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Judgment
M.N. Bhandari, J.—These three writ petitions involve common question of fact and law thus are decided by this judgment. The writ petition bearing CW 3485/2002 was filed on 17.5.2002, whereas, other writ petitions were filed in the year 1999 and 2012. For convenience, facts of CW 3485/2002 are taken.
By the aforesaid writ petition, a challenge was made to the order of appointment dated 15.4.1995, 12.12.1995, 15.12.1995, 29.11.1997, 10.7.1998, 20.2.1999 and 15.3.1999 with a further direction for regularisation of services of the petitioners.
Learned counsel for petitioners submit that petitioners were employed by the respondents university some where in the year 1987-88. The respondents took a decision on 31.10.1988 to continue services of the petitioners. It was followed by screening test of 40 candidates for regularisation which include even petitioners. The result of which was not declared by the respondents. The services of the petitioners were thereafter terminated in the year 1989. The petitioners challenged the order of termination by maintaining a CW No. 489/1989. This court issued direction for conducting an enquiry by the District Judge, Ajmer. The enquiry report was submitted giving out that petitioners have already worked for more than 240 days and there was no collusion with any of the officer of the university to continue their services. The respondent university, in the meanwhile, advertised 60 posts on 31.12.1993. The court passed an interim order to reserve 20 posts for the petitioners. The writ petitions were finally decided vide order dated 9.3.1994. An appeal was preferred and decided on 20.9.1994 with a direction to reinstate the petitioners with full back wages. The university then preferred SLP before the Hon''ble Supreme Court which was decided on 25.10.1994. The judgment passed by the Division Bench was modified. The direction was to give Rs. 15000/- to each of the petitioners as ex-gratia compensation apart from two chances to participate in the future selection for the post of LDC or equivalent post without disqualifying them on the ground of age.
After the aforesaid judgment, respondents should have conducted regular selection for the post of LDC or equivalent post but they issued an order dated 15.4.1995 to grant temporary appointment to the ex army personnel. The respondents thereafter given appointment to 20 persons on 12.12.1995 in violation of the directions of the Hon''ble Apex Court. The respondent university even allowed those who were given ad hoc appointment to work as LDC/Telephone Operator. They even regularised services of 4 ad hoc employees on 29.11.1997. No advertisement was issued by the respondents to make selection as was observed by the Hon''ble Apex Court. The respondents then issued an advertisement on 21.1.1998 to fill-up 20 posts. The petitioners then filed CW 800/1998 to challenge the advertisement and ad hoc appointment of 8 employees. The respondents thereby designed their action in a manner so that petitioners may not get opportunity to appear in the future selections, as directed by the Hon''ble Supreme Court. They filled the post either by way of ad hoc appointment or by regularisation of services of ad hoc appointees and, thereby, on 10.7.1998, they regularised services of 4 employees. In the meanwhile, the State Government issued a direction to abolish 23 posts of LDC thus recruitment so initiated in the year 1998 could not be given effect. The respondents, however, issued an order on 20.2.1999 for appointment of 2 candidates by holding special test thus they flouted the order of the Hon''ble Apex Court. The respondents even extended the period of temporary appointees from time to time so as to avoid new recruitment. The writ petition so preferred by the petitioners in the year 1998 was thereafter dismissed treating it to be infructuous. The petitioners thereafter preferred a Special Appeal bearing No. 62/2000. The said appeal was also dismissed on the ground that the post having been abolished thus no relief can be granted, however, challenge to the process of regularisation was kept open. A liberty was given to make representation for the aforesaid purpose. The petitioners thereafter made a representation on 19.4.2002 but even after reminder, no reply was given thus petitioners preferred this writ petition at that stage.
Learned counsel for petitioners submit that during pendency of the writ petition, directions were given to the respondent university to file affidavit showing as to how many posts exist and status of appointment given from time to time. The respondents filed an affidavit giving statement of facts and figures which are sufficient to show their intention to flout the directions of the Hon''ble Apex Court. It is to deny an opportunity to the petitioners for their appearance in selection on the post of LDC, as directed by the Hon''ble Apex Court.
This court even took suo motu cognizance on an additional affidavit submitted by the then Registrar of the university which was enough to show violation of directions of this court and even making derogatory comments.
The main plea taken by the respondents is absence of sanctioned posts though recommendations have already been sent for its approval.
Learned counsel appearing for the university submitted that in the first litigation initiated by the petitioners, the Hon''ble Apex Court modified the order passed by the Division Bench. A direction for payment of Rs. 15,000/- to each petitioners as ex-gratia compensation was given apart from two chances in future selections without debarring them on the ground of age. The respondent university issued an advertisement in the year 1998 wherein few petitioners applied for their recruitment leaving others. The question of denial of two chances to the petitioners or to avoid direction of the Hon''ble Supreme Court is without any basis.
