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Judgment
T.N.C. Ranga Rajan, J.—These writ petitions relate to rival claims for absorption in the posts of S.G.B.T. teachers.
The background to these cases is that a few vacancies of teachers in the V.V. Primary School and Saraswathi Pathasala were required to be filled up with candidates who were able to teach in English as well as Marathi. On 26-6-1984, Vivek Vardhani Educational Society which was running the school intimated the Employment Exchange and also advertised the posts in the local newspapers. Four petitioners in W.P.No. 24864/1995 and another four petitioners in W.P.No. 5246 (sic.5276)/1995 applied, were interviewed by a Committee and selected for appointment. The appointment orders were issued on 30-7-1984 on purely temporary basis on a consolidated salary. Subsequently., the Society again advertised for the same in the newspaper dated 7-7-1991. When the petitioners protested, the Society informed them that they can also apply and petitioners appeared for the interview under protest. The case of the petitioners was that they had been appointed in the regular vacancies after being interviewed by a committee, and therefore, they were required to be absorbed before any vacancy is filled up by fresh recruitment. However, the result of this selection was that none of the petitioners was successful and the respondents 7 to 13 were appointed instead. Their appointments were also approved by the District Educational Officer by two proceedings dated 25-9-1992 and 15-10-1992. The petitioners, thereupon, appealed to the Regional Joint Director. By identical orders dated 2-3-1994 held that they were not qualified to be appointed because the posts were only for Marathi medium and the petitioners did not know Marathi. It was further noted that the initial appointments of the petitioners was itself irregular, and hence, they had no right to be absorbed. On the same day the Regional Joint Director passed another order scrutinising the appointments of the respondents with reference to the approval of their appointments by the proceedings of the District Educational Officer dated 25-9-1992. He held that the said approval was given without taking into consideration the requirement of the G.O.Ms.No. 524 dated 20-12-1988. He, accordingly, set aside the approval and directed the District Educational Officer to verify the qualifications and issue revised orders strictly in accordance with the rules in force. The respondents filed W.P.No. 5829/1994 and by order dated 16-2-1995 it was held that having dismissed the appeals of the petitioners the Regional Joint Director had no justification for setting aside the approval given for the appointment of the respondents without notice to them, and accordingly, the common order of the Regional Joint Director setting aside the approval was quashed. The petitioners also filed W.P.No. 7996/1994 and W.P.No. 1526/1994 which were disposed of noting that they have filed revisions which may be pursued. Those revision petitions were disposed of by the Commissioner and Director of School Education by identical orders dated 30-9-1995. He held that the petitioners had participated in the selection held in 1991 and failed, and therefore, they had no right to claim absorption or seniority as against the respondents. The petitioners have therefore filed the present Writ Petition Nos. 24864/1995 and 5276/1995 seeking to quash the order of the Commissioner and Director of School Education dated 30-9-1995 and also not to give any consequential benefits to the respondents-teachers before deciding the right of the petitioners. Since the salary and consequential benefits were not paid to the respondents, they have filed W.P.No. 22822/1994 (sic. 1995) for that relief.
The learned Counsel for the petitioners submitted that at the time of initial recruitment in 1984, G.O.Ms.No. 524 dated 20-12-1988 was not in force, and therefore, the Society was permitted to make recruitment without having any Government representative. It was also submitted that the vacancies themselves arose because the earlier incumbents had been absorbed by proceedings of the District Educational Officer dated 21-11-1984 and those persons had also been selected by the Society only, and hence, on the same basis, the petitioners were entitled to be absorbed in the aided posts. It was submitted that the petitioners had protested against the recruitment made in 1991 and since they were agitating the matter of their absorption, the appointment of the respondents-teachers was itself invalid as it was done without deciding the issue of the right of the petitioners for absorption. It is also pointed out that though their appointments are called temporary they were actually appointed in regular posts, and hence, on the basis of entry into service the seniority of the petitioners has to be preserved.
On the other hand, the learned Counsel for the respondents-teachers submitted that their appointments had been approved by the District Educational Officer and that it was set aside by the Regional Joint Director, that order of the Regional Joint Director was itself set aside by the High Court, and hence, it became final. It was submitted that since the petitioners were parties to that writ petition, they cannot question it now. It was further submitted that the petitioners are only ad hoc appointees who have no right for absorption as held in Keshav Chandra Joshi v. Union of India, AIR 1994 SC 284, J and K. Public Service Commission, etc. Vs. Dr. Narinder Mohan and others etc. etc., , Jiwan Lal vs. State of H.P. 1980 (2) SLR 799. Reliance was also placed on the decision of the Supreme Court in Chancellor v. Dr. Bijayananda Kar, 1994 (1) SLR 17 : 1994 (1) ALT 8 and on the decision of this Court in P. Prabhakar Rao Vs. Punjab National Bank and Others, to contend that the High Court cannot substitute its own opinion on the selection made.
The Government has also filed a counter affidavit supporting the stand of the respondents -teachers and pointing out that the selection was for Marathi knowing teachers as the Institutions were Marathi medium schools and since the petitioners were not qualified to teach in Marathi Medium, they were not entitled to any consideration.
I am able to appreciate the grievance of the petitioners that though they had been appointed earlier after being selected by a Committee of the Educational Society, they were being supplanted by subsequently selected teachers. In order to have the grievance redressed, the petitioners should have challenged the very notification in 1991 seeking to fill up the posts which they were holding. It appears that they have not done so. Instead they participated in the selection under protest and have pressed their case for absorption prior to the approval of the selected candidates. The result is that the focus has shifted from the real question whether the posts held by them could be treated as vacant and notified, to the question whether they were entitled for absorption in preference to the regularly selected candidates. Unfortunately for the petitioners, the attempt of the Regional Joint Director to keep the issue open by directing the District Educational Officer to verify the selection of the respondents-teachers was set aside by this Court in W.F.No. 5829/1994 to which the petitioners were parties, and that issue, therefore, became closed. It is no longer possible for the petitioners to contend mat the posts could not be notified or mat the respondents-teachers could not be appointed or their appointments approved in accordance with the rules. This pre-empts all the avenues open to the petitioners.
The learned Counsel for the petitioners emphasised the fact that they had been recruited regularly in accordance with the rules then in force, particularly when G.O.Ms.No. 524 dated 20-12-1988 was not applicable and the earlier practice being that such candidates appointed to unaided posts are absorbed into aided posts, the claim of the petitioners ought to be considered just as the claim of their predecessors which were accepted by the Government in the proceedings of the District Educational Officer dated 21-11-1984. Though this plea appears to be reasonable, it cannot be entertained because the posts are not available. It is also not possible to ignore the fact that the petitioners were appointed temporarily In the Marathi medium School perhaps for lack of Marathi knowing teachers and after the recruitment in 1991, the services of the petitioners were no longer necessary. I do feel that the petitioners had raw deal but it appears that they have taken the risk by joining the Marathi Medium School knowing fully well that they were not qualified to hold the posts on regular basis but could be appointed only on ad hoc basis. As held by the Supreme Court in the cases cited on behalf of the respondents, such ad hoc employees do not have any right to be absorbed.
In the circumstances, I see no reason to interfere with the orders of the authorities concerned. Writ Petition Nos. 24864/95 and 5276/95 are dismissed. It follows that the respondents-teachers who are the petitioners in W.P. No. 22822/1995 are entitled to be paid the salary due to them. Hence, there will be a direction as prayed for in this writ petition. Writ Petition No. 22822/1995 is allowed. No costs.