JUDGMENT
O.P. Garg, J. (Vice Chairman)
1. Though teaching is the last choice in the job-market, it has become more miserasble as the teachers are deriven repeatedly to take recourse to unwarranted and fruitless litigation. The approach adopted by the Chandigarh Administration to appoint school teachers on contract basis for a specified period on a consolidated amount of remuneration against the regular vacancies and subsequent replacement/substitution of the existing teachers by the new incumbents on the same terms and conditions is once again the subject-matter of adverse criticism though in the past such a practice has been emphatically denunciated in a series of decisions of this Tribunal, High Court and the Apex Court.
2. In all the above six O.As., the facts and the points of controversy are by and large the same. The applicants were appointed as Lecturers (PGT), Trained Graduate Teachers, Junior Basic Teachers, Nursery Teachers, P.T.I. (hereinafter called the “school teachers”) against the duly sanctioned regular vacancies in various cadres of teachers in schools run and managed by the Administration of U.T. Chandigarh. Instead of making regular appointments in accordance with the provisions contained in the Recruitment Rules i.e. Chandigarh Education Service (School Cadre) (Group ‘C’) Recruitment Rules, 1991 (for short ‘School Cadre Recruitment Rules’) as notified on 15th February, 1991, and amended from time to time, a mechanism has been adopted by the Administration to fill up the vacancies by making contractual appointments on fixed term with notional breaks in between including break on account of vacations, on a fixed salary of Rs. 2500 for Lecturers; Rs. 2200 for Trained Graduate Teachers and Rs. 2000 for Junior Basic Teachers. Undoubtedly’, all the applicants (except a few) fulfil the requisite qualifications for being recruited as regular School Teachers as contemplated under the School Recruitment Rules. The appointments have been made by the Principal of the concerned School and the remuneration is paid out of the budget allocation of Plan and Non-Plan pursuant to the order dated 28th November, 1997 issued by the Education Department of Chandigarh Administration prescribing the terms and conditions. The School Teachers for such appointment are selected on the basis of the names sent on the requisition to the Employment Exchange or from amongst the candidates who have applied as a result of the advertisement in the Newspapers. All eligible candidates are, thus, given an opportunity to compete and the appointments are made on the basis of the recommendations made by the duly constituted Selection Committees which had interviewed the candidates and determined their merit by evaluating academic attainments and performance at the viva voce test in accordance with a well defined criteria. The appointment is made on contract basis for a particular session on fixed remuneration out of Government Funds. In certain cases, contractual appointment is made for a period of six months which is extended further for six months on the basis of performance with certain artificial breaks. According to the terms and conditions stipulated in letter dated 28th November, 1997, the Teacher appointed on contractual basis; (i) is not to be paid fixed salary for summer vacations and is to stand relieved on 31st of May; (ii) will not be entitled to the benefits as are admissible to other regular/ad hoc employees; (iii) will have no claim on the basis of contractual appointment for ad hoc/regular appointment; (iv) the services were made terminable at any time as and when the regular hand joins without giving prior notice; (v) the period of contractual service will not count towards any leave/increment; and (vi) every appointee is required to furnish an affidavit for not claiming any benefit of the service in the Court. The applicants accepted the above terms and conditions and joined their duties in different disciplines of the concerned school. Some of the applicants have been in service for a number of years with notional breaks including the vacation period. It is understood and accepted at all hands that the contractual appointment is to last till the teachers duly selected in accordance with the School Recruitment Rules are actually appointed against the posts held by the applicants. On this point there is a plethora of decisions of this Tribunal as well as the High Court and Supreme Court, pursuant to which the contract appointees are to be replaced only by the regular appointees recruited by adopting the procedure prescribed under the Recruitment Rules.
3. A number of school/college Teachers approached this Tribunal for payment of salary equivalent to the one which is admissible to a duly selected Teacher in accordance with the Recruitment Rules. Times out of number, directions have been issued by this Tribunal for payment of the emoluments to the Teachers working on contractual basis equivalent to the regularly selected teachers taking into consideration their qualitative and quantitative performance of duties like the regular teachers. The High Court of Punjab and Haryana also affirmed the same view. It appears that with a view to give effect to the clear, unambiguous and authoritative verdicts of the various Courts, the Chandigarh Administration has of late done well by issuing a letter dated 24.7.2002 revising and enhancing the emoluments payable to the contractual appointees. The import of the said letter is that now all the contractual appointees shall receive the consolidated amount which is to be calculated keeping in view the minimum of the pay scale plus dearness allowance as admissible to a regular employee at the time of appointment against the vacant post. The revised consolidated salary of the lecturers (PGT) now comes almost to Rs. 9000 per month; Masters/Mistresses (TGT) Rs. 8000 per month and J.B.T./Nursery Teachers Rs. 7000 per month.
4. What has irked the applicants and made them to rush to this Tribunal is the alleged ill-conceived advertisement which was issued on August 10, 2002 for preparation of a fresh panel for the year 2002-2003 in respect of the various categories of the school teachers for being appointed on contractual basis with a view to provide as substitutes to replace the applicants. This advertisement has caused flutter and created uncertainty amongst the School Teachers appointed on contractual basis with regard to their future career and prospects. Imbued with a feeling of self preservation and protection, the applicants have invoked the jurisdiction of this Tribunal by filing the present O.As. under Section 19 of the Administrative Tribunal Act, 1985. They have prayed that the conditions and restrictions which have been appended to their contractual appointment may be done away with as the said conditions are not only unjust but harsh and oppressive in nature; that they may be paid the salary at the minimum of the pay scale admissible to the duly selected regular teachers including for the period of vacations; that the respondents be directed to fill up the existing and future vacancies of school teachers on regular basis in accordance with the School Cadre Recruitment Rules and their candidature be also taken into consideration keeping in view the length of service rendered by them; as well as their eligibility and suitability. The applicants have further prayed that the advertisement dated August 10, 2002 inviting fresh applications for empanelment of school teachers for substituting them by the new incumbents on the same terms and conditions governing the contractual appointment be quashed and the respondents be directed to continue the applicants to work as school teachers till such time the regular teachers are appointed under the School Recruitment Rules.
5. The respondents have chosen to contest the case repelling the averments made by the applicants. It is maintained that fresh panel for appointment of the school teachers on contractual basis is required to be prepared in view of the fact that the consolidated amount of remuneration has been substantially increased. It is asserted that talented teachers with brilliant record are likely to be attracted in view of the enhancement of the amount of remuneration and, therefore, substitution of the applicants by new incumbents on contractual basis would be in the interest of education. It is also urged on behalf of the respondents that the applicants are not entitled to claim equivalent pay admissible to the regular Teachers and that the applicants are estopped from challenging the terms and conditions governing their appointment as they have accepted the same after taking a conscious decision, without any demur or objection.
6. Since common questions of law and facts are involved in all the six O.As. detailed above, we propose to decide them together by this common judgment.
