The University of Rajasthan vs The State of Rajasthan

These batch of special appeals are directed against two

separate judgments passed by the Ld. Single Judge dt.28-5-2012

& 22-1-2016 but the issue in sum & substance being the same

and with consent of the parties are being decided by the present

order.

SAW-536/2013 & SAW-421/2014 have been preferred

against judgment of the Ld. Single Judge impugned dt.28-5-2012

where it has been observed that the service rendered by the

Teachers after being absorbed under the Rajasthan University

Teachers (Absorption of Temporary Teachers) Act,2008

("Act,2008") are deemed to be substantively appointed under

the Act,1974 and are entitled to be considered for grant of benefit

of CAS taking note of their service having been absorbed by the

University vide its order dt.5-8-2008 from the date of initial

appointment and rest of the special appeals have been filed

against judgment of the Ld. Single Judge dt.22-1-2016 where

complaint of the teachers was that although they stood absorbed

& became member of Rajasthan University Teachers & Officers

(Selection for Appointment) Act,1974 ("Act,1974") from the date

of their initial inception into service but still the University has not

acknowledged their service rendered for grant of pension under

the University Pension Regulations,1990 ("Regulations,1990")

which came into force w.e.f. 1-1-1990 and taking note of the

submissions made, the Ld. Single Judge directed the University

that the services rendered by the Teachers be considered to be

the qualifying service for grant of pension under the Pension

Regulations,1990.

Brief facts, as consented by the parties, are being noticed

from SAW-536/2013 & SAW-417/2016 that the respondents-

teachers were the original writ petitioners (Assistant Professor)

and their service conditions are governed under the Act,1974 and

the teaching post of Assistant Professor/Lecturer is to be filled

through open selection on the recommendations of the Selection

Committee, as envisaged u/S.3(1) of the Act, 1974 and that is the

only mode of regular recruitment to enter into service as Assistant

Professor/Lecturer in the University, that apart in meeting out the

emergent exigencies where it may not be possible for the

University to hold regular selection in terms of Sec.3(1) of the

Act,1974, adh-hoc/part-time appointment/stop gap arrangement

could be made in terms of Sec.3(3) of the Act,1974 but

unfortunately the experience shows that Sec.3(3) which is an

exception to Sec.3(1), by passage of time became the rule and

being exercised by the University rampantly in appointing teachers

in the University for the last about two decades.

Earlier there was Ordinance, 1977 which was introduced to

regularize such teachers who are working on ad-hoc basis

obviously after being screened by the Screening Committee under

the provisions of the University Ordinance,1977 and it has come

on record that no regular selections could be held by the

University for almost more than two decades & whenever required

the University always invoked Sec.3(3) of the Act,1974 and ad-

hoc appointments were made on the teaching post namely

Assistant Professor in various subjects.

It is also pointed out to this Court that there was a long

battle between teachers & administration for regularization looking

to the length of service rendered by the teachers obviously for

safeguarding their jobs. At this stage the State Government came

to their rescue and introduced Rajasthan University Teachers

(Absorption of Temporary Teachers) Act,2008 with the object &

requirement assigned is that the teachers who were appointed

u/S.3(3) of the Act,1974 they all have crossed the maximum age

limit prescribed by the Government for appointment in such

services and such appointments u/S.3(3) have been made after

public advertisement at the same time since teaching posts are

lying vacant in the University, looking to the shortage of teachers

and the academic atmosphere is adversely affected and taking this

to be the prime concern, the State Government came with the

Act,2008 which was made applicable for all the universities in the

State of Rajasthan including the University of Rajathan Jaipur and

the Act,2008 is a complete code in itself laying down the kind of

temporary teachers appointed u/S.3(3) of the Act,1974 to be

screened by the Committee constituted & those who are found

suitable looking to their academic record and reports about their

work & conduct as referred to u/S.2(iii) of the Act,2008 be

absorbed under the Act,2008 & be deemed to have been

substantively appointed under the Act,1974 and those who could

not be found to be suitable services of such teachers will be

discontinued u/S.7 and the Act,2008 will have overriding effect

over the provisions of the Act,1974 as envisaged u/S.8 of the

Act,2008.

