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SERVICE MATTER, – whether the respondents, who were appointed to the teaching post, namely, Assistant Professors/Lecturers in different subjects and continued as such for more than two decades, would be entitled to get the benefit of pension under the University Pension Regulations, 1990 (for short “the Regulations”) framed by the University of Rajasthan which came into force with effect from 1.1.1990, regard being had to the language employed in Regulation 2 that deals with the scope and application of the Regulations read with Regulations 22 and 23 that stipulates the conditions of qualifying service and the period that is to be counted towards pension in addition to the fact that the University had accepted the contribution to the Pension Fund as defined in Regulation 3(5), despite the stand and stance put forth by the University that the respondents were not regularly appointed to the posts in question in accordance with the provisions contained in Section 3(3) of the Rajasthan Universities’ Teachers and Officers (Selection for Appointment) Act, 1974 (for brevity “the Act”) and, hence, are not entitled to the benefit provided under the Regulations.=The language of Regulation 23 is couched in a different manner. It fundamentally deals with the computation of the period of service of an employee. That apart, Regulation 23(b) uses the words “if he is confirmed”. It is a conditional one and it relates to officiating services. Both the concepts have their own significance in service jurisprudence. The respondents were not in the officiating service and by no stretch of imagination, they could have been treated to be confirmed because the words “if he is confirmed” required an affirmative fact to be done by the University. The High Court, as we find, has applied the doctrine of deemed confirmation to the case at hand which is impermissible. In this context, we may, with profit, refer to the decision in Head Master, Lawrence School, Lovedale v. Jayanthi Raghu and another[11] wherein it has been ruled thus: – “A confirmation, as is demonstrable from the language employed in the Rule, does not occur with efflux of time. As it is hedged by a condition, an affirmative or positive act is the requisite by the employer. In our considered opinion, an order of confirmation is required to be passed.”- Consequently, the appeals are allowed and the orders passed by the High Court are set aside. However, if any amount has been paid on any count to any of the respondents in the appeals pursuant to the orders passed by the High Court, the same shall not be recovered on any count. There shall be no order as to costs.

IN THE SUPREME COURT OF INDIA

University of Rajasthan

University of Rajasthan (Photo credit: Wikipedia)

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 919 OF 2013
(Arising out of S.L.P. (C) No. 35974 of 2011)
University of Rajasthan and another … Appellants

Versus

Prem Lata Agarwal …Respondent
With

CIVIL APPEAL NO. 920 OF 2013
(Arising out of S.L.P. (C) No. 7156 of 2012)
University of Rajasthan and another … Appellants

Versus

Dr. (Mrs.) Vijaya Kabra …Respondent

With

CIVIL APPEAL NO. 921 OF 2013
(Arising out of S.L.P. (C) No. 33969 of 2011)
University of Rajasthan and another … Appellants

Versus

Dr. Janki D. Moorjani …Respondent
With

CIVIL APPEAL NO. 922 OF 2013
(Arising out of S.L.P. (C) No. 18020 of 2012)

University of Rajasthan … Appellant

Versus

Dr. B.K. Joshi …Respondent

With

CIVIL APPEAL NO. 923 OF 2013
(Arising out of S.L.P. (C) No. 20637 of 2012)
University of Rajasthan and another … Appellants

Versus

Dr. M.C. Goyal …Respondent

 

 

 
J U D G M E N T
Dipak Misra, J.

 

Leave granted in all the special leave petitions.
2. The controversy that arises for consideration in this batch of appeals
is whether the respondents, who were appointed to the teaching post,
namely, Assistant Professors/Lecturers in different subjects and
continued as such for more than two decades, would be entitled to get
the benefit of pension under the University Pension Regulations, 1990
(for short “the Regulations”) framed by the University of Rajasthan
which came into force with effect from 1.1.1990, regard being had to
the language employed in Regulation 2 that deals with the scope and
application of the Regulations read with Regulations 22 and 23 that
stipulates the conditions of qualifying service and the period that is
to be counted towards pension in addition to the fact that the
University had accepted the contribution to the Pension Fund as
defined in Regulation 3(5), despite the stand and stance put forth by
the University that the respondents were not regularly appointed to
the posts in question in accordance with the provisions contained in
Section 3(3) of the Rajasthan Universities’ Teachers and Officers
(Selection for Appointment) Act, 1974 (for brevity “the Act”) and,
hence, are not entitled to the benefit provided under the Regulations.

