1. Whether (i) period spent in engagement on honorarium by the petitioners prior to their appointment by absorption under the Government Orders dated 6.6.2014 and 2.5.2016, is liable to be counted in their length of service for all consequential benefits including promotion?, and (ii) the condition no. 4 of the Government Order dated 6.6.2014 under which petitioners got appointment is liable to be quashed?
2. Heard Sri Vivek Saran, learned counsel for the petitioners and Sri Manish Goyal, learned Additional Advocate General assisted by Sri Anil Pandey, learned standing counsel for the respondents.
Facts
3. The petitioners who have been appointed by absorption under the Government Order dated 6.6.2014 as an exception to the normal rule of appointments have filed, this writ petition praying for the following reliefs:-
"1. Issue any other writ, order or direction in the nature of certiorari quashing the condition no. 4 of the Government Order dated 6.6.2014 and condition no. 4 of the Government Order dated 2.5.2016 (Annexure Nos. 3 & 4).
2. Issue any other writ, order or direction in the nature of mandamus commanding the respondent no. 2 to count the past service rendered by the petitioners on ad-hoc/honorarium basis and grant all consequential benefits including promotion and monetary, as and when they falls due."
(emphasis supplied) Submissions
4. Learned counsel for the petitioners submits that the condition no. 4 is arbitrary, and therefore, it deserves to be struck off.
5. Learned Additional Advocate General submits that the petitioners got their absorption under the aforesaid Government Orders. They cannot be permitted to accept the aforesaid Government Orders for absorption and at the same time pray to struck off its condition no. 4. He further submits that the absorption is subject to the condition mentioned in the aforesaid Government Orders dated 6.6.2014 and 2.5.2016. It is not permissible for the petitioners to accept some of the conditions which he find favourable to them and to pray for striking off the other condition which he feels unfavourable to him. In support of his submissions, he relied upon the judgment of Hon'ble Supreme Court in Zila Dastavej Lekhak Association & another Vs. State of U.P. & others (1996) 8 SCC 441 (paras 3 & 4) and judgment of this Court in Suresh Chandra Vs. State of U.P. & others (2014) 7 ADJ 721 (paras 54, 55 & 56).
Discussing & Finding
6. I have carefully considered the submissions of learned counsel for the parties.
7. Briefly stated facts of the present case are that according to the petitioners, they were engaged in non-government aided degree colleges under Government Order dated 07.04.1998 on honorarium of Rs. 100/- per lecture subject to maximum of Rs.5000/- in a month. Section 31-E of The Uttar Pradesh Higher Education Services Commission Act, 1980( herein after referred to as the Act, 1980) was amended by U.P. Act No.22 of 2014 w.e.f. 26.05.2014 which enabled the management at the instance of the Director to offer appointments as teachers to persons engaged on honorarium basis subject to the provisions of Sections 12 and 13 of the Act, 1980, if there is substantive vacancy. Sub-section (4) of Section 31-E provides that teachers so appointed shall be entitled to get his salary as teachers, from the date, he joins the post in pursuance of such letter of appointment. In view of the aforesaid amended Section 31-E, the State Government issued Government Order dated 6.6.2014 for absorption subject to certain conditions. The petitioners accepted the conditions and obtained appointment as teachers subject to final decision in Writ Petition Petition No. 22349 of 2016 pending in High Court and some matters of absorption pending in Supreme Court. Their appointment letters provide for one year probation period.
8. After appointments on the post of teacher on accepting the conditions of absorption under the aforesaid Government Order dated 6.6.2014, the petitioners have now challenged one of the condition of their absorption i.e. the condition no. 4 which provides that the services of the teachers / petitioners shall be counted from the date of absorption and period of earlier engagement on honorarium basis shall not be counted in length of service for computation of post retiral benefits.
9. The Government Order dated 6.6.2014 and 2.5.2016 for absorption are reproduced below:-
(a) Government Order dated 6.6.2014:-
