The University of Madras vs N.G. Chandrakesan

F.M. Ibrahim Kalifulla, J.—The University of Madras is the Appellant herein. The issue involved in this Writ Appeal relates to the non employment of the Respondent herein who was initially employed by the Appellant as a temporary Attender in the U.G.C. Study Centre at the World University Service Study Centre on a pay of Rs. 145/- per month plus usual allowances eligible under the rules in the scale of pay of Rs. 145-5-18-6-240. The Respondent who was thus employed as temporary Attender was ultimately terminated from service with effect from 31.8.1985 A.N. by the Appellant by a communication dated nil in proceedings No. F/l/Estt/85/3461. Against the said order of termination, the Respondent filed W.P.10042 of 1986 for the issue of a writ of mandamus, to direct the Appellant herein to appoint the Respondent in the post of Attender of Study Centre at World University Service Centre, Madras with retrospective effect from 25.3.1975 and grant consequential promotion with back wages and all other attendant benefits.

The Appellant resisted the claim of the Respondent by filing a counter, contending, that the appointment of the Respondent as temporary attender on 25.3.1975 was against sanctioned strength for World University Service Centre in an University Grants Commission Scheme Post, that the running of those centers were dependent upon the financial assistance of the University Grants Commission, that such assistance was extended by University Grants Commission only up to the end of 31.3.1979, that the service of the Respondent was extended based on the scheme and came to an end on 30.6.1980 for want of financial assistance. It was further contended that the service of the Respondent was subsequently availed with effect from 27.8.1980 and was continued in anticipation of the concurrence of the Government of Tamil Nadu in rendering financial assistance to the scheme, that since University Grants Commission stopped the financial assistance from 31.3.1979, the services of the Respondent were not extended beyond 31.8.1985. It is also stated that after 31.8.1985, at the request of the Madras University Nonteaching Staff Welfare Association and as per the directions of the Vice Chancellor, by an order dated 21.8.1986, the Respondent was appointed as a temporary attender and posted as an Attender in a temporarily sanctioned post to the Text Book Study Centre at the World University Service on a pay of Rs. 300/- per month in the scale of pay of Rs. 300-10-360-15-450-20-550 plus usual allowances for the period from 22.1.01986 to 21.3.1986, that by the said order of temporary appointment, the Respondent was informed that the temporary services would get terminated on 31.3.1986 unless further orders were issued for continuation. It was further contended that the termination of the services of the Respondent from the afternoon of 31.3.1986 in accordance with the order of appointment dated 21.1.1986 was perfectly justified and the same should not be interfered with.

By order dated 21.11.1986, the writ petition was disposed of by the learned single Judge holding that the Appellant failed to establish that the nature of the employment was not on a permanent basis, and therefore that the order dated nil in proceedings No. Fl/Estt./85/3461 was liable to be set aside and consequently directed reinstatement of the Respondent with all back wages, continuity of service with all other attendant benefits. Against the order of the learned single Judge, the Appellant has come forward with this appeal.

The Learned Counsel for the Appellant in the course of his submissions also produced the file relating to the employment of the Respondent and also a list of attenders appointed by the Appellant between 1975 and 1997. On a perusal of the said list, it is revealed that between February, 1975 and July 1986, fourteen such attenders have been appointed, of whom five were subsequently promoted as Assistants and one was terminated in the year 1982. Further while five of them have been appointed as Lab Attenders, there is no special categorisation in respect of the other attenders. On the whole, between 1975 and January 1997, 29 attenders have been taken in employment. Of twenty-nine Attenders, sixteen of them were stated to have been appointed on compassionate grounds. That was the state of affairs relating to appointment of attenders by the Appellant University between 1975 and 1997. Be that as it may, the Learned Counsel for the Appellant drew our attention to certain important events in pages 7, 87, 99, 109, 185, 199, 205, and 349 of the file, and contended that the appointment of the Respondent was purely on a temporary basis, that once in the year 1980, the records disclose the Respondent''s misbehavior towards some girl students in the World University Service Centre for which he was relieved from the services of an Attender with effect from 30-6-1980, that based on the assurance given by him guaranteeing better behavior in future as vouchsafed by the Honorary Director of World University Service Centre, the Respondent was again appointed as temporary attender, that even after such reappointment, it was thought fit not to post the Respondent in the Centre where lot of lady students from various places used to visit, that he was therefore posted as Attender to the Librarian of Madras University Library, that in the year 1981 he was again involved in an agitation of the Season Ticket Holders Association and got himself arrested on 19.6.1991 at Chengalpet Railway Station for various offences punishable under certain provisions of Indian Penal Code and was remanded by the Chief Judicial Magistrate, Chengalpet, that when the question of extending his service was considered, necessary legal opinion was obtained, that thereafter his services were extended on the same terms and conditions and therefore having regard to the nature of engagements of the Respondent as a temporary Attender and even during the tenure of the Respondent in the temporary post, he had a bad track record and by virtue of the last spell of employment and the orders dated 21.1.1986 being one for a specific period ending with 31.3.1986, the learned Judge was not justified in ordering reinstatement with all other attendant benefits.

