This special appeal arises from a judgment of the learned Single Judge dated 27 November 2013. By the impugned judgment, the learned Single Judge has allowed a writ petition filed by the respondent under Article 226 of the Constitution and has set aside an order of termination dated 9 May 2003.
The respondent was initially appointed in pursuance of an advertisement which was issued by the appellants on 1 March 2000 (Annexure No.4 to the writ petition). The advertisement was issued by the Principal of the appellants for appointment on a temporary post, inter alia, of a Hindi Teacher. The initial appointment on 30 June 2000 was for a period from 1 July 2000 to 30 September 2000 on a consolidated remuneration. The letter of appointment stated that the services of the respondent were purely temporary and could be terminated at any time without assigning any reason. In paragraph 2 of the writ petition filed by the respondent, he specifically averred that he was originally appointed on an ad hoc basis on the post of Hindi Master in pursuance of the aforesaid advertisement. The Selection Committee, which was constituted in pursuance of the aforesaid advertisement, consisted of the Principal, Officiating Head Master and the two teachers in Chemistry and History respectively, this being the averment in paragraph 5 of the writ petition. The services of the respondent were extended from time to time until eventually they were terminated by order dated 9 May 2003. The respondent challenged the order of termination by instituting the writ proceedings before this Court. During the pendency of the writ proceedings, an interim order was passed by the learned Single Judge on 24 July 2003. A special appeal against the interim order was dismissed.
By the judgment and order of the learned Single Judge, which is now impugned in appeal, it has been held that the respondent was appointed on an ad hoc basis on 30 June 2000. However, the view of the learned Single Judge is that as per the terms of the advertisement, the appointment was to be made against a regular vacancy. The learned Single Judge held that though the respondent had been engaged in 2000, he is still continuing in service; no material has been brought on the record to establish a misconduct or inefficiency on his part; and the termination of the services of the respondent was held to be unfair on the ground that the appointment was made against a regular vacancy on the post of Hindi Teacher though he was given an ad hoc/contractual appointment.
Learned counsel appearing on behalf of the appellants submits that the advertisement in pursuance of which the respondent was appointed specifically stated that applications were invited for a temporary appointment in respect of the post of a Hindi Teacher amongst other posts. The respondent applied for the post of Hindi Teacher in pursuance of the advertisement and his services were extended from time to time. Under Rule 5 (5) of the Uttar Pradesh Sainik School (Teaching and Allied Staff) Service Rules, 1978 (hereinafter referred to as the Rules), it has been stipulated that in the case of a temporary vacancy, the Principal may make an appointment for a period not exceeding six months. On the contrary where a regular appointment is to be made to a post in the teaching staff, Regulation 5 (3) requires a Selection Committee consisting of (i) the Secretary to the Government of Uttar Pradesh, Education Department; (ii) the Principal; (iii) a nominee of the Secretary to the Government of Uttar Pradesh, Education Department, not below the rank of Deputy Secretary or Deputy Director of Education, Uttar Pradesh; and (iv) One specialist nominated by the Chairman. In the present case, the respondent had applied in pursuance of the advertisement which stated that the appointment was temporary. The Selection Committee which was constituted was not a Selection Committee for regular appointment as stipulated in Rule 5 (3) of the Rules, since the appointment was not for a regular selection. This defence was specifically raised in the counter affidavit. Moreover, it was submitted that the learned Single Judge has erred in finding fault with the appellants since the services of the respondent were admittedly of a temporary nature and they could be dispensed with without assigning any reason. The continuance of the respondent under an interim order, which was passed by the learned Single Judge during the pendency of the writ proceedings, ought not to have weighed with the learned Single Judge at the final hearing of the petition in view of the settled position and law.
On the other hand, it has been submitted on behalf of the respondent that the appointment was not of an ad hoc nature, as the advertisement was issued for a temporary appointment. There is a distinction between an ad hoc appointment and temporary appointment. Rule 5 (5) of the Rules provides for making of appointments to a temporary vacancy, whereas in the present case, the appointment was to a regular vacancy. There was no justification on the part of the appellants to make a temporary appointment and hence, the learned Single Judge was justified in allowing the writ petition for the reasons, which have weighed in the final judgment.
The rival submissions now fall for consideration.