After the Act,2008 came into force the Screening Committee

was constituted by the University u/S.4 and the recommendations

of the Screening Committee of the various subjects were placed

before the Syndicate & taking note thereof, the Syndicate in its

meeting held on 5-8-2008 finally resolved as under :-

"2. The Syndicate resolved that

i) The teachers recommended by the Screening Committee for absorption and for substantive appointment be absorbed and substantively appointed from the date of their initial appointment in the University (in continuation) as Assistant Professors.

ii) The teachers concerned be confirmed from the date after two years from the date of initial appointment (in continuation), treating the period of two years as probation in the light of the provisions of Ordinance 357(A)(i) and (ii) of the University Hand Book.

iii) The seniority of teachers in the Departments and inter-se seniority shall be determined in accordance with Rule No.5(i) and (ii) of the Rules for Determination of Seniority of the University Teachers as provided in the University Hand Book.

iv) There shall be no financial liability on account of their substantive appointment, and any consequential promotion etc., upto 5 th August,2008 and they shall not be entitled for any arrears etc. for the period upto 5th August,2008."

After approval of the minutes of the Screening Committee by

the Syndicate which is a statutory executive body constituted

under the Act, 1946, consequential orders came to be passed

dt.5-8-2008 giving appointment to at least 272 teachers who were

absorbed & substantively appointed in the University from the

date of their initial appointment with the rider that there shall be

no financial liability on account of their substantive appointment

and any consequential promotion etc, upto 5th August,2008 & they

shall not be entitled for any arrears etc, for the period prior to 5 th

August,2008.

After passing of the order treating the teachers to be

substantively appointed and became member of service under the

Act,1974, the complaint was raised by the teachers that after their

service being acknowledged & stood absorbed & substantively

appointed from the date of their initial inception to service, their

services may be considered to be qualifying service for senior/

selection scale under the Career Advancement Scheme (CAS) & so

also for pension under the Pension Regulations,1990.

Although the State Government has reservation throughout

in treating their past service to be qualifying service prior to

enactment of the Act,2008 but could not prevail upto the Apex

Court and University of Rajasthan all the time was empathetic on

the issue of their services after being absorbed and on substantive

appointment they became member of service under the Act,1974

and has to consider the total service rendered to be a qualifying

service for the purpose of CAS & also for pension under the

Pension Regulations,1990 but since the State Government has its

reservation it could not be implemented and that was the stage

where the teachers approached this Court by filing their respective

writ petitions seeking grant of CAS & pension under the Pension

Regulations,1990.

In the reply filed by the University of Rajasthan as a second

respondent in the writ petition no.14653/2010, the University was

not even defending but supporting plea of the writ petitioners

emphatically that the services rendered by the teachers after

being absorbed & on substantive appointment became member of

service of the Act,1974, certainly there services are to be

acknowledged & considered as qualifying service for the purpose

of CAS and also for pension and the University in their reply, para-

11 & 13 in particular specifically countered the Govt. letters dt.19-

1-2009 & 18-3-2009 and discussed by the Syndicate in its

meeting held on 6-7-2009 & while confirming minutes of the

Special Syndicate meeting held on 5-8-2008 it was decided that a

suitable reply be sent to the State Government upholding its view

that teachers after being absorbed and substantively appointed &

became member of service of the Act,1974 their total service

rendered has to be acknowledged & considered as a qualifying

service for the purpose of CAS and sent its response with

affirmation vide letter dt.31-10-2009 Annx.R2/8 and as regards

the objection about availability of finance is concerned, it was

stated that 80% of its share under CAS has to be borned by the

UGC & 20% by the Government and it was finally prayed by the

University in its reply to the writ petition that in the light of the

justification tendered by the University the writ petitions filed by

the teachers be disposed of in terms thereof with certain direction

to State Government. Although the State Government opposed

request of the teachers about the service rendered prior to

passing of the order dt.5-8-2008 for the purpose of CAS and other

consequential benefits flowing thereof.

The Ld. Single Judge after taking note of the submissions

finally arrived to the conclusion that order which has been passed

by the University dt.5-8-2008 pursuant to which the teachers

were absorbed & substantively appointed from the date of their

initial appointment was not the subject matter of challenge and

further observed that the teachers have rendered services for

almost two decades and once being absorbed under the Act,2008

and substantively appointed and became a member of service vide

order dt.5-8-2008 under the Act,1974, that certainly makes them

entitled to claim their services to be considered as a qualifying

service for the purpose of CAS and for grant of pension under the

Pension Regulations,1990 vide two separate judgments dt.28-5-

2012 & 22-1-2016 which are impugned in the instant proceedings.

It may be relevant to note that the very judgment impugned

of the Ld. Single Judge dt.28-5-2012 came to be challenged by

the State of Rajasthan in Special Appeal No.1352-1353/2012 and

that came to be dismissed by the Division Bench of this court vide

order dt.21-12-2012 and the judgment and order dt.21-12-2012

of the Division Bench of this court confirming the order of the Ld.

