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Judgment
U.L. Bhat, C.J.—Respondents in Civil Rule 985/92, Union of India, Kendriya Vidyalaya Sangathan, Regional Assistant Commissioner and the Principal of Kendriya Vidyalaya, Air Force Station, Jorhat, have filed this appeal against the Judgment in Civil Rule 985/92, directing thin to absorb the writ Petitioner (Respondent herein) against existing vacant post of primary teacher in the Kendriya Vidyalaya on regular basis within one month.
Respondent herein is a Graduate also possessing B.Ed. degree. Her plea for regularisation as a teacher in the Kendriya Vidyalaya at Jorhat has been allowed by the learned Single Judge. In the absence of candidates selected centrally by the Headquarter''s office or Regional office of the Sangathan on the basis of an All India advertisement, the Managing Committee of the local school wrote to the local Employment Exchange to sponsor candidates for short term ad hoc appointment as primary teacher. Employment Exchanges sponsored Respondent and others. They were interviewed by the Appointment Sub-Committee of the Managing Committee, which prepared a select list. Respondent was appointed primary teacher on ad hoc basis in the scale of pay admissible to such teachers. On the expiry of the period of appointment she ceased work. This process was repeated on four more occasions. On one occasion she was ousted on becoming surplus. On two more occasions she was appointed on ad hoc basis as part time teacher at a fixed pay.
The particulars are as follows:
AD HOC PRIMARY TEACHER
20.10.84 to 30.4.85 -
7 months 10 days.
1.7.85 to 30.4.86 -
10 months.
5.2.8710 to 30.4.87 -
2 months 25 days.
9.7.87 to 29.2.88 -
7 months 23 days.
18.8.88 to 30.4.89 -
7 months 12 days.
Total -
2 years 10 months 10 days.
PARTTIME TEACHER
18.9.91 to 3.1.92 �
(which breaks after every 30 days as pan lime teacher).
3 months 15 days.
25.10.90 to 30.4.91 -
6 months 3 days.
Total -
9 months 20 days
When she was appointed part-time teacher on the last occasion she left the school for medical reasons on 4.1.92. On 12.3.92 she gave a letter to the Principal of the school seeking fresh appointment as part time teacher, She was not appointed. She alleged that when the Sangathan Centre advertised for regular recruitment in 1988 and 1992 she had submitted applications, but she was not called for interview, On the allegation that she had worked for various periods from 1984 to 1992. She sought regularisation and consequential benefits.
In the counter affidavit filed on behalf of the Appellants it was stated that every one of the earlier appointment was ad hoc appointment to meet special contingency. Every time Employment Exchange was requested to sponsor candidates and it so happened accidentally that every time Respondent was sponsored and was appointed on ad hoc basis, but this stopped in 1989. In 1990 and 1991 she was appointed for short periods as part-lime teacher at a fixed pay. Central advertisement was published for regular recruitment in 1988, but the writ Petitioner did not apply as per Rules. She may apply when there is a next advertisement and she will be duly considered.
The Respondent (Writ Petitioner) filed rejoinder and asserted that in 1988 she applied for the post of Trained Graduate Teacher but was not called for interview en the ground that her case was pending for regularisation and there was no regular appointment since then.
