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Elipe Dharma Rao, J.—W.P. Nos. 12706 and 12707 of 2007 have been filed by the Secretary of the Union Public Service Commission,
seeking to issue a writ of certiorari, to quash the final order dated 29.6.2006 passed in O.A. Nos. 290 and 841 of 2005 on the file of the Central
Administrative Tribunal, Chennai Bench, Chennai and W.P. No. 23479 of 2006 has been filed by the first respondent in W.P. No. 12706 of 2007
seeking to issue a Writ of Certiorarified Mandamus, to quash the impugned order dated 29.6.2006 passed in O.A. No. 290 of 2005 on the file of
the Central Administrative Tribunal, Chennai Bench, Chennai and consequently direct the respondents to regularize the services of the petitioner in
the post of Lecturer in Law in Dr. Ambedkar Government Law College, Pondicherry.
The parties are referred to as per their ranking in O.A. Nos. 290 and 841 of 2005.
The applicant in O.A. No. 290 of 2005 was appointed on ad hoc basis for the post of Lecturer in Law as per the Recruitment Rules, 1988.
Subsequently, the Recruitment Rules were amended and the condition of clearing the eligibility test for Lecturership conducted by the UGC was
incorporated in 1995. As the said applicant did not get the opportunity to get recruited directly, he filed O.A. No. 741 of 2000.
The applicant in O.A. No. 841 of 2005 was appointed as a Lecturer on consolidated basis vide order dated 1.12.1989 as per the Recruitment
Rules, 1988 and was serving as any other regularly appointed full time Lecturer. As he had also acquired Ph.D. degree in the year 2000, he was
exempted from NET qualification incorporated in the revised Recruitment Rules. He filed O.A. No. 865 of 1991 seeking continuity of service,
which ended in getting pay on par with regular Lecturer and also continuity of service till regular selection was made by the UPSC. When the
Government initiated action for regular selection in 1999, he was left out and hence he filed O.A. No. 740 of 2000.
The Tribunal, by its common order dated 3.10.2001 in O.A. Nos. 740 and 741 of 2000, directed the Government to relax the condition of age
and qualification as a one time measure. Thereafter, the applicants participated in the personal talk held by the Selection Committee of the UPSC.
They thought that the personal talk was meant for regularisation, but their services were not being regularised as they were not found suitable for
the post of Lecturer by the UPSC. Hence the applicants filed O.A. Nos. 290 and 841 of 2005 before the Central Administrative Tribunal, Madras
Bench.
The respondents 1 to 3 filed a common reply, stating that even though the applicants were initially appointed as Part Time Lecturers based on
the old Recruitment Rules, as per the direction of the Tribunal in O.A. Nos. 740 and 741 of 2000, their services were continued till regular
selection was made by the UPSC. Simultaneously, action was taken to fill up the vacant post on a regular basis. As per the directions of the
Tribunal in O.A. Nos. 740 and 741 of 2000, the case of the applicants was considered for regularisation, by relaxing some of the conditions
pertaining to age and qualification as a one time measure and steps were taken to regularise the services of the Lecturers by taking up the matter
with the UPSC and by giving necessary relaxation. The Selection Committee, based on the available ACRs, bio data and the personal talk, held
that the applicants were not found suitable for regularisation as Lecturers. The applicants having participated in the Selection Committee meeting
without raising any objection and after giving a willingness letter to participate in the Selection Committee meeting, they cannot now question the
selection process and the authority of the Selection Committee to decide since they were unsuccessful in the personal talk.
The Central Administrative Tribunal, by an order dated 29.6.2006, disposed of both the O.As. with a direction to the respondents to give the
applicants one more chance for personal talk/interview after giving them adequate notice, not less than two weeks time for such a notice and also
directed that the said exercise must be completed within a period of three months from the date of receipt of copy of the said order. As against the
said order, the Union Public Service Commission filed W.P. Nos. 12706 and 12707 of 2007 for the relief stated supra and the applicant in O.A.
No. 290 of 2005 filed W.P. No. 23479 of 2006 for the relief stated supra.
The core argument advanced on the part of the Union Public Service Commission and the Union Territory of Pondicherry is that the very
appointment of the applicants being adhoc, they cannot seek for regularisation. In support of their arguments, the learned Counsel appearing for the
Union Public Service Commission and the learned senior counsel appearing for the Union Territory of Pondicherry relied on the Constitutional
Bench judgment of the Honourable Apex Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, . The learned
senior counsel for the Union Territory of Pondicherry would also rely on the judgment of the Honourable Apex Court in Surendra Prasad Tewari
Vs. Uttar Pradesh Rajya Krishi Utpadan Mandi Parishad and Others, . In both these judgments, the Honourable Supreme Court has observed
that ''where appointments were made without following the procedure laid down under Articles 14, 16 and 309 of the Constitution, they cannot be
directed to be regularised in service.''
