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Judgment
O R D E R
By Hon’ble Mr. Mohan Pyare, Member (Administrative): Shri Manish Dev Singh, learned counsel for the applicant and Shri Ajay Kumar Rai, learned counsel for the respondents are present.
By means of this OA, the applicant has sought the following reliefs :
“(i)To set-aside the impugned orders dated 06-11-2018 passed by respondent no.4 herein and communicated through respondent no.5 herein whereby and whereunder her representation dated 29-01-2018 was non-suited by a non-speaking order and accordingly her services was dispensed with/terminated and orders dated 19-05- 2017, 25-05-2017, passed by respondent no.1 and 2 herein and impugned show cause notice/termination order dated 18-01-2018, passed by respondent no.4 and 5 herein (Annexure No.A1, A2, A3 and A4), whereby and whereunder the regularization of applicant herein as Assistant Teacher (Substitute) was turned down by a non-speaking order and by whimsical exercise of power her services was terminated in the most arbitrary and fanciful manner.
(ii)To issue any other order or direction which this Hon'ble court/Tribunal may deem just, fit and proper in the circumstances of the case.
(iii)To award cost in favour of applicant herein.”
The brief facts of the case are that the applicant was appointed as substitute Assistant Teacher for primary classes in Grade pay of Rs.1200-2040 at ATP, School, Fatehpur on ad-hoc basis or till regular incumbent joins on the post. On 23.09.1993, the respondent no.3 has given approval to the appointment of applicant as Assistant Teacher in Railway's Primary School. The applicant was served a letter dated 02-11-1993, issued by Respondent No.5 wherein it was stated that the substitute appointment of applicant herein would remain in effect for the period of 3 month or till regularly appointed incumbent joins the post in question. On 12-05-1997, the services of the applicant have been terminated. The applicant has challenged the termination order before this Tribunal by filing the O.A. No.557/1997. This Tribunal vide order dated 24.08.2000 directed the applicant to move a fresh representation within one month before the competent authority and the competent authority shall pass detailed, reasoned and speaking order within a period of two months and till the disposal of the representation of the applicant, the termination order shall not be given effect. In the meanwhile, a letter dated 05-01-2001 was served upon the applicant that she has already cleared written examination and the final result of selection will be issued after supplementary viva-voce test. The applicant moved a representation dated 25-07-2013 before the respondents for regularisation. On 29-01-2016, a letter was served upon applicant whereby he was communicated that on 03-11-2007 a written examination was conducted but he was not found suitable. However result of said examination was not traceable as matter being old one. A show cause notice dated 18-01-2018 has been issued to the applicant. The applicant furnished her reply on 29-01-2018 before the respondents. The applicant has challenged both the impugned orders dated 19-05-2017 as well as 25- 05-2017 along with order dated 18-01-2018 by filing the O.A. No.192 of 2018 before this Tribunal. The said O.A. was disposed of vide order dated 09-04-2018 directing the competent authority to take a decision on the reply of applicant dated 29.01.2018 submitted against the show cause notice dated 18.01.2018 and pass a reasoned and speaking order within a period of two months. On 19-05-2017, the concerned director establishment (N)II Railway Board informed the respondent No.3 that the regularization of applicant was not found feasible and accordingly turned down. It is submitted that at fag end of her services without any justifiable cause and reason her claim for regularisation has been turned down by the respondents. Hence, this OA.
In their counter affidavit, the respondents have submitted that after joining of regular candidates, the post of Assistant Teacher to replace substitute teachers, the ad-hoc services of the applicant was terminated vide order dated 12.05.1997 replacing her by a regular candidate. As per rules the services of the applicant could be regularized only when she is selected on a regular basis. The applicant had filed an OA before the Hon'ble Tribunal and in pursuance of the Hon'ble Court's direction, the representation of the applicant has been considered by the administration and it was informed to the applicant that in process to regularize the services of substitute teachers who have completed more than three years service, a selection was initiated in the year 1998. A written test was held on 14.06.2000 and viva-voce was held on 19.10.2000. Supplementary viva-voce has been fixed for 19.01.2001. The applicant has passed the written test and appeared in the viva-voce. Since the applicant was appointed as substitute teacher on purely ad-hoc basis for which B.Ed. degree is essential qualification. During verification, it was found that the certificate of B.Ed. submitted by the applicant is issued by Gandhi Hindi Vidyapith, Allahabad (Hindi University) which is not recognized by Bhartiya Vishwa Vidyalaya Sangh, New Delhi. Hence substitute services of the applicant could not be regularized. It is submitted that in the case of Gurbachan Lal Vs Regional Engineering College 2007 SCC (ii) 102 dated 01.03.2007, Hon'ble Supreme Court has clearly held that since the service of employee was contractual and temporary in nature and he was appointed under a scheme which have come to an end and he had joined the service after acceptance of the conditions, it cannot be said that termination of his service was invalid in law.