So far as appointment of ex-servicemen is concerned, it was against 12.5% quota meant for them. Their appointment was made as per recommendations of the selection committee followed by regularisation vide order dated 25.9.1993. The regularisation was made on a decision taken by the Board of Management to incorporate a provision for recruitment of ex-servicemen. The selection of ex-servicemen was thus in accordance with the rules and completed on 27.4.1994. It was before the judgment of the Hon''ble Supreme Court dated 25.10.1994. The fact regarding appointment of 20 candidates was also clarified by stating that it was pursuant to the selection test held in the month of July and August, 1994. It was again before pronouncement of the judgment of the Hon''ble Supreme Court.
In fact, 60 posts were advertised in the year 1993 followed by recruitment test. The university gave appointment to 40 candidates out of the select list keeping appointment on 20 posts in abeyance in view of the pending litigation at the instance of the petitioners. When the Hon''ble Apex Court decided the case modifying the judgment of the Division Bench, respondents issued appointment orders in favour of remaining 20 candidates thus no illegality was committed by the respondents in doing so.
So far as the appointment of 8 employees is concerned, respondents have given justification on the ground that petitioners'' appointment was in the year 1987-88 followed by dismissal of the writ petition on second occasion. 8 employees were appointed in the year 1990 and were working regularly. The management took a decision on 6.12.1995 to provide minimum of the pay scale, however, a condition was imposed on them to face selection process so as to become entitled for increment and regular appointment. The Board of Management then decided to screen those candidates for absorption through special examination. The respondents absorbed 4 candidates out of 8. One Mukesh Mantri was not appointed as LDC but was engaged as Telephone Operator. He was appointed in the year 1994 and continued till the State Government sanctioned the post of Telephone Operator. It is stated that recruitment has unnecessarily been mixed with that of absorption though both are distinct in nature.
The action of the university was always to accommodate the petitioners and, for that purpose only, recommendations have been sent to the State Government to sanction posts but it has not been granted by the State Government thus respondents should not be blamed for flouting the orders of the Hon''ble Apex Court, rather, one contempt petition earlier preferred by the petitioners was even dismissed.
Learned counsel for petitioners have given reference to the detailed rejoinder filed by them to clarify that respondents only made appointment on ad hoc basis and regularised the services subsequent to the judgment of the Hon''ble Supreme Court. It was to avoid selection by the mode provided under the rules. They had given promotion to fill-up posts so that petitioners may not get two chances as directed by the Apex Court.
Learned counsel appearing for the State Government submits that the process for sanction of the post is pending consideration but then the relief claimed by the petitioner has no nexus with the State Government, rather, it is upto the university to reply all the factual grounds raised in the writ petitions.
I have considered rival submissions of learned counsel for the parties and perused the record.
The facts given by the parties are not required to be repeated, however, for brief and reference to the relevant facts, final direction issued by the Hon''ble Apex Court is required to be quoted herein for ready reference-
"In the impugned judgment, directed the reinstatement of the respondents with full back wages.
We have heard learned counsel for the parties. We are of the view that the Division Bench of the High Court was not justified in the facts and circumstances of this case, to re-instate the respondents with full back wages. We set aside the judgment of the learned Single Bench and also of the division Bench of the High Court and grant the following relief to the respondents:-
"i) A lump sum amount of Rs. 15,000/- as ex-gratia compensation be paid to each of the 20 respondents within three months from today:
ii) The respondents shall be permitted to apply for two further selections to be held for the post of LDC or for any equivalent post. They shall not be rejected on the ground of age. Even if they are over-age, they shall be given two successive chances to participate in the selection."
Since the respondents have already worked as LDC with the appellant-University, the Selection Committee shall keep into consideration the fact that they have some experience of working in the University. The appeals are disposed of in the above terms. No costs."
The perusal of the directions quoted above reveals payment of ex-gratia amount of Rs. 15,000/- to each of the petitioners and two successive chances to participate in the selection for the post of LDC or equivalent post without debarring them on the ground of age. The aforesaid judgment was given by the Hon''ble Apex Court on 25.10.1994.
After the judgment, the respondent university gave appointment to 20 candidates vide order dated 12.12.1995. The main allegation of the petitioners is that while new candidates were engaged in the year 1990 and were regularised in the year 1997 apart from promotion on ad hoc basis to carry out work of LDC or equivalent post, effort was to deny opportunity to the petitioners to appear in two successive selections. I find that so far as appointment to 20 candidates is concerned, it is shown to be in reference to the selection held prior to the judgment of the Hon''ble Supreme Court. The university advertised 60 posts but it could filled up 40 posts leaving 20 posts in view of the interim order of the court. Remaining 20 posts were filled when SLP was finally decided in favour of the university. In view of above, appointment of 20 candidates subsequent to the judgment of the Hon''ble Supreme Court cannot said to be illegal or in violation of the direction of the Hon''ble Supreme Court.