3. Be it noted, as the main judgment was rendered in the case of Prem
Lata Agarwal, we shall refer to the facts adumbrated therein.
However, the initial dates of appointment and the dates of
superannuation in case of every respondent as the same would be
relevant in the course of delineation of the lis in question are
stated herein. Prem Lata Agarwal, Vijaya Kabra, Janki D. Moorjani,
B.K. Joshi and M.C. Goyal, the respondents herein, were appointed on
5.1.1981, 22.8.1984, 20.8.1985, 16.5.1978 and 5.8.1983 and stood
superannuated on 31.3.2001, 31.8.2007, 30.6.2007, 31.1.2002 and
30.11.2007 respectively. Respondent-Prem Lata Agarwal and some others
were appointed vide Office Order dated 5.1.1981 by the Vice-Chancellor
in exercise of power vested in him for making the stop gap arrangement
under Section 3(3) of the Act as Assistant Professors (Lecturers) in
the subject of Chemistry. It was clearly mentioned in the letter of
appointment that it was ad hoc in nature and it would continue upto
the last working day of the current academic session or till further
orders, whichever was earlier. The respondent and others were allowed
to continue on the basis of the appointment letters issued from time
to time. It may be noted that their services were terminated every
year and fresh appointment orders were issued. In this manner, the
respondent was allowed to continue upto 31.7.1988.

4. At that juncture, the ad hoc teachers had invoked the jurisdiction of
the High Court seeking a mandamus for the regularization of the
services but such a relief was declined. S.L.P. No. 18993 of 1991 was
preferred wherein two questions were raised, namely, (i) whether a
lecturer duly selected by the selection committee for being appointed
temporarily should automatically be confirmed on the post which he was
holding for the past 7 years on temporary basis after being selected
by a duly constituted selection committee under the provisions of the
Act and approved by the syndicate of the university; and (ii) whether
apart from the considerations of selection by the selection committee,
did a lecturer teaching for the past 7 years acquire a right to
continue on that post. This Court vide order dated 20th April, 1992,
dismissed the said special leave petition. Though the special leave
petition was dismissed and their right to be regularized was not
accepted by this Court, yet they continued in service as the orders of
termination could not be implemented. It is worth noticing that
another petition by ad hoc appointees was filed in 1985 before the
High Court wherein they claimed equal pay on the foundation of parity
with the regularly appointed Assistant Lecturers. The High Court,
vide order dated 1.3.1986, passed the following order:-

“Consequently, this special appeal is allowed and the order dated
8.03.1995 passed by the learned Single Judge is hereby set aside
and accordingly it is declared that the appellants who have been
appointed on honorarium basis to cover the uncovered load of the
respective departments are entitled to the salary equivalent to
the minimum of the pay scale of the regularly appointed lecturer
of the Rajasthan University from today. The respondents are also
restrained from discontinuing services of the appellants till
regular appointments to the post of lecturers are made in
accordance with law. The respondents shall be at liberty to
assign the work to the appellants, which is assigned to the
regularly appointed lecturers.”

 

5. The university, being grieved by the aforesaid order, preferred
Special Leave Petition No. 13 of 1998 and number of S.L.Ps. wherein
this Court passed the following order:-

“The special leave petitions are dismissed. It is clarified that
the continuation of the respondents shall be only till regular
selections are made and it is upto the University to take
expeditious steps for making regular selections.”

 

6. In view of the aforesaid order, the teachers were paid salary
equivalent to the minimum pay scale of regularly appointed teachers
and continued in service due to various orders of the High Court
passed from time to time. The university, despite its best efforts,
could not obtain the permission of the State Government to fill up the
vacant posts on regular basis as various litigations were continuing
in the Court at various stages as a consequence of which the
respondent and her likes continued in service.

7. It is apt to note here that the university brought the regulations
which came into force with effect from 1.1.1990. After the
regulations came into force, the respondent gave her option for the
purpose of availing the benefit of pension and, thereafter, there was
deduction from her salary in view of the postulates in the regulations
till her date of retirement, i.e., 31.3.2001.