mi;qDr fo"k; ds laca/k esa voxr djkuk gS fd 'kklukns'k la[;k&[email protected]&2&98&3¼19½@93 Vhlh] fnukad 7-4-1998 esa fofgr 'krksZ ,oa izfrcU/kks ds v/khu v'kkldh; lgk;rk izkIr Lukrd ,o LukrdksRrj egkfo|ky;ksa esa f'k{kdks ds fjDr inks ij fuf'pr ekuns; ds vk/kkj ij f'k{kdks dh j[ks tkus dh O;oLFkk dh xbZ FkhA mDr 'kklukns'k ds v/khu fu;qDr ekuns; f'k{kdks ds vkesyu gsrq m0iz0 mPprj f'k{kk lsok vk;ksx vf/kfu;e] 1980 ;Fkkla'kksf/kr ¼r`rh; la'kks/ku½ vf/kfu;e 2006 esa /kkjk&31 bZ tksM+h xbZ] ftlesa dfri; 'krksZ ,oa izfrcU/kks ds v/khu vkesyu dh O;oLFkk dh xbZ gSA vkesyu ds fy, inks dh miyC/krk lqfuf'pr djus gsrq m0iz0 mPprj f'k{kk lsok vk;ksx ¼la'kks/ku½ v/;kns'k] 2014 iz[;kfir fd;k x;k] ftlds }kjk mDr vf/kfu;e 2006 dh /kkjk 31 bZ ds izLrj&1 esa 'kCn ^^Hkjk ugh tk ldrk gS^^ ds LFkku ij 'kCn ^^Hkjk ugh tk ldk^^ fd;k x;k gSA 2& vr,o ekuns; f'k{kdks ds vkesyu fo"k;d m0iz0 mPprj f'k{kk lsok vk;ksx vf/kfu;e] 1980 ;Fkkla'kksf/kr ¼r`rh; la'kks/ku½ vf/kfu;e 2006 rFkk m0iz0 mPprj f'k{kk lsok vk;ksx ¼la'kks/ku½ 2014 ¼m0iz0 v/;kns'k la[;k&3 lu~ 2014½ dh Nk;k izfr layXu dj izsf"kr djrs gq, eq>s ;g dgus dk funsZ'k gqvk gS fd d`i;k vf/kfu;e ,oa v/;ns'k esa fo+|eku O;oLFkkuqlkj ekuns; f'k{kdks ds vkesyu ds laca/k esa vko';d dk;Zokgh 'kh"kZ izkFkfedrk ij fuEukafdr 'krksZa ,oa izfrcU/kks ds v/khu djkus dk d"V djs%& ¼1½ mUgh ekuns; f'k{kdks dk vkeysu fd;k tk;sxk] ftudk p;u miyC/k fjfDr ,oa vuqeksfnr in ij fof/k vuq:i fd;k x;k gksA ¼2½ ekuns; f'k{kd ;w0th0lh0 }kjk fu/kkZfjr vgZrk;sa iw.kZ djrs gksA ¼3½ vkesyu] vkns'k fuxZr gksus dh frfFk ls izHkkoh gksxh rFkk vkesyu ij mPprj f'k{kk lsok vk;ksx dh laLrqfr Hkh izkIr dh tk;sxhA ¼4½ bu f'k{kdks dh vf/kdkjh lsok vkesyu dh frfFk ls vkadh tk;sxh] iwoZ lsok] tks ekuns; ds vk/kkj ij gS] dks lsokfuo`fRrd ykHkksa ds fy, vgZdkjh ugh ekuk tk;sxkA ¼5½ Hkfo"; esa fdlh izdkj dh ekuns;@rnFkZ fu;qfDr ugh dh tk;sxhA ¼6½ d`i;k mDrkuqlkj vko';d dk;Zokgh djkrs gq, d`r dk;Zokgh ls rRdky 'kklu dks voxr djkus dk d"V djsA**
(b) Government Order dated 2.5.2016:-
la[;k&[email protected]@[email protected]&2&2016&3¼19½@1993 Vh-lh-AA fo"k;&v'kkldh; lgk;rk izkIr Lukrd ,oa LukrdksRrj egkfo|ky;ksa esa f'k{kdksa ds fjDr inksa ij fuf'pr ekuns; ds vk/kkj ij dk;Z dj jgs ekuns; f'k{kdkas dk vkesyuA egksn;] mi;qZDr fo"k;d vius i= la[;k fMxzh vFkZ&1 ¼fo0fu0½ @03 @ 2016&17] fnukad 13-04-2016 dk d`i;k lanHkZ xzg.k djus dk d"V djsa] ftlesa ;g voxr djk;k x;k gS fd fjV ;kfpdk la[;k&[email protected] Mk0 ftrsUnz dqekj o 09 vU; cuke m0iz0 ljdkj o 02 vU; ekeys esa ek0 mPp U;k;ky;] bykgkckn }kjk fnukad 06-04-2016 dks fuEuor~ vkns'k ikfjr fd;s x;s gS%& The attention of the Court has been drawn to the fact that by a gazette notification dated 26 December 2014, publised on 26 December 2014, the Uttar Pradesh Higher Education Services Commission (Amendment) Act, 2014 was notified and was deemed to have come into force on 26 May 2014. By and as a result of Section 3(1), the the Uttar Pradesh Higher Education Services Commission (Amendment) ordinance, 2014 has been repealed.
Since the relief which has been sought in the petition is to challenge the Uttar Pradesh Higher Education Services Commission (Amendment) ordinance,2014 which has since been repealed.
The petition has been rendered infructuous. The challenge to the order of the Special Secretary dated 6 June 2014 will not survive since that is only for implementation of the Ordinance, 2014 which has since been repealed.
The petition is, accordingly, dismissed. Interim order shall, in consequence, stand vacated. There shall be no order as to costs.
2``& bl lac/k esa eq>s ;g dgus dk funs'k gqvk gS fd m0iz0 mPprj f'k{kk lsok vk;ksx vf/kfu;e]1980 ¼;Fkkla'kksf/kr½ vf/kfu;e] 2006 dh /kkjk&31&bZ ,oa m0iz0 mPprj f'k{kk lsok vk;ksx ¼la'kks/ku½ vf/kfu;e] 2014 ¼m0iz0 vf/kfu;e la[;k& 22 lu~ 2014 vf/klwpuk fnukad 26-12-2014½ esa fo|eku O;oLFkkuqlkj ekuns; f'k{kdksa ds vkesyu ds laca/k esa vko';d dk;Zokgh 'kh"kZ izkFkfedrk ij fuEukafdr 'krksZa ,oa izfrcU/kksa ds v/khu djkus dk d"V djsa%& ¼1½ mUgha ekuns; f'k{kdksa dk vkesyu fd;k tk;sxk] ftudk p;u miyC/k fjfDr ,oa vuqeksfnr in ij fof/k vuq:i fd;k x;k gksA ¼2½ ekuns; f'k{kd ;w0th0lh0 }kjk fu/kkZfjr vgZrk;sa iw.kZ djrs gksA ¼3½ vkesyu] vkns'k fuxZr gksus gksus dh frfFk ls izHkkoh gksxk rFkk vkesyu ij mPprj f'k{kk lsok vk;ksx dh laLrqfr Hkh izkIr dh tk;sxhA ¼4½ bu f'k{kdksa dh vgZdkjh lsok vkesyu dh frfFk ls vkadh tk;sxh] iwoZ lsok] tks ekuns; ds vk/kkj ij gS] dks lsokfuo`fRrd ykHkksa ds fy, vgZdkjh ugha ekuk tk;sxkA ¼5½ Hkfo"; esa fdlh izdkj dh ekuns;@rnFkZ fu;qfDr ugha dh tk;sxhA**
10. Section 31-E of the Act, 1980 as amended by the U.P. Act No. 22 of 2014 w.e.f. 26.5.2014 is the enabling provision for absorption which is reproduced below:-
"31-E. Absorption of teacher on honorarium. (1) Subject to the provisions contained in Sections 12 and 13, if any vacancy exists, which could not be filled under the provisions of said sections, a teacher on honorarium shall be absorbed in the manner prescribed under sub section (2) , who is working in grant-in-aid college, possessing educational qualifications determined by the State Government, receiving honorarium, thereby working for a minimum period of three academic sessions and has been working till the date of commencement of the Uttar Pradesh Higher Education Services Commission (Third Amendment) Act 2006 (2) Where any substantive vacancy in the post of a teacher in a grant-in-aid college is to be filled by direct recruitment, such post shall, at the instance of the Director, be offered by the management to teacher on honorarium referred to in sub-section (1).