In another decision of the Apex Court dated 21.09.2006 in the case of Civil Appeal No. 4224 of 2006 Vidyaradhaka Sangha Vs Y.D. Deshpandey it is clearly observed as follow :-
"It is now well-settled principle of law that the appointment made on probation/ ad hoc basis for a specific period of time comes to an end by efflux of time and the person holding such post can have no right to continue on the post. …….. It is also well-settled law by several other decisions of this court that appointment on ad hoc basis/temporary basis comes to an end by efflux of time and persons holding such post have no right to continue on the post and ask for regularization.”
A proposal was sent to Railway Board for regularization of her adhoc services but the same was not found feasible. Thereafter, a show cause notice for termination of her substitute services was issued to the applicant vide letter dated 05.03.2001. It is further stated that in pursuance of Railway Board's letter No. E/NG/II/2006/Sub./NCR/12 dated 12.03.2007 and GM (P)/NCR/ALD letter No. 792 E/NCR/Teacher dated 22.03.2007, competent authority has taken decision to regularize the substitute services of the applicant as Sr. Clerk/Junior Clerk in Pay Scale Rs. 4500-7000/Rs 3050-4590 with immediate effect. Accordingly, a written suitability test to regularize the substitute services of the applicant as Sr. Clerk pay scale Rs. 4500-7000 was conducted on 03.11.2007 but the applicant was not found suitable. Therefore, her substitute services could not be regularized. Her substitute services as adhoc Assistant Teacher has been extended from time to time due to non availability of regular empanelled candidates. Now the regular empanelled candidates for 09 posts of Primary Teacher have become available for teaching in NCR Inter College, Tundla. As such, her substitute services as adhoc substitute Assistant Teacher automatically stand terminated as per terms and conditions in GM(P)/Northern Railway/NDL's letter No. 220-E/1208/Miss Mehdia Bibi/EVI dated 22.09.1993 and letter No. 220-E/Teacher/EO-1 dated 02.11.1993. It is further submitted that the action taken by the respondent is fully legal in the eyes of law. On the basis of above discussions, the respondents have submitted that the OA of the applicant is devoid of merit and deserves to be dismissed.
In her rejoinder, the applicant has narrated almost the similar points and added that once this Hon'ble Tribunal vide its order dated 24-08-2000 directed the concerned authority to form an opinion in respect of the applicant within a period of two months then under what circumstances no such decision was taken and the applicant was permitted to be continued in her services and in the meantime certain statutory rights accrued in her favour qua regularization of her services as she was well within zone of consideration but owing to whimsical and arbitrary decision of competent authority of department her genuine case was non-suited and furthermore a period of three months could not be equivalent to 24 years and as such all the orders impugned in instant O.A. deserves to be quashed. It is also submitted that the applicant rendered more than 23 years of services without any interruption and in continuity and later on her case was also sent before competent authority for regularization of services and all these facts and circumstances clearly strengthen the case of applicant that in changing facts and circumstances her services was liable to be regularized and termination order itself was un-sustainable in eyes of law.
Heard learned counsel for the parties and perused the records available in the matter.
Learned counsel for the applicant has relied upon the judgment passed by Hon’ble Supreme Court in Civil Appeal Nos.20-21 of 2024 (@Special Leave Petition (Civil) No.3877-3878 of 2022 dated 03.01.2024 in the case of Radhey Shyam Yadav and ors Vs. State of U.P. and others, special putting emphasis on para 25, 26 and 29. The issue involved in this judgment is that the applicants in that case were appointed over and above the sanctioned vacancy. The applicants were open market and there was no allegation of any mischief by the applicants. The applicants were not at fault. It was the omission of any malpractice by the School management. The issue involved in this case is quite different from the issue involved in the present OA in which the applicant was appointed as substitute Teacher. The appointment letter issued to the applicant on 23.09.1993 is reproduced as below :-
The Divl. Railway Manager, Northern Railway Allahabad. Sub : Appointment of Miss. Mehandia Bibi as a teacher on adhoc basis on Northern Railway. Ref : Railway Board’s D.O. No.E(RP) II/90-AP-2 D/90 dated 07.05.1993. The General Manager has accorded approval for appointment of Miss Mehandia Bibi as substitute Teacher on adhoc basis in Gr.1200-2040 (RPS) for Primary Classes in Bikaner Divn. for a period of 3 months or till regular empanelled candidates become available, she did not approached this office for her posting in ALD division. The competent authority has approved her posting in Allahabad Division. You are requested to consider her appointment in a primary school over ALD Divn. preferably suitable to the candidate if possible. She will be regularized only after having been empanelled by the Rly. Recruitment Board. Her original certificates must be seen and her eligibility be adjudged before appointing her as substitute teacher. The terms & conditions given in the Railway letter of even number dated 09.07.1993 are the same.”
