IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3829 of 2002
With
SPECIAL CIVIL APPLICATION NO. 3839 of 2002 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
================================================================ ================================================================ MAHARAJA SAYAJIRAO UNIVERSITY OF BARODA & 1 Petitioner(s) Versus GAYATRI RAMANLAL VYAS & 1 Respondent(s) ================================================================ Appearance: (in SCA 3829 of 2002) MR MITUL K SHELAT, ADVOCATE for the Petitioner(s) No. 1 - 2 GOVERNMENT PLEADER for the Respondent(s) No. 2 MR AJ SHASTRI, ADVOCATE for the Respondent(s) No. 1 ================================================================ Appearance: (in SCA 3839 of 2002) MR MITUL K SHELAT, ADVOCATE for the Petitioner(s) No. 1 - 2 GOVERNMENT PLEADER for the Respondent(s) No. 2 MR N. C. THAKKAR , ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 19/10/2012 ORAL JUDGMENT
The above-captioned two petitions arise out of common judgment and order dated 19.10.2001 of the Gujarat Secondary Education Tribunal, Ahmedabad, passed in two applications. Application No.560 of 1993 was by Ketan Madhusudan Talati, who is the respondent in Special Civil Application No. 3839 of 2002. Another application No. 581 of 1993 was by one Gayatri R. Vyas – respondent in Special Civil Application No. 3829 of 2002. As the facts are similar and the issue is identical in both the cases, these two petitions are being considered simultaneously and decided by this judgment.
2. The applicants before the Tribunal were appointed pursuant to order dated 28.04.1992 as part-time teachers in the Secondary section of the Experimental School which was run by the petitioner M.S.University of Vadodara. Before the Tribunal, the applicants- teachers prayed for regularsation of their services and for direction to pay them the regular salary. By the impugned common judgment and order the Tribunal held that the applicants-teachers were entitled to receive their full salaries as prescribed by the government from the date of their appointment till they continued in service. The Tribunal directed that the respondent school shall pay the difference of salary within three months. The prayer for regulrsaion was however, rejected. It was further observed that in the process of recruitment by issuing advertisement, the applicants may be given weightage for their services in the school while considering their case alongwith other candidates.
2.1 The applicants-respondents had approached the Tribunal at that juncture when the University issued advertisement for appointment of Assistant Teachers in accordance with prescribed procedure. The respondents challenged the said action. Gujarat Secondary Education Tribunal, by an ex-parte order, restrained the University from making appointments. The said order continued till final disposal of the application and the applicants before the Tribunal were continued in service as per the direction of the Tribunal.
3. Learned advocate Mr. Mitul Shetal for the petitioner University in both petitions submitted that the appointments of the respective respondents were stop-gap arrangement. He submitted that the Tribunal erred in law in holding that the respondent-teachers were entitled to regular salary. According to his submission, when they were not appointed pursuant to regular process of recruitment prescribed under section 35 read with section 41 of the Gujarat Secondary Education Act, no such direction for payment of regular salary could have given been issued by the Tribunal. He submitted that the applicants were ad hoc appointees and they were getting fixed salaries. He submitted that regularisation was therefore rightly not granted by the Tribunal.
3.1 Learned advocate Mr. Mehta with learned advocate Mr.
A.J.Shastri for the respondent No.1 in Special Civil Application No. 3829 of 2002 supported the Tribunal’s judgment and submitted that the Tribunal had not directed regularisation, but the direction was to pay regular salary only. According to his submission, the direction was justified on the ground of equal pay for equal work, as the nature of duties discharged by respondent No.1 was the same as was discharged by regular teacher and that he was working full time. It was submitted that the respondent teachers possessed B.A. B.Ed. qualification and was therefore qualified. The employer was receiving grant from the District Education Officer. By paying fixed amount towards salary, exploitation was being practised, it was submitted.
3.2 It was further contended by learned advocate for respondent No. 1 that jurisdiction of this court under Article 227 of the Constitution was supervisory and even an error of law committed by lower Authority of Tribunal, cannot be corrected. He relied on decisions in Mohd. Yunus vs. Mohd. Mustaqim [AIR 1984 SC 38], in S.J.Ebenezer vs. Velayudhan and Others [AIR 1998 Supreme Court 746) and in State Bank of India vs. Ram Lal Bhaskar [(2011) 10 SCC 249].
4. Learned advocate Mr. Nirav C. Thakkar appearing in Special Civil Application No. 3839 of 2002, adopted the submissions made by learned advocate for the respondent in SCA No. 3829 of 2002.