(3) Where any teacher on honorarium who has been offered appointment in accordance with the provisions of sub-section (2) fails to join the post within the time allowed, which shall not be less than fifteen days, his further claim shall cease automatically.
Explanation.- For the purposes of this section -
"teacher on honorarium" means a person working in grant-in-aid college and is engaged in teaching a course of study and receiving payment from the Funds of State aid on a fixed honorarium appointed on a contractual basis with the prior approval of the Director.
(4) Where the Management fails to offer any post to a teacher on honorarium in accordance with the provisions of sub-section (2) within the time specified by the Director, the Director, may himself issue the letter of appointment to such teacher on honorarium and the teacher on honorarium concerned shall be entitled to get his salary as teacher, from the date, he joins the post in pursuance of such letter of appointment."
(emphasis supplied)
11. In terms of the provisions of Section 31-E of the Act, 1980 and Government Order dated 6.6.2014, the Director (Higher Education), U.P., Allahabad issued orders recommending the respective degree colleges to offer appointment to petitioners. One such letter of the Director dated 18.5.2017 is reproduced below:-
^^izs"kd] f'k{kk funs'kd ¼mPp f'k{kk½ m0iz0] f'k{kk fMxzh vFkZ&1 ¼fofu;ferhdj.k½ bykgkcknA lsok esa] izcU/[email protected];Z egkjktk cyoUr flag ih0th0 dkyst] xaxkiqj] okjk.klhA i=kad fMxzh vFkZ&1¼fofu½@ @2017&2018 nukad 18&05&2017 fo"k;%& m0iz0 v/;kns'k la[;k&42 lu~ 2006 fnukad 28 fnlEcj] 2006 }kjk m0iz0 mPprj f'k{kk lsok vk;ksx vf/kfu;e 1980 dh /kkjk 31³ ds LFkku ij izfrikfnr /kkjk,a 31³¼1½] ¼2½] ¼3½ ,ao ¼4½ rFkk rRlEcU/kh la'kksf/kr vf/kfu;e&2014 ds vUrZxr v'kkldh; lgk;rk izkIr Lukrd ,ao LukrdksRrj egkfo|ky;ksa esa f'k{kdksa ds fjDr inksa ij fuf'pr ekuns; ds vk/kkj ij dk;Z dj jgs ekuns; f'k{kdksa dsa vkesyu ds lEcu/k esaA egksn;] m0iz v/;kns'k la[;k&42 lu~ 2006 fnukad 28 fnlEcj] 2006 }kjk m0iz0 mPprj f'k{kk lsok vk;ksx vf/kfu;e 1980 esa izfrikfnr /kkjk 31³ ¼1½] ¼2½] ¼3½ rFkk ¼4½ rFkk rRlEcU/kh la'kksf/kr vf/kfu;e&2014 ds v/khu vkids egkfo|ky; esa 'kklukns'k fnukad 07-04-1998 esa fu/kkZfjr U;wure 'kSf{kd vgZrk ,ao of.kZr O;oLFkk ds vUrxZr fu;qDr fuf'pr ekuns; ds vk/kkj ij dk;Z dj jgs ekuns; f'k{kd dks vkesyu djus gsrq laLrqr djus ds izdj.kksa ij egkfo|ky; ,ao {ks=h; mPp f'k{kk vf/kdkjh }kjk izLrqr ,ao vxzlkfjr fd;s x;s izekf.kd vfHkys[k ds vk/kkj ij mijksDr v/;kns'k ds dze esa fuxZr 'kklukns'k la[;k [email protected] lRrj&2& 2014&3 ¼19½@1993 Vhlh&II fnukad 06-06-2014] ,ao 'kklukns'k la[;&[email protected] @ [email protected] lRrj&2& 2016&3¼19½ 1993 Vhlh&II fnukad 02 ebZ] 2016 esa mfYyf[kr 05 '[email protected]/kksa ds n`f"Vxr rFkk rRlEcU/kh 'kklukns'k la[;k&[email protected]@[email protected]&2&2016&3¼19½@93 Vhlh&II fnukad 30 vxLr] 2016 ,ao 'kklukns'k la[;k&oh0vk0ih0&[email protected] lRrj&2&2016&3¼19½@93 Vhlh fnukad 05 fnlEcj] 2016 ds n`f"Vxr fopkj fd;k x;kA 2& miyC/k vfHkys[kksa ds vk/kkj ij vkids egkfo|ky; esa MkW0 fot; dqekj] ekuns; izoDrk&bfrgkl] txriqj ih0th0 dkyst] okjk.klh dks izLrj 03 esa mfYyf[kr in ds izfr v/;kns'k esa fufnZ"V izfrcU/kksa ds v/khu rkRdkfyd izHkko ls vkesyu gsrq laLrqfr dh tkrh gSA 3& MkW0 xksfoUn nso feJ ds lsokfuo`fRr ls gqbZ fjfDrA 4& vkesyu dh ;g laLrqfr ek0 mPp U;k;ky;] bykgkckn }kjk fjV ;kfpdk la[;k& [email protected] esa ikfjr vkns'k fnukad 27&05&2016 ds vuqikyu esa dh tk jgh gS rFkk ekuns; f'k{kd dk vkesyu ek0 mPp U;k;y; }kjk mDr ;kfpdk esa ikfjr vfUre fu.kZ; ds v/khu gksxkA 6& ekuns; f'k{kdksa dh vgZdkjh lsok vkesyu dh frfFk ls ekuh tk;sxhA 7& bl lEcU/k esa ;g Hkh Li"V fd;k tkrk gS fd ekuns; f'k{kd ds vkesyu dh ;g laLrqfr vH;FkhZ] izkpk;Z ,ao izcU/kd rFkk {ks=h; mPp f'k{kk vf/kdkjh }kjk mPp f'k{kk funs'kky; dks izLrqr vfHkys[kksa ds vk/kkj ij dh x;h gSA vr% ;fn fdlh Lrj ij vfHkys[kksa esa =qfV ik;h tkrh gS vFkok dksbZ ?kks"k.kk