8. It is pertinent to mention here that the Rajasthan Universities’
Teachers (Absorption of Temporary Teachers) Ordinance, 2008 (3 of
2008) was made and promulgated by the Governor with a purpose of
providing absorption of temporary teachers of long standing, working
in the universities of Rajasthan. After the said regulations came
into existence on 12th June, 2008, the respondent preferred Writ
Petition No. 2740 of 2010 putting forth the grievance that pensionary
benefits had been denied to her after retirement. The learned Single
Judge referred to the regulations and took note of the fact that she
had continued in service for a period of 20 years and her option for
grant of pension was accepted by the university and pursuant to such
acceptance they deposited their contribution and, hence, the
university was estopped to take a somersault the stand that she was
not entitled to receive pension under the Regulations of 1990. That
apart, the learned single Judge opined that the nature of her
appointment could not be treated as ad hoc and temporary, regard being
had to the length of service. Being of this view, he allowed the writ
petition and directed the pensionary benefits be extended to her
within a period of three months after completing the formalities.

 

9. Being grieved by the aforesaid order, the university preferred Special
Appeal (Writ) No. 292 of 2011. The Division Bench, after adverting to
the facts and referring to various regulations and the provisions of
the Act, came to hold that the action of the university was wholly
unjustified and arbitrary. The said conclusion of the Division Bench
was founded on the base that there was default on the part of the
university in not appointing even a single person in the service of
the universities of Rajasthan in a regular manner for a long period;
that the university had invited the teachers to give their option and
they deposited their contribution in the C.P.F. in the pension scheme;
that the appointments of the teachers were not in contravention of the
provisions of the Act; and that they were deemed to be confirmed in
view of the provisions contained in Regulation 23 of the Regulations.
After arriving at the said conclusions, the Division Bench adverted to
the issue whether the teachers were entitled for the pensionary
benefits in terms of the regulations and eventually, interpreting the
regulations and placing reliance on the authorities in S.B. Patwardhan
and another v. State of Maharashtra and others[1], D.S. Nakara and
others v. Union of India and others[2] and paragraph 53 of the
pronouncement in Secretary, State of Karnataka and others v. Uma Devi
(3) and others[3], came to hold that the appointments were made
following due procedure of law and further the teachers, having been
appointed in the cadre of substantive posts, could not be denied the
pensionary benefits under the regulations. Being grieved, the
University is in appeal by way of Special Leave Petitions.

10. We have heard Mr. Manoj Swarup, learned counsel for the appellants,
Mr. S.K. Keshote, learned senior counsel for the respondents in Civil
Appeals arising out Special Leave Petitions (C) Nos. 35974 of 2011 and
18020 of 2012, Dr. Manish Singhvi, learned Additional Advocate General
for the State, and Mr. Sushil Kumar Jain, learned counsel for the
respondents in Civil Appeals arising out Special Leave Petitions (C)
Nos. 33969 of 2011 and 20637 of 2012.

11. Before we proceed to scrutinize the defensibility of the judgment of
the High Court, it is apposite to survey the scheme of the Act and the
regulations. Section 3(3) of the Act, as it stood at the relevant
time, being of immense signification, is reproduced in entirety
hereinbelow: –

“3. Restrictions on appointments of teachers and officers. –
(1) Notwithstanding any thing contained in the relevant law, as
from the commencement of this Act, no teacher and no officer in
any university in Rajasthan shall be appointed except on the
recommendations of the Selection Committee constituted under
Section 4.

2. Save as otherwise provided in sub-section (3), every
appointment of a teacher or of an officer in any University made
in contravention of sub-section (1) shall be null and void.

3. Nothing herein contained shall apply to the appointment of
a teacher or an officer as a stop-gap arrangement for a period
not exceeding one year or to the appointment of a part-time
teacher or of a teacher or officer in the pay scale lower than
that of Lecturer or Assistant Registrar respectively.

Explanation: The expression “appointed” in sub-section (1) shall
mean appointed initially and not appointed by way of promotion.”