Single Judge came to be further assailed by the State Government

before the Apex Court in Special Leave to Appeal (Civil) No.11159-

11163/2013 and because of the dismissal of the special appeal of

the State Government by the Division Bench of this court, the

judgment and order dt.21-12-2012 was also challenged by the

University of Rajasthan in Special Leave Petition No.11025/2013

directly before the Apex Court and all the Special Leave Petitions

of the State of Rajasthan were dismissed after delay being

condoned vide order dt.26-7-2013 and so far as the appeal

preferred by the University of Rajasthan is concerned, counsel

after knowing the fate of the Special Leave Petitions being

dismissed requested to withdraw with liberty to file special appeal

before the Division Bench of this court.

Taking note of the request of the counsel for University of

Rajasthan, the Apex Court still looked the matter on merits and

while granting permission for withdrawal of the appeal also

observed that there appears no merit in the Special Leave Petition

and dismissed vide order dt.26-7-2013. The order of the Apex

Court dismissing the Special Leave Petition, preferred by the

University of Rajasthan, against the very self same judgment of

the Ld. Single Judge dt.28-5-2012, reads as under :-

"After some arguments, learned counsel for the petitioner sought permission to withdraw this special leave petition.

In view of the request made by the counsel, the special leave petition is dismissed as withdrawn. Even if this special leave petition had not been withdrawn, it was not a fit case to be entertained as the special leave petitions bearing Nos.20363-20368 of 2013 and other connected petitions filed on behalf of the State of Rajasthan against the impugned judgment already stand dismissed vide this Court''s order dated 1.5.2013. The counsel has reiterated the same submissions on behalf of the petitioner/ University by filing this special leave petition, although, the University had not filed any appeal before the Division Bench against the judgment and order passed by the Single Bench of the High Court.

Thus there is no merit in the special leave petition. Accordingly, it is dismissed."

It may be relevant to note that taking note of the very

judgment of the Ld. Single Judge passed before the Bench at

Jaipur which is impugned in the instant proceedings dt.28-5-2012,

the teachers of Maharana Pratap University of Agriculture &

Technology, Udaipur & Anr., Udaipur filed their respective writ

petitions before the Single Bench of High Court at Jodhpur (CWP-

2845/2012-Dr.G.S. Bhardwaj Vs. Maharana Pratap University of

Agriculture & Technology, Udaipur & Anr., CWP-2857/2012-Dr.

Sudhar Mathur Vs. Maharana Pratap University of Agriculture &

Technology, Udaipur & Anr. & CWP-9019/2012- Dr. Chhaya

Bhatnagar & Ors. Vs. Maharana Pratap University of Agriculture &

Technology, Udaipur & Anr.) & their emphasis was under :-

"The petitioners'' assertion was that they had been appointed against regular vacancies after being subjected to a process of selection through the Selection Committee. The petitioners, in order to substantiate their claim for grant of benefit of CAS, bank upon the judgment dated 28.5.2012 passed by the Jaipur Bench of this Court in a bunch of writ petitions led by S.B.Civil Writ Petition No.14653/2010 "Rajeev Saxena & Ors. Vs. State of Rajasthan & Anr.". It is an admitted position that the said judgment was challenged by the State by filing a Letters Patent Appeal before the Hon''ble Division Bench and the Hon''ble Division Bench dismissed the Special Appeal. It is further stated that the judgment has received a seal of approval from the Hon''ble Supreme Court as well."

And taking note of the judgment passed by the Ld. Single

Bench at Jaipur which is impugned in the instant proceedings

dt.28-5-2012, the batch of writ petitions were disposed by the

Single Bench at Jodhpur vide order dt.15-4-2015 and the

judgment of the Single Bench of this Court before the Main Seat at

Jodhpur came to be challenged at the instance of Maharana Pratap

University of Agriculture & Technology & Anr., by filing special

appeals (SAW-480/2015 & connected appeals) which were

dismissed by the Division Bench before the Main Seat at Jodhpur

vide judgment dt.7-12-2015 and the Division Bench recorded its

strong disapproval of the stand taken by the University in filing

special appeals primarily for the reason that the written statement

filed before the Ld. Single Judge that stand/defence of the

University was that the service rendered by the teacher after

being absorbed from the date of initial appointment is certainly

considered to be qualifying service for the purpose of grant of

senior & selection scale under the CAS but took a somersault by

filing special appeal against the very judgment of the Ld. Single

Judge of this Court on acceptance of the defence of the University

as a respondent before the Ld. Single Judge of this Court and we

consider it appropriate to quote operative part of the judgment

dt.7-12-2015 passed before the Main Seat at Jodhpur in SAW-

480/2015, as under :-

"10. It is thus seen that from the very beginning appellants have taken a consistent stand in favour of private respondents regarding their entitlement for benefit under Career Advancement Scheme from the date of their initial appointment. The appellants in-fact have also been pleading repeatedly to the State Government to accord approval for grant of such benefit to private respondents. And now when the learned Single Judge, having regard to the resolution and specific clear stand taken by the appellants has allowed the benefit in favour of private respondents in their respective petitions, appellants unfortunately feel aggrieved. The learned Single Judge has

also taken note of the admission of learned counsel for appellants that he was not aware of the resolution passed by the University in favour of Assistant Professors/ Lecturers. The relevant extract of the order in this regard is as follows:-