vlR; gksrh gS rks mldk mRrjnkf;Ro ;FkkfLFkfr rRlEcU/kh vH;[email protected];[email protected]/kd dh gksxh rFkk vkesyu dks vfHk'kwU; dj fn;k tk;sxkA 8& vkesfyr gksus okys f'k{kd 'klkukns'k fnukad 07&04&1998 esa nh x;h 'kS{kf.kd vgZrk ,ao vU; 'krksZa dks iw.kZ djrk gks ;g lqfuf'pr dj fy;k tk,A vkesfyr f'k{kd ds osru dk vkgj.k rc rd u fd;k tk, tcrd fd muds 'kSf{kd vfHkys[kksa dk lEcfU/kr 'kSf{kd laLFkkvksa ls lR;kiu izkIr u gks tk,A 9& ;fn vkesfyr izoDrk fu;qfDr i= fuxZr gksus ds 15 fnuksa ds vUnj dk;ZHkkj xzg.k ugha djrk gS rks mudk vkesyu fujLr ekuk tk,xkA uksV%& ekuns; f'k{kdksa dk ;g vkesyu vkns'k ;kfpdk la[;k&[email protected] ¼MkW0 nhukukFk o 07 vU; cuke mRRj izns'k jkT; o vU;½ ,ao ekuns; vkesyu ls lEcfU/kr ek0 loksZPp U;k;ky;@ek0 mPp U;k;ky; esa yfEcr vU; ;kfpdkvksa ds v/khu gksxkA ek0 U;k;ky; ds fdlh vU;Fkk vkns'k ij ;g vkesyu Lor% vfHk'kwU; gks tk;sxkA Hkonh;
MkW0 ¼vkj0ih0 flag½ f'k{kk funs'kd¼m0f'k0½ m0iz0] bykgkckn**
12. Thereafter the management offered appointment to petitioners under the Government Orders dated 6.6.2014 and 2.5.2016 which the petitioners voluntarily accepted. Consequently, they were appointed by absorption subject to conditions as provided in the aforequoted Government Orders dated 6.6.2014 and 2.5.2016. Now, by the present writ petition, they are challenging condition no. 4 of the aforequoted Government Orders dated 6.6.2014 and 2.5.2016 under which they came to be appointed.
13. In brief, normal procedure for recruitment under Sections 12 & 13 of the Act, 1980, is that management shall intimate vacancies to the Director in the manner prescribed, who shall notify it to the Commission in the prescribed manner. The Commission shall hold written examination and interview of the candidates and thereafter send a list to the Director recommending such candidates found most suitable in each subject in order of merit. Thereafter, the Director shall intimate to the management the name of candidate from the list for appointment in such vacancy by the management. Procedure for selection of teachers has been prescribed in the Uttar Pradesh Higher Education Services Commissions (Procedure for Selection of Teachers) Regulations, 2014 framed under Section 31 of the Act, 1980.
14 The aforequoted recommendation for absorption of the petitioners was made by the Director pursuant to the order dated 26.5.2016 in Writ-C No. 22349 of 2016 (Dr. Deena Nath Yadav & 7 others Vs. State of U.P. & 2 others) passed by the Division Bench in which the judgment dated 4.4.2008 in Writ-A No. 5210 of 2007 (Anurag Tripathi & another Vs. State of U.P. & others) was referred and it was held that the petitioners are part time teachers. The operative portion of the order dated 27.5.2016 in Dr. Deena Nath Yadav's case (supra) is reproduced below:-
"Considering the facts that this Court, while questioning the vires of the Ordinance had granted an interim order and, in order to balance the equity, we direct the respondents that they may proceed with the absorption of part time teachers on such vacancies, which have not been notified and advertised by the Commission upto the date of issuance of the Amending Act, 2014."
(emphasis supplied)
15. The operative portion of the order of the Division Bench in Anurag Tripathi's case (supra) is reproduced below:-
"All the writ petitions are accordingly disposed of with the following directions :
(a) Part-time teachers appointed under the Government Order dated 17.04.1998 would continue to function as such till regularly selected candidates recommended by the commission joins, or in terms of the final judgement of the Hon'ble Supreme Court in Special Leave Petition (Civil) No. 84 of 2004 whichever is earlier.
(b) Such Part-time teachers shall be entitled to the payment at the rate provided for under the Government Order on per lecture basis subject to the maximum prescribed, they were not entitled to salary at par with regular Lectures.