The applicant has accepted the conditions. The letter dated Nov.1993 is also reproduced as below :-
Northern Railway No. 220-E/Teacher/E0.1 Office of the Divi. Railway Manager Allahabad. Miss Mehdia Bibi Nov. 1,1993. D/o Late Mohd. Ismail 698, Dariyabad Allahabad. (in office) Sub : Appointment as Substitute Teacher Grade Rs.1200-2040(RPS) basis for three months. Ref: GM(P)/NDL Sletter No.220-E/1200/Miss Media Bibi/EIV dated 22.9.93. Competent authority has accorded his approval vide GM(P)/NDLS letter quoted above for your appointment as Substitute Teacher Gr.1200-2040 (RPS) purely on adhoc basis for a period of three months or till such time regular empanelled candidate becomes available. Your substitute service will automatically stand terminated on expiry of three months or regular empanelled candidate becomes available. Neither any notice nor any pay in lieu there will be given to you for termination of your substitute services. If you are ready to accept appointment of Substitute Teacher Gr.1200-2040(RPS) an above condition please give your written consent and attend the office with all relevant original documents.”
The applicant has accepted the above conditions. Her services were against the termination order dated 12.05.1997. The applicant approached this Tribunal through OA No.557 of 1997, which was decided by an order dated 24.08.2000. The operative portion of the order is reproduced as below :-
“7.In case the applicant makes a fresh representation before the competent authority within a month, the competent authority shall pass detailed, reasoned and speaking order thereon within a period of two months, thereafter, and till the disposal of the representation, the termination order, copy of which has been annexed as annexure 3 to the OA, shall not been given effect.”
On the strength of this order she has continued in the job again. The representation filed by the applicant dated 18.09.2000 was rejected in a letter dated 19.05.2017 and 25.05.2017. Again, a show cause notice dated 18.01.2018 was issued to the applicant mentioning that the substitute service as ad-hoc assistant teacher has been extended for time to time due to non availability of regular empanelled candidates. A proposal was sent to Railway Board for regularization of the service of the applicant since she is not in possession of requisite degree to be regularized and now regular empanelled candidates are available so why not her substitute services as ad-hoc substitute assistant teacher be automatically terminated. She was given 15 days time to submit her reply. She has submitted her reply and a detailed speaking order have been passed by the competent authority. The competent authority has not accepted her reply. The ad-hoc substitute service as assistant teacher of the applicant was terminated with immediate effect.
The respondents have mainly relied upon two judgments cited in their counter affidavit. The Hon’ble Supreme Court in the case of Vidyavardhaka Sangha & ors Vs. Y.D. Deshpandey & ors has concluded that appointment on ad hoc basis/temporary basis comes to an end by efflux of time and persons holding such post have no right to continue on the post and ask for regularization. In the case of Gurbachan Lal Vs Regional Engineering College, which was filed against the judgment of Hon’ble High Court has held that since the service of employee was contractual and temporary in nature and he was appointed under a scheme which have come to an end and he had joined the service after acceptance of the conditions, it cannot be said that termination of his service was invalid in law.
The above two judgments squarely cover the case of the applicant as she was appointed as adhoc substitute Assistant Teacher till regular panel of the Assistant Teachers are not available to replace the applicant. After joining of regular Assistant Teacher, the service of the applicant should have automatically come to an end.
Clearly the applicant has continued on the job for more than 23 years on the strength of delayed action in disposing the representation of the applicant as ordered by this Tribunal. The respondents have taken efforts to regularise the services of the applicant and in due course found that she is not in possession of requisite qualification. Coming to this situation, they have tried also to regularise her in clerical cadre that could also not materialise. Although, the applicant has continued in job for a long time but condition imposed in the original letter of appointment, which has been accepted by the applicant is tying her hand by conditions stipulated in the appointment letter and she has not been found eligible to be appointed/regularised and she has not shown any authority that denial of her regularisation is wrong or illegal as she possess the requisite qualification. Now, she has already attained the age of superannuation.
On the basis of facts in the above OA as well as citations produced by rival parties, we do not find any basis to interfere at this stage. The OA is liable to be dismissed. Accordingly, the OA is dismissed. No order as to costs.
All MAs pending in this O.A. also stand disposed off.