7. We have heard Mr. R.K. Sharma, learned Counsel for the applicants as well as Mr. N.K. Bhardwaj appearing on behalf of the respondents at considerable length.
8. The fate of the present O.As. would turn on the acceptance or otherwise of the controversial plea taken by the respondents that it is well within the power of the administration to appoint school teachers on contractual basis for a fixed term and on consolidated salary and once the applicants have accepted the terms and conditions of the contractual appointment, they cannot be permitted to challenge the same. In substance, the plea on behalf of the respondents is that the applicants are estopped from challenging the terms and conditions under which they have accepted the appointment and are continuing to work. As a matter of fact, it does not seem proper for the respondents to take the same state and stereotyped plea which has been negatived and rejected more than once by this Tribunal as well as other higher Courts, The respondents have, of necessity, to reconcile with the position that their plea has not been accepted in the past and, therefore, it would serve no purpose by repeating the same all over again. Since the applicants would swim or sink with the finding on the point whether they can be replaced or substituted by the new set of school teachers to be appointed on contractual basis on the similar terms and conditions, we think it proper to deal with each one of the controversial questions more elaborately in our quest to make an authoritative statement of law to put an end to prevailing uncertainty.
9. There can be no quarrel about the proposition of law that the respondent-administration has the power and authority to make contractual appointments within the meaning of Article 310(2) of the Constitution of India. On behalf of Chandigarh Administration, it was asserted by Mr. Bhardwaj that the contractual appointment of the applicants cannot be held to be violative of any provisions of law including the constitutional provisions and in support of his contention he placed emphatic reliance on the decision of the Apex Court in the case of State of Gujarat v. P.J. Kampavat and Ors., 1992 SC SLJ 376; Saroj Kumari v. State of Punjab, Full Bench, 1998(3) SCT 664 (P&H); State of J&K v. Sharda Devi, 1998(3) SCT 731 (J&K). A reference was also made to the decision of the Apex Court in the case of State of Haryana and Ors. v. Jasmer Singh and Ors., 1996(2) SC SLJ 529=1997(1) SLJ 129 (SC) and to another decision of Punjab & Haryana High Court in the case of Anil Kumar v. State of Haryana, 2000(1) ATJ 150. Three decisions of this Tribunal, namely, Yog Raj Kapur and Ors. v. Union Territory, O.A. No. 1266/CH/96, decided on 6.9.2001; Venu Sharma v. Union of India and Ors., O.A. No. 42/CH/2001, decided on 15th January, 2001 and Suraj Bhan Garg v. Union of India and Ors., O.A. No. 729/CH/2000 decided on 21st August, 2002 were also relied upon. The three decisions, namely, in the case of P.J. Kampavat (supra), Saroj Kumar (supra) and Sharda Devi (supra) have been discussed in detail in O.A. No. 159/CH/2001-Anupama Bhardwaj and Ors. v. U.T. Chandigarh, decided on 11th October, 2002. The view taken is that the observations made in the above three decisions came to be made entirely in different set of facts. Since the observations made therein are not of universal application, they cannot be transplanted in any and every case without regard to the peculiar circumstances. Reliance on the other decisions placed by Mr. Bhardwaj is neither here nor there as the matter came to be considered pointedly by the Apex Court, Punjab and Haryana High Court and this Tribunal in a series of cases filed by the teachers. Therefore, whatever has been considered and determined in the particular cases with reference to school/college teachers should only be the guiding indicators to determine the controversy. In the backdrop of the above, now the moot point for consideration and determination by us is, whether the school teachers are bound by the terms and conditions of their contractual appointment or can they be allowed to agitate and establish that the methodology of appointment on contractual basis for a specified term and on fixed pay is nothing but exploitation of the school teachers flowing from the dominating position of the administration in dictating the terms and the consequential acceptance of the offending terms by the helpless and hapless school teachers who have no choice of their own in the matter. The controversy boils down to this: whether the administration has got an unbriddled and unchecked right to incorporate any condition of service in the letter of appointment or in the order pursuant to which school teachers are appointed and then use the same to their detriment by terminating their services and substituting them by a different set of persons on the similar terms and conditions.
10. Placing emphatic reliance on a Division Bench decision of Punjab and Haryana High Court in the case of Anil Kumar and Ors. v. State of Haryana and Ors., (supra), Mr. Bhardwaj argued that the applicants, or for that matter, school teachers appointed on contractual basis are estopped from challenging the terms and conditions incorporated in the order of their appointment because each one of them had accepted the conditions with eyes wide open without any protest. In substance, the submission of Mr. Bhardwaj is that the applicants after having accepted appointment with the terms and conditions incorporated in the letter of appointment, cannot be permitted to challenge a part of it. Mr. Bhardwaj further urged that the decision in Anil Kumar’s case (supra) is an authority on the point that the services of an employee appointed on contractual, part time, ad hoc or temporary basis are terminable in accordance with the terms of appointment and this Tribunal cannot extend the term of such appointments till the regularly selected school teachers replace them, as otherwise the judicial process would become other mode of recruitment de hors the rules. The decision in Anil Kumar’s case (supra) is distinguishable on more than one ground. In that case the petitioners were appointed on contractual basis on the different posts of LT Lab. Technicians, ANM/Drivers/ Accountant/clerk/typists/staff nurses, multipurpose health workers in a newly sponsored Reproductive Child Health Scheme run by a Society; the posts were supposed to be time bound, and the termination orders were passed as the budget had not been sanctioned. The future of the posts and the continuance was uncertain. There was, thus, a clear difference in the nature of posts and appointments of the petitioners in Anil Kumar’s case (supra) and the case of the present applicants. The petitioners in that case were virtually in a position not better than the work-charged employees. Here, the applicants cannot be said to be performing the duties of transitory or urgent nature. They have been appointed on contract basis on the posts which are permanently needed. A teacher’s contractual appointment cannot be equated with a work-charged employee. The observations made in Anil Kumar’s case (supra) have to be restricted to the facts of that case.
