order of the State Government giving out the conditions for appointment of part-time teachers have been indicated, nor any general or special order of the State Government has been shown towards payment of honorarium to the part-time teachers.
Section 16E of the Act deals with procedure for the selection of the teachers. If it is a question of direct recruitment, then the vacancy is to be intimated to the Inspector, advertisement of the vacancy is to be published in at least two newspapers having adequate circulation in the State. Other steps of selection are also indicated in different clauses of this section. u/s 16GG, appointment of ad hoc teachers has been spoken of, but ad hoc teachers are not part-time teachers.
For payment of salaries to the teachers, U.P. Act No. 24 of 1971 was enacted putting the responsibility of payment to the teachers upon the State Government. Such responsibility relates to every institution after March 31, 1971. An institution for the purposes of this Act would mean a recognised institution for the time being receiving maintenance grant from the State Government. The State is liable to pay salaries to the teachers and other employees. The term "teacher'' has been defined as a person who is the principal, headmaster or other teacher in respect of whose employment maintenance grant is paid by the State Government to the institution and includes any other teacher employed in fulfilment of the conditions of recognition of the institution or its recognition in a new subject or for a higher class or as a result of opening, with the approval of the Inspector, of a new section in an existing class. Under this Act, salary means the aggregate of emoluments for the time being payable to a teacher at the rate approved for the purpose of payment of maintenance grant. A part-time teacher does not fall within the definition of the term ''teacher'' as it speaks of only such teachers for whom maintenance grant is paid and also includes such teachers who have been employed on the recognition of an extra subject or an extra class or on the approval of an extra section.
The arguments of the Petitioner do not suggest that they were appointed by reason of opening of a new class or of a new section in an existing class. They were appointed on daily wage basis no doubt, but there is no averment that the posts against which they were appointed were ever sanctioned or created by the State Government. Their part-time appointment is continuing for years together and this was posed as a circumstance to suggest that there was necessity of permanent teachers and, as such, the vacancies were substantive ones.
So far the prayers of the Petitioners are concerned, they want regularisation in service and parity of salary with regular appointed teachers. They have also claimed a direction so that their services may not be terminated. On the question of payment of salary, nothing was brought before me by the Respondents that the Government had by any order directed what would be the honorarium to be paid to the part-time teachers. In view of the decisions quoted above, and in view of the fact that these teachers are working to the same degree as the regularly appointed teachers are, this question must be answered in favour of the Petitioners and it must be held that while under employment if they do the same or similar job as is done by the regularly appointed teachers, their pay must be equal to such regularly appointed teachers.
On the question of regularisation, however, the Petitioners could have raised a claim if at all the posts had been sanctioned or created by the State Government. In the absence of such creation of post or sanction thereof, there is no post against which regularisation may be claimed. Moreover, when any regular post is created or sanctioned, it should be open to be filled up after an advertisement and after calling for applications from eligible persons and simple regularisation would encourage a back door entry and deprivation of some competent and eligible persons who could have applied for the vacancy had it been a substantive one. The Petitioners, however, in case of creation of substantive vacancy, should be given an opportunity to apply against the advertisment for filling up of such vacancy irrespective of their age limit as the authorities have failed to notify these vacancies and the continuation of employment of the part-time teachers suggests that the requirement of extra hands in the college was a genuine one. In respect of continuation of service, as prayed for by the Petitioners, it is felt that when a substantive vacancy is created or sanctioned, the petitions will have an equal opportunity of staking their claims against such vacancies but simply because they were working on part-time basis, they may not be allowed to continue even after creation of substantive vacancy and filling up of the same in due course of law, but till such an exigency arises and till the requirement of employment of an extra hand in the respective subjects remains, there is no logic in terminating the services of the Petitioners.
To sum up, the writ, petitions stands partly allowed with the following directions:
(1) The posts against which the Petitioners are working on part-time basis for more than five years should be considered for sanction/creation by the appropriate authority and the management of the institution shall, if the necessity of employment still exists, notify to the proper authority the requirement of sanction of such post and the authority shall, as expeditiously as possible, consider the question of creation of such posts in accordance with law.
(2) The services of the Petitioners shall not be terminated after the expiry of 58 days or any such limited period and shall continue till the exigency of employment exists and if the posts are permanently sanctioned, till a duly selected candidate Joins against each respective post. When such a post is created/sanctioned and is advertised, the Petitioners shall have the right to apply against the respective post notwithstanding the age bar.
(3) Till the Petitioners remain in service in terms of the foregoing directions, they will be paid their salary and other benefits at par with the regularly appointed teachers, in case they are performing equal work.