The petitioner, aged 72 years, a retired Professor, filed the writ petition for regularisation of her services and pay fixation notionally, apart from claiming the retirements benefits consequentially. 2. The facts in brief, as have been pleaded by the petitioner, are that she was appointed through Exhibit P1 as a Reader in the Department of Education in the respondent University after due selection process. Later, through Exhibit P2 order, she was promoted as Professor with effect from 01.05.1996. While she was the Head of the Education Department in seven centres of the respondent University, on a 'wrong understanding' of the judgment of this Court dated 12.04.1996 in O.P.Nos.16586/1994 and 16646/1994, as was confirmed through a judgment dated 18.07.1996 in W.A.No.826/1996, the respondent University terminated her services.
3. It is the specific case of the petitioner that initial termination through Exhibit P3 was with an understanding that she should be permitted to rejoin duty immediately thereafter and that her services would be regularised by the respondent University. Accordingly, with effect from 01.04.1997, the petitioner was reinstated through Exhibit P4 order. She worked till 31.12.2003, despite the fact that her date of superannuation, assuming her to be the employee of the respondent University, was 28.12.2001.
4. Later, after her superannuation, the petitioner submitted numerous representations to have her services regularised, but to no avail. In any event, through Exhibit P7, the Director of Collegiate Education informed the petitioner that it was the University that had to fix her pay. Thereafter, the respondent University issued Exhibit P9 informing her that there is no provision enabling fixation of pay under the UGC Scheme or regularisation of services and sanctioning of pensionary benefits to the teachers whose services were terminated as per the directions of the Court. It was followed by Exhibit P10 communication from the Government to the effect that the petitioner's promotion as Professor is invalid and that she is not entitled to regularisation. Eventually, through Exhibit P11, the respondent University rejected the claim of the petitioner for regularisation and pay fixation. Under those circumstances, the petitioner has filed the present writ petition assailing the action of the Government as well as the respondent University on various grounds, including that other similarly situated persons have already had their services regularised, but the petitioner has been discriminated against.
5. In the above factual background, Sri. Mathai M. Paikeday, the learned Senior Counsel for the petitioner, has submitted that the petitioner was initially appointed as Reader on 08.10.1994. In so far as the said position is concerned, her services had been regularised and pensionary benefits were sanctioned on her superannuation. The petitioner was subsequently appointed as Professor and the respondent University, at one stage, dispensed with her services with a promise of re-engaging her as a regular employee, only to get over the judgment of this Court, which, according to the learned Senior Counsel, does not have any application to the petitioner, who in fact was not a party to it.
6. The learned Senior Counsel has strenuously contended that the Vice Chancellor of the respondent University has expressly assured the petitioner at the time of her re-entry into service that her position as Professor would be regularised and she would be allowed to superannuate accordingly. It is the singular contention of the learned Senior Counsel that the break induced through Exhibit P4 was only an artificial one, that too, with an understanding on the part of the respondent University to let the petitioner continue after a short gap.
7. Before proceeding further on the issue of discrimination, the learned Senior Counsel has contended that on 17.06.2011 the Syndicate of the respondent University took a decision to regularise the services of some of the Lecturers, namely, Dr.C.P.Vilasini and Smt.Vijayalakshmi.K.P., as could be seen from Exhibit P12, despite the fact that their appointment was declared to be illegal by this Court. Expatiating on his submissions, the learned Senior Counsel would contend that the petitioner stands on a far better footing since her appointment has never been declared as illegal by this Court.
8. The learned Senior Counsel has submitted that the petitioner's initial appointment as a Reader and her subsequent appointment as Professor have been based on due process of selection, and as such the action of the Government, as well as the respondent University, in refusing to regularise her services and consequential pay fixation is expressly illegal.
9. Making alternative submissions, the learned Senior Counsel has contended that if the petitioner's initial entry into service ought to be taken as deputation in terms of Section 32 of Sree Sankaracharya University of Sanskrit Act, 1994, she is entitled to pay protection and continuation in service, but they were denied to her.
10. Though the respondent University, contends the learned Senior Counsel, has decided to regularise the appointment of those persons who were either on contract basis or as Guest Lecturers, but, without any justification, refused to regularise the petitioner's service, despite the fact that her appointment was after following the due process.