11. There can be no dispute about the fact that short term appointments even for a specified period can be made by the Government but the critical question is whether once having made such appointment, will it be open to the concerned authority to dispense with the services of temporary, ad hoc or contractual employees at any time on its sweet-will even when the need for filling up the posts on temporary, ad hoc or contractual basis still persists. The question which begs for it is: will it be just and fair on the part of the Government to terminate the services of the school teachers appointed on contractual basis though the post has not been filled up by a regular incumbent and there is still need for such post till the time it is occupied by a regular appointee recruited according to the recruitment rules. In the context of this question, we find that the similar argument as has been raised by Mr. Bhardwaj in the present case, was rejected by a Division Bench of Punjab & Haryana High Court in the case of Veena Rani v. State of Haryana, CWP No. 6276 of 1994, decided on 6.7.1994. Negativing the plea of estoppel, the Hon’ble Court observed as follows:
“……..We cannot remain totally oblivious of the soaring unemployment in this country and in most of the other parts of the would. Almost all countries of the third world are facing problem of ever increasing unemployment of younger generation. Even in the developed countries like United Kingdom and United States of America the percentage of unemployed youth is constantly increasing. Ours is a country where vast majority falls in the category of haves note. Employment in public services gives a sense of security to the employees. Ordinarily, the public employment cannot resort to theory of ‘hire and fire’, therefore, public employment is accepted irrespective of onerous, arbitrary and unreasonable conditions which are incorporated in the orders of appointment. In fact, the employer is always in dominating position qua a person who seeks employment. One who applies for being appointed on temporary or ad hoc basis and even on regular basis is not in a position to enter into a bargain with the prospective employer about the terms and conditions of an employment. He can never be in a position to dictate the terms to be incorporated in the contract of employment or in the order of appointment. It is always the Will of the employer which prevails. Taking benefit of this position, the public employer who is governed by the constitutional provisions cannot incorporate such conditions in the contract of employment or in the order of appointment which are unconscionable, arbitrary or unreasonable.”
The observations made in another decision in the case of Dr. Subedar Singh Arya and 17 Ors. v. State of Haryana and Ors., CWP No. 3087 of 1994 decided on 12.5.1994, by a Division Bench of Punjab & Haryana High Court are worth quoting:
“Besides the fact that the claim of the petitioners is well founded in view of the ratio of Hon’ble the Apex Court, we may add that the policy of the Government in making temporary appointment of the Lecturers for specific period or for one particular session and thereafter terminating their services and resorting to fresh appointments and thus repeating the same procedure in the next session and in the subsequent session is wholly arbitrary and unreasonable and contrary to the provisions of Articles 14 and 16 of the Constitution of India. Incorporation of Arbitrary terms in the order of appointment are not sustainable. We may straightway observe that a person who is appointed in public employment cannot ordinarily choose the terms and conditions under which he is required to serve the employer. The employer is always in a dominant position and it is open to the employer to dictate the terms of employment. The employee who is at the receiving end can hardly complain of arbitrariness in the terms and conditions of employment. Any challenge by the employee to the terms and conditions of employment at that stage will cost his/her job itself. The bargaining power of the employer is so overwhelming that the employee is left with no option but to accept the conditions dictated by the employer. It is well settled that such condition of employment which is arbitrary, unreasonable or unconscionable, can be declared as unconstitutional on the grounds of violation of Articles 14 and 16 of the Constitution of India, which even otherwise is opposed to public policy.”
In yet another case of Anil Kumar and Ors. v. State of Haryana and Ors., CWP No. 3411 of 1997, decided on 11.3.1997, (a case different from Anil Kumar (supra) relied upon by Mr. Bhardwaj and discussed in Paragraph 10 above), the same Court was faced with the controversy whether the contractual appointment for a limited period of 89 days was bad in law. The Hon’ble Court observed that the methodology of giving contractual appointment for a limited period of 89 days should be considered by the Government in the light of the nature of work which is required to be performed by teachers. The element of continuity of teacher-taught relationship is extremely important. Long association between the teachers and the students not only inculcates a sense of discipline in the institution but also enhances the quality of education. By engaging teachers for 89 days’ period and that too on contract basis, the Government has introduced an element of uncertainty in the minds of those who are given such appointment and it is quite reasonable to take the view that such appointees cannot serve the purpose of providing effective education to the students. This may ultimately affect the future generation of the country and it may not be possible to repair the damage caused to the system of education. In the case of Dr. Gulshan Kumari and 117 Ors. v. State of Haryana and Ors., CWP No. 1559 of 1997, decided on 21.5.1997, a Division Bench of Punjab and Haryana High Court while refusing to nullify the action of the Government to engage teachers on contract basis adversely commented upon the system of contractual engagement by making the following observations:
“……..In its very nature the profession of teaching requires a close rapport between teachers and students. Continuity of relationship between the teachers and the taught is must for effective and useful education. Frequent change of the teachers or break of continuity of relationship between teachers is fraught with grave danger to the system of education. Therefore, in normal circumstances, the Court would depricate the practice of making contractual appointments of Lecturers et cetera even though regular post is available and the employer and the Government are in need of teachers.”
12. Way back in the year 1979 this aspect of the matter came to be considered by a Three-Judges Bench of the Hon’ble Supreme Court in the case of Manager, Government Branch Press and Anr. v. D.B. Belliappa, AIR 1979 SC 429=1979 SLJ 233 (SC). In that case the termination of service was brought about in accordance with the terms and conditions of employment. The argument advanced on behalf of the department was that termination of service was in consonance with the terms of the employment. Another submission made before Hon’ble Supreme Court was that once an employee voluntarily entered into a contract of service, he cannot complain against the action of the employer. Both the above contentions were rejected by the Apex Court terming them as misconceived. It was observed that,”……It is borrowed from the archaic common law concept that employment was a matter between the master and servant only. In the first place, this rule in its original absolute form is not applicable to Government servants. Secondly, even with regard to private employment, much of it has passed into the fossils of time. “This rule held the field at the time when the master and servant were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of the house-hold, were not his own but those of his pater familias.” The overtones of this ancient doctrine are discernible in the Anglo-American jurisprudence of the 18th century and the first half of the 20th century, which rationalised the employer’s absolute right to discharge the employee. “Such a philosophy”, as pointed out by K.K. Mathew, J. (vide his treatise: “Democracy, Equality and Freedom”, page 326)” of the employer’s dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers.” To bring it in tune with vastly changed and changing socio-economic conditions and mores of the day, much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment, to whom the constitutional protection of Articles 14, 15, 16 and 311 is available.
13. After the commencement of the Constitution, public employment has come to be recognised as public property. Therefore, all appointments to public services are required to be made in accordance with the rules and the equality clauses contained in Articles 14 and 16 of the Constitution. Doctrine of laissez-faire is no more recognised in our country after the commencement of the Constitution and the employer, private as well as public, does not enjoy absolute freedom to dictate term of employment. The fact that short term contract of service is wholly unjust, unconscionable and against the very letter and spirit of the Constitution came to be determined by Hon’ble Supreme Court in Central Inland Water Transport Corporation v. Brojo Nath Ganguly and Ors., 1986 (3) SCC 156=1986(2) SLJ 320 (SC). In that case, the question was as to whether the power reserved by the employer to terminate the services of an employee without giving any reason and without giving any notice is void under Section 23 of the Contract Act as opposed to public policy. It was observed that the, “Courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a. prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. The types of contracts to which the principle formulated above applies are not contracts which are tainted with illegality but arc contracts which contain terms which are so unfair and unreasonable that they shock the conscience of the Court. They are opposed to public policy and require to be adjudged void.” These observations of the Apex Court came to be made in the wake of the earlier decision in the case of West Bengal State Electricity Board v. Desh Bandhu Ghose, AIR 1985 SC 722=1985(1) SLJ 318 (SC), wherein it was ruled that, “……..a naked hire and fire rules, the time for banishing which altogether from employer-employee relationship, is fast approaching. Its only parallel is to be found in the Henry VIIIth Clause so familiar to the administrative lawyers.” The decision in Brojo Nath Ganguly’s case (supra) was approved by the Hon’ble Supreme Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., AIR 1991 SC 101 = 1991(1) SLJ 56 (SC).