"The argument advanced by Sh.Punia, learned counsel for the University that the University is opposed to the prayer of the petitioners for being considered as being in regular service from the date of initial appointment, has to be noticed only for the sake of rejection because he candidly conceded during the course of arguments that the minutes recorded by the Board of Management in its meeting dated 28.7.2008 were not brought to his knowledge when he addressed such arguments before the Court."

Considering these facts, we are of the considered view that the appellants cannot be permitted to change their stand now to contend that private respondents are not entitled for benefit under Career Advancement Scheme. We in fact wish to place on record our strong disapproval of the stand taken by the appellants in these appeals. The conduct of the appellants is highly reprehensible. It is only because of such attitude, the disputes do not end. It is high time, the appellants must realise that if the employees are made to live through endless litigations, their functioning/administration cannot be carried on properly.

The appeals are accordingly dismissed."

The judgment of the Division Bench of which reference has

been made dt.7-12-2015 came to be challenged at the instance of

the Registrar, Mohanlal Sukhadia University, Udaipur before the

Apex Court in Special Leave to Appeal No.9194-9195/2016 &

37383/2016 & that came to be dismissed vide order dt.29-6-2016

& 14-8-2017 keeping the question of law open to be examined in

other appropriate proceedings.

The issue manifests before us is that what will be the effect

of the order dt.5-8-2008 passed by the University on the

recommendations made by the Syndicate giving substantive

appointment to the teachers, as observed, from the date of their

initial appointment and became member of service of the

Act,1974.

Thus in totality of the matter how far the question is still

open for revisiting the matter.

Second batch of appeals are directed against judgment of

the Ld. Single Judge dt.22-1-2016 where it has been observed

that the service rendered by the teachers after being absorbed

pursuant to order dt.5-8-2008 that makes them entitled for grant

of pension under the Pension Regulations,1990 but at the same

time further observed that since their entitlement has now been

decided they may not be entitled for interest but if it has not been

paid within the reasonable period certainly they are entitled to

interest @ 9% till payment.

The other batch of special appeals preferred by the

University of Rajasthan is against the judgment of the Ld. Single

Judge dt.22-1-2016 on the premise that although the service

rendered by the teachers have been regularized and they stood

absorbed from the date of their initial appointment vide order

dt.5-8-2008 but the service rendered prior to their absorption

could not have been considered to be a qualifying service for the

purpose of pension under the Pension Regulations,1990, which

has been repelled by the Ld. Single Judge under its judgment

impugned dt.22-1-2016.

Counsel for appellants submits that although before the Ld.

Single Judge, reply was filed by the University of Rajasthan where

grievance of the teachers has been supported & it has been

prayed that the writ petition be disposed with direction to the

State Government and the grievance of the University was that in

the absence of financial assistance from the State Government it

may not be possible to pay the benefits of CAS to the teachers of

senior & selection scale & so also their retiral dues under the

Pension Regulations,1990 but submits that the order dt.5-8-2008

passed on the recommendations of the Syndicate absorbing the

teachers & deemed to be substantively appointed from the date

of their initial appointment was per-se bad in law and if examined

on the principles laid down by the Apex Court, such of the

teachers who are absorbed in service at a later point of time, it

will always relate to the date of order or from the date the

Act,2008 became effective & not from the date of initial

appointment or anterior thereto and the teachers who are working

on adhoc/temporary basis made substantive after being screened

from initial appointment and the past service benefits which has

been extended on the recommendations of the Syndicate under its

minutes of the meeting dt.5-8-2008 is not legally sustainable in

the eye of law and in support of submission placed reliance on the

judgment of the Apex Court in University of Rajasthan Vs. Prem

Lata Agrawal, reported in 2013 (3) SCC 705.