11. Summing up his submissions, the learned senior counsel has urged this Court to allow the writ petition giving a direction to the respondent University to regularise the petitioner's services and fix her pay, treating her date of retirement as 28.12.2011, when she completed 60 years of age, though she continued up to 31.12.2003, inasmuch as the petitioner is prepared to forego the benefits for her extended period of service.
12. Per contra, the learned Standing Counsel for the respondent University has strenuously opposed the claims and contentions of the petitioner. He has submitted that the petitioner was originally working as 'Selection Grade Lecturer' in a College affiliated to some other University.
When she made an application through Exhibit R1(a) to the then Vice Chancellor of the University seeking appointment on deputation, the respondent University utilized her services only on deputation basis. According to the learned Standing Counsel, at no point of time had the petitioner been appointed in the respondent University on regular basis. He has further contended that even in terms of the Recruitment Regulations governing the University, based on UGC norms, any person to be appointed in the post of Reader, he or she should not have crossed 45 years, whereas the petitioner was 53 years old by the time she was permitted to work in the respondent University on deputation. Thus, the petitioner’s initial entry, contends the learned Standing Counsel, was only on deputation.
13. Referring to the judgment rendered by this Court in W.A.No.826/1996 and other connected mattes, the learned Standing Counsel would contend that many writ petitions came to be filed before this Court. Though the judgment was confined to certain departments involving a few employees, since appointments of about 4000 employees took place in the University without due process, more particularly, in the absence of any statute or regulation governing the recruitments, the respondent University took a policy decision to terminate not only the appointments that had been the subject matter of the judgment of this Court, but also all other appointments. According to the learned Standing Counsel, the University has not discriminated against any particular individual employee in terminating his/her services at that time.
14. The learned Standing Counsel has strenuously contended that the petitioner is a beneficiary of an illegal act of the then Vice Chancellor and such an appointment, in violation of any statutory provision, cannot confer any legal right on the petitioner. The learned Standing Counsel has further stressed that not only the respondent University but also the Government has made it clear to the petitioner, in response to her representation, that her case for regularization and pay fixation could not be considered. According to him, though the petitioner attained the age of superannuation on 31.03.1997 and made to retire then, her subsequent re-engagement is without any sanctity. Ipso facto, her continuation after 31.03.1997 could at best be on contract basis, for which consolidated pay had already been made.
15. The learned Standing Counsel has also referred to Exhibits R1(b) and R1(c) to emphasise that the petitioner was informed at the earliest point of time about the impressibility of having her services regularized under any circumstance. Since the petitioner has to claim her retirement benefits from her parent organization, all the contributions to be made by the respondent University for the period she served on deputation in the University, submits the learned Standing Counsel, were already remitted to the parent organization.
16. Referring to what are said to be illegal regularisations of certain other employees despite the adverse finding of this Court, the learned Standing Counsel has tried to repel the said contention by submitting that out of thousands of employees terminated, the respondent University considered the request of only three persons positively, but later the said regularisations were made the subject matter of the writ proceedings before this Court. He adds that in two instances the regularization had already been set aside by a learned single Judge, against which the affected employees preferred appeals, while another one is pending consideration. According to the learned Standing Counsel, since the entire issue concerning those three regularisations has become sub-judice, it cannot be stated that the petitioner has been discriminated against on the ground of differential treatment allegedly meted out to certain other similarly situated persons. Accordingly, the learned Standing Counsel has urged this Court that the writ petition is without any merit and it is required to be dismissed.
17. Heard the learned Senior Counsel for the petitioner and the learned Standing Counsel for the respondent University, apart from perusing the record.
18. If we examine Exhibit P2, the Minutes of the Syndicate Meeting held on 04.05.1996, among other persons, the petitioner was appointed as Professor with effect from 01.05.1996. It is the contention of the learned Standing Counsel that this appointment was not preceded by any due selection process, such as issuing a notification, calling for applications from eligible candidates, and thereafter subjecting them to selection process. The petitioner, indeed, could not place any material before this Court that her appointment was preceded by any due selection process.
