University of Rajasthan and Others vs Vineeta Chauhan and Others

Amitava Roy, C.J.�Appalled by the determination made vide judgment and order dated 14.11.2013, analogously disposing of a batch of writ petitions including S.B. Civil Writ Petition Nos. 10774/2012 and 12144/2012, instituted by the respondents herein, the University of Rajasthan and its functionaries are in appeal seeking redress.

By the decision impugned, the appellants, in essence, have been directed not to replace the respondents/writ-petitioners subject, however to the stipulations, referred to therein, till the continuation of the ongoing Project/Scheme under the Centre for Study of Social Exclusion and Inclusive Policy, approved by the University Grants Commission (for short, hereafter referred to as ''the UGC).

We have heard Mr. A.K. Sharma, the learned Senior Counsel assisted by Mr. V.K. Sharma, Advocate for the appellants and Mr. A.K. Bhargava, the learned counsel for the respondents/writ-petitioners.

A summary of the pleaded facts would outline the backdrop of the dissension. The UGC having decided to support research on the issue of social exclusion of theoretical and policy significance through teaching-cum-research centres in the universities, released grant-in-aid, amongst others, to the Registrar of the appellant-University for the 11 Plan, amongst others, for pursuing and sustaining the non-teaching staff for the posts of Research Assistant, Professional Assistant, Data Entry Operator and Library Attendant. On receipt of the approval of the UGC to this effect, the appellant-University advertised the posts through local daily and in response thereto, the respondents/writ-petitioners offered their candidature for the posts of Research Assistant, Professional Assistant, Data Entry Operator and Attendant. Eventually, on the basis of the recommendations of the Selection Committee, duly constituted by the Vice Chancellor of the appellant-University, the respondent No. 1/writ-petitioner-Smt. Vineeta Chauhan was appointed as Professional Assistant in the pay scale of 9300-34800 and basic pay of Rs. 13830/-, the respondent No. 2/writ-petitioner-Smt. Archana Verma was appointed as Attendant in the pay scale of 4750-7440 and basic pay of Rs. 6580/- and the respondent No. 3/writ-petitioner-Sazidullah Khan was appointed as Data Entry Operator in the pay scale of Rs. 5200-20200 and basic pay of Rs. 9840/- and other allowances, as contemplated and attached to the posts till 31.03.2012 in DBSAW No. 280/2014. Similarly in DBSAW No. 281/2012, the respondent No. 1/writ-petitioner- Dr. Dinesh Vyas and the respondent No. 2/writ-petitioner- Ajay Kumar Meena were appointed as Professional Assistant in the pay scale of Rs. 9300-34800 and basic pay of Rs. 13830/- and other allowances, as contemplated and attached to the posts till 31.03.2012. The petitioners accordingly joined their posts and continued to render their services. While the matter rested at that, the appellant-University, by order dated 30.01.2012, accorded consolidated pay of Rs. 11100/- per month to respondents/writ-petitioners Dinesh Vyas, Ajay Kumar Meena, Smt. Vineeta Chauhan and Rs. 5300/- and 7900/- per month to respondents/writ-petitioners, Smt. Archana and Sazidullah Khan respectively till 31.03.2012. Though, the respondents/writ-petitioners submitted representations ventilating their grievances, but the same were not heeded to. Finally, by Office Order dated 31.03.2012, their services were terminated as the term of the Project/Scheme stood concluded on and from that date. By separate order of even date, the Vice Chancellor of the appellant-University suspended the said Project/Scheme with effect from 01.04.2012 till communication from the UGC to the contrary. Eventually, by Office Order dated 30.03.2012, Annexure-13 to the writ petition, the UGC communicated its approval for continuation of the Project/Scheme during the XII Plan, on the same terms and conditions and advised the appellant-University to fill the posts approved by it from Plan to Plan period like other centres. Situated thus, the respondents/writ-petitioners, after unsuccessfully pleading with the appellant-University and its authorities, sought to invoke the writ jurisdiction of this Court to secure their continuance in their respective posts during the XII Plan period. They>"as well sought for annulment of the order dated 31.03.2012, terminating their services and prayed for an appropriate writ for their restoration in the respective posts with effect from 01.04.2012 in continuation of their earlier appointment thereto, with full back wages on according the pay scale(s), as granted initially.

The appellant-University, in its reply, while refuting the claim of the respondents/writ-petitioners, asserted that their induction had been only for the 11th Plan period up to 31.03.2012 and that they have no enforceable right to either continue thereafter or claim permanent appointment or regularization. According to the appellant-University, the respondents/writ-petitioners having accepted their appointment being fully aware that it was temporary in nature and that as per the stipulations, it was impermissible on their part to claim permanent appointment, asserted further that in terms of the Office Order dated 30.03.2012, it had been advised to fill up the posts under the Project/Scheme from Plan to Plan period and that thus, the reliefs prayed for by the respondents/writ-petitioners, were wholly misconceived.