 

12. Section 4 at the relevant time pertained to the constitution of
Selection Committees. It read as follows:-

“4. Constitution of selection committees. – (1) For every
selection of a teacher or of an officer in a University, there
shall be constituted a committee consisting of the following: –

(i) Vice-Chancellor of the University concerned, who shall be
the Chairman of the committee;

(ii) an eminent educationist to be nominated by the Chancellor
for a period of one year;

(iii) an eminent educationist to be nominated by the State
Government for a period of one year;

(iv) one member of the Syndicate to be nominated by the State
Government for a period of one year; and

(v) such other persons as members specified in column 2 of the
Schedule for the selection of the teachers and officers
mentioned in column 1 thereof:

Provided that where the appointment of a teacher is to be made
in the faculty of agriculture in any University or in any
University-College imparting instruction of guiding
research in agriculture there shall be one more expert to
be nominated by the Syndicate out of a panel of names
recommended by the Indian Council of Agriculture Research:

Provided further that the Selection Committee for teaching posts
in the faculty of engineering and technology shall also
include an expert to be nominated by the Syndicate out of a
panel of names recommended by the All India Council of
Technical Education.

 
(2) The eminent educationists nominated under clause (ii) and
clause (iii) of sub-section (1) and the member of the Syndicate
nominated under clause (iv) of the said sub-section shall be
members of every Selection Committee constituted during the
course of one year from the date of his nomination:

Provided that the member for a Selection Committee
nominated under clauses (ii), (iii) or (iv) of sub-section (1)
shall continue to be the member of every Selection Committee
even after the expiry of his term until a fresh nomination is
made by the Chancellor or, as the case may be, by the State
Government subject, however, that fresh nomination of such
member for Selection Committee shall be made within a period not
exceeding three months from the date of expiry of his term.

(3) No person shall be eligible to be nominated as an expert
on any Selection Committee in any one year if he has been a
member of any two Selection Committees during the course of the
same year.”

 

13. Section 5 of the Act at the time of appointment dealt with the
procedure of Selection Committee. It was as follows: –

“5. Procedure of Selection Committee – (1) The Syndicate of
the University concerned shall prescribe, by rules, the quorum
required for the meeting of a selection committee required to be
constituted under section 4 which shall not be less than one-
half of the members of each selection committee.

(2). The selection committee shall make its recommendations to
the Syndicate. If the Syndicate disapproves the recommendations
of the selection committee, the Vice-Chancellor of the
University concerned shall submit such recommendations alongwith
reasons for disapproval given by the syndicate to the Chancellor
for his consideration and the decision of the chancellor thereon
shall be final.

(3) Every selection committee shall be bound by the
qualifications laid down in the relevant law of the University
concerned for the post of a teacher or, as the case may be, of
an officer.”

 

14. We may note with profit that the 1974 Act was amended by Act No. 24 of
1976 and Act No. 18 of 1984 and afterwards, many insertions were made.
We have reproduced the provisions after the 1976 Act was brought into
existence. Section 4 which dealt with the constitution of selection
committee was renumbered by Act No. 18 of 1984 as Section 5 and
Section 5 which dealt with the procedure of selection committee was
amended by Act No. 9 of 1977 and Act No. 18 of 1984 and was renumbered
as Section 6. Certain amendments were carried out in the said
provision by which the quorum required for the selection committee was
changed and sub-section (4) was added on 15.11.1984. For proper
appreciation, we reproduce the said sub-section (4): –

“(4) The Selection Committee, while making its recommendations
to the Syndicate under sub-section (2) shall prepare a list of
candidates selected by it in order of merit and shall further
prepare a reserve list in the same order and to the extent of
50% of the vacancies in the posts of teachers or officers for
which the Selection Committee was constituted under sub-section
(1) of Section 5 and shall forward the main list in the reserve
list along with its recommendations to the Syndicate.”

 

15. Presently, we shall refer to the relevant regulations. Regulation 2
that deals with the scope and application reads as follows:-

“Reg. 2 : Scope and Application :

i) These regulations shall 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.
4 for exercising option. In 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.”

 

Thus, from the aforesaid, it is quite clear that the regulations are
only applicable to the persons who have been regularly appointed and do not
take in its sweep the persons employed on contract or part-time basis and
purely temporary and daily wages staff.