The Learned Counsel for the Respondent submitted that as between 1975 and March, 1986 except for a short break, the Respondent was continued in employment under the Appellant for more than eleven years, that the initial appointment itself was to a particular post of Attender as disclosed by the order of appointment dated 18.3.1975 which was continued for more than eleven years, that though admittedly financial assistance by the University Grants Commission was discontinued in the year 1979, the Respondent was continued for the next seven years upto 1986, which would belie the contention of the Appellant that the Respondent was appointed in a temporary post, that other employees who were appointed under similar circumstances had been continued in service and thereby the Respondent was discriminated against, that the various authorities cited on behalf of the Appellant were all cases relating to Adhoc appointments which are not applicable to the facts of this case.

On a perusal of the file produced before us, we find that in the academic year 1974-75, in view of the increase of the number of the students visiting the Study Centre after reopening of the colleges, it was felt that an Attender to help the Assistant Librarian should be appointed. Based on the above said need expressed by the staff Secretary of World University Service Centre, the Appellant herein on 16.10.1974 sanctioned a post of Attender in the scale of Rs. 145-5-180-6-240, subsequent to which, two candidates including the Respondent were interviewed on 20-1-1975 by the Registrar of the Appellant and based on the qualification of the Respondent, he was appointed by the Appellant. Though he was initially appointed as a temporary Attender on 18.3.1975, the same was subsequently extended for further period of one year by proceedings dated 30.4.1976. While issuing the said communication, the Respondent was called as an Attender as it was found that the service was essential for running the World University Service Study Centre. It was further continued for one more year from 25.3.1977 on the same terms and conditions by order dated 10.3.1977. Similar such extension for one year form 25.3.1978 was made on 5-4-1978. By proceedings dated 9.4.1979, the extension was given for one month from 25.3.1979 and further extended up to 30.6.1979. It was next extended up to 30.9.1979 and thereafter till 31.3.1980. Further extension from 1-4-1980 up to 30.6.1980 was also made. During this period, it appears that the Respondent misbehaved towards some Lady students of Sri Lanka who stayed in the Centre, and the Respondent was relieved from the service as Attender with effect from 30-6-1980 by proceedings dated 20-6-1980. Subsequently, the Honorary Director of the World University Service Centre himself in his letter dated 7.7.1980 certified that after his advice and in view of the Respondent''s assurance of better behavior in future, the Respondent could be considered for reappointment. After considering the recommendation of the Honorary Director of the World University Study Service Centre, by proceedings dated 18-7-1980, the Respondent was appointed again as temporary attendar for a period of three months.

After joining the World University Service Centre, at the instance of Honorary Director, the Respondent was directed to work in the Office of the Madras University Library for a period of three months from the date of his joining. Subsequently his position as an attender continued without any break. In between when an information was received from the Railway Police, Chengalpet about the Respondent''s involvement in the agitation carried on by the Season Ticket Holders Association, the arrest of the Respondent on 19-6-1991 and subsequent remand by the Chief Judicial Magistrate, Chengalpet, the Appellant sought necessary legal opinion regarding the continuation of the Respondent in the employment. While the legal adviser of the Appellant suggested that no further extension should be granted to the Respondent, the counsel for the University was of the view that the termination of the services of the Respondent would attract Section 25(f) of the Industrial Disputes Act, as the same would amount to '' retrenchment, that the alleged participation of the Respondent in an agitation which is prejudicial to public order being a misconduct falling under Rule 7 of the Madras University Employees Conduct Rules, the same would call for appropriate action against him for misconduct which was a matter to be decided by the authorities of the Appellant University. However the files disclose that the Appellant did not pursue the matter further, except calling for explanation from the Respondent for his alleged participation in the agitation carried on by the Season Ticket Holders Association, no further proceedings were initiated against the Respondent. On the other hand, the Respondent''s tenure as an attender was continued even thereafter without any break.