Learned Single Judge referred to Section 39 of the Education Code for Kendriya Vidyalaya and came to the conclusion that the Respondent could be appointed on regular basis only if she is selected in the selection made by the headquarters or regional office after a proper advertisement. Learned Single Judge felt that strict adherence to Section 39 is neither practicable nor reasonable and would cause grave injustice to the Respondent. The averment in the rejoinder that she had applied in response to 1988 advertisement of the headquarters but was not called for interview on the ground that her appointment was pending regularisation, must be correct because it was not denied, Since she is qualified for the post and. rendered service as primary teacher during 8 years satisfactorily and ad hoc appointments were made on the basis of section by the Managing Committee, she has reasonable expectation thru she would be regularly absorbed in the post of primary leader. Her application made in 1988 for regular selection was not entertained on the ground dial her appointment was awaiting regularisation, since timely (sic) in large number of posts in various Vidyalaya or Schools is not practicable, the authorities should devise practical means to appoint teachers against vacant pests in schools on regular basis in time by decentralising the power/authority of appointment of the teachers. Relying on Home Ministry''s instruction dated 12.8.75. learned Single Judge took the view that the Respondent could have been appointed on regular basis with approval from the appointing authority. For these reasons, learned Judge directed absorption of the Respondent. Every one of these grounds except the ground that the Respondent possessed the requisite qualification is challenged by the Appellants.
It would not be correct to say that the Respondent rendered service for 8 years. She served in ad hoc capacity for brief periods totalling 2 years 10 months 10 days in the course of nearly 5 years. She voiced as part-time teacher on two occasions for periods of about 6 months and 3 moths during the course of 2� years.
In her application dated 12.3.92. addressed to the Principal of the School (Annexure - VIII) to the writ petition) she clearly stated that she was working as part-time teacher from 18.9.91 to 3.1.92. and alter that period she had to leave the school for medical treatment. She prayed for fresh appointment as; part-time teacher. She did not put forward any of the present contentions in that application. Along with her rejoinder to the counter affidavit she produced what purports to be a copy of her letter to the Commissioner of the Sangathan on 23.9.89 (Annexure XI) praying that she may be given an opportunity to continue her job. She also indicated that her application for permanent appointment was duly placed before the Assistant Commissioner. This was produced in response to the averment in the counter affidavit that the Respondent had not applied in response to the centrally sponsored advertisement. As rightly pointed out by the learned Counsel for the Respondent, Annexure IX is not an application in response to the advertisement. It does not indicate that the formal application referred to therein was in response to any advertisement. No copy of formal application was produced. That the application was submitted in response to a centrally sponsored advertisement was not attempted to be proved. In paragraph 4 of the rejoinder it was stated that though she applied in 1918-89 through proper channel she was not called for interview on the ground that her appointment was pending for regularisation. There was no such averment in the writ petition. Learned Single Judge was in serious error in accepting the averment in the rejoinder on the ground that the Appellants did not file a reply to the rejoinder denying the averment, particularly since in the counter affidavit it was clearly stated that she had never applied in response to any advertisement. The Education code does not provide for any regularisation. The learned Single Judge did not advert to any of these circumstances. It must, therefore, follow that she had not submitted any application in response to any central advertisement. Copies of only two documents have been relied on by lire Respondent, namely, Annexure-VIII to the writ petition and Annexure-IX to the rejoinder. Neither the writ petition nor the rejoinder refers to any expectation on her part that she would secure regularisation on the strength of earlier appointments.
We are inclined to agree with the view of tire learned Single Judge that the Sangathan would do well to decentralise regular recruitment in the various schools and depend entirely on either regionwise or Statewise recruitment. But we fail to sec how this view has any bearing on the question whether the Respondent is entitled to regularisation.
Both sides rely on the provisions of the Education Code, which are not statutory Rules. They are only executives instructions, Section 39 has 13 paragraphs. Paragraphs 1 to 3 deal with regular recruitment to various posts including posts of teacher in Group-C, which alone is relevant for the purpose of this case. Recruitment is to be made centrally by the Headquarters office or Regional office on the basis of an All-India advertisement through the agency of the Central Employment Exchange and in accordance with the prescribed procedure. The succeeding paragraph refers to ad hoc appointments where Headquarters or Regional office is not able to post centrally selected candidates either on account of the select panels having been exhausted or for any other reason or against leave vacancies. The procedure prescribed is to notify the local Employment Exchange and selection being made by Vidyalaya Management Committee on the basis of qualification and experience prescribed for the post. Where selected candidates are to be appointed in the minimum of pay scale, no prior approval of the Sangathan is necessary and an order of appointment can be issued by the Chairman of the Management Committee on behalf of the Assistant Commissioner in the case 01 Group B or C posts. This selection is referred to in Section 35 as one of the functions of the Appointment Committee. Thus it is clear that the Education Code contemplates only Central or regional recruitment for direct recruitment and local recruitment for ad hoc appointment. The Code does not contemplate regularisation of ad hoc appointees.