However, action of the respondents did not end here only, rather, it is quite shocking inasmuch as after the judgment of the Hon''ble Supreme Court, they continued 8 ad hoc appointees and even granted regular pay scale at its minimum vide order dated 15.12.1995 and even regularised services of 4 candidates vide order dated 29.11.1997. It is by holding special test for them though not provided under the rules. The order dated 29.11.1997 at annexure-5 is illegal not only being in violation of the rules but it is an effort to avoid compliance of the directions of the Hon''ble Apex Court. If the vacancies would not have been filled by illegal method of special test, it could have been advertised so as to fill them in accordance with the rules and it would have been an opportunity to the petitioners to apply for the selection.
The respondents even made appointment in favour of ex-servicemen though no rule or reservation was ever provided for them by the university. The rules as applicable in the State services are not applicable to the university unless so adopted. There is nothing on record to show adoption of the rules for reservation. The respondents even issued order of promotion to the post of UDC but resultant vacancies were not counted in the ratio provided for promotion and recruitment.
An additional affidavit was filed by Mr. P.C. Pankaj giving out details of sanctioned post of LDC and its abolition from time to time. According to him, 67 posts of LDC were abolished from time to time out of 136 sanctioned posts. He has given list of direct recruitees as well as promotees. The perusal of the said list along with the affidavit reveals direct appointment vide order dated 12.12.1995 in favour of 12 candidates. Compassionate appointment was given on 12.11.1996 in favour of a candidate apart from appointment to ex-servicemen vide order dated 4.11.1996. It is followed by recruitment of one Sushila Sharma vide order dated 1.2.1997. Few appointments have been given vide order dated 20.2.1999 based on internal examination followed by compassionate appointment vide order dated 14.12.2004, totalling 65 appointments.
In view of aforesaid, it becomes clear that even after the judgment of the Hon''ble Supreme Court on 25.10.1994, not only 20 appointments were given pursuant to the earlier recruitment but further appointments were given by internal selection test etc. though not provided under the rules.
A counter affidavit was filed to show that Mr. RK Jain and Mr. R.N. Dabola shown to be working on the post of LDC, which is not correct as they are working on the post of UDC since 1998. In the similar manner, Laxmi Narayan Tak is a retired employee but shown to be ex-serviceman. It is also alleged that appointments were made from and amongst the candidates not eligible having crossed the age limit.
Another additional affidavit has been filed by Mr. Pradeep Kumar Purohit to show that the university has already moved for approval and sanction of the posts, however, it is awaited till date. The appointment to Sushila Sharma was given pursuant to the direction of the court dated 6.1.1997. It also indicates 6 vacant posts of LDC as per letter dated 7.4.2012 enclosed along with the affidavit as R/2.
An counter affidavit has been filed by the petitioners reiterating the facts earlier given. It is stated that one of the petitioners namely Anil Kumar Mathur died during pendency of the writ petition. The copy of the proceedings has also been referred to show as to how many vacant posts are lying with the respondent university. The respondents have produced copy of the minutes of the High Power Committee constituted vide order dated 3.12.2012. The committee decided the issues in its meeting held on 25.1.2013. It was found that direct recruitment by way of special test/internal examination was in accordance with the rules. This court thereafter issued directions for an additional affidavit by the Registrar to indicate the rules providing method of recruitment by internal examination. The respondents failed to show any provision for the aforesaid purpose thus tried to mislead the court and, for that purpose, even notices for contempt have been separately issued to the then Registrar of the university.
A detailed written statement on behalf of the university has been given thereafter. It is sufficient to show that respondents either appointed or allowed ad hoc appointments or even made regularisation on various posts of LDC and equivalent posts after the judgment of the Hon''ble Supreme Court, thereby, petitioners could not get two chances in the future selections as it was deliberately avoided by the respondent university. To justify their action, even committee headed by Professor Ramakant gave justification for appointment by internal examination though no rule exist for that purpose.
In view of above, there is not only deliberate disobedience of the directions given by the Hon''ble Supreme Court but they flouted the rules also by making ad hoc appointment of 8 candidates in the year 1990 followed by regularisation of 4 candidates in the year 1997. This is apart from the appointment of ex-servicemen without a provision in that regard.
During pendency of the writ petitions also, Vice-Chancellor was asked to take up the matter at the level of the University to correct the mistake and illegalities. The illegal appointments and regularisation of employees may be withdrawn with advertisement of the posts so as to give two chances to the petitioners as envisaged by the Hon''ble Supreme Court, but no action has been taken, rather, shown helplessness due to objection at the instance of the Registrar.
In view of the above, action of the respondents to fill up posts dehors the rules and even flouting the directions of the Hon''ble Supreme Court cannot said to be legal. Therefore, respondents are directed to recall all the orders of appointments/regularisation so passed after the judgment of the Hon''ble Supreme Court i.e. 25.10.1994 other than appointment of 20 candidates who were earlier recruited but given appointment after the judgment of the Supreme Court. The resultant vacancies may be advertised within two months of the date of receipt of copy of this order with an opportunity to the petitioners to appear therein without debarring them on the ground of age. With the aforesaid directions, the writ petitions so as the stay applications are disposed of.