At the outset, it would be necessary to note that the respondent moved the writ proceedings with a specific averment that he had applied in pursuance of the advertisement dated 1 March 2000. The advertisement which was issued by the Principal on 1 March 2000 for teaching posts including a Hindi Master provided that the appointment was to be on a temporary basis. The Rules provide for the source and procedure of recruitment in Rule 5. Rule 5 (1) states that whenever it is required to fill any post, the Principal shall invite applications through the nearest Employment Exchange and also by advertisement in one or more newspapers having wide circulation in the area. Rule 5 (2) states that the Principal, upon scrutinizing the applications received, will call eligible candidates to appear before the Selection Committee for interview. In the case of teaching staff, the Selection Committee is to consist of (i) the Secretary to the Government of Uttar Pradesh, Education Department; (ii) the Principal; (iii) a nominee of the Secretary to the Government of Uttar Pradesh, Education Department, not below the rank of Deputy Secretary or Deputy Director of Education, Uttar Pradesh; and (iv) One specialist nominated by the Chairman. In the present case, it is not in dispute that the Selection Committee that was constituted, was not a Selection Committee as contemplated in Rule 5 (3) of the Rules, since the averments in paragraph 5 of the writ petition itself indicate that the Selection Committee which interviewed the respondent consisted of the Principal, the Officiating Head Master and two teachers. In the present case, the advertisement was for appointment on a temporary post. Rule 5 (5) of the Rules allows the Principal to make such appointments for a period not exceeding six months on the initial scale of pay and allowances. The initial appointment was thereafter extended from time to time until the services of the respondent were terminated on 9 May 2003.
We find merit in the contention which has been urged on behalf of the appellants that the learned Single Judge has manifestly erred in coming to the conclusion that the respondent was appointed on an ad hoc/contractual basis against an advertisement which was issued for a regular vacancy for the post of Hindi Teacher. Ex facie, this is a misreading because the advertisement dated 1 March 2000 was for a temporary appointment. Moreover, in respect of regular appointments, the Selection Committee is required to be constituted in terms of Rule 5 (3) of the Rules. Admittedly, as the averment of the respondent in the petition itself would indicate, the Selection Committee which interviewed him was not a Selection Committee as mandated by Rule 5 (3) of the Rules. The appointment of the respondent was terminated on 9 May 2003. In the counter affidavit that was filed on behalf of the appellants, it was specifically averred in paragraph 22 that the process of regular selection had already been started against the post in question. The effect of the interim order was to protect the services of the respondent. However, the fact that the respondent thereafter continued in service in pursuance of the interim order would not detract from the original nature of the appointment, nor can he gain any higher equity as a result of the interim protection.
Learned counsel appearing on behalf of the respondent relied upon a judgment of the Supreme Court in Bhartiya Seva Samaj Trust and another v. Yogeshbhai Ambalal Patel and another1. That is a case, where the employee was appointed as a Teacher in pursuance of an advertisement inviting applications. Following a notice to show cause, his services were terminated on the ground that he did not possess the eligibility for the post and that the process had not been followed in making the appointment. Before the State Primary Education Tribunal, the employee succeeded and the Tribunal directed reinstatement with back wages. The writ petition of the employer was dismissed by a learned Single Judge of the High Court on the ground that the provisions of Section 40-B of the Bombay Primary Education (Gujarat Amendment) Act, 1986 had not been observed since no notice was issued to the employee, nor was approval of the competent authority taken. The Letters Patent Appeal was dismissed by the Division Bench. The Supreme Court noted the concession of the counsel for the employer that the statutory provisions of Section 40-B of the Act had not been followed on both counts. However, it was urged on behalf of the employer that the teacher in question was not duly qualified. This submission was answered by holding that the Division Bench of the High Court had furnished full details of the teachers who had been employed together with the teacher in question and had the same qualifications in spite of which, they were continued in service. Hence, it was held that the first respondent in those proceedings had been victimized and discriminated against. The judgment of the Supreme Court is, therefore, on these facts and is clearly distinguishable. The facts of that case would indicate that there was a breach of the statutory provisions contained in Section 40-B of the Act, which was conceded by the employer. That apart, it was also found that there was an act of discrimination which amounted to victimization of the teacher whose services were terminated.
On the other hand, the facts of this case would indicate that the appointment of the respondent was made specifically in pursuance of an advertisement by which a temporary vacancy was advertised. The appointment was extended from time to time and was thereafter terminated by order simplicitor dated 9 May 2003. The selection which took place was not for a permanent vacancy, nor for that matter was the Selection Committee constituted a Selection Committee under Rule 5 (3) of the Rules for a regular appointment.
In this view of the matter, the judgment of the learned Single Judge allowing the writ petition is unsustainable. The special appeal would have to be allowed and is, accordingly, allowed. The judgment of the learned Single Judge dated 27 November 2013 is set aside. In consequence, the writ petition filed by the respondent shall stand dismissed.
At the conclusion of the judgment, learned counsel appearing on behalf of the respondent submits that the services of the respondent may be continued until a regular selection is made and some weightage may be given to him for the services which he has already rendered, while making a regular selection, if he applies for the post when advertised.
Learned counsel for the appellants has no objection.
To protect the interests of the students, we direct that the respondent may continue in service until a regular selection in accordance with law is made on the post in question. So far as the grant of weightage for the services already rendered is concerned, the respondent may make an application to the Selection Committee, which shall be considered in accordance with law.
The special appeal is, accordingly, disposed of. However, there shall be no order as to costs.
Order Date :- 17.2.2014 RKK/-
(Dr. D.Y. Chandrachud, CJ) (D.K. Arora, J)