16. Regulation 3(5) defines ‘pension fund’. It is as follows:-

“Reg. 3(5) “Pension Fund” means the fund created for the 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 thereon 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.”

 

 
17. Regulation 4 deals with the exercise of option. The relevant part of
the said regulation is reproduced below:-

“Reg. 4 : Exercise of Option :

All existing employees who were in service on 1.1.1990 shall have
to exercise their option in writing, either for the pension
scheme under these regulations or for continuance under the
existing C.P.F. Scheme, within 3 months from the date of
notification of these regulations and shall submit the same to
the Comptroller of Finance/Finance Officer in the prescribed
form.”

 

18. Be it noted, though there are three provisos to regulation 4, yet the
same need not be referred to as they are not necessary for the
adjudication of the present case.

19. Regulation 22 provides for calculation of qualifying service. It
reads as follows:-

“Reg. 22 : Conditions of Qualifying Service:

The service of an employee does not qualify for pension
unless it conforms to 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.”
20. Regulation 23 which has been taken aid of by the High Court to confer
the benefit of pension on the respondent is as follows: –

“Reg. 23:

a) The service of an employee transferred from a temporary to
permanent post shall be counted, if the post was at first
created experimentally or temporarily.

b) The officiating services of an employee, without a
substantive appointment, in a post which is vacant or the
permanent incumbent of which does not draw any part of the
pay or count service, shall be counted if he is confirmed
without interruption in his service.”

 

21. Regulation 47 provides for creation of the pension fund. It is as
under:-

“Reg 47 : Creation of the Pension Fund :

In case of all such employees who opt for the 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 1st January 1990 will
be transferred to the pension fund created under these regulations.
Thereafter, 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.”

 

22. On a studied scrutiny, it is found that the High Court has placed
reliance on Section 3(3) of the Act and the regulations which we have
reproduced hereinabove to arrive at the conclusion that the
respondents were entitled to be treated as regular teachers and,
therefore, it was obligatory on the part of the University to extend
the benefit of pension. The provisions of the Act, when read in a
conjoint manner, make it crystal clear that the legislature had
imposed restrictions on the appointment, provided for the constitution
of Selection Committee and also laid down the procedure of the said
committees. The intention of the legislature is, as it seems to us,
to have teachers appointed on the basis of merit, regard being had to
transparency, fairness, impartiality and total objectivity. Under sub-
section (2), it has been clearly postulated that any appointment made
barring the arrangement under sub-section (3) of Section 3 would be
null and void. The language is clear and categorical. The exception
that had been carved out under Section 3(3) is for an extremely
limited purpose. It permits stop-gap arrangements and only covers ad
hoc or part-time teachers with a small duration. It is intended to
serve the purpose of meeting the situation where an emergency occurs.
It was never intended to clothe any authority with the power to make
any appointment beyond what is prescribed therein. The scheme of the
aforesaid provisions go a long way to show that the legislature, in
fact, had taken immense care to see that no one gets a back door entry
and the selections are made in a seemly manner. A proper schematic
analysis of the provisions enumerated hereinabove do not envisage any
kind of ad hoc appointment or part-time appointment to remain in
continuance. As is demonstrable from the factual depiction in the
present batch of cases, some of the respondents continued with certain
breaks and also due to intervention of the court. That apart, this
Court had not acceded to their prayer of regularization. The only
direction that was issued in Special Leave Petition (c) No. 3238 of
1997 and other connected matters, was that they would continue in
service till the regular selections were made. It is noteworthy that
a distinction has to be made and we are obliged to do so because of
the language employed in the provisions between a regular teacher and
an ad hoc teacher or a part-time teacher who continues to work in the
post sometimes due to fortuitous circumstances and sometimes due to
the interdiction by the court. Their initial appointment could be
regarded as legal for the limited purposes of Section 3(3) of the Act.
That would only protect the period fixed therein. Thereafter, they
could not have been allowed to continue, as it was only a stop gap
arrangement and was bound to be so under the statutory scheme. Their
continuance thereafter by operation of law has to be regarded as null
and void regard being had to the language employed in Section 3(2) of
the Act.