Counsel submits that there was a rider in the order dt.5-8-

2008 that they will not get any financial benefits of the period

prior to the order dt.5-8-2008 and the service which the teacher

has rendered subsequent to his substantive appointment could be

considered as a qualifying service for the purpose of CAS and

further submits that those who are appointed on temporary basis

or stop gap arrangement u/S.3(3) of the Act,1974 being dehors

the provisions of the Act,1974 could not have been regularized in

making them substantive on the post held by them prior to being

screened under the Act,2008 and in the given facts &

circumstances order of the Ld. Single Judge mandating the

authorities to consider the past service rendered by the teachers

in terms of the order dt.5-8-2008 as a substantive service for

grant of CAS is against the principles enunciated by the Apex

Court in the judgment relied upon and further submits that after

the amendment made in 2013 under the Act,1946 Sec.35B has

been added which authorizes the State Government to be a watch

dog in reference to the funds provided to the universities and that

apart if that has been mis-utilized or utilized for other purposes

without seeking permission for re-appropriation certainly the State

Government is competent to question.

In the batch of appeals which has been preferred against the

judgment dt.22-1-2016, Sh. Kamlakar Sharma, Sr. Adv., assisted

by Ms. Alankrita Sharma Adv., submits that the qualifying service

rendered prior to the order dt.5-8-2008 being adhoc could not be

considered as a qualifying service for the purpose of pension

under the Pension Regulations,1990 and the Ld. Single Judge

committed an error in mandating that the services of the teachers

in terms of the order dt.5-8-2008 pursuant to which they have

been substantively appointed from the date of their initial

appointment after being screened & absorbed are entitled for

pension is not legally sustainable in the light of provisions of the

Act,2008 pursuant to which the teacher working on adhoc basis

became member of service of the Act,1974.

The grievance of the State Government in filing of the special

appeals is in reference to the observations which has been made

by the Ld. Single Judge in its judgment impugned dt.22-1-2016

needs interference by this court, reads as under :-

"The issue of financial burden has been raised on behalf of the University thus taking the aforesaid into consideration, this court is of the opinion that the State Government would take a proper view in the matter so that while the University may survive without further financial crunches, petitioners get their due benefits."

As regards the State Government is concerned, objection of

the Advocate General is that the University has not come out with

the statement of their financial position and University being the

creature of statute holds its autonomy & cannot remain dependent

on the State Government for financial assistance in view of

Sec.35-B of the Act,1946.

Per contra, counsel for the respondents on the other hand

jointly submits that the University of Rajasthan at least has no

locus standi to question order of the Ld. Single Judge for the

reason that University of Rajasthan as a respondent in the writ

petition filed its reply filed to the petition and all the time

supporting plea of the teachers before the Ld. Single Judge and

the limited question which was agitated by the University before

the ld. Single Judge was about availability of funds & for seeking

direction against the State Government and in the given facts &

circumstances the finding which has been recorded by the Ld.

Single Judge under its judgment impugned is only after taking

note of the defence of the University as such the appellant

University has no locus to question judgment of the Ld. Single

Judge in the instant proceedings.

Counsel further submits that once the SLP preferred by the

University of Rajasthan arising from the judgment of the Ld.

Single Bench at Jodhpur which was based upon the judgment of

the Single Judge impugned dt.28-5-2012, has been dismissed it is

not open for the University to now question order of the Ld. Single

Judge and submits that the University has been supporting

throughout the plea of the teachers before the Ld. Single Judge

that they have been regularized from the date of their initial

appointment and are entitled to the benefit of CAS and so also for

pension under the Pension Regulations,1990 and taking such a ''U''

turn in questioning judgment of the Ld. Single Judge appears to

be for the reason that later when the matter came before the

Syndicate in its meeting held on 23-5-2013 for approval of the

action there was a change of guards and a bureaucrat was handed

over the additional charge of Vice Chancellor of the University who

recorded his note of dissent on the recommendations made by the

Syndicate & that appears to be the reason for which the University

has filed special appeals but once the resolution of the Syndicate

has been acted upon & consequential orders have been passed by

the University of Rajasthan dt.5-8-2008 which was neither

recalled nor reviewed by the University is not open to question by

the authority itself in special appeal its order dt.5-8-2008 notified

at their instance.

Counsel further submits that apart from the judgment of the

Ld. Single Judge impugned dt.28-5-2012 which was relied upon by

other universities and teachers who are member of various other

Universities in the State of Rajasthan, all the universities have

uniformly applied the same preposition provided under the

Act,2008 and services of the teachers were regularized from the

date of their initial appointment and the benefit of CAS & other

consequential benefits has been extended to them placing reliance

on the judgment of the Ld. Single Judge of this Court which is

impugned in the instant proceedings and before the Main Seat at

Jodhpur as well the Ld. Single Judge in the case of Dr. Sudha

Mathur Vs. Maharana Pratap University of Agriculture &

Technology & Anr., (CWP-2857/2012 & other connected petitions)

disposed of the batch of writ petitions with direction to grant

benefit of CAS taking note of their confirmation in service and the

special appeal preferred against that very judgment of the Single

Bench at Principal Seat at Jodhpur, that has been dismissed and

while disposing of the special appeals the Division Bench has

recorded its strong disapproval of the stand taken by the

University in filing special appeals under its judgment dt.7-12-

2015 and even the Special Leave to Appeal preferred against

judgment of the Division Bench dt.7-12-2015 has also been

dismissed by the Apex Court and the question which has been

raised by counsel for appellant at this stage is no more res integra

to be considered by this Court after being examined by the

Division Bench of this Court & confirmed by the Apex Court as

well.