14. The Principal Bench of Central Administrative Tribunal had an occasion to consider the matter in the case of Dr. (Mrs.) Sangeeta Narang and Ors. v. Delhi Administration and Ors., 1998(1) ATR 556 and after surveying a number of decisions came to the conclusion that the policy of hire and fire is the legacy of the old system of laissez-faire which is repugnant to the mandate of equality enshrined in Articles 14 and 16 of the Constitution. It was observed that though origin of Government service is contractual but once appointed, the Government servant acquires status. The hall mark of status is attachment of legal relationship of rights and duties imposed by public law and not by mere agreement of parties. The pernicious system of appointment for a short term on contractual basis or so on ad hoc basis came to be considered by a Division Bench of Punjab and Haryana High Court in the case of Rajni Bala v. State of Haryana, 1996(1) SLR 271. A series of decisions have been referred to and considered in the said case. The Division Bench found no reason to accept the contention of the learned Counsel for the State of Haryana (employer) that the petitioner (employee) should be estopped from questioning the terms and conditions incorporated in the document of appointment. It was observed that, “placed in the position of the petitioner, no reasonable man could have possibly protested against the arbitrary and oppressive conditions of appointment. If despite her merit and the seniority, the petitioner had dared to protest against the condition limiting her appointment to 30.6.1995, she could have done so to her own peril. In our view she was not in any position to challenge the right of the respondents to give a limited appointment to her…….Thus, her failure to object to the condition incorporated in Annexure P/1 cannot be made a ground for denying relied to her.” There is yet another authoritative pronouncement of a Division Bench of Punjab and Haryana High Court in the case of Polu Ram and Anr. v. State of Haryana and Anr., 1998(4) RSJ 152, in which it was ruled that the plea that the teachers have accepted the terms of engagement without any protest was misconceived. The teachers do not have any say in the matters relating to enactment of the rules, creation of the posts or mode of selection. All these matters lie in exclusive domain of the Government/employer. They are not in a position to make a bargain with the Government regarding the conditions of employment, They are further not in a position to dictate the terms to the Government. If they make an attempt to enter into a bargain with the Government about the terms and conditions of employment and insist on incorporation of those conditions which are favourable to them, the Appointing Authority can refuse to appoint them. It was concluded that the conditions incorporated in the orders of appointment cannot be made a ground to deny hearing to the teachers in support of their plea that the respondents have acted arbitrarily in appointing them with wholly unreasonable and oppressive conditions of employment. In a recent decision of J & K High Court in the case of Neena Gupta v. State, 2002(4) SCT 174, (a case with regard to short term appointment of doctors) it was held that where the need is permanent, the practice of appointing a person for a limited tenure would not be in consonance with the public policy. It was further held that the condition limiting the tenure of an employee for a limited period when need is permanent would not only be violative of concept of public policy but would also be violative of Articles 14 and 16 of the Constitution. The mere fact that the petitioner objected and joined the service in terms of the condition would not stand in her way. After taking into consideration, a number of decisions of the Apex Court, and other High Courts it was held that the doctrine of waiver can have no application to provision of law which have been enacted as a matter of constitutional policy.
15. In the context of short term appointment, it would not be out of place to mention that the importance of teacher in educating younger generation and the need for ensuring their appropriate service conditions have come to be highlighted in the various decisions of the Apex Court as well as the High Court. The relevant decisions on the point are (i) Andhra Kesari Education Society v. Director of School Education and Ors., JT 1988(4) SC 431 (the teacher is a spark plug or engine of the educational system. He is a principal instrument in awakening the child to cultural values. He is indeed endowed and energised with needed potential to deliver enlightened service expected of him); (ii) State of Maharashtra v. Vikash Saheb Rao Roundale and Ors., 1992(5) SC 175 (the teacher plays a pivotal role in moulding the career, character and moral fibres and aptitude for educational excellence in children); (iii) Mohita Goyal v. Kurukshetra University and Ors., CWP No. 14457 of 1997, decided on 10.11.1997 by Punjab and Haryana High Court (role of teacher is extremely important not only to the society but also to the nation. The teacher alone can bring about a skill and intellectual capacity in the students. He is the principal instrument in awakening the child to cultural values). To the same effect are the observations relating to the importance and the role of teachers made in the case of Anil Kumar and Ors., (supra), Dr. Gulshan Kumari, (supra) and Polu Ram, (supra). The concept of contractual appointment which may, as a matter of course, he adopted in other services cannot be taken recourse of in the matter of school teachers who have pivotal role to play in the society. As said above, the school teachers who are already short of employment avenues and have no bargaining capacity, had to yield to the dictates of the respondents/ employers while accepting appointment, lest they were to be without job. They are not debarred from challenging the inequitable, oppressive and unjustified conditions even though by force of circumstances they had accepted the engagement. In the light of the various decisions aforesaid, we find no justification to approve the methodology adopted by the respondents to appoint teachers on contractual basis for a fixed term and on payment of consolidated salary. It is a stark reality that permanent sanctioned posts in the cadre of school teachers are available. Whatever may have been the reasons for not filling them by regular appointments for fixed term in the past, this does not appear to be a part of sound educational policy. It is high time that the administration, in the interest of education, pays immediate attention to this vital aspect of the matter.
16. It has been held time and again that the policy of hire and fire adopted by the Chandigarh Administration is not in consonance with the mandate of equality enshrined in Articles 14 and 16 of the Constitution of India. The principles on the point have been lucidly enunciated in a catena of decisions by the highest Court of the country. To quote a few, a reference may be made to Jarnail Singh and Ors. v. State of Punjab and Ors., 1986(3) SCC 277=1986(2) SLJ 157 (SC); D.B. Belliappa (supra); Central Inland Water Transport Corporation, (supra) and Rattanlal and Ors. v. State of Haryana and Ors., 1985(4) SCC 43=1985(2) SLJ 437 (SC); in which the Apex Court summarised the point by observing as follows:-
“……..These ad hoc teachers are unnecessarily subjected to an arbitrary ‘hiring and firing’ policy. These teachers who constitute the bulk of the educated unemployed are compelled to accept these jobs on an ad hoc basis with miserable conditions of service. The Government appears to be exploiting this situation. This is not a sound personnel policy. It is bound to have serious repercussions on the educational institutions and the children studying there. The policy of ‘ad hocism’ followed by the State Government for a long period has led to the breach of Article 14 and Article 16 of the Constitution. Such a situation cannot be permitted to last any longer. It is needless to say that the State Government is expected to function as a model employer.”