5. On consideration of facts on record, it is evidently seen that the appointments of both the respondents–original applicants before the Tribunal, which was by a common order dated 28.4.92, was contractual in nature. Both were appointed temporarily as part time teachers. The petitioner of Special Civil Application No. 3829 was appointed on fixed monthly salary of Rs., 1000/-, whereas the petitioner Special Civil Application No. 3839 of 2002 was appointed on monthly salary of Rs.1200/-. In the appointment order itself it was mentioned in the remarks column that expenditure for the salary was to be charged against vacant post in Secondary Section. It cannot be disputed that these appointments were not in accordance with requisite statutory procedure for recruitment. In fact, the necessary procedure was started, the advertisement was issued at the relevant time and applications were invited, which was got stayed by the respondents-applicants who approached the Tribunal claiming that they were required to be regularised.
5.1 When admittedly the appointments were without undergoing statutory procedure for recruitment, no right for regularisation was available to the petitioners. The appointees such as the petitioners cannot claim any right to the post, notwithstanding that they may have been continued for long. Thus, appointments of the private respondents being temporary and on fixed pay, they had no right to continue on the post. Theirs were not substantive appointment to a permanent post. An irregular appointee, not appointed as per legal provisions, holds the post without any right attached to it and cannot claim regularisation is a proposition of law settled by the Supreme Court in Secretary, State of Karnataka vs. Umadevi (3) [(2006) 4 SCC 1] and reiterated in umpteen number of decisions of the Apex Court and this Court.
6. The Supreme Court in a recent decision in Brij Mohan Lal vs.
UOI [(2012) 6 SCC 502], dealt with the case of the adhoc/temporary judges under temporary Fact Track Courts Scheme, who claimed regularisaion and absorption against such posts. Referring to decision in Umedevi (3) (supra), the Apex Court emphasised that such appointees have no right to the post. It was indicated that their appointments cannot be equated with the employees selected by following applicable rules. The Supreme Court observed thus, “Thus it follows that for a person to have a right to the post, the post itself has to be a permanent post duly sanctioned in the cadre. The person should be permanently appointed to that post. Normally, it is only under these circumstances that such an employee gets a right to the post, but even when a temporary employee is appointed against a permanent post, he could get a right to the post provided he had atleast acquired the status of a quasi-permanent employee under the relevant rules. Where neither the post is sanctioned nor is permanent and, in fact, the entire arrangement is adhoc or is for an uncertain duration, it cannot create any rights and obligations in favour of the appointees, akin to those of permanent employees.”
(para 80) (In dark is the emphasis supplied)
6.1 The above dictum of law makes it amply clear that an ad hoc appointee cannot be treated at par with a permanent employee. Their posts cannot be equated with regular posts which are filled in through regularly selected permanent employees as per rules of recruitment. It logically follows that the salary or other benefits attached to the posts manned by regular employees cannnot be extended to adhoc or temporary post holders. The appointments of the respondents herein, cannot create rights and obligations in their favour, akin to those of permanent employees.
7. The phrase “akin to those of permanent employees” used by the apex court in Brij Mohan (supra) would take into its purview not only to right to regularisation, but also the claim for regular scale of pay, The benefit of regular salary is only one akin to the rights available to permanent employees, and akin to the obligation of the employer towards regularly selected permanent employees. In the present case, the private respondents were appointed as stop-gap arrangement pending regular recruitment to the post. The appointment and continuance of the private respondents on the posts were not as per the relevant rules. Such class of appointees could not have been held entitled to regular salary by the Tribunal.
8. In the impugned judgment and order, the Tribunal directed payment of regular salary to the applicants before it by holding at the same time that they were not entitled for regularisation of their services. It was self-contradictory. The approach was inconsistent and impermissible in law. The payment of regular salary is a consequence of regular appointment. The entitlement to regular salary is dependant upon right to be regularized in service. When such claim was not acceptable in law and relief on that score was refused by the Tribunal itself, it could not have directed payment of regular salary to the applicants.
9. The Gujarat Secondary Education Tribunal granted relief not available in law by disregarding the position of laws, as discussed above. Its order is accordingly rendered illegal and cannot sustain. The same therefore warrants interference by this Court in exercise of writ jurisdiction. Consequently, the direction issued by the Tribunal in its impugned judgment to pay full salary to the private respondents prescribed by the government cannot be held good in eye of law. Therefore, the common judgment and order dated 19.10.2001 of the Gujarat Secondary Education Tribunal in application nos. 560 of 1993 and 581 of 1993 is required to be set aside. Accordingly, it is set aside.
10. Both the Special Civil Application No. NO 3829 of 2002 and Special Civil Application No. 3839 of 2002 are allowed. Rule is made absolute in each of the petitions. Interim relief, if any, stands vacated. No costs.
cmjoshi
(N.V.ANJARIA, J.)