State Of Tripura And Ors vs Sarathi Datta And Ors

[1] This appeal is filed by the State Government to challenge a judgment of the learned Single Judge dated 11th May, 2020 passed in WP(C) No.197/2016.

[2] The writ petition was filed by the respondent No.1 seeking regularization on the post of Assistant Professor of Pharmacology in the Regional Institute of Pharmaceutical Sciences and Technology. His case was that the said institute was upgraded to a degree institute in the year 1997. At that time there was acute shortage of teaching staff. The Government, therefore, decided to create some positions of part-time lecturers. The petitioner was appointed as a Part-time Lecturer in the year 2000, for a period of 6 months, subject to maximum 50 classes per month. Thereafter, the appointment of the petitioner has continued from time to time and the administration had issued extension orders. The petitioner has continuously served the said organization without any break in service.

In the year 2005, Tripura Public Service Commission(TPSC) issued advertisement for the post of Lecturer(Pharmacology) to which the petitioner applied. His application was rejected on the ground that he did not have adequate teaching experience. This was by ignoring the petitioner's teaching experience as a Part-time Lecturer. The petitioner challenged the said decision before the High Court and succeeded. The TPSC was to interview the petitioner and all other eligible candidates. However, it appears that pursuant to the said selection process, no one was appointed and the post remained vacant. The petitioner continued to discharge his duty as a Part-time Lecturer. The petitioner pointed out that in the past, two attempts were made by TPSC for selection and appointment of suitable candidates as Full-time Lecturer. Both the attempts failed. In the meantime, since the petitioner had continuously discharged his duties for 15 years, he should be made permanent and regular.

[3] The petition was resisted by the respondents. It was contended that the post of Lecturer is renamed as Assistant Professor. TPSC had advertised the post twice in the year 2000 and 2005. However, no appointments could be made for want of eligible candidates. The petitioner was not eligible at the relevant time because he did not have the Master's Degree which was a minimum qualification. It was contended that the Part-time Lecturer cannot be automatically regularized without selection process.

[4] The learned Single Judge in the impugned judgment referred to the internal correspondence and file notings of the administration and noted that at one stage, the administration had decided to regularise the service of the petitioner. However, the said decision was not implemented because the petitioner had filed the present writ petition. The learned Single Judge disposed of the writ petition in following terms :

"25. Having considered all aspects as outlined hereinabove, I direct the respondents to complete the process in the line of Note No.2 in reference to preceding Note No.1, as extracted above, within a period of 6 months from the date the petitioner furnishes a copy of this judgment to the respondents or from the date of receipt of the copy of the order by the respondents whichever is earlier. In addition, in my opinion, this is a fit case to invoke the doctrine of moulding relief and accordingly, till regularization as aforestated, the respondents are directed to pay the salary at par with the minimum pay scale i.e. at the lowest grade, in the regular pay scale along with all consequential service benefits consistent with said pay scale as prescribed for the post of Assistant Professor which would start from the month the respondents receive the order of this Court.

Accordingly, the instant petition stands allowed in the above terms and disposed."

[5] Appearing for the appellants, learned Advocate General submitted that the petitioner was merely a Part-time Lecturer. His service cannot be regularised without due selection process. The selection had to be done through TPSC. In the present case, attempts made by TPSC failed twice since eligible candidates were not available. The petitioner may now be eligible, but cannot be appointed without selection. He relied on the decision of Supreme Court in case of Secretary, State of Karnataka and Ors. Vs. Uma Devi(3) and Ors. reported in (2006) 4 SCC 1.

[6] Learned Advocate General further submitted that the direction for payment of regular salary till the selection process is over was neither prayed for nor could have been granted. As a Part-time Lecturer, the petitioner was paid remuneration at agreed rates. He cannot claim regular scale of pay which is prescribed for a full-time regular lecturer.