17. In the backdrop of the series of decisions of the Apex Court, law on the point has been succinctly summarised by the Punjab and Haryana High Court in the case of Rajni Bala, (supra) in the following terms:
“19. In view of the principles laid down by the Supreme Court we are of the opinion that where an ad hoc or temporary appointment is made after consideration of the candidature of all eligible persons in accordance with the equality clause, the action of the employer in limiting the appointment upto a particular date with a stipulation of automatic termination of service, even though the post is not abolished and a regularly selected person is not available, will have to be treated as wholly arbitrary, irrational, unjust, oppressive and unconscionable and the same is liable to be struck down being contrary to Articles 14 and 16 of the Constitution. It may be a different situation where an appointment is given for a specified work and the post is created only for that work and the service of the employee is terminated due to the cessation of work or where a condition is incorporated in the contract of employment that the service of the employee will stand terminated on the availability of selected candidate. However, there cannot be any justification to limit the appointment to a particular date merely because the employer cannot choose to describe the employment as ad hoc. In our opinion, the employer cannot use his prerogative to lay down the terms and conditions of employment by incorporating a condition that the service of the employee will stand terminated on a particular date even though the post continues to remain available and the employer requires man power for doing the work in relation to that post. Such condition in the order/letter of appointment in case of the teachers cannot but the termed as unreasonable and contrary to public interest. The student community as a whole is the worst sufferer on account of non-availability of teachers and the Executive Authorities cannot be permitted to act arbitrarily by incorporating wholly unreasonable conditions of employment in the order of appointment of the teachers.”
Though the dubious device of short term contractual appointments on a consolidated pay seems to stem out of necessity, surely, devising the method like this is neither conducive to efficient and smooth functioning of the department itself nor it is just and fair to the appointees on whose head the sword of damocles keeps on hanging. All the time the grim prospects of an uncertain and dark future stares in the face. It tantamounts to sheer exploitation of unemployed and needy young teachers.
18. The above discussion, thus, leads to certain inescapable conclusions; firstly; that though the Government has the power and authority to make part time, contractual, ad hoc and temporary appointments for a fixed term and on fixed remuneration, appointments of such a nature i.e. for short terms are not conducive to the teacher and taught relationship, as in its very nature, the teaching profession requires a close rapport between the teachers and students and continuity of relationship is must for effective and useful education; secondly, the short term appointments for a specified period of the school teachers have been termed as unjust, unfair, oppressive and violative of the constitutional mandate of equality as enshrined in Articles 14 and 16 of the Constitution; thirdly; the unemployed school teachers have no bargaining power; they cannot dictate the terms to be incorporated in the contract of employment. It is always the ‘Will’ of the employer which prevails. A teacher has no role to play in settling the terms and conditions of appointment. They cannot afford to protest against the arbitrary, unconscionable and one sided terms/conditions; on the other hand, their miserable condition and compelling circumstances, leave them with no choice but to accept the dictates of the employer, fourthly, the teachers are not estopped to challenge the arbitrary terms incorporated in the letter of appointment and they are entitled to question the validity, legality and propriety of the terms and conditions incorporated in the document of appointment.
19. The other crucial point is with regard to the emoluments of school teachers. The claim of the school/college teachers appointed on ad hoc, part time, contractual or temporary basis for minimum salary in the scale admissible to the regular teachers has come up for adjudication in a series of decisions. The question is no longer res integra. The Apex Court in the case of Vijay Kumar and Ors. v. State of Punjab, AIR 1994 SC 265, had the occasion to consider the case of the part time lecturers not gainfully employed elsewhere claiming minimum wages of pay scale prescribed for regularly appointed teachers on the premise that quantitatively and qualitatively, they were performing the same duties as the regular teachers. The Apex Court allowed the part time lecturers to draw the salary equivalent to the minimum of the pay scale prescribed for the regularly appointed lecturers. The decision of this Tribunal in the case of Gurindervir Singh and Ors. v. U.T. and Anr. (O.A. No. 549/CH/1997, decided on 2.7.1998 alongwith other O.As.) gave rise to a Writ Petition No. 18225/CAT/98 at the instance of the Administration of the Union Territory. This writ petition was decided on 22nd January, 2002. The order of the Tribunal granting the minimum of the pay scale to the lecturers appointed onad/ioc/contractual basis was challenged on the ground that the modes of recruitment of regular lecturers and contract appointees are different and, therefore, the employees of the latter category are not entitled to get the benefit of doctrine of ‘equal pay for equal work.’ A Division Bench of Punjab & Haryana High Court while rejecting the said submission, observed, “the mode and manner of recruitment may have a bearing on the right of the employees to hold the post and their conditions of service, like confirmation, seniority, promotion, but the same is not determinative of their right to be paid salary in a particular pay scale and in any case, this has no relevance in the context of doctrine of ‘equal pay for equal work.’ The order of the Tribunal allowing the minimum of the regular pay scale as salary to the contract appointees was approved. Without dilating the matter any further, suffice it to say that the claim of the school/college teachers appointed on part time or contractual basis for the payment of minimum of the pay scale as admissible to the regular employees has been upheld. A pointed reference may be made to the decision in the case of Polu Ram (supra). Paragraph 20 of the report deals with the point as follows:
“20. We also find considerable merit in the argument of the learned Counsel for the petitioners that the decision of the respondents to pay fixed emoluments to their clients is violative of Articles 14 and 16 read with Article 39 (d) of the Constitution. The doctrine of equal pay for equal work embodied in Article 39(d) had been read as a part of the larger concept of equality enshrined in Articles 14 and 16. The Courts have interpreted this doctrine to mean that persons holding similar posts and discharging similar duties are entitled to similar wages, though in some cases quality in the nature of work and degree of responsibility have been accepted as factors justifying payment of different salaries to apparently similar situated persons. However, as far as these cases are concerned, we find that averments made by the petitioners about the nature, quality and quantity of their work of teaching vis-a-vis regularly appointed Lecturers, Masters/Mistresses, Classical &Vernaular Teachers and J.B.T. Teachers have not been controverted by the respondents by placing any cogent material before the Court……..”