Subsequently, when the Appellant called for report on the work and conduct of the Respondent, by communication dated 22.1.1985, the immediate superior of the Respondent, namely, the Librarian also certified that the work and conduct of the Respondent was satisfactory. By communication dated 14.3.1985, the Appellant also granted periodical increment to the Respondent with effect from 1.1.1980. By yet another communication dated 26.6.1985, the immediate Superior of the Respondent also certified that the Respondent has not taken any leave during the period upto 30-6-1985 and recommended for the extension of the services of the Respondent. By yet another communication dated 30.8.1985, the immediate superior of the Respondent requested the Appellant for posting the Respondent in one of the two attender''s posts remaining unfilled, taking into consideration the fact that the Respondent had put in more than ten years service in the University.

On 31-8-1985, the Respondent made a representation to the Appellant through proper channel requesting for regularisation of his service as an attender as he had put in more than ten years of service, that the had studied upto PUC, that he also possessed the qualification to work as a Telephone Operator, that he belongs to schedule caste, that after entering the service, he got married and his family consisted of his wife and three children apart from his widowed mother and unmarried younger sister and therefore the termination of his service on and from 31.8.1985 should be revoked and he should be posted in a regular post of Attender. The said representation was strongly recommended by his immediate superior namely the Librarian. Thereafter on a detailed consideration regarding various persons who were employed pursuant to the financial assistance granted by the University Grants Commission and the subsequent stoppage of grant by the UGC, it came to light that there were five other teaching and non-teaching personnel to the cadre of Reader, Lecturer, statistician, Junior Assistant, etc. who were continued in service until further orders in anticipation of the concurrence of government of Tamil Nadu and that in the case of one L. Ramachandran, Librarian who was also similarly placed he was allowed to continue in employment while it was resolved to regularise him from the date the Government took over the scheme. Nevertheless the services of the Respondent was not regularised and on the other hand by a communication dated 21.1.1986, the Respondent was informed that he is appointed as a temporary Attender against the post temporarily sanctioned to the Text Books Study Centre at World University Study Service Centre and on a pay scale of Rs. 300-550 plus usual allowances eligible under the rules for the period from 22.1.1986 to 31.3.1986. It was also mentioned therein that the said appointment would stand terminated on the afternoon of 31.3.1986 afternoon unless further orders were issued by the positive continuation. The order dated 21.1.1986 came to be issued on the basis of the note order of the Vice-Chancellor dated 10.1.1986 which was to the following effect:

Approved subject to the condition that the Tamil Nadu Government takes over the scheme on or before 31.3.1986 otherwise such posts will stand terminated, as the University financial position will not permit additional financial commitments.

The Respondent was thus permitted to join again as an attender. While so, when a vacancy arose for the post of Telephone Operator, the Respondent made an application on 3.2.1986, but he was not permitted to attend the interview. Subsequently, when the Appellant was not permitted to sign the attendance from 1.8.1986, he approached the Appellant for regularisation of his service through his representations made in the month of April, 1986. Thus, his service was brought to an end on 31.3.1986.

Various factors and circumstances culled out from the file disclose, that it was the Appellant who appointed the Respondent in a sanctioned post in the year 1975, that in the Year 1980 though the Respondent was relieved from his post, based on an adverse report made by the Honorary Director of World University Study Service Centre, the Respondent was restored to his service, again based on the recommendation of the very same Honourary Director, and that on such re-joining on 27-8-1980, the Respondent was continued in service upto 31-8-1985 afternoon. In the year 1981, action was sought to be initiated for his involvement on the basis of the alleged participation in agitation carried out by the Season Ticket Holders Association on 19.6.1981, the same was not pursued further, it is also on record that various other personnel who were also employed pursuant to the sanction of financial assistance by University Grants Commission for various study centers, continued to be employed and that in one case of Assistant Librarian, specific orders were issued to the effect that his services were regularised awaiting the concurrence of the Government of Tamil Nadu for continuation of financial assistance.