We have considered the submissions of the parties on merits

and with their assistance perused the material on record. It is not

disputed that services of the teachers are regulated under the Act,

1974 and substantive appointments could be made on the

recommendations of the statutory Selection Committee but a very

disturbing situation has come/arisen that the University failed in

discharge of its duty and to some extent the State of Raj. is also

responsible & for more than two decades no substantive

appointments could be made u/S.3(1) of the Act which is the only

source of recruitment of a teacher under the provisions of the

Act,1974 and whenever the exigency arises at a given point of

time either on account of shortage of teachers or more teachers

are required, the provisions u/S.3(3) came to be invoked with the

hope & belief that the authority may initiate the process of making

regular appointments as envisaged u/S.3(1) of the Act,1974

expeditiously but the experience shows that no substantive

appointments were made for more than two decades and Sec.3(3)

of the Act,1974 which is an exception to Sec.3(1), to be used very

sparingly, by passage of time became a rule and whenever there

was a requirement to fill the substantive sanctioned posts of

teachers of the various faculties the University adopted the easy

recourse invoked Sec.3(3) and ad-hoc appointments were made &

by the time 272 teachers were working in the University on

temporary basis appointed u/S.3(3) of the Act,1974 and after

there was a series of litigation by the teachers for safeguarding

their interest, orders were passed by this Court time & again to

hold regular selection and till than allow the temporary teachers to

continue but the University failed to hold regular selections and

the temporary teachers are allowed to continue for almost two

decades and at this stage the State Government intervened in the

matter and the Act, 2008 came into force with the object that the

teachers who were working for long and either are at the verge of

retirement appointed u/S.3(3) of the Act,1974 at least they may

be absorbed and became member of service and such of the

temporary teachers as defined u/S.2(iv) of the Act,2008 after

being screened by a committee constituted u/S.4 of the Act,2008,

minutes of the screening committee were placed before the

Syndicate in its meeting held on 5-8-2008 and on approval of the

recommendations of screening committees in consequence thereof

order came to be passed dt.5-8-2008 absorbing the teachers and

became substantive from the date of their initial appointment and

a member of service of Act,1974.

A teacher is someone who gains from the experience of

working with young people. How can one expect commitment

from someone who is hired for a short while and is facing chronic

uncertainty. Teaching used to be a career until the late 80''s and

90''s but now our brightest young people want to avoid this

profession as they know how vulnerable it is. One could very well

see the plight of the students at the one hand, vacancy of

teachers could not be filled may be for any administrative reasons

for a sufficient long time as in the instant case for more than two

decades and no option is left then to fill the sanctioned posts of

teachers by making temporary appointments invoking Sec.3(3) of

the Act,1974 and if the vacancies remained unfilled or there is

assurance that it should be filled in due course of time what does

it mean and when there is a complete restriction on making

temporary appointments which ordinarily as observed should be to

safeguard the interest of the students to be invoked as an

exception to the Rule of making substantive appointments which

in the instant case has been given a complete go-bye for at least

two decades and the student who joined the University even might

not be having a subject teacher for the reason that substantive

appointments could not be made and temporary appointments are

not permissible the consequence is the student needs to wait and

pass out his graduation/post-graduation without a teacher and in

the given situation what will be the fate of the student which

might occurred who is never at fault but a victim for the fault of

the authorities who failed to discharge its legal obligation in

making regular/substantive appointments of teachers & that has

to be taken on top priority.

The submissions made by counsel for the appellant

University questioning the Syndicate''s resolution & consequential

order dt.5-8-2008 for grant of CAS is of no substance for the

reason that the Syndicate is a statutory executive body of the

University and it has to discharge its statutory duties prescribed

u/S.22(g) of the Act,1946 and in the constitution of the Syndicate

apart from the officers of the University the government nominees

are also its members and that being so the Government has a

right of say and keep a vigil over functioning through its nominee

in the constitution of Syndicate of the University constituted under

the Act,1946 has made recommendations to grant benefit of past

service rendered by the teachers who were appointed u/S.3(3) of

the Act,1974 and in consequence thereof the teachers were

absorbed & substantively appointed & became member of service

under the Act,1974 pursuant to order dt.5-8-2008.