There are other decisions on the point viz., Union Territory v. CAT. Chandigarh Bench and Harish Kumar and Ors., CWP No. 18225/CAT of 1998; Mohni Devi Sharma v. U.T. and Ors., O.A. No. 963/CH/99 decided on 9th May, 2002 by this Tribunal in which the view taken is that the teachers appointed on ad hoc, part-time or contractual basis are entitled to get minimum of the pay scale as admissible to regular teachers. As a matter of fact, the Chandigarh Administration has implemented the orders passed by this Tribunal and as affirmed in the writ petition filed before the High Court. The letter dated 16th of August, 2002 addressed by the Home Secretary, Chandigarh Administration to the Director, Technical Education, U.T. Chandigarh on the subject of implementation of decision of Hon’ble Punjab & Haryana High Court in respect of CWP No. 18312 of 1996, CWP No. 18313 of 1998 and CWP No. 18225 of 1998 is clear on the point. Through this letter, the Director of Technical Education was directed to pay the lecturers appointed on contractual basis the salary i.e. basic pay plus dearness allowance as is being paid to the regularly appointed employees from the date of their appointment/engagement. Not only this, now a fresh Government order dated 24th July, 2002 has been issued by the Chandigarh Administration, Deptt. of Personnel, addressed to all the Administrative Secretaries and Heads of Departments/Offices/ Boards/Corporations/Institutions in the Chandigarh Administration directing payment of consolidated contractual amount to the persons appointed on whole time contract basis in the U.T. Chandigarh. The consolidated contractual amount in accordance with the directions issued is to be paid after calculating the minimum of the pay scale plus clearness allowance as admissible to regular employees at the time of appointment against the vacant post. In the light of this letter, the school teachers appointed on contractual basis are to receive the minimum of the pay scale plus dearness allowance as admissible to the regular employees and consequently the grievance of the applicants on the point stands already redressed. Mr. Bhardwaj frankly conceded that the letter dated 24.7.2002 aims at releasing the pay to the school teachers appointed on contractual basis equivalent to the amount of minimum of the pay scale plus D.A. Mr. R.K. Sharma, learned Counsel for the applicants further conceded that in view of the letter aforesaid, there remains not much to canvass, consider and determine on the point. In view of the above facts, we have no hesitation or difficulty in recording the finding that all the school teachers, in general, and the applicants, in particular, who have been appointed on contractual basis are entitled to receive the consolidated contractual amount which is to be calculated at the rate of minimum of the pay scale plus dearness allowance as is admissible to the regular employees at the time of their appointment against the vacant post.
20. Sequel to the above, is the question about the payment of salary for the vacation period. The respondents have devised a dubious method of making the contractual appointment for a specified period with a view to avoid the liability to make payment of the salary for the vacation period or for the period of notional breaks. Deprivation of salary for the vacation period to part time or contractual or ad hoc teachers has not been approved by the Hon’ble Supreme Court in the case of Rattan Lal (supra). In that case, it was held that lecturers appointed on ad hoc basis were entitled to the benefit of the salary during the period of vacations. This Tribunal had also allowed the payment of salary to the teachers appointed under contract for a specified period of 89 days, in O.A. No. 1196/CH/1996-Smt. Meenakshi Walia v. U.T. Chandigarh, decided on 17.5.1999. The order was further clarified in Contempt Petition No. 37/1999 arising out of the said O.A. The Chandigarh Administration took the matter before Punjab & Haryana High Court by filing CWP No. 11669 of 1999. The said writ petition has been dismissed with the observation that the well settled proposition of law is that irrespective of the nature of appointment, teaching staff is entitled to wages during summer vacations. Dis-satisfied with the order passed by this Tribunal as well as the High Court, the Chandigarh Administration went, in vain, before the Apex Court by filing SLP (Civil) No. 15478 of 1999. It was dismissed on 2nd November, 1999. It has been authoritatively held that the respondents were under obligation to pay to the teachers their employments till regular appointments are made covering the period of vacations. See, Sahib Singh v. U.T. Chandigarh and Ors., Writ Petition Nos. 1551 to 1594A of 1984 decided by the Apex Court on 13.8.1984; Rajinder Singh v. State of Haryana, 1988(1) SLR 351, decided on 9.12.1987; Ajay Kumar Sharma and 14 Ors. v. Union of India and Ors., O.A. No. 475/CH/91 decided on 17.5.95 by this Tribunal. In the case of Anupama Bhardwaj (O.A. No. 159/CH/2001) (supra), this Tribunal has allowed the payment of salary for the vacation period to the lecturers appointed on part time basis. We find no justification to deprive the applicants of the benefit of the salary for the vacation period or the period covered by notional or artificial breaks.
21. Now it is the time to consider the other important question whether the school teachers who were appointed on contractual basis for a fixed period could be replaced by another set of contract-appointees on the similar terms and conditions by which the applicants are governed. The respondents are admittedly taking step for filling up the vacancies by recruiting regular teachers in accordance with the procedure prescribed under the School Cadre Recruitment Rules, 1991. Side by side, they have, in their wisdom, thought it proper to replace the applicants by other contract-appointees. Without mincing the words, the respondents have asserted that t hey have taken a policy decision to replace the applicants or, for that matter, school teachers who were appointed on contractual basis by new teachers to be appointed on the similar terms and conditions. The justification for doing so is to be found in the following specific assertion made in Para 5 of the written statement:
“Now the Chandigarh Administration has decided to revise the consolidated contractual amount of the contractual employees to Rs. 9000 for lecturers, Rs. 8000 for TGTs and Rs. 7000 for JBT, NTT and PTI. Under the earlier scale, due to lesser salary only a few persons used to apply and many did not even turn to take up the job even after selection due to low pay. With the revision of consolidated contractual amount to get best talent for teaching, the posts are advertised and in the process around 6200 applications were received, and to provide best and talented teachers, this process was undertaken and the persons who did not apply earlier because of low contractual amount can now apply and the persons already employed were also given the opportunity to compete in the selection. As such, it is not a case of change of one contractual teacher with another but different appointment under different scales to provide the most suitable teachers to the students and earlier there were limited options due to low response on account of low pay.”
From the above categorical averment made by the respondents, there is no doubt about the fact that the applicants are to be replaced or substituted by a new body of persons who may be selected on the same terms and conditions pursuant to the advertisement made in August, 2002. On the one hand, the respondents are taking steps to fill the vacancies on regular basis by recruiting the school teachers in accordance with School Cadre Recruitment Rules and, on the other, they are going to substitute or replace the applicants by making fresh appointments on contractual basis, unmindful of the fact that in a series of decisions rendered earlier at all the levels, it has been held that the services of the school/college teachers appointed on ad hoc, part time or contractual basis shall be dispensed with only on the joining of the regular teachers duly selected in accordance with the recruitment rules. In the case of Rajni Bala (supra) a specific direction was issued by the Punjab & Haryana High Court that the teachers appointed on ad hoc or contractual basis shall not be replaced by the new incumbents appointed on the same terms and conditions.