19. Looked from another perspective, as per the judgment rendered by this Court in W.A.No.826/1996 and other connected matters, most of the appointments, in fact, had been without due process of selection and at best on ad hoc basis. Further, Exhibit P3 dated 26.03.1997, the order through which the petitioner's services had been terminated, reveals that her services had been dispensed with in the light of the judgment rendered by this Court in W.A.No.826/1996 and other connected cases.
20. The learned Senior Counsel, in fact, drew my attention to various observations of the learned single Judge in O.P.No.16646/1994 and also that of the learned Division Bench judgment dated 18.07.1996 in W.A.No.826/1996 and contended that neither the petitioner was a party to those proceedings, nor was there any appointment in Education Department, which was the subject matter of those writ proceedings. There is some force in the contention of the learned Senior Counsel.
21. Though repeatedly, all through the proceedings of the Government as well as those of the respondent University, reference was made to the judgments of this Court as if the termination had been the result of a judicial directive, I do not find any reference to the appointment of the petitioner in any of these judgments. The fact, however, remains, as has been contended by the learned Standing Counsel, that not only the appointments which were the subject matter of those judicial proceedings, each and every other appointment had been cancelled by the respondent University as a matter of policy. In that perspective, in my considered view, reference to the judicial directives in Exhibit P3 and other proceedings may not be fatal in so far as the termination of the petitioner is concerned, so long as there were terminations across the board involving all the employees, whose appointments were not, in the first place, in accordance with law. Coupled with that is the fact that the petitioner’s initial entry in to the respondent University was without due process of selection, save the phase of deputation.
22. As could be seen from Exhibit P7, the Government informed the petitioner as early as on 13.06.2005 that her initial appointment in the University was on deputation and that her subsequent extended tenure after superannuation in the position of Professor was a matter to be determined by the University and even the pay fixation should also be in the discretion of the respondent University. In turn, through Exhibit P9, the respondent University has informed the petitioner as follows:
“With reference to the above, I am to inform you that, the Syndicate has resolved that your request cannot be considered since there is no provisions in Act/Statute or Rules enabling sanction for fixation of pay under UGC Scheme, or regularization of service and sanctioning pensionary benefit to a teacher whose service was terminated as per the court direction.”
23. Apart from the reasons offered by the University, as well as the Government, for not entertaining the petitioner's request for regularisation and pay fixation, we can as well examine Exhibit P4, which is said to be an order of re-appointment, inasmuch as the petitioner's substantial rights, if any, flow from the said order. It reads as follows:
“Sanction is accorded to Dr.Lizy Paul being engaged on contract appointment as Professor of Education, Sree Sankaracharya University of Sanskrit, Kalady on re- employment terms for a period not exceeding 3 years with effect from 1.4.'97. She will be paid a consolidated monthly salary of Rs.9,400/- which will be regularised later upon receipt of her LPC and pension details. However, she is required to submit a declaration to the effect that excess payment if any received by her will be refunded to the University, in the format attached.”
24. A perusal of the above order makes it manifestly clear that the petitioner was engaged on a contract basis, though it was termed as re-employment, for a period not exceeding three years, with effect from 01.04.1997. The order reveals that the petitioner should be paid a consolidated monthly salary, and that her services would be regularised later upon receipt of her LPC and pension details. This supposed promise of regularisation has been heavily relied on by the learned Senior Counsel for the petitioner. According to him, the initial termination and the subsequent re-instatement is a simple device adopted by the respondent University to get over this Court’s judgments, which have already been referred to above. The learned Senior Counsel has hastened to add that in the first place there is no impediment placed against continuation of the petitioner in service by this Court through the judgments in question, yet to play safe, the respondent University has taken recourse to this method. In the first place, neither Exhibit P3, through which the petitioner's services have been terminated, nor Exhibit P4, through which the petitioner has been re-engaged, reveals any such arrangement or agreement between the petitioner and the respondent University. If it were to be a device adopted by the respondent University, going by the contentions of the learned senior counsel, it would certainly, in my considered view, fall foul of Section 23 of the Contract Act, inasmuch as, as per Section 23 of Contract Act, such a device of terminating an employee for a couple of days to tide over a legal hurdle imposed through a judgement of a competent court, and then re-appointing the said employee would be to defeat the rule of law or per se fraudulent, apart from being opposed to public policy.