23. Be it stated, the High Court has placed reliance on Section 3(3) to
come to the conclusion that as they were appointed legally, they are
entitled to be regularized in terms of paragraph 53 of the
pronouncement in Uma Devi (supra). Before we proceed to deal with the
question whether the protection granted to certain employees in
paragraph 53 in Uma Devi (supra) would be applicable to the present
case or not, we think it appropriate to refer to certain authorities
in the field.

24. In University of Kashmir and others v. Dr. Mohd. Yasin and others[4],
the question arose whether the continuance of a lecturer made in
violation of the ordinance of the university would confer any right on
him solely on the ground that he had de facto continued subsequent to
the statutory cessation of office and whether the principle of implied
employment could be attracted. The Court, after referring to the
powers and duties and the canalisation by the statutory body like the
University, came to hold that when the selection committee had not
considered or recommended the respondent therein for appointment and
there was no suggestion that the university council appointed the
respondent to the post of Professor, regard being had to the said fact
situation, the ad hoc arrangement by which the respondent therein
remained to teach did not acquire any legal validity because the Vice-
Chancellor went through the irregular exercise of extending his period
of probation. We think it apt to quote an instructive passage from
the said judgment: –

“When a statute creates a body and vests it with authority and
circumscribes its powers by specifying limitations, the doctrine
of implied engagement de hors the provisions and powers under the
Act would be subversive of the statutory scheme regarding
appointments of officers and cannot be countenanced by the Court.
Power in this case has been vested in the University Council only
and the manner of its exercise has been carefully regulated.
Therefore, the appointment of the respondent could be made only
by the Council and only in the mode prescribed by the statute. If
a Vice-Chancellor by administrative drift allows such employment
it cannot be validated on any theory of factum valet. We cannot
countenance the alleged continuance of the respondent in the
University campus as tantamount to regular service under the
University with the sanction of law. In short, the respondent has
no presentable case against the direction to quit.”

 

25. In Anuradha Mukherjee (Smt) and others v. Union of India and
others[5], this Court, while dealing with the issue of seniority,
opined that when an employee is appointed de hors the Rules, he cannot
get seniority from the date of his initial appointment but from the
date on which he is actually selected and appointed in accordance with
the Rules.

26. In State of Haryana v. Haryana Veterinary & AHTS Association and
another[6], while dealing with the issue of regular service under the
Haryana Service of Engineers, Class II, Public Works Department
(Irrigation Branch) Rules, 1970, a three-Judge Bench observed that
under the Scheme of the said Rules, the service rendered on ad hoc
basis or stop-gap arrangement could not be held to be regular service
for grant of revised scale of pay.

27. In R.S. Garg v. State of U.P. and others[7], while dealing with the
concept of recruitment, this Court has categorically laid down that
the expression “recruitment” would mean recruitment in accordance with
the Rules and not dehors the same and if an appointment is made dehors
the Rules, it is not an appointment in the eye of law.

28. Coming back to the decision in Uma Devi (supra), the Constitution
Bench, after survey of all the decisions in the field relating to
recruitment process and the claim for regularization, in paragraph 43,
has held that consistent with the scheme for public employment, it is
the duty of the court to necessarily hold that unless the appointment
is in terms of the relevant rules, the same would not confer any right
on the appointee. The Bench further proceeded to state that merely
because a temporary employee or a casual wage worker is continued for
a time beyond the term of his appointment, he would not be entitled to
be absorbed in regular service or made permanent, merely on the
strength of such continuance, if the original appointment was not made
by following a due process of selection as envisaged by the relevant
rules. After so stating, it has been further ruled that merely
because an employee had continued under cover of an order of the
court, he would not be entitled to any right to be absorbed or made
permanent in service.

29. It is worthy to note that while repelling the contention pertaining to
the legitimate expectation of a person to be regularized, the Court
held that when a person enters a temporary employment or gets
engagement as a contractual or casual worker and the engagement is not
based on a proper selection as recognized by the relevant rules or
procedure, he is aware of the consequences of the appointment being
temporary, casual or contractual in nature. Such a person cannot
invoke the theory of legitimate expectation for being confirmed in the
post when an appointment to the post could be made only by following a
proper procedure.