The Respondent who was initially appointed, after an interview by the Registrar of the Appellant to a sanctioned post was placed in a time scale of pay. He was also granted periodical increment, though belatedly. The Respondent was, therefore, continuing in employment for a quite long number of years of service with the fond hope that his services would be confirmed on one fine day. But to the utter shock of the Respondent, instead of serving him with an order of confirmation, the Appellant chose to abruptly terminate his service on an unacceptable ground that he was only a temporary employee ignoring the service put in by him right from 18.3.1975. A reading of the order dated 31.8.1985 which was not even addressed to the Respondent is worded to the effect.

With reference to your letter cited, I am by direction, to inform you that your " request for extension of service of Thiru N.G. Chandrakesan, Attendar, World University Study Centre is not feasible of Compliance, since no temporary staff should be permitted to continue in the temporary service for more than 90 days as per the orders of the Vice Chancellor.

Hence the services of N.G. Chandrakesan may be terminated in the World University Service Study Centre with effect from 31.8.1985 A.N."

This communication emanated from the office of the Registrar of the Appellant. It is not known as to how the theory of impossibility of permitting to continue a person in a temporary service for more than 90 days can be applied to case of the Respondent. It is the admitted case of the Appellant that after the initial appointment made on 18.3.1975, the Respondent continued in service till 31.8.1985 except for a short break. By no stretch of imagination, the services of the Respondent, though called as temporary, can be really construed as such. Through the Appellant wanted to call the services of the Respondent as temporary, as a matter of fact, the Respondent was in almost continuous employment with the Appellant for more than a decade. Therefore, there is absolutely no scope for the Appellant to contend that a temporary employee should not be permitted to continue in that post for more than 90 days. If such a contention of the Appellant is to be accepted, then one will have to simply ignore every other circumstance established in this case relating to the Respondent, with particular reference to his appointment on 18.3.1975, the various orders of extension up to the date of his termination namely 31.8.1985A.N. The attitude of the Appellant, to say the least, does not stand to reason. It only demonstrates the high handed and arbitrary attitude towards employee at the lowest level, thinking that the action of the Appellant was unquestionable. The alleged misbehavior of the Respondent though was taken note of by the Appellant was not pursued further for reasons best known to the Appellant. Therefore, it is untenable for the Appellant to put forth those grounds in order to sustain the present orders of termination dated 31.8.1985.

The action of the Appellant cannot also be said to be honest when compared with the appointment of so many other attenders made during the period February, 1975 to July, 1986. The contention of the Appellant, by solely relying upon the factor that the appointment of the Respondent was pursuant to the University Grants Commission sanction for the various study centers cannot also be accepted, inasmuch as, as disclosed in the file, several other persons had been continued who also came to be employed under similar circumstances. The Respondent who is stated to have got subsequently married with three children to be looked after along with his widowed mother and unmarried sister cannot, in the circumstances of this case be left in the lurch by the Appellant University on the plea that the nature of the employment of the Respondent was only a temporary one. We do not find any bona fides in the action of the Appellant in terminating the services of the Respondent on the alleged ground that he was only a temporary employee.

The Honourable Supreme Court in a recent judgment reported in G.B. Pant Univeristy of Agriculture and Technology, Pant Nagar, Nainital v. Its Canteen Employees 2000 (5) Supreme 477 while dealing with the question relating to the regularisation of 170 workers in the Cafeteria of the University was pleased to observe that the involvement of the Vice Chancellor, the warden and the food managers who admittedly, all belong to the University as its employees cannot negate the cry of the labour force asking for parity in their scale of pay. Ultimately, the Honourable Supreme Court directed the University to regularise the services of the employees so as to enable them to receive monthly wages at par with the other employees of the University. Applying the ratio of the Judgment, we feel that the Appellant should be directed to reinstate the Respondent forthwith with continuity of service with all other attendant benefits.