25. I, however, accept the contention of the learned Senior Counsel for the petitioner that the judgements rendered by this Court regarding the illegal appointments has no application to the petitioner. In that event, Exhibit P3 termination is without justification. In that eventuality, the petitioner ought to have laid a challenge against Exhibit P3; she did not do. The necessary corollary to the petitioner’s inaction is that she has to trace her rights to Exhibit P4, which only contains a reference to future regularisation. If it were to be assumed to be a promise, it would not be indefeasible, unless it has a statutory backing. The petitioner could not place any material before this Court to conclude that Exhibit P4 irrevocably binds the respondent University. In other words, unless a promise made by an authority has a statutory sanction, it cannot be enforced on the principle of estoppal, for there can be no estoppal against the statue.
26. Once the Statute or Regulations governing the service conditions of the respondent University do not permit regularisation of an employee, who has not been appointed after following the due selection process, a mere stray observation or putative undertaking on the part of the authority cannot transform itself into an indefeasible right to be enforced.
27. Thus, for the reasons mentioned above, I regret my inability to persuade myself to accept the contention of the learned Senior Counsel that Exhibit P4 did contain a peremptory undertaking, with statutory support, on the part of the respondent University to regularise the petitioner’s services.
28. Concerning the regularisation of two employees, as could be seen from Exhibit P12, the learned Senior Counsel has made elaborate submissions. He has, in fact, contended that the petitioner is also similarly situated, or in the alternative, better situated, but she has been discriminated against. On the other hand, the learned Standing Counsel has contended that the decision taken earlier by the respondent University is now the subject matter of certain writ proceedings before this Court and that, in fact, the regularisation of two employees has already been reversed by this Court, subject to the result of the writ appeals, which are pending.
29. Be that as it may, the conduct of the respondent University or that of the Government in regularising the services of those three persons cannot be appreciated. Even after their appointment was nullified by this Court, the respondent University seems to have permitted them to continue in service, and later on, even recommended for the regularisation of their services. It is antithetical to administrative fairness and rule of law. I do not propose to proceed further on this issue since the matter is sub-judice. The fact, however, remains, in the first place, that if regularisation of those persons could be taken into account, the irregularity committed by the University cannot be allowed to be perpetrated in the name of parity of treatment. Even otherwise, since the matter has been seized of by this Court, we cannot say that their regularisation has attained finality.
30. Putting the issue in perspective, I observe that as per Exhibit R1(a), on 19.09.1994, the petitioner applied to the then Vice Chancellor of the respondent University, to whom the representation was addressed in person, that she was willing to work on deputation in the respondent University. As such, there is no gainsaying the fact that the petitioner's initial entry into service of the respondent University was on deputation. It is settled law that once a person is on deputation, his/her service is governed by the conditions as are applicable in the parent organisation. Accordingly, the petitioner ought to have retired from service on attaining fifty five years of age. Taking the date of superannuation into consideration, the respondent University ensured the retirement of the petitioner and settled her terminal benefits. It has come on record that the respondent University has even sent its contribution of pension to the parent organisation. Later, through Exhibit P2, the Syndicate of the respondent University decided to 'promote' the petitioner as Professor.
31. It is difficult to visualise how a person on deputation, after her retirement could be promoted. That apart, for whatever reason, as a matter of policy, the petitioner, along with all other regular employees in the service of the respondent University, had their services terminated. Through Exhibit P3, the respondent University expressly directed the petitioner to rejoin her parent institution with effect from 31.03.1997, apart from directing to claim her retirement benefits from the parent institution. Though through Exhibit P4 the petitioner was re-engaged, it is said to be on contract basis for a particular period. This engagement on contract basis has not been preceded by any due selection process. Time and again, in response to the representations made by the petitioner, the Government, as well as the respondent University, has consistently negatived the claim of the petitioner for regularisation and pay fixation.
32. As has already been observed, in the absence of any statutory support that the petitioner's services are to be regularised based on Exhibit P4, it is difficult, nay impermissible, to sustain the claim of the petitioner either for regularisation of her services from 30.03.1997 to 31.07.2001 or for fixation of her pay.
In the facts and circumstances, the writ petition is dismissed. No order as to costs.
Dama Seshadri Naidu, Judge tkv/dmr