30. The Court, eventually, in paragraph 53, issued certain directions
relating to regularization of irregular appointments. We think it apt
to reproduce the relevant part from the said paragraph: –

“One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained
in State of Mysore v. S.V. Narayanappa[8], R.N. Nanjundappa v.
T. Thimmiah[9] and B.N. Nagarajan v. State of Karnataka[10] and
referred to in para 15 above, of duly qualified persons in duly
sanctioned vacant posts might have been made and the employees
have continued to work for ten years or more but without the
intervention of orders of the courts or of tribunals. The
question of regularisation of the services of such employees may
have to be considered on merits in the light of the principles
settled by this Court in the cases abovereferred to and in the
light of this judgment. In that context, the Union of India, the
State Governments and their instrumentalities should take steps
to regularise as a one-time measure, the services of such
irregularly appointed, who have worked for ten years or more in
duly sanctioned posts but not under cover of orders of the
courts or of tribunals and should further ensure that regular
recruitments are undertaken to fill those vacant sanctioned
posts that require to be filled up, in cases where temporary
employees or daily wagers are being now employed.”

 

31. To appreciate what has been stated in the said paragraph, it is
imperative to refer to paragraph 15 of the judgment wherein it has
been held thus: –

“Even at the threshold, it is necessary to keep in mind the
distinction between regularisation and conferment of permanence
in service jurisprudence. In State of Mysore v. S.V. Narayanappa
this Court stated that it was a misconception to consider that
regularisation meant permanence. In R.N. Nanjundappa v. T.
Thimmiah this Court dealt with an argument that regularisation
would mean conferring the quality of permanence on the
appointment. This Court stated: (SCC pp. 416-17, para 26)

“Counsel on behalf of the respondent contended that
regularisation would mean conferring the quality of
permanence on the appointment whereas counsel on behalf of
the State contended that regularisation did not mean
permanence but that it was a case of regularisation of the
rules under Article 309. Both the contentions are
fallacious. If the appointment itself is in infraction of
the rules or if it is in violation of the provisions of the
Constitution illegality cannot be regularised. Ratification
or regularisation is possible of an act which is within the
power and province of the authority but there has been some
non-compliance with procedure or manner which does not go
to the root of the appointment. Regularisation cannot be
said to be a mode of recruitment. To accede to such a
proposition would be to introduce a new head of appointment
in defiance of rules or it may have the effect of setting
at naught the rules”.”

 

32. From the aforesaid delineation, it is quite vivid that the
Constitution Bench made a distinction between an illegal appointment
and an irregular appointment and for the said purpose, as noted above,
reliance was placed on the earlier decision in T. Thimmiah (supra)
which makes a distinction between the power of ratification which is
possible within the power of the authority and some non-compliance
with the procedure or the manner which does not go to the root of the
appointment.

33. We have already analysed the scheme of Section 3 and stated that there
could not have been continuance of the service after the fixed
duration as provided under Section 3(3) of the Act and such
continuance is to be treated as null and void. That is how the Act
operates in the field. That apart, regular selection was required to
be made by a High Powered Committee as provided under Section 4. It
is also pertinent to state that the Act lays down the procedure of the
selection committee not leaving it to any authority to provide the
same by rules or regulations.

34. In view of the aforesaid, the irresistible conclusion is that the
continuance after the fixed duration goes to the root of the matter.
That apart, the teachers were allowed to continue under certain
compelling circumstances and by interdiction by courts. Quite apart
from the above, this Court had categorically declined to accede to the
prayer for regularization. In such a situation, we are afraid that
the reliance placed by the High Court on paragraph 53 of the
pronouncement in Uma Devi (supra) can be said to be justified. In
this regard, another aspect, though an ancillary one, may be worth
noting. Prem Lata Agarwal and B.K. Joshi had retired on 31.3.2001 and
31.1.2002, and by no stretch of imagination, Uma Devi (supra) lays
down that the cases of any category of appointees who had retired
could be regularized. We may repeat at the cost of repetition that
the protection carved out in paragraph 53 in Uma Devi (supra) could
not be extended to the respondents basically for three reasons,
namely, (i) that the continuance of appointment after the fixed
duration was null and void by operation of law; (ii) that the
respondent continued in the post by intervention of the court; and
(iii) that this Court had declined to regularize their services in
1998.