Learned Single Judge placed strong reliance on Home Ministry''s circular dated 12.8.75. The relevant portion is quoted in paragraph 8 of the impugned judgment. It refers to selection of candidates by the Vidyalaya Appointment Committee to be made on the basis of qualifications and experience prescribed. This is only a reiteration of what is contained in paragraphs 11, 12 and 13 of Section 39 of the Code occurring at pages 34 and 35 of the printed book. These provisions relate only to ad hoc appointment and not to regular appointment, as we have already indicated. Therefore, the circular referred to could not be the basis for any direction for regularisation of the Respondent''s service, Further as stated in Annexure-VIII to the writ petition mat on the last occasion when the Respondent was appointed part-time teacher, she left the Vidyalaya for medical treatment; this averment of significance was totally ignored by the learned Single Judge. We fail to see how such a person is entitled to regularisation.
Learned Counsel for the Respondent has placed reliance on the decisions in Rattan Lal and Others Vs. State of Haryana and Others, Karnataka State Private College Stop-Gap Lecturers Association Vs. State of Karnataka and Others, M. Gogendra Singh and Ors. v. State of Manipur and Ors. ( 1992) 2 GLR 416 and the decision in Civil Rule No. 445/85 and other connected cases. Learned Counsel for the Appellants has placed reliance on the decisions in Director, Director, Institute of Management Development, U.P. Vs. Smt. Pushpa Srivastava, and State of Haryana and others Vs. Piara Singh and others etc. etc., Before (sic) to these decisions it would be useful to advert to the decision of the Supreme Court in State of Punjab and others Vs. Surinder Kumar and others, In that case the High Court directed regularisation of part-time appointees and this was challenged before the Supreme Court. On behalf of the appointees it was contended that tie Supreme Court in order cases had directed absorption of temporary or ad hoc employees on permanent basis without assigning any reasons and if this could be done by the Supreme Court, it should be open to the High Court as well to do so. In dealing, with this contention, Supreme Court observed:
A decision is available as a precedent only if it decides a question of law. The Respondents arc, therefore, not entitled to rely upon an order of this Court which directs a temporary employee to be regularised in his service without assigning reasons. It has to be presumed that for special ground which must have been available to the temporary employees in those cases, they were entitled to the relief granted, Merely because grounds are not mentioned in a Judgment of this Court, it cannot be understood to have been passed without an adequate legal basis therefore. On the question of the requirement to assign reasons for an order, a distinction has to be kept in mind between a Court whose Judgment is not subject to further appeal and other Courts. One of the main reasons for disclosing and discussing me grounds in support of a Judgment is to enable a higher court to examine the same in case of a challenge. It is, of course, desirable to assign reasons for every order or Judgment, but the requirement is not imperative in me case of this Court. It is, therefore, futile to suggests that if this Court has issued an order which apparently seems to be similar to me impugned order, the High Court can also do so. There is still another reason why the High Court cannot be equated with this Court. The Constitution has, by Article 142, empowered the Supreme Court to make such orders as may be necessary for doing complete justice in any case or matter pending before it which authority the High Court does not enjoy. The jurisdiction of the High Court, while dealing with a writ petition, is circumscribed by the limitations discussed and declared by the judicial decisions, and it cannot transgress the limits on the basis of whims or subjective sense of justice varying from Judge to Judge.
We have already indicated that none of the grounds relied on by the learned Single Judge in support of the impugned Judgment is sustainable.