The learned Single Judge, on an elaborate analysis of the pleaded facts and the documents on record, held that the order dated 31.03.2012 terminating the services of the respondents/writ-petitioners on the expiry of the 11th Plan period on the same date, was not illegal. Referring to the decision of the Hon''ble Apex Court in State of Haryana and others Vs. Piara Singh and others etc. etc., , it was however determined that it was not permissible for the appellant-University to replace one set of appellant-University to continue with the respondents/writ-petitioners till the life time of the Project/Scheme. Following directions were issued:-

"(i) So far as challenge to the order dated 31.03.2012 is concerned, I do not find any illegality therein as termination of the petitioners is on expiry of period of contract however respondents cannot replace them by similar set of employees by issuing new advertisement. If respondents are taking new hands to run the Project, they would be under an obligation to continue the petitioners unless their services are found to be unsatisfactory or any adversity in their conduct or other circumstances which includes even their eligibility. In that event also, action may be taken after providing opportunity of hearing to the petitioners.

(ii) The conclusion of direction at No. 1 would not be that respondents should continue the petitioners in all circumstances, rather they would be at liberty to discontinue the Scheme/Project and in that event, the petitioners will have no right to continue in service.

(iii) If respondents take a decision to continue the Scheme/Project and have already engaged the person in place of petitioners then aforesaid is declared to be illegal in view of judgment of Hon''ble Apex Court in the case of Piara Singh (supra).

(iv) If Project is operated by the respondents and petitioners are continued, it would be subject to satisfactory work and conduct of the petitioners.

(v) The compliance of the judgment may be made within a period of one month from the date of receipt of copy of this order."

There is no wrangle at the Bar that pursuant to this adjudication, the appellant-University thereafter vide its Office Order dated 11.12.2013 has decided to utilize the services of the respondents/writ-petitioners in their respective posts on a consolidated pay, as referred to therein, till the expiry of the XII Plan period. That they would not be entitled to claim permanent appointment, has been reiterated therein.

Mr. Sharma has emphatically argued that having regard to the framework of the Project/Scheme and the limited term thereof under the 11th Plan expiring on 31.03.2012, the respondents/writ-petitioners have no inviolable right to continue in their respective posts thereafter and thus, the direction to retain them during the subsistence of the Project/Scheme, is apparently erroneous. As the nature of the appointment is, per se, temporary, limited by time and co-terminus with the concerned Plan period, the learned Single Judge had erred in directing their continuance in their respective posts, he urged. Adverting to the decision in Piara Singh(supra), he maintained that as no permanent or regularly sanctioned post is involved under the Project/Scheme, appointment thereto, per se, has to be temporary in enunciated therein, Piara Singh(supra) was held not to lay down nature and bound by time and thus, the learned Single Judge ought not to have imported the notion of replacement of one set of temporary/ad hoc employees by another. Relying heavily on the decision of the Hon''ble Apex Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, , the learned Senior Counsel has insisted that as the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure, ought to be made permanent. Mr. Sharma, therefore, maintained that not only the respondents/writ-petitioners are not entitled to continue in their respective posts under the Project/Scheme beyond 31.03.2012 as a matter of right, their claim for regular appointment or regularization, is incomprehensible in law. Reliance has been placed as well on the decision of the Hon''ble Apex Court in Vidyavardhaka Sangha and Another Vs. Y.D. Deshpande and Others, .

Mr. Bhargava, in reply, has, at the threshold, questioned the maintainability of the appeals by referring to the Office Order dated 11.12.2013, passed in compliance of the impugned judgment and order. Without prejudice to this, the learned counsel has submitted that the respondents/writ-petitioners are not ad hoc or casual incumbents qua their posts as their appointment thereto had been preceded by recommendations of a duly constituted Selection Committee. While clarifying to the query of this Court that the respondents/writ-petitioners do not claim regular/permanent employment in their respective posts under the appellant-University, Mr. Bhargava has urged that the direction for their continuance under the Project/Scheme is unassailable, in the attendant facts and circumstances and therefore, the appeals ought to be dismissed.

The rival pleadings and the documents on record have received our due attention. The arguments advanced have also been appropriately evaluated.

A bare perusal of the Office Order dated 11.12.2013, issued by the appellant-University, makes it patently clear that the same had been in compliance of the judgment and order impugned herein. On the approval of the Vice Chancellor of the appellant-University and in compliance of the directions contained in the impugned judgment and order, the services of the respondents/writ-petitioners have been decided to be utilized under the Project/Scheme for the XII Plan period on a consolidated pay, as referred to therein. Noticeably, this Office Order does not mention that any appeal against the judgment and order dated 14.11.2013 is being contemplated or that the arrangement made thereby, would be subject to any decision in such appeal, if filed. It is also not made clear as to the steps, if any, taken by the appellant-University for initiating a fresh process for appointments to the posts involved for the XII Plan period in terms of the above referred Office Order dated 30.03.2012.