(c) Absorption under Section 31-E of the Commission's Act shall not be effected in favour of any part -time teacher till the Hon'ble Supreme Court considers and decide the Special Leave Petition (Civil) No.84 of 2004.
(d) Absorption,if any, of part-time teachers under Section 31-E of the Act subsequent to the judgement of the Hon'ble Supreme court (if it is decided in favour of part-time teachers) would be considered against such substantive vacancies which had not been advertised by the commission till the enforcement of the Act No.46 of 2006.
(e) The director of Higher Education shall ensure that all existing vacancies are requisitioned by the Management /Principal of the recognized affiliated and aided Degree College within the time specified above and the commission in turn shall ensure that regular selection are made against the said vacancies within one year from the date the requisition is received after following the procedure prescribed. The Director shall direct placement of the selected candidates immediately thereafter. There should be no complaint to this court that selections could not be made by the commission because of absence of Chairman/other member/other facilities being not made available by the state."
(emphasis supplied)
16. Thus, it has always been the case of the absorbed honorarium persons that they were part time teachers on honorarium.
17. In para 38 of the writ petition, the petitioners have alleged to have moved a representation dated 25.9.2018 before the respondent no. 1, a copy of which has been filed as Annexure No. 21 in which, they have now alleged that their period of engagement on honorarium is to be counted in their length of service in terms of Clause 10.1(f) of the U.G.C. Regulation 2010 which is reproduced below:-
"(f) The previous appointment was not as guest lecturer for any duration, or an adhoc or in a leave vacancy of less than one year duration. Adhoc or temporary service of more than one year duration can be counted provided that:
(i) the period of service was of more than one year duration;
(ii) the incumbent was appointed on the recommendation of duly constituted Selection Committee; and
(iii) the incumbent was selected to the permanent post in continuation to the adhoc or temporary service, without any break."
(emphasis supplied)
18. Perusal of the aforesaid clause shows that it is applicable only to adhoc and temporary appointees which fall under a different class than the persons / petitioners who were engaged by the management on honorarium basis per lecture as permitted by Government Order dated 7.4.1998. These engagements were made without recommendation of any duly constituted Selection Committee under the Act, 1980 as also evident from clauses 6, 7 & 8 of the Government Order dated 7.4.1998. Their engagement was not as whole timer but as part timer on honorarium per lecture @ Rs. 100/- subject to maximum honorarium of Rs. 5,000/- in a month.
19. In University of Rajasthan & another Vs. Prem Lata Agrawal (2013) 3 SCC 705 (paras 1, 9, 10, 11, 30, 31 & 44) considered the question of qualifying length of service for pension to the teacher engaged on honorarium who under orders of the Court started getting salary equivalent to minimum pay scale of regularly appointed Lecturers, and held as under:-
"1. Leave granted in all the special leave petitions. 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.
9. 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.
10. 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.
11. 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 Vs. State of Maharashtra (1977) 3 SCC 399 and D.S. Nakara Vs. Union of India (1983) 1 SCC 305 and paragraph 53 of the pronouncement in State of Karnataka Vs. Umadevi (2006) 4 SCC 1, 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.
30. In Anuradha Mukherjee (Smt.) & others Vs. Union of India & others (1996) 9 SCC 59, 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.
31. In State of Haryana Vs. Haryana Veterinary & AHTS Association and another (2000) 8 SCC 4 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.
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."
(emphasis supplied)
20. In Union of India & others Vs. K.G. Radhakrishna Panickar & others (1998) 5 SCC 111 (paras 2, 12 & 13), Hon'ble Supreme Court considered similar question and held as under:-
"2. These appeals raise the question whether employees who were initially engaged as Project Casual Labour by the Railway Administration and were subsequently absorbed on a regular temporary/permanent post are entitled to have the services rendered as Project Casual Labour prior to 1.1.1981 counted as part of qualifying service for the purpose of pension and other retiral benefits.
12. In its judgment dated 8-2-1991 the Tribunal had held that exclusion of period of service rendered as Project Casual Labour before they were regularly absorbed prior to 1.1.1981 results in such employees being discriminated as compared to Project Casual Labour who were employed subsequently and whose service as Project Casual Labour prior to absorption is counted for the purpose of qualifying service. The said finding of the Tribunal is based on the decision of this Court in D.S. Nakara. In this regard, it may be stated that the Tribunal was in error in invoking the principle laid down in D.S. Nakara in the present case. The decision in D.S. Nakara has been considered by this court in subsequent decisions and it has been laid down that the principle laid down in D.S. Nakara can have application only in those cases where there is discrimination in the matter of existing benefit between similar set of employees and the said principle has no application where a new benefit is being conferred with effect form a particular date. In such a case the conferment of the benefit with effect from a particular dated cannot be held to be violative of Article 14 of the Constitution on the basis that such a benefit has been conferred of certain categories of employees on the basis of particular date. [See: Krishena Kumar Vs. Union of India & others (1990) 4 SCC 207, State of W.B. Vs. Ratan Behari Dey (1993) 4 SCC 62 and State of Rajasthan Vs. Sevanivatra Karamchari Hitkari Samiti (1995) 2 SCC 117.] In the present case, the benefit of counting of service prior to regular empowerment as qualifying service was not available to casual labour. The said benefit was granted to Open Line Casual Labour for the first time under order dated October 14, 1980 since Open Line Casual Labour could be treated as temporary on completion of six months' period of continuous service which period was subsequently reduced to 120 days under Para 2501
(b) (i) of the Manual. As regards Project Casual Labour this benefit of being treated as temporary became available only with effect from 1.1.1981 under the scheme which was accepted by this court in Inder Pal Yadav. Before the acceptance of that scheme the benefit of temporary status was not available to project Casual Labour. It was thus a new benefit which was conferred on Project Casual Labour under the scheme as approved by this court in Inder Pal Yadav and on the basis of this new benefit project casual Labour became entitled to count half of the Service rendered as Project Casual Labour on the basis of the order dated October 14, 1980 after being treated as temporary on the basis of the scheme as accepted in Inder Pal Yadav. We are, therefore, unable to uphold the judgment of the Tribunal dated February 8, 1991 when it holds that service rendered as Project Casual Labour by employees who were absorbed on regular permanent/temporary posts prior to 1.1.1981 should be counted for the purpose of retiral benefits and the said judgment as well as the judgment in which the said judgment has been followed have to be set aside. The judgements in which the Tribunal has taken a contrary view have to be affirmed.