The Judgment in Ratan Lal''s case does not refer to the specific facts of the case. The Judgment disapproves the practice of a substantial number of teachers being appointed on ad hoc basis in existing vacancies remaining unfilled for 3 to 4 years and such teachers being denied the benefit of summer vacation alongwith the salary and allowances and the policy of adhocism and hire and fire, which was indicated to be in breach of Articles 14 and 16 of me Constitution. On this basis me court directed the Slate Government to take steps to fill up in accordance with the Rules the vacancies in which teachers were anointed on ad hoc basis and to allow those ad hoc teachers "who are now holding these posts on ad hoc basis" to remain in those posts till the vacancies are duly filled up. The court also directed mat the qualified ad hoc teachers may apply for regular appointment and the Government may sympathetically consider me question of relaxing the (sic) of maximum age prescribed. It was further directed that u any of them has under the existing Rules acquired the right to be treated as a regularly appointed, teacher his case is lo be considered by the State Government, it is important to note that in this case live Supreme Court did not direct regularisation of posts. It only directed that relaxation may be considered if any of the claimants was entitled to such relief under the existing Rules. We have made it clear that the Education Code docs not contain a scheme of regularisation at all. In the next decision relied on by the Respondent, Karnataka State Private College Stop-Gap Lecturers Association Vs. State of Karnataka and Others, teachers appointed temporarily for 3 months by privately managed Degree College receiving hundred per cent grants-in-aid and controlled administratively and financially by the Education Department of the Government sought regularisation. High Court deprecated the Government direction to break service for a day or two or to pay a fixed salary to temporary teachers and the practice of management of not making regular appointment within six months of occurrence of the vacancy. Supreme Court referred to the method adopted by the High Court in individual cases directing the Director of Education to hold interview as a result of which some of the teachers were regularised. Others were not regularised on the ground that it would be contrary to reservation policy of the State which was under challenge in another proceeding. Supreme Court struck down the provision of one day''s break in service, ordered payment of pay scale salary to temporary teachers prospectively and directed such teachers to continue till the purpose for which they had been appointed exhausts or till regular selection is made. Management was also directed to take steps to fill up permanent vacancies in accordance with the Rules. Taking note to the fact that State Government was regularising service of ad hoc teachers, the court directed services of such teachers who had worked as such for three years, including the breaks till that day, shall not be terminated, but they shall be absorbed as and when regular vacancies arise. Other directions were issued regarding those selected under the directions of the High Court etc. As indicated in Surinder Kumar''s case, this decision cannot be a binding precedent. On facts also the present case is clearly distinguishable since it is not a case of continuous service with technical breaks.
The decision in M. Gogendra Singh, (.1992) 2 GIR 416 does not specifically deal with the aspect arising in this case. The unreported Judgment of this Court in Civil Rule 445/85 and connected cases dealt with teachers working on ad hoc basis in Kendriya Vidyalaya. One of the ad hoe teachers was selected in the regular selection, but was not appointed on the ground of want of qualification though there was a policy decision in favour of relaxation of qualifications in the given circumstances. The teacher had worked for last five academic sessions continuously. Petitioner in one of the cases worked in 1975-76 and 1979-80. She was also not appointed regularly for warn of qualification and because she had crossed the maximum age barrier, U actually turned out that she possessed requisite qualification. In the third case, the teacher worked for successive academic sessions but he was not regularly appointed as he did net possess 3 year''s diploma in electrical engineering from prescribed institute, In one of the cases direction was given to consider sympathetically the question of relaxation of maximum age limit and to consider her case for regular appointment. In other two cases, directions were issued to consider the educational qualification possessed by the Petitioners as equivalent to prescribed qualification and if necessary to consider relaxation of educational qualification. The Judgment did not deal with the claim of ad hoc appointee for regularisation. It dealt with only the question of relaxation of qualification or age limit of persons who were regularly selected, as contemplated by the Code.