[7] On the other hand, learned Advocate Mr. Arijit Bhowmik, appearing for the original petitioner, opposed the petition. He contended that the administration itself had decided to regularise the service of the petitioner since the post was not filled up on regular basis since long and the petitioner who was eligible and sufficiently experienced and having worked continuously for more than 15 years at the same organization. He also referred to the decision of Supreme Court in case of Uma Devi(supra) and submitted that since the service of the petitioner had continued for more than 10 years without any intervention from the Court, the petitioner had a right to be regularized. He also relied on the decision of Supreme Court in case of State of Karnataka and Ors. Vs. M. L. Kesari and Ors. reported in (2010) 9 SCC 247 to contend that there is a distinction between irregular and illegal appointments. The petitioner's appointment was not illegal and, therefore, can always be regularized. He also relied on the decision of Supreme Court in case of Amarendra Kumar Mohapatra and ors. Vs. State of Orissa and Ors. reported in (2014) 4 SCC 583 to contend that the decision of Supreme Court in case of Uma Devi(supra) did not shut out completely the doors of the administration in framing the scheme for regularization of employees continued for a long time.

[8] Facts of the present case are not seriously in dispute. The petitioner was engaged as a Part-time Lecturer pending regular selection process and appointment of the regularly selected candidate. It is not clear what kind of selection process was undertaken at that time. Whatever be the nature of selection process, the same ought to have relevance to the ad-hoc arrangement of a Part-time Lecturer that the administration required to make pending full-fledged selection of a regular lecturer. The question of the appointment of the petitioner being irregular or illegal, therefore, is not germane. It is not as if that the petitioner was appointed as a Full-time Lecturer though his appointment was tainted by some irregularity but not illegality. Had this been the position, the question of appreciating the decision of Supreme Court in case of Uma Devi(supra), in light of subsequent decisions in cases of M L Kesari(supra) and Amarendra Kumar Mohapatra(supra), would arise. In the present case, the petitioner was initially engaged as a Part-time Lecturer and continued in said capacity. Two attempts were made to fill up the post on regular basis through TPSC. Both attempts failed since qualified candidates were not available.

[9] When such a teaching post which is required to be filled up through TPSC is under consideration, regularization of a Part-time Lecturer without having to go through a regular selection process cannot be done. In Uma Devi(supra), the Supreme Court frowned upon the rampant practice of regularization of illegal appointments of people who were recruited or engaged without any selection process in breach of Articles 14 and 16 of the Constitution which was described as back door entry. While doing so, of course a small window of opportunity was kept open by allowing the administration to consider regularization of certain employees subject to certain conditions. In this context, following portion of the judgment may be noted:

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

[10] However, in the present case, this principle cannot be invoked since the petitioner was never appointed as a Full-time Lecturer. He was engaged as a Part-time Lecturer when he was not holding the educational qualifications for being appointed on regular basis as a Full-time Lecturer.

[11] At one stage, the administration did consider regularizing him without any further selection process. However, this decision was never implemented. In any case, it is hugely doubtful whether any such decision could stand the test of law. In other words, even if the administration had implemented such decision, it was vulnerable and open to challenge by a candidate who may be duly qualified and aspiring to be appointed on regular basis as a Lecturer. The learned Single Judge, therefore, committed an error in issuing directions for regularizing the petitioner without selection through TPSC.

[12] Equally, the direction for payment of wages at par with the regular Lecturer in the minimum scale, appears to us to be unsustainable. Firstly, there was no such prayer made in the petition. Secondly, there is no material to suggest that the petitioner was weighing the same workload as that of a regular Lecturer. Even if the teaching workload was similar, a regular Lecturer would ordinarily be expected to discharge other duties and responsibilities of administrative nature. Without full enquiry into all these aspects the direction of payment of wages at a higher rate on the principle of equal wages for equal work could not have been issued.

[13] One aspect that remains is about the age relaxation. The petitioner is duly qualified for the post in question. He holds educational as well as experience requirements. However, he has admittedly crossed the upper age limit. This is substantially of account of the fact that from the year 2005 till date the TPSC has not initiated fresh process for selection and appointment of a Lecturer(Pharmacology) on regular basis. There is no explanation for such long gap of time in initiating the process. In the meantime, the petitioner continued to weigh the burden of coaching the students year after year from the year 2000 onwards. He has thus worked with the organization for over 20 years. Considering all these aspects of the matter, it is provided that the TPSC shall initiate the process of recruitment of the Assistant Professor in the said subject without any further delay. As and when the same is done, the petitioner shall have age relaxation considering his continuous discharge of duties as a Part-time Lecturer for over 20 years.

[14] Accordingly, appeal is allowed in the above terms subject to the terms contained hereinabove. Pending application(s), if any, also stands disposed of.