22. Mr. R.K. Sharma, learned Counsel for the applicants urged that the law on the point is well settled that an ad hoc employee cannot be replaced by another ad hoc employee and in support of his contention, he placed reliance on the authoritative pronouncement of Hon’ble Supreme Court in the case of State of Haryana v. Piara Singh and Ors., 1992(3) SLJ 34 in which it was held that an ad hoc appointee cannot be replaced by making another ad hoc appointment. In State of H.P. v. Suresh Kumar Verma and Anr., AIR 1996 SC 1565, it was observed in the last sentence of Paragraph 4 that “one temporary employee cannot be replaced by another temporary employee.” Also, see, Rattan Lal (supra), Saheb Singh (supra) and Rajbinder Singh (supra) decided by Apex Court. A reference was also made to other decisions of this Tribunal as well as Punjab and Haryana High Court in the cases of Dr. Sangeeta Narang (supra), Gurvinder Bir Singh (supra), Smt. Mohini Devi Sharma (supra), Rajni Bala (supra) and Polu Ram (supra) in which it has been laid down that a contract-appointee cannot be replaced by another appointee of the same status. The well embedded legal position is that the existing employee appointed on contractual basis cannot be replaced by an incumbent who may be appointed on contractual basis on the same terms and conditions. The existing school teachers including the applicants cannot, therefore, be replaced by the new selectees to be appointed on contractual basis.
23. Now should be applicants or, for that matter the school teachers, who are working on contract basis for a fixed term be permitted to be replaced or substituted in view of the reason stated in Para 5 of the written statement, that the revised pay scales are so attractive that more qualified, brilliant and talented persons would easily be available and that such an engagement would be in the interest of education, is a question which needs serious consideration. The thrust of the submission of the learned Counsel for the respondents to justify the appointment of new teachers on contractual basis to replace the applicants is that in view of the upward revision of the pay scales, it may now be possible to attract brilliant and talented persons for being appointed as school teachers and if this is done it would be in the interest of education. Mr. Bhardwaj further urged that no fetters can be put on the powers of the employer to have the best person for the job or to replace an average employee by a better person. The course adopted by the respondents, besides being against the established proposition of law, is nothing but a fruitless and futile exercise for variety of reasons. The action of the respondents in advertising the post of the school teachers presently manned by the contract — appointees for being filled by regular teachers in accordance with the School Cadre Recruitment Rules cannot be faulted on any ground whatsoever. To make appointments on contractual basis is a retrograde step. As a matter of fact, it is the cry of the day and duty of the respondents to fill the posts by the regular teachers duly selected according to the Recruitment Rules. Appointments on contractual basis were made with a view to ensure continuity of teaching in schools and to protect the interest of the students. It is not supposed to be a permanent or indefinite arrangement. A teacher appointed on contractual basis knows it fully well that he has to make way as and when a duly selected regular teacher according to Recruitment Rules joins. The whole difficulty has arisen on account of the fact that what the respondents propose to do is that till the duly selected regular teachers are appointed, the existing contract appointees be also replaced by the new incumbents to be appointed on contractual basis on the existing terms and conditions. This idea has been mooted out on the premise that more qualified, brilliant and talented persons may be available for appointment on contractual basis on account of the revised attractive consolidated amount of remuneration. It may not be a loud thinking. More meritorious and qualified teachers may be attracted due to the enhanced amount of remuneration but the assumption that since earlier the amount of remuneration was quite low, persons of inferior merit came to be appointed as a stop-gap arrangement, may not be correct. The myth of the assumption may explode.
24. Undoubtedly, the posts on which appointments of the substitutes are to be made are permanent in nature. The Education Department needs the school teachers to impart education. The applicants who are contract appointees have attained experience as school teachers by virtue of their continuing on the job for years together. They have been permitted to continue to work despite the fact the term of contractual appointment had come to an end more than once. It was done obviously for the reason that the work and conduct of the existing contract appointees was found to be satisfactory. The Courts can take notice of the fact that once a person is appointed as teacher and he teaches the students for a particular length of time, he acquires some experience which enhanced his efficiency for future. More importantly after teaching his students for some time, a teacher establishes a rapport with the students and that rapport greatly helps the students in their education. We must not be taken as suggesting that a person appointed as a teacher on ad hoc basis acquires a right to hold the post and that he cannot be replaced by a person who is appointed in accordance with the procedure prescribed for regular selection. However, we wish to emphasise that the practice of replacing a teacher by appointing a new hand not only causes injury to the fresh ad hoc appointee but also results in serious injury to the public interest. If the students are subjected to teaching by raw and fresh hands every time under the garb of policy of giving ad hoc appointment for a fixed term or till the end of academic session, it can certainly be said that none else than the students community suffers. The absence of continuity of teaching by one person automatically results in breach of the rapport between the teacher and the taught, which is otherwise absolutely imperative for better education. There is no substitute for experience. Engagement of a fresh incumbent for the same purpose and on the same terms and conditions on which the contract appointees are working is not likely to serve any public interest. The applicant most of whom may have become over-aged would be shown the door without any corresponding advantage. The principle of ‘first come last go’ is infringed if the contract appointees are substituted by another body of the contract appointees. The practice of appointing a person for a limited tenure/period would not be in consonance with public policy. As pointed out above, continuity of the teacher and taught relationship is of immense importance in order to maintain excellence in education. Fresh appointments on contractual basis are afflicted by the vice of uncertainty. The policy decision to replace the existing contract-appointees by a new set of such appointees again on contract basis is subject to serious criticism that it is intended to breed the seeds of nepotism and corruption. The logic behind the idea or say the decision to replace the contract appointees by the new persons on contract basis, pending regular recruitment for which advertisement has already been floated and perhaps the process of selection is underway, defies all legal parameters, commonsense and the concept of good governance. The practical aspects have not been taken into consideration. There is no suggestion that the applicants are ineligible for appointment. They are fully qualified and well equipped. Their candidature, as said above, was either sponsored by the Employment Exchange or they directly applied for appointment pursuant to the advertisement. They were interviewed by an Expert Committee and it was on the completion of this arduous exercise that the applicants and other school teachers similarly circumstanced came to be appointed. In course of time, they have gained experience. Their removal which is resultant on account of their substitution by other contract-appointees for a short spell i.e. till such time the regular appointments are made, which are in offing, is an attempt to positively disturb the school education which would neither be in the interest of the institutions nor advantageous to the students’ community. Therefore, there does not appear to be any understandable reason for disturbing the settled position by making stop gap arrangement for a short period. Those school teachers who have been working for a number of years or for quite some time past, may legitimately continue till such time the regular appointments in accordance with statutory rules are made. The replacement of the existing contractual appointees by the Administration is in flagrant violation of law, as repeatedly stated by the Apex Court, the High Court and this Tribunal. There is no merit in the stand taken by the respondents that since the revised consolidated amount of remuneration is quite substantial and attractive, more qualified, brilliant and talented persons for purposes of contractual appointment may be drawn. The assumption of the respondents based on conjectures and surmises is ill-conceived and unfounded. The reason for the replacement of the existing school teachers as put forward by the respondents is likely to create much more problems than achieving the suggested laudable objective.