Director, Director, Institute of Management Development, U.P. Vs. Smt. Pushpa Srivastava, dealt with the case of regularisation of an ad hoc teacher who worked for different periods in the course of three years. She filed the writ petition before her last contractual appointment came to an end. It was held that the appointment was purely ad hoc and the contracted period expired and, therefore, the right to remain in the post ceased. Supreme Court set aside the High Court Judgment, but allowed her to continue upto the end of the. calendar year leaving it open to the Management to consider the request for regularisaiion, if it so desired. In State of Haryana and others Vs. Piara Singh and others etc. etc., Supreme Court dealt with various categories of temporary employees, such as ad hoc employees, work-charged employees, daily wages employees, casual labour etc, High Court had directed regularisation of all these categories of employees. There were Government orders containing scheme of regularisation. Supreme Court interferred with many of the directions issued by the High Court, which may not be relevant for the purpose of this case, Paragraph 25 of the Judgment contains certain general observations indicating that normal rule is regular recruitment through prescribed agency, but ad hoc appointments may be resorted to in the exigency of administration but then efforts should always be to replace such an ad hoc employee by a regularly selected employee at the earliest and if the ad hoc employee who competes in the regular selection is not selected he must give way to the regularly selected candidate and regular appointment cannot be kept in abeyance for the same of such an ad hoc employee and that an ad hoc employee cannot be replaced by another ad hoc employee. Supreme Court also indicates that it should be proper that each State prepares a scheme, if OIK is not already in vogue, for regularisation of such employees consistent with its reservation policy and consistent with the observations contained in the Judgment. Regularisaiion is not itself a mode of appointment. It is a term calculated to condone any procedural irregularity and is meant to cure such defects as are attributable to the methodology followed in making the appointment See R.N. Nanjundappa Vs. T. Thimmiah and Another, and B.N. Nagarajan and Others Vs. State of Karnataka and Others,
We have held the facteal basis on which the decision of the learned Single Judge rests is unsustainable. The Education does not contain any provision for regularisation of ad hoc or part-time teachers. As indicated by the Supreme Court in State of Punjab and others Vs. Surinder Kumar and others, the fact that the Supreme Court in other cases had given certain directions for regularisation is no binding precedent for the High Court. There, is no principle of law by which, under the facts and circumstances of the present case, the court can direct regularisation straightway. The court cannot also direct retention of the writ Petitioner in service till regularisation since, she was not in service on the date of the petition and she had left the part-time job very much earlier. The writ Petitioner has failed to show that she had applied in pursuance to Central advertisement for regular recruitment.
However the fact that there is a degree of anarchy in the administration of Kendriya Vidyalaya in the matter of appointment of teachers cannot be overlooked, The large number of cases being filed by ad hoc teachers serving in Kendriya Vidyalayas in this region indicate that Central Recruitment Agency has not been able to provide sufficient number of regular recruits to fill up the vacancies in these Vidyalayas in this region with the result that ad hoc appointment is being freely resorted to for successive years. This certainly would have adverse effect on standards of education in these schools as well as on the career prospects of qualified persons seeking employment. The only way to remedy the situation is to cut the Gordian knot by issuing direction for preparation of a scheme for regularisation.
In the result, we set aside the Judgment of the learned Single Judge and instead dispose of the writ petition by directing the Respondents to formulate within three months from today a legitimate scheme for regularisation of ad hoc appointees among teaching and non-teaching staff subject to such reasonable conditions as may be incorporated in the scheme and conferring power on the regional authority to pass orders of regularisation under the scheme. Respondents are further directed to publicise the scheme in newspapers and through notice boards in all the schools in the region. On the formulation of such a scheme it is open to the Petitioner to apply for regularisation and on such application being submitted, Respondents shall consider the same in the light of the provisions of the scheme and pass appropriate orders without delay.
The writ appeal is allowed in this manner.