13. In the result, the appeals filed by the Railway Administration are allowed and the judgments of the Tribunal impugned in these appeals are set aside. The Appeals arising out of Special Leave Petitions (C) Nos. 26790 of 1995 and 3423 of 1997 filed by the employees are dismissed. No order as to costs."
Estoppel:
21. It is settled law that a person cannot challenge the very source i.e. Statute, Rules or the Government Orders under which he was appointed. That apart, the appointment of the petitioner by absorption is an exception to the normal Rule of Appointment in Government service which includes reservation also. Therefore, they cannot be allowed to challenge that condition of their appointment by absorption which they find unfavourable to them while retaining the favourable part. The very source under which they came to be appointed, either survives or perishes.
22. The petitioners have elected to accept their appointments by absorption under the aforequoted Government Orders dated 6.6.2014 and 2.5.2016. Their appointment is based on the doctrine of election which is Rule of estoppel which postulates that no party can accept and reject the same instrument and that 'a person cannot say at one time that a transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid and then turn round and say that it is void for the purpose of securing some other advantage.'
23. As per Halsbury's Laws of England (4th Edition) Vol. 16 (Paragraph 1508), after taking an advantage under an order a party may be precluded from saying that it is invalid and asking to set it aside.
24. In the case of Joint Action Committee of Air Line Pilots' Association of India (ALPAI) and others v. Director General of Civil Aviation and others, (2001) 5 SCC 435 (Paragraph-12), Hon'ble Supreme Court referred to its earlier judgments in the case of Babu Ram alias Durga Prasad v. Indra Pal Singh, 1998(6) SCC 358, P.R. Deshpande v. Maruti Balaram Haibatti, 1998(6) SCC 507 and Mumbai International Airport Private Limited v. Golden Chariot Airport and another, 2010 (10) SCC 422 and held that the doctrine of election is based on the rule of estoppel. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity. By that rule, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had.
25. In the case of Cauvery Coffee Traders, Mangalore v. Hornor Resources (International Company Limited), (2011) 10 SCC 420 (Paragraph 34), Hon'ble Supreme Court referred to its decision in the case of Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593, CIT v. V. MR.P. Firm Muar AIR 1965 SC 1216, NTPC Ltd. v. Reshmi constructions, Builders & Contractors, (2004) 2 SCC 663, Ramesh Chandra Sankla v. Vikram Cement (2008)14 SCC 58 and Pradeep Oil Corpn. v. MCD (2011) 5 SCC 270 and held that a party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract or conveyance or an order, he is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.
26. In the case of V. Chandrasekaran and another v. Administrative Officer and others, (2012) 12 SCC 133, Hon'ble Supreme Court followed the law laid down in the case of Cauvery Coffee Traders, Mangalore (supra).
27. In the case of Rajasthan State Industrial Development and Investment Corporation and another v. Diamond & Gem Development Corporation Limited and another (2013) 5 SCC 470, Hon'ble Supeme Court again reiterated the law laid down in the case of Cauvery Coffee Traders, Mangalore (supra) and held in paragraph 23 as under :
"A party cannot claim anything more than what is covered by the terms of contract, for the reason that contract is a transaction between the two parties and has been entered into with open eyes and understanding the nature of contract. Thus, contract being a creature of an agreement between two or more parties, has to be interpreted giving literal meanings unless, there is some ambiguity therein. The contract is to be interpreted giving the actual meaning to the words contained in the contract and it is not permissible for the court to make a new contract, however reasonable, if the parties have not made it themselves. It is to be interpreted in such a way that its terms may not be varied. The contract has to be interpreted without any outside aid. The terms of the contract have to be construed strictly without altering the nature of the contract, as it may affect the interest of either of the parties adversely".
(emphasis supplied)
28. In the case of State of Punjab and others v. Dhanjit Singh Sandhu (2014) 15 SCC 144 (Paragraph Nos. 21, 22, 23, 24, 25 and 26) Hon'ble Supreme Court reiterated the law laid down in its earlier decisions in the case of CIT v. MR. P. Firm Muar, AIR 1965 SC 1216, Maharashtra SRTC v. Balwant Regular Motor Service, AIR 1969 SC 329; R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683 (Paragraph 10) ; P.R. Deshpande v. Maruti Balaram Haibatti, (1998) 6 SCC 507 and held that defaulting allottees cannot be allowed to approbate and reprobate by first agreeing to abide by the terms and conditions of allotment and later seeking to deny their liability as per the agreed terms. The doctrine of "approbate and reprobate" is only a species of estoppel. It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and he derived the benefit out of it, he cannot challenge it on any ground.
29. In Zila Dastavej Lekhak Association & another Vs. State of U.P. & others (1996) AIR 2107 (paragraph 3), the Hon'ble Supreme Court held that the petitioners who obtained license under the Rules, cannot challenge the Rules under which they came to operate. The very source under which they came to operate either survives or perishes under the Rules. They cannot challenge that part of Rules which is unfavourable to them while at the same time, respecting the favorable part thereof since they have no independent right to de-hors the Rules.