25. It would further not be out of place to mention that the applicants came to be appointed on contractual basis initially pursuant to the Government orders dated 28.11.1997 issued by the Education Deptt. of Chandigarh Administration. The orders contained in the said letter had the approval of the Administrator of the Union Territory. As to who has taken the policy decision to replace the existing school teachers appointed on contractual basis by new contract-appointees is hidden in the penumbral zone for away from judicial scrutiny. This decision runs counter to what has been indicated in the letter dated 16th of August, 2002 (referred to in Para 19 above addressed by the Home Secretary, Chandigarh Administration to the Director Technical Education, U.T. Chandigarh). The Administrator has accorded approval to allow the existing teachers appointed on contractual basis to continue in service till the availability of the regularly selected candidates appointed in terms of statutory rules. This letter was issued in order to ensure compliance and implementation of the decision of the Punjab and Haryana High Court in certain writ petitions. We are conscious of the fact that the said letter pertains to the contract-appointees in the institutes imparting technical education. The various decisions of Punjab and Haryana High Court and of this Tribunal with regard to teachers in technical education relate to the same legal issues as have been raised by the school teachers. There is not much difference about the principles as applicable to the lecturers or teachers in the technical institutes and the school teachers. Both the categories of contract-appointees have to continue in service till they are replaced by the duly selected regular appointees. A contrary decision appears to have been taken in the matter of school teachers by Distt. Education Officer at his own level to invite applications for preparing a panel of the school teachers to be appointed on contract basis for the year 2002-2003. There is no document on record to indicate that this decision of the Distt. Education Officer has the approval of the Administrator of U.T. or the Education Deptt. or that of Director Public Instructions. The Distt. Education Officer could not over-reach the decision taken by the Education Department which had the approval of the Administrator as contained in letter dated 28.11.1997. Under what circumstances, the Distt. Education Officer had chosen to issue an advertisement dated 9th/10th August, 2002 for preparation of a fresh panel for the year 2002-2003 in respect of the various categories of the school teachers for being appointed on contractual basis to provide as substitutes to replace the applicants and other school teachers, is a subject-matter of serious probe. If it was an altogether unilateral unauthorised act of the Distt. Education Officer, he is to be dealt with appropriately as his action has generated unnecessary controversy resulting in litigation and placing the Administration in an embarrassing situation. Certainly, the decision to replace the existing teachers by new contract-appointees conceals more than what it reveals.
26. In the backdrop of the above analysis, the legal and factual position which has come to be crystalised takes within its sweep the following emerging conclusions:
(1) It is beyond the pale of dispute that the posts to which the applicants have been appointed on contractual basis are all permanent borne on the cadre of school teachers of different disciplines.
(2) The recruitment to the said posts on regular basis has to be made in accordance with the procedure prescribed in the School Cadre Recruitment Rules, 1991. (3) The procedure or the method of recruitment, age limit, qualifications etc., and other matters connected therewith are prescribed in Rule 4 and specified in Cols. 5 to 13 of the Schedule annexed to the Rules. In certain cases and circumstances, Union Public Service Commission has to be consulted in the process of recruitment. (4) Regular appointments could not be made in accordance with the statutory rules due to various reasons including the stay orders of the Courts. (5) Short-term appointments of school teachers on contractual basis on fixed remuneration have not been approved as being a retrograde step. On the other hand, such a methodology or device has been the subject matter of adverse criticism. It has been found to be counter-productive, as such a course is detrimental to the students community and makes a serious dent in the system of education. (6) Nevertheless, in the absence of regularly recruited teachers, the appointments on contract basis are made as a matter of necessity, and as stopgap arrangement with a view to ensure teaching in the schools to go on. (7) Once a teacher is so appointed, his services cannot be dispensed with at the sweat-will even when the need to continue him persists. (8) The contract appointees have been held to be entitled to minimum of the pay scale as admissible to the regular teachers including the salary for the period of vacations and artificial breaks. (9) Since the contract-appointees are not appointed by following the procedure prescribed in the statutory rules, they do not acquire any right to the post and have to make an exit on the joining of the duly selected school teachers on regular basis. (10) A contract-appointee cannot be substituted or replaced by another set of persons proposed to be appointed also on contract basis. Unless there are other grounds, such as unsatisfactory work, misconduct or nonavailability of the post, a contract appointee can be substituted only by a regular selectee. In the light of the above legal and factual matrix, we find that the respondents cannot be permitted or allowed to substitute the applicants by appointing other persons on contractual basis on the same terms and conditions. The applicants shall continue to perform their duties as school teachers till such time they are replaced by the regular selected teachers in terms of the statutory rules. How soon it is done is a matter which lies within the province of the Administration. 27. Before parting, it may be mentioned that whatever order we are going to pass in these O.As. shall be applicable to all the similarly circumstanced school teachers whether they have approached this Tribunal or not. The benefit of this judgment has to be extended to all the school teachers who are similarly placed. In this connection a reference may be made to a decision of this Tribunal dated 8th October, 2002 in O A No. 274/CH/2002 - Savita Rani and 2 Ors. v. U.T. Chandigarh and Ors. in which it was held that it is the duty of the State to avoid unnecessary litigation and the benefit of a particular decision should in all cases be extended to the similarly placed persons even if they were not parties to the litigation. The Hon'ble Supreme Court has also lamented on the situation in not giving effect to the orders of the Court in the matters of similarly placed persons who have not approached the Court. In Rajbinder Singh v. State of Punjab and Ors. (supra), the Apex Court observed in Paragraph 2 of the report as follows: "2. This Court in a number of writ petitions (W.P. 125/87 and 317/1987) has allowed the ad hoc teachers to continue in service while person regularly selected by the P.S.C. are appointed to the posts. The respondent ought to extent the benefit of that order to all other ad hoc lecturers. It is not proper to drive them to this Court for securing similar reliefs. We make it clear that the petitioner and other similar ad hoc teachers are entitled to the benefit of the order of this Court made in the aforesaid writ petition." We have no doubt that the respondent - administration shall take note of the above observations and apply this judgment to all the school teachers who may not have come forward before us for securing similar relief.
28. In the result, all the six O.As. are allowed and the advertisement dated 9th/10th August, 2002 issued under the authority of the Distt. Education Officer is hereby quashed. The applicants or, for that matter all school teachers similarly placed and claiming similar reliefs even though they arc not parties to the present O.As., shall not be replaced or substituted by the new incumbents appointed or to be appointed on contractual basis or by transferring a regular recruit from one institution to another institution where the affected teacher may be serving or by posting an outsider on deputation. All the existing contract-appointees shall continue to work till they are relieved by the duly selected regular teachers appointed in accordance with School Cadre Recruitment Rules, 1991. It is, however, made clear that the respondents shall be at liberty to dispense with the services of the applicants and other school teachers similarly circumstanced on grounds of inefficiency, delinquency, misconduct or on the abolition of post. The school teachers including the applicants shall further be entitled to minimum of the pay scale as admissible to the regular teachers and no deductions shall be made for the period of artificial breaks or vacations.
There shall be no order as to costs.