35. Though we have dealt with the statutory scheme, yet as the High Court
has heavily relied on various regulations to extend the benefit, we
think it seemly to advert to the approach of the High Court to find
out whether it has appositely appreciated the purpose and purport of
the regulations. The High Court, as is manifest from the orders, has
made a distinction between a permanent employee and purely temporary
appointee and observed that the services of the respondent could not
be termed to be purely temporary or daily wages. In that context, it
has referred to Regulation 22 which uses the words “regularly
appointed employee”. We may reproduce the said part of the
ratiocination:-

 
“Regulation 2(ii) is applicable to all existing employees except
the persons appointed on contract or part time basis; persons on
deputation; purely temporary and daily wages staff; and re-
employed pensioners. The case of the petitioners is not covered
under any of the aforesaid four categories. Even otherwise, it
cannot be said that appointments of the petitioners were made as
stop gap arrangements. They have continued for more than two
decades and therefore, they cannot in any manner be termed as
“purely temporary”. Also the word “purely temporary” contained
in regulation 2(ii)(c) is used in company with daily wages staff
and there is distinction in concept of purely temporary and
temporary as provided in regulation 2 and 22 of the pension
scheme purely temporary is not covered whereas temporary or
officiating appointment is covered under the purview of the
pension regulation.”

 

 
36. The aforesaid analysis, according to us, is not correct inasmuch as
the regulations do not take in their sweep an employee who is not
regularly appointed. The distinction between temporary and purely
temporary, as made by the High Court, does not commend acceptance as
there is an inherent fallacy in the same inasmuch as Regulation 2(i)
clearly provides “regularly appointed to the service of the
University” which has been reiterated in Regulation 22. In fact, as
we perceive, the High Court has proceeded on the basis that their
services have to be treated as regular. Once it is not regular
service, the infrastructure collapses as a consequence of which the
superstructure is bound to founder and, hence, the distinction made by
the High Court is flawed.

37. The High Court, as has been stated earlier, has pressed into service
Regulation 23 and relying on the same, it has held that the services
of the respondents shall be deemed to have been confirmed as in the
instant cases the University has never opined that their services were
not satisfactory. The language of Regulation 23 is couched in a
different manner. It fundamentally deals with the computation of the
period of service of an employee. That apart, Regulation 23(b) uses
the words “if he is confirmed”. It is a conditional one and it
relates to officiating services. Both the concepts have their own
significance in service jurisprudence. The respondents were not in
the officiating service and by no stretch of imagination, they could
have been treated to be confirmed because the words “if he is
confirmed” required an affirmative fact to be done by the University.
The High Court, as we find, has applied the doctrine of deemed
confirmation to the case at hand which is impermissible. In this
context, we may, with profit, refer to the decision in Head Master,
Lawrence School, Lovedale v. Jayanthi Raghu and another[11] wherein it
has been ruled thus: –

 

“A confirmation, as is demonstrable from the language employed
in the Rule, does not occur with efflux of time. As it is
hedged by a condition, an affirmative or positive act is the
requisite by the employer. In our considered opinion, an order
of confirmation is required to be passed.”

 

 

Thus analyzed, the conclusion of the High Court which also rests on
the interpretation of the regulations does not commend acceptation.

38. Consequently, the appeals are allowed and the orders passed by the
High Court are set aside. However, if any amount has been paid on any
count to any of the respondents in the appeals pursuant to the orders
passed by the High Court, the same shall not be recovered on any
count. There shall be no order as to costs.
……………………………….J.
[K. S. Radhakrishnan]

 

……………………………….J.
[Dipak Misra]
New Delhi;
February 05, 2013

———————–
[1] AIR 1977 SC 2051
[2] (1983) 1 SCC 305
[3] (2006) 4 SCC 1
[4] (1974) 3 SCC 546
[5] (1996) 9 SCC 59
[6] (2000) 8 SCC 4
[7] (2006) 6 SCC 430
[8] (1967) 1 SCR 128
[9] (1972) 1 SCC 409
[10] (1979) 4 SCC 507
[11] (2012) 4 SCC 793

———————–
32

 

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