30. The petitioners have voluntarily elected to accept the offer their appointment as teacher by absorption under Section 31-E(2) read with the aforequoted Government Order dated 6.6.2014 as an exception to the normal rule of appointment provided in Sections 12 and 13 of the Act, 1980. Therefore, cannot be permitted to challenge condition no. 4 of the Government Order. Their appointment is based on doctrine of election which is the Rule of estoppel or a Rule of equity. They cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". They have knowingly, willfully and with open eyes accepted the benefits of their appointment by absorption under the aforequoted Government Orders dated 6.6.2014 and 2.5.2016 as an exception to the normal rule of public employment and Sections 12 and 13 of the Act, 1980 resulting in a contract of service. Therefore, they cannot question the validity or binding effect of the aforesaid Government Orders.
Rules of Absorption
31. In Secretary, State of Karnataka Vs. Uma Devi (2006) 4 SCC 1 (paras 3 & 4), the Constitution Bench of Hon'ble Supreme Court laid down the law that regular appointment must be the rule. But sometimes this process is not adhered and the constitutional scheme of public employment is by-passed. A class of employment which can only be called "litigious employment", has risen like a phoenix seriously impairing the constitutional scheme. Whether the wide power under Article 226 of the Constitution of India is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution, has to be seriously pondered over. It is time, that the Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. In paragraphs 5 & 6 of the aforesaid judgment in the case of Umadevi (supra), Hon'ble Supreme Court has held as under:-
"5. This Court has also on occasions issued directions which could not be said to be consistent with the Constitutional scheme of public employment. Such directions are issued presumably on the basis of equitable considerations or individualization of justice. The question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin, has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the Constitution and not to make directions, which at times, even if do not run counter to the Constitutional scheme, certainly tend to water down the Constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution Bench.
6. The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily (See Basu's Shorter Constitution of India). Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That Article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedure which specify the necessary qualifications, the mode of appointment etc. If rules have been made under Article309 of the Constitution, then the Government can make appointments only in accordance with the rules. The State is meant to be a model employer. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was enacted to ensure equal opportunity for employment seekers. Though this Act may not oblige an employer to employ only those persons who have been sponsored by employment exchanges, it places an obligation on the employer to notify the vacancies that may arise in the various departments and for filling up of those vacancies, based on a procedure. Normally, statutory rules are framed under the authority of law governing employment. It is recognized that no government order, notification or circular can be substituted for the statutory rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the Constitutional scheme. It may even amount to negating the accepted service jurisprudence. Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed."
(emphasis supplied)
32. In Pratap Kishore Panda & others Vs. Agni Charan Das & others (2015) 17 SCC 789 (para 17), Hon'ble Supreme Court referred to the law laid down by the Constitution Bench in Umadevi (supra) and held that the doctrine is that if employment of persons is contrary to or de-hors the statutory provisions and / or Rules and Regulations, then equities will not have any play even if such persons have been rendering services for service years. The most that can be done for such employees is for the State Government to devise a scheme, as a one time measure, for their absorption so long as the Governing Statute or the Rules and Regulations are not infringed.
33. In State of U.P. Vs. Anand Kumar Yadav (2018) 13 SCC 560, the Hon'ble Supreme Court summarised the principles of rule of equity in public employment and Articles 14 & 16 of the Constitution of India.
34. In Brij Mohan Lal Vs. Union of India & others (2012) 6 SCC 502 (paras 172 & 173), the Hon'ble Supreme Court held that absorption in service is not a right.
35. In Indu Shekhar Singh & others Vs. State of U.P. & others (2006) 8 SCC 129 (para 26), the Hon'ble Supreme Court referred to its earlier judgment in R.N. Gosain Vs. Yashpal Dhir (1992) (4) SCC 683, Ramankutti Guptan Vs. Avara (1994) 2 SCC 642 and Bank of India & others Vs. O.P. Swarnakar & others (2003) 2 SCC 721 and held that once person exercises his right of option and obtain entry in service on the basis of election, he cannot be allowed to turn round that the conditions are illegal. Further more, there is no fundamental right in regard to counting of the services rendered in an autonomous body. The past services can be taken into consideration only when the Rules permit the same or where a special situation exits, which would entitle the employee to obtain such benefit of past service. The aforesaid judgment in the case of Indu Shekhar Singh (supra) involved the controversy with regard to availability of benefit of past service rendered prior to absorption of deputitionist.
36. In the case of Mrigank Johari & others Vs. Union of India (2017) 8 SCC 256 (para 33), the Hon'ble Supreme Court has held that since the appellants accepted the terms and conditions of the absorption, they could not plead otherwise.
37. In Union of India Vs Onkar Chand (1988) 9 SCC 298 (para 12), the Hon'ble Supreme Court while considering the benefit of length of service on deputation before absorption and held that opting permanent absorption, a person cannot claim benefits of absorption as well as the service put in time in the deputation quota.
38. In Union of India & others Vs. K Savitri & others (1998) 4 SCC 358 (paragraph 9), the Hon'ble Supreme Court held as under:-
"The service conditions of the redeployed employees under the Rules being governed by the provisions in the rules as well as the instructions issued from the Government of India from time to time and in view of the clear unambiguous language in para 11.1 of the instructions referred to above the conclusion is irresistible that the past services of the redeployed staff cannot be counted for seniority in the new organisation. The Tribunal, therefore, committed serious error in directing that the past services would counted for the seniority of the employees in the All India Radio."