Be that as it may, the Office Order dated 15.07.2010, whereby the respondents/writ-petitioners had been appointed against the respective posts up to 31.03.2012, does indicate that their induction was preceded by a process of direct recruitment and recommendations by the Selection Committee constituted by the appellant-University. The pay scales, as shown against their names, were also accorded to them. The Office Order, however did make it clear that they would not be entitled to claim any permanent appointment against the posts as those were to exist till 31.03.2012 under the Project/Scheme. The Office Order dated 31.03.2012, terminating their services, did reiterate that it was as a consequence of their temporary appointment under the Project ending with the same date i.e. 31.03.2012. That by Office Order of the even date, the Project/Scheme was suspended with effect from 01.04.2012, is evident therefrom, However by Office Order dated 30.03.2012 issued by the UGC, a decision for continuation of the Project/Scheme during the XII Plan period, on the same terms and conditions, was conveyed and the appellant-University was advised to fill up the posts from Plan to Plan period.

That the Project/Scheme is a temporary one, is more than apparent. It was initiated for the 11th Plan period, which expired on 31.03.2012 and has been decided to be continued for the XII Plan period, on the same terms and conditions. As a corollary, the posts contemplated under the Project/Scheme are therefore not permanent in nature and co-terminus with the approved plan period. Axiomatically therefore, appointments thereto have to be essentially temporary and time bound.

In that view of the matter, complete analogy of the reasons propounded in Piara Singh(supra), disapproving replacement of one set of ad hoc/casual employees by another, would not be wholly applicable in the attendant facts and circumstances. The situation, as obtains in the case in hand, is not one of temporary, ad hoc or casual appointment against permanent and regularly sanctioned posts. Moreover, the Hon''ble Apex Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, , did take note of its view in Piara Singh(supra). While observing that thereby it was not intended to lay down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent, their Lordships also rejected the plea based on legitimate expectation of employees for regularization of their services on the ground of their continuance over the years on ad hoc, temporary, casual or contractual basis. Their Lordships held that the same would be inconsistent with the constitutional scheme of appointment to public office. The argument founded on Article 23 of the Constitution of India that employment on daily wages would amount to forced labour, was also negated, observing that the employees had accepted the employment on their own volition and with eyes open as to the nature of their employment. That the theory to espouse the cause of persons employed on daily wages or temporarily or on contractual/ad hoc basis, if accepted, would defeat the basic requirement of public employment and breach the constitutional scheme and the goal of equality, was underlined.

That the appointment made on probation or ad hoc basis for a specific period of time comes to an end by efflux of time and the person holding such posts can have no right to continue therein, has also been reiterated by the Hon''ble Apex Court in Vidyavardhaka Sangha and Another (supra).

In view of the pronounced judicial enunciations, as above, there cannot be any manner of doubt that the respondents/writ-petitioners do not have any subsisting right to continue in their posts, as such, after 31.03.2012. The above, notwithstanding, to reiterate, the fact that the nature of appointments to the posts under the Project/Scheme would be essentially temporary and time bound, cannot be overlooked. Consequently, there would not be a touch of permanence in such appointments at any point of time as the same would cease to exist with the termination of the concerned plan period or at the most, the Project/Scheme underway. That the respondents/writ-petitioners had been appointed on the basis of the recommendations by the Selection Committee constituted by the appellant-University, is a matter of record. It is not the case of the appellant-University that their services suffer from any blemish or deficiency undermining the mission or objectives of the Project/Scheme. They do not claim regular appointment or regularization of their services in their respective posts thereunder, as has been clarified in the course of arguments. It, therefore, stands to logic that unless the respondents/writ-petitioners are found unworthy of the posts they hold and/or have rendered themselves ineligible, or have disqualified themselves, or have become unfit to discharge their duties, no useful purpose would be served by discontinuing them and inducting fresh hands on the same terms and conditions. The operative directions contained in the judgment and order do, in essence, seek to address these aspects and in our comprehension, having regard to the entire gamut of the facts involved, cannot be repudiated to be repugnant to letter and spirit of the decision in Secretary, State of Karnataka and Others Vs. Umadevi and Others, , which too has been rendered in the context of permanent and regularly sanctioned posts in public office. The decision in Vidyavardhaka Sangha And Another(supra) also, having regard to the singular features of the Project/Scheme and the appointment, contemplated thereunder, does not clinch the issue in favour of the appellants.

In the wake of the above, the appeals do not merit acceptance and are accordingly dismissed.

A copy of the judgment be placed in connected file.