The decision/resolution of the Syndicate or the order if any

passed in consequence thereof are always open to judicial review

as in the instant case the order dt.5-8-2008 passed by the

appellant-University of Rajasthan on the recommendations of the

Syndicate was open for judicial review but was never the subject

matter of challenge in any of the proceedings on the contrary the

teachers when approached this Court by filing their respective writ

petitions with the limited grievance that once their services have

been acknowledged from the date of their initial appointment

there appears no reason not to consider them for the benefit of

CAS and the University of Rajasthan supported the cause of the

teachers as indicated from the reply filed by University of

Rajasthan to the writ petition before the Ld. Single Judge of which

reference has been made in above paras and the only objection

was that the Government should be directed to release funds and

because of the financial constraints being faced by the University

it is not possible for the University to discharge its legal obligation

and we find no reason or justification at least for the University in

questioning order of the Ld. Single Judge more so when the order

dt.5-8-2008 has been passed on the recommendations of the

Syndicate of the University of Rajasthan and was never questioned

in any of the proceedings before the Ld. Single Judge but when it

could not have been possible to question directly, approached the

Division Bench of this Court questioning order of the Ld. Single

Judge by adopting this indirect method of filing special appeals

and practically assailing order dt.5-8-2008 and this court finds

substance that the special appeals preferred at the instance of the

University appellant is not only on principle to question but the

later minutes of the Syndicate dt.27-5-2013 reveals that a

bureaucrat who became the ad-hoc Vice Chancellor of the

University since recorded its note of dissent but still the minutes of

the Syndicate meeting approved by majority appears to be the

reason for which the University filed the batch of special appeals.

The judgment on which the counsel placed reliance reported

in 2013 (3) SCC 705 is of no assistance for the reason that it was

a case where the teachers approached the Court at the stage after

they stood retired from service before the Act of 2008 came into

force and their grievance was that the temporary service rendered

by them be treated to be regular service and to make them

member of Pension Regulations,1990 for all practical purposes

which was declined by the Apex Court for the reason that they

were not the member of service at the time when they stood

retired from service and consequential effect of the Pension

Regulations,1990 would not make them member of service for the

purpose of grant of pension under the Scheme of

Regulations,1990.

However, in the instant case, after the Act,2008 came into

force the existing teachers who were working became member of

service which acknowledges their service for the benefit of CAS &

also for pension under the Pension Regulations,1990 & other

benefits flowing thereof and the observations made by the Apex

Court in the given facts & circumstances may not be of any

assistance to the appellant.

The further submission made by appellants'' counsel that

after the Act,2008 came into force the Syndicate committed

apparent error in regularizing their service from the date of their

initial appointment, in our view it is not open for the University to

question and once the screening committee constituted under the

Act,2008 has recommended case of the teachers and the

Syndicate a statutory committee approved such recommendations

and resolved to absorb & appoint substantively from the date of

initial appointment, keeping in view the duties being discharged by

the teachers during the interregnum period when the University

failed to discharge its legal obligation in making regular

appointments u/S..3(1) of the Act,1974 and the teachers who

have served for at least one/two decades appointed u/S.3(3) of

the Act,1974 ultimately became suffers for none of their fault &

looking to the kind of duties being discharged by a teacher, no

distinction could be pointed out and such decision cannot be said

to be apparently irrational or impermissible in the eye of law but

still taking note of the fact situation we are of the view that it is

not open for the University to question the decision of the

Syndicate a statutory body constituted under the Act,1946 of the

University of Rajasthan, in the intra court appeal to examine the

question which was neither raised nor examined by the Ld. Single

Judge at the instance of the University of Rajasthan in the writ

proceedings.

So far the submission made by Sh. Kamlakar Sharma, Sr.

Adv., assisted by Ms. Alankrita Sharma Adv., in respect of

applicability of the Pension Regulations,1990 is concerned, the Ld.

Single Judge in its judgment impugned dt.22-1-2016 has

specifically observed that once the teacher became a member of

service from the date of his initial appointment there appears no

bar/impediment under the Pension Regulations,1990 which

deprives him from being considered to be a member of Pension

Scheme and we find substance in what has been observed by the

Ld. Single Judge for the reason that the University Pension

Regulations,1990 has become effective from 1-1-1990 and we

consider it appropriate to refer certain provisions of the Scheme of

Pension Regulations,1990 for appreciation of the submissions, as

under :-

Reg.2:- Scope and Application :-

(i) These regulations shall also apply to all persons regularly appointed to the service of the University of Rajasthan on or after 1.1.1990.