(emphasis supplied)
39. Principles of law on public employment as discussed in paras 31 to 38 above leaves no manner of doubt that regular employment must be a rule. The power of the State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitation. But some times, this process is not adhered and constitutional scheme of public employment is by-passed as happened in the present case. Such employment is called "litigious employment". Brief history of litigation of the part time teachers on honorarium / petitioners have been briefly noted by the Division Bench in the order dated 27.5.2016 in the case of Dr. Deena Nath Yadav & 7 others (supra). The Government Order dated 6.6.2014 and amended Section 31-E of the Act, 1980 is a one time measure for absorption. Absorption in public employment is not a right. It is an exception to the normal rule of public employment. It is subject to conditions of absorption. Once the petitioners have knowingly and with open eyes exercised the option for their absorption in public employment, they cannot turn round and say that condition no. 4 is arbitrary. Past service as part time teacher on honorarium prior to absorption cannot be added in their length of service in the absence of any constitutional or legal right.
40. Discussion made above, leaves no manner of doubt that petitioners engagement was neither adhoc nor temporary. They were part timer. They have been recruited not under normal rule of recruitment but as an exception to it in terms of Government Order dated 6.6.2014 subject to conditions specified therein. Thus, petitioners have no constitutional or statutory right for inclusion in their length service the period spent on engagement on honorarium basis per lecture, prior to entering in government service by appointment under the Government Orders dated 6.6.2014 and 2.5.2016. Thus in the absence of any legally protected or judicially enforceable subsisting right the petitioners are not entitled for mandamus. Their challenge to condition no. 4 of the Government Orders dated 6.6.2014 and 2.5.2016 is not only totally merit-less but also not permissible. It is also hit by principles of approbate and reprobate. The condition no. 4 of the Government Orders dated 6.6.2014 and 2.5.2016 is neither invalid nor it is permissible for the petitioners to challenge it.
Conclusion:
41. The conclusions reached above are briefly summarised as under:-
(i) Clause 10.1(f) of the U.G.C. Regulation 2010 is applicable only to adhoc and temporary appointees which fall under a different class than the persons / petitioners who were engaged by the management on honorarium basis per lecture as permitted by Government Order dated 7.4.1998. These engagements were made without recommendation of any duly constituted Selection Committee under the Act, 1980 as also evident from clauses 6, 7 & 8 of the Government Order dated 7.4.1998. Their engagement was not as whole timer but as part timer on honorarium but per lecture @ Rs. 100/- subject to maximum honorarium of Rs. 5,000/- in a month.
(ii) It is settled law that a person cannot challenge the very source i.e. Statute, Rules or the Government Orders under which he was appointed. That apart, the appointment of the petitioner by absorption is an exception to the general Rule of Appointment in Government service which includes reservation also. Therefore, they cannot be allowed to challenge that condition of their appointment by absorption which they find unfavourable to them while retaining the favourable part. The very source under which they came to be appointed, either survives or perishes.
(iii) The petitioners have elected to accept their appointments by absorption under the aforequoted Government Orders dated 6.6.2014 and 2.5.2016. Their appointment is based on the doctrine of election which is Rule of estoppel which postulates that no party can accept and reject the same instrument and that 'a person cannot say at one time that a transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid and then turn round and say that it is void for the purpose of securing some other advantage.'
(iv) The petitioners have voluntarily elected to accept the offer their appointment as teacher by absorption under Section 31-E(2) read with the aforequoted Government Order dated 6.6.2014 as an exception to the normal rule of appointment provided in Sections 12 and 13 of the Act, 1980. Therefore, cannot be permitted to challenge condition no. 4 of the Government Order. Their appointment is based on doctrine of election which is the Rule of estoppel or a Rule of equity. They cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". They have knowingly, willfully and with open eyes accepted the benefits of their appointment by absorption under the aforequoted Government Orders dated 6.6.2014 and 2.5.2016 as an exception to the normal rule of public employment and Sections 12 and 13 of the Act, 1980 resulting in a contract of service. Therefore, they cannot question the validity or binding effect of the aforesaid Government Orders.
(v) Petitioners' engagement was neither adhoc nor temporary. They were part timer. They have been recruited not under normal rule of recruitment but as an exception to it in terms of Government Order dated 6.6.2014 subject to conditions specified therein. Thus, petitioners have no constitutional or statutory right for inclusion in their length service the period spent on engagement on honorarium basis per lecture, prior to entering in government service by appointment under the Government Orders dated 6.6.2014 and 2.5.2016. In the absence of any legally protected or judicially enforceable subsisting right the petitioners are not entitled for mandamus. Their challenge to condition no. 4 of the Government Orders dated 6.6.2014 and 2.5.2016 is not only totally merit-less but also not permissible. It is also hit by principles of approbate and reprobate. The condition no. 4 of the Government Orders dated 6.6.2014 and 2.5.2016 is neither invalid nor it is permissible for the petitioners to challenge it.
(vi) Principles of law on public employment as discussed in paras 31 to 38 above leaves no manner of doubt that regular employment must be a rule. The power of the State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitation. But some times, this process is not adhered and constitutional scheme of public employment is by-passed as happened in the present case. Such employment is called "litigious employment". Brief history of litigation of the part time teachers on honorarium / petitioners have been briefly noted by the Division Bench in the order dated 27.5.2016 in the case of Dr. Deena Nath Yadav & 7 others (supra). The Government Order dated 6.6.2014 and amended Section 31-E of the Act, 1980 is a one time measure for absorption. Absorption in public employment is not a right. It is an exception to the normal rule of public employment. It is subject to conditions of absorption. Once the petitioners have knowingly and with open eyes exercised the option for their absorption in public employment, they cannot turn round and say that condition no. 4 is arbitrary. Past service as part time teacher on honorarium prior to absorption cannot be added in their length of service in the absence of any constitutional or legal right.
42. For all the reasons aforestated, I do not find any merit in this writ petition. The petitioners are not entitled to any relief. Therefore, the writ petition fails and is hereby dismissed.
Order Date :- 26.11.2019 Arif