On the contrary, the learned senior counsel appearing for the applicants would argue that since the applicants were serving the Law College for
decades together, denying their regularisation is not acceptable and the Tribunal should have straight away ordered their regularisation instead of
directing the respondents to grant one more opportunity to the applicants to participate in the interview. In support of his arguments, the learned
senior counsel for the applicants would rely on the decisions of the Honourable Apex Court in (1) Bhagwati Prasad Vs. Delhi State Mineral
Development Corporation, and (2) Dr A.K. Jain and Others Vs. Union of India (UOI) and Others, . The learned senior counsel for the applicants
would also produce a copy of the judgment of the Honourable Apex Court in U.P. State Electricity Board v. Pooran Chandra Pandey and Ors.
dated 9.10.2007 in Appeal (Civil) 3765 of 2001, which is subsequently reported in 2007 (7) SUPREME 374.
From the materials placed on record, we are able to find that when five vacancies of Lecturer posts arose in the Government Law College,
Pondicherry in the year 1988, since there was a ban on creation of posts as well as the filling up of the vacancies and further since the Union Public
Service Commission, which is the competent body to make regular appointments, would be able to do so only after a considerable time and delay,
in order to tide over the situation, steps were taken to fill up the vacancies through the Employment Exchange. Accordingly, from out of the list sent
by the local Employment Exchange, a local Recruitment Committee interviewed and selected Dr.Sankar, who joined the services of the College on
1.12.1989 and Mr. S.Srinivasan joined on 6.12.1991. It is also seen that artificial breaks were given to similarly selected candidates. Thus, the
applicants are serving as Lecturers on adhoc/temporary basis in Dr.Ambedkar Law College, Pondicherry having been appointed between 1989
and 1991 i.e. well before 10.4.1995 from which date onwards the Recruitment Rules were amended. Prior to the coming into force of the
Recruitment Rules of the year 1995, the educational qualification required for direct recruitment to the post of Lecturer was I or II Class Master''s
degree in Law from a recognized University or equivalent. Thereupon, as per the Recruitment Rules of the year 1995, the qualification was
changed to a Master''s Degree in the concerned subject from a recognized University, who have cleared the eligibility test for lecturership
conducted by the UGC or a similar test accredited by the UGC, not exceeding 35 years of age.
When Dr.Sankar and others were terminated from service on ground that they are only part-time lecturers, they have approached the Tribunal
in O.A. Nos. 446 of 1991, 461 of 1991 and 865 of 1991 and the Tribunal, by its common order dated 13.7.1993, has allowed all the said
Original Applications, directing their reinstatement, further directing that their pay shall be fixed on par with that of regular lecturers, having regard
to their length of service from the date of their initial appointment by ignoring the break in service. This order of the Tribunal has become final
resulting in the issuance of G.O.Rt. No. 8133, dated 17.11.1993.
It is also seen from the materials placed on record that when a similarly situated Lecturer by name Mr. V. Krishan Kumar, filed O.A. No. 462
of 1986 before the Tribunal seeking regularization of his services, taking into consideration the fact that he was serving in the Government Law
College, Pondicherry for a long period, the Tribunal has turned down his plea by its order dated 23.4.1987, resulting in the said Lecturer
approaching the Honourable Supreme Court in Civil Appeal No. 781 of 1988 and the Honourable Supreme Court, by its order dated 8.9.1994
has allowed the said appeal with the following observations:
Keeping in view the fact that the appellant is continuing to serve as a Lecturer in Law College, Pondicherry for almost two decades, it would be
travesty of justice to hold that he is not entitled to be regularised in the said post. We are of the view that it would be in the interest of justice to
direct the respondents to treat the appellant as a regular substantive lecturer in the service of the Pondicherry Administration. We order
accordingly. We make it clear that we are regularising the services of the appellant, keeping in view the special facts and circumstances of the case
specially the long period of service rendered by the appellant. We allow the appeal, set aside the order of the Tribunal and direct the respondents
to regularise the appellant as a lecturer in Government Law College, Pondicherry.