The Learned Counsel for the Appellant relied upon the judgment reported in Director, Institute of Management Development, U.P. Vs. Smt. Pushpa Srivastava, . for the proposition that, "The appointment being contractual and ad hoc which came to an end by efflux of time, the employee had no right to continue in the post and to claim regularisation in service in the absence of any rule providing for regularisation."

That was a case where a Research Institute Executive was appointed in the Institute of Management Development on a consolidated fixed compensation of Rs. 1260/- per month on contract basis for a period of three months and it was specifically stated in the order that it was purely on ad hoc basis, liable for termination without notice on either side. On a close reading of the said judgment, it is apparent that the concerned employee was appointed to the level of a Research Executive and by mutual agreement, appointment was made periodically on a tacit understanding that on expiry of each spell, the appointment would come to an end, further, at one stage, the executive resigned from the services and, therefore, on further request, again on a contractual basis, appointed as a training Executive on a consolidated compensation of Rs. 2500/- per month. It was in those circumstances, when there was no scope for availing the services of the said Training Executive, by abolition of the post, the Honourable Supreme Court held that " the appointment was purely on ad hoc and on a contractual basis for a limited period, therefore, by expiry of the period of six months, right to remain in the post came to an end." The facts and circumstances that arose for consideration in that judgment are dissimilar to the facts of this case. In this case, we are concerned with the case of non-employment of a workman at the lowest level in the services of the University. Moreover, the period of employment the case on hand lasted for more than ten years. The appointment was also unilateral on a regular basis by the Appellant as against the appointment of contractual basis in the case decided by the Honourable Supreme Court. The said judgment is, therefore, not applicable to the facts of the present case.

The next judgment relied upon by the Learned Counsel for the Appellant in Union of India and others Vs. Dinesh Kumar Saxena and others, is a case relating to regualarisation or absorption of employees appointed in short terms posts for a fixed period on a fixed pay for work of periodic nature which was available only at the time of each decimal census. When the claim of such retrenchees for regularisation or adsorption came up for consideration, the Honourable Supreme Court was pleased to hold that, "when the engagement was on a contract basis for a limited and fixed duration on a fixed pay, there is no scope to give any direction for absorption."

Here again, the nature of engagement itself discloses that it was for a specific purpose namely for carrying out Census operation which did not last for a long period in each spell. The pay was also a fixed one and not referable to any scale of pay, whereas in the case on hand, the engagement of the Respondent was continuous from 1975 to 1985. Though the Respondent was called as a temporary Attendar, the salary was fixed with reference to a particular scale of pay providing for periodical increments. The nature of work was also not for any fixed period, but for a continuous spell of more than ten years duration. The said judgment is, therefore, not applicable to the facts of the present case.

The other judgment relied on by the Appellant is the one in C.R.. Mugundan and 33 Ors. v. Director General (Member Secretary), Indian Council of Medical Research, Ansari Nagar, New Delhi and Two Ors. 1996 Writ L.R.578. That case related to the regularisation of service of persons recruited for implementing Leprosy Vaccine Trial Scheme by the Central Jalma Institute for leprosy field unit. The plea was that they were employed on a permanent basis in the organisation though appointments were made on temporary basis, which was renewed every year. In that case, the persons were employed on contract basis which was subsequently renewed for two to three years. The learned Judge was, therefore, pleased to hold that the staff employed under Research Scheme were appointed on a contract basis for a specific period in a time bound project and the persons having signed the contract of employment with the conditions contained therein cannot go back on the ground that the right to livelihood was taken away by discontinuance. There again, unlike in this case, the appointment was contractual and on ad hoc basis.

The other judgment namely the one reported in Surendra Kumar Gyani Vs. State of Rajasthan and Another, in a case where, the Honourable Supreme Court dealt with the case of persons who were appointed on daily rate basis in the posts of Clerk as a stop-gap arrangement, when the arrangement came to be terminated on the availability of properly recruited candidate, their lordships held that there was no scope for considering their claim for permanency. Therefore, the said case is also not applicable to this case.

In the result, the judgment under appeal is affirmed and the Writ Appeal is dismissed with costs. Counsel''s fee Rs. 3000/-.