(ii) These regulations shall also apply to all existing employees-both teaching and non- teaching-who opt for pension scheme under these regulations within the period specified in Reg. for exercising option. In the case of employees who do not exercise option within the specified period it will be deemed that the concerned employee has opted for the pension scheme under these

regulations.

Provided that these regulations shall not apply to:

(a) Persons employed on contract or part-time basis.

(b) Persons on deputation to the University.

(c) Purely temporary and daily wages staff.

(d) Re-employed pensioners.

Reg.3 : Definitions :

(5) "Pension Fund" means the fund created for purpose of transferring the total accumulated amount of University contribution in C.P.F. (including the amount of loan taken out of it) and interest there on as on date of commencement of these regulations and monthly contribution made thereafter in respect of such employees who opted or are deemed to have opted the pension scheme under these regulations. The pension paid to the retired employees shall be charged to this Fund.

Reg.22 : Conditions of Qualifying Service :

The service of an employee does not qualify for pension unless it conforms the following conditions:

(1) It is a paid service of a regularly appointed employee under the University.

(2) The employment is in substantive, temporary or officiating capacity.

Reg. 47 : Creation of the Pension Fund :

In case of all such employees who opt for pension scheme and are governed under these regulations, the total accumulated amount of University contribution in C.P.F. (including the Amount of loan taken out of it) and interest there on as on 1 st January,1990 will be transferred to the pension

fund created under these regulations. There after, the University''s share of monthly contribution in respect of all such employees, as aforesaid, will be deposited in the pension fund every month latest by 10th of the next month."

If we look into the scheme of Pension Regulations,1990 it

clearly emerges that the Pension Scheme has become applicable

u/Reg.2(i)(ii) to the persons who are regularly appointed to the

service of University on or after 1-1-1990 and as per Reg.5 read

with Reg.47 the pension fund has to be created from monthly

contribution of the members of the fund along with University''s

share of monthly contribution in respect of such employees to be

deposited in the pension fund every month and pension paid to

the retired employees shall be charged from the pension fund at

the same time Reg.22 refers to the conditions of qualifying service

and the paid service of regularly appointed employee under the

University and his employment in substantive, temporary or

officiating capacity shall be considered to be a qualifying service

for all practical purposes which makes him entitled for grant of

pension under the Pension Regulations,1990, with the rider

appears to be that it will be applicable to only such of the persons

who are regularly appointed on or after 1-1-1990.

In the instant case, the teachers who are absorbed under the

Act,2008 and substantively appointed & became member of the

service of the Act,1974 vide order dt.5-8-2008 from the date of

initial appointment indisputably became member of the Scheme of

Pension Regulations,1990 and the accumulated fund of CPF and

monthly contribution of the service rendered by the teacher after

Regulations,1990 became effective & of University''s contribution

has to be transferred to the pension fund after 1990 and pension

be paid to the retired employees to be charged from the corpus of

the pension fund created under the Pension Regulations,1990.

Thus inbuilt mechanism has been provided how the pension fund

shall be created and paid to the retired employees.

So far as grievance of the State is concerned, suffice to say

that Sec.35-B has been added by the Amendment Act of 2013 to

safeguard interest of the State Government and we do find

substance that where the government funds are involved it is

open for the Government to keep a vigil over its utilization and the

observations which has been made by the Ld. Single Judge under

judgment impugned dt.22-1-2016 are in consonance with the

mandate of Sec.35-B of the Act,1946.

At this stage we would would like to record that the

Government cannot remain ignorant or a silent spectator from the

fact that draft pension scheme primarily was approved by the

Govt. and sent to all the universities with the enclosure dt.16-4-

1990 to be made effective from 1-1-1990, in consequence thereof

the Universities got its approval from its statutory bodies, like in

the instant case by the Syndicate in exercise of power u/S.22(g)

of the Act,1946 and it was expected from the Govt. to provide

funds if required to make the scheme operational & effective to

fulfill its social obligation towards the employees who have given

their valuable services to the institution with contentment and

protection from social evils in their old days.

It is also true that the University alone cannot generate

funds with its limited resources at the same time if there is mis-

utilization of the funds allocated by the Government for the

purpose it is sanctioned certainly it is open for the Government to

control & keep vigil over the funds allocated & its utilization must

be within the four corners of Sec.35B of the Act,1946.

After we have heard counsel for the parties, we find no error

in the judgment impugned dt.28-5-2012 & 22-1-2016 which may

call for our interference.

Consequently, the special appeals are without substance &

deserves to be dismissed with observations (supra). No cost.

Copy of the order be separately placed in each file.