There is no dispute with regard to the fact that the applicants were appointed in regular vacancies between 1989 and 1991, through
Employment Exchange, since there was urgent need to fill up the vacancies and they are continuing in their services all these years, either with or
without artificial breaks. It has also been seen that they were selected by a local Selection Committee. When such a procedure was admissible
under the old Recruitment Rules, which were in vogue at the time of their appointment, it cannot be said that they were recruited by resorting to
back door methods, so as to deny their regularisation. It is to be pointed out that the selection itself has been done by the organs of the
Government of Pondicherry and not by any private management of any educational institution, at the cost of the regular selection process. The age
and educational qualification of the applicants was held to be perfectly fit for the post by the respondents at the time of their selection under the old
Recruitment Rules. Admittedly, the new Recruitment Rules came into force much later the selection of the applicants, i.e. w.e.f. 10.4.1995 only.
Therefore, we wonder as to how such new Recruitment Rules could be pitted against the candidates like the applicants who were selected by the
procedure contemplated under the old Recruitment Rules. At the cost of repetition, we are unable to accept the contention raised on the part of the
UPSC and the Government of Pondicherry that the appointments of the applicants is a back door method.
No doubt, the Honourable Apex Court in its Constitutional Bench judgment in Umadevi''s case (cited supra), which was followed in Surinder
Prasad Tiwari''s case (also cited supra), has held that the employees, who were appointed without following the procedure, cannot be directed to
be regularised in service. But, as has already been held supra, the applicants were appointed following the procedure contemplated and the
method permitted by the old Recruitment Rules, which were in vogue at the time of their selection.
Further more, in U.P. State Electricity Board v. Pooran Chandra Pandey and Ors. 2007 (7) SUPREME 374, where 34 petitioners who were
daily wage employees of the Cooperative electric Supply Society had prayed for regularization of their services in the U.P.State Electricity Board,
Their Lordships of the Honourable Apex Court, while referring to various pronouncements made by the Apex Court earlier, have held:
The decision in Secretary, State of Karnataka and Others Vs. Umadevi and Others, , cannot be applied to a case where regularization has been
sought for in pursuance of Article 14 of the Constitution and often Uma Devi''s case is being applied by Courts mechanically as if it were a Euclid''s
formula without seeing the facts of a particular case. The ratio of any decision must be understood in the background of the facts of that case. A
case is only an authority for what it actually decides, and not what logically follows from it. A little difference in facts or additional facts may make a
lot of difference in the precedential value of a decision.
It has also been held in para No. 18 of the Judgment:
We may further point out that a seven-Judge Bench decision of this Court in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, has
held that reasonableness and non-arbitrariness is part of Article 14 of the Constitution. It follows that the government must act in a reasonable and
non-arbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhi''s case (supra) is a decision of a seven-Judge
Bench, whereas Uma Devi''s case (supra) is a decision of a five-Judge Bench of this Court. It is well settled that a smaller bench decision cannot
override a larger bench decision of the Court. No doubt, Maneka Gandhi''s case (supra) does not specifically deal with the question of
regularization of government employees, but the principle of reasonableness in executive action and the law which it has laid down, in our opinion,
is of general application.
In the present case many of the writ petitioners have been working from 1985 i.e. they have put in about 22 years service and it will surely not
be reasonable if their claim for regularization is denied even after such a long period of service. Hence apart from discrimination, Article 14 of the
Constitution will also be violated on the ground of arbitrariness and unreasonableness if employees who have put in such a long service are denied
the benefit of regularization and are made to face the same selection which fresh recruits have to face.
In view of such a categorical observation made by the Honourable Apex Court, which is aptly applicable to the case on hand and further since
in the case on hand also, the petitioners are working for the last 25 years or so without any benefit when compared to other similarly situated
persons, the prayer of the applicants to regularize their services deserves to be allowed.
As has already been seen supra, even on an earlier occasion, the Tribunal in O.A. No. 741 of 2001, has directed the respondents to regularize
the services of Mr. S.Srinivasan, the petitioner in W.P. No. 23479 of 2006, having found him eligible to seek for regularization. The said order of
the Tribunal seems to have become final. However, the respondents, in spite of getting extension of time many times, did not comply with the
direction of the Tribunal, forcing him again to approach the Tribunal.
The Tribunal should have considered all these aspects and should have ordered the respondents to regularise the services of the applicants,
who are rendering their services for decades together, also considering the fact that by this time, they should have been over-aged to pursue any
other job to eke out their livelihood. Therefore, the order of the Tribunal needs to be modified since it has not taken into consideration the above
facts and thus has landed in an erroneous conclusion.
Accordingly, the order of the Tribunal is modified and the respondents are directed to regularise the services of the applicants within a period
of eight weeks from the date of receipt of a copy of this order.
With this direction, W.P. No. 23479 of 2006 stands allowed and W.P. Nos. 12706 and 12707 of 2007 stand dismissed. No costs. Connected
Miscellaneous Petitions shall stand closed.