HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 4268 of 2003
Yogendra Singh Sengar & Anr
- V/s -
Barkatullah University and others
Present : Hon'ble Shri Justice Rajendra Menon.
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Shri Ashish Pathak, Advocate for the petitioners.
Shri Brajesh Choubey, Advocate for the respondents.
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Whether approved for reporting: Yes / No.
ORDER
21/09/2010
Claiming salary and modification of the order of
reinstatement, petitioners have filed this writ petition and the relief
claimed for in paragraph 7.1, of the writ petition, reads as under:
“7. Relief sought:
(i) It is, therefore, prayed that this Hon’ble Court
be kindly pleased to issue a writ of mandamus
commanding the respondents to suitably modify the
order dated 8.4.2003 so far as it relates to
description of the petitioners as contract
appointee. The Hon’ble Court be also pleased to
command the respondents to pay salary to the
petitioners intervening the date of order of removal
till reinstatement and other consequential benefits as
accrued from time to time.”
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2- It is the case of the petitioners that respondent University
issued an advertisement vide Annexure P/1, for appointment of
Lecturers/Tutors in Physical Education on contract basis. Petitioners
applied, and a Selection Committee consisting of four persons as
indicated in paragraph 5(iii) of the writ petition, was constituted.
Petitioners were found eligible and orders – Annexure P/2 was issued
appointing the petitioners on a consolidated salary of Rs.1800/- per
month, for a period of 89 days initially. The appointment continued and
it is the case of the petitioners that in the year 1999, the Head of the
Department processed a note-sheet – Annexure P/3, recommended for
regular appointment of the petitioners on the ground that as per the
National Council for Teachers Education (hereinafter referred to as
‘NCTE’) norms, there is requirement of five Lecturers/Tutors in the
Institute. Recommendation was made to initially appoint the petitioners
on contract basis for one year on payment of consolidated salary of
Rs.5000/- and thereafter grant them regular appointment. It is the case of
the petitioners that the Vice Chancellor of the University approved the
proposal on 2.6.1999 and thereafter petitioners were appointed again
vide Annexure P/4 on 10.6.1999, even though for a period of one year
on contract basis, but the appointment was to be made regular after one
year as per note-sheet – Annexure P/3. Thereafter, again in the year 2000
another note-sheet – Annexure P/5 was initiated wherein also the Vice
Chancellor gave approval for appointment of the petitioners. It is stated
that in this also the proposal was to grant regular appointment to the
petitioners. However, nothing was done and the petitioners were kept as
Contract Teachers. In the meanwhile, due to involvement of the
petitioners in certain criminal case pertaining to offence under the Arms
Act, petitioners’ services were terminated vide Annexure P/9, on
24.8.2001. Petitioners challenged the termination by filing
W.P.No.4821/2002 and a Bench of this Court allowed the writ petition
on 12.12.2002 vide Annexure P/11 and found the termination to be
illegal. Petitioners reported for joining on 18.12.2002, but they were not
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taken back on duty. It was only vide Annexure P/14 on 8.4.2003 that
they were again granted contract appointment.
3- Interalia contending that petitioners are entitled to salary
from the date their appointment was quashed by this Court in
W.P.No.4821/2001, and further contending that in pursuance to the note-
sheets and the approval of the Vice Chancellor, as is evident from
Annexures P/3 and P/5, petitioners have been regularly appointed to the
post and, therefore, they should be granted regular pay scale and
appointment on regular basis, petitioners have filed this writ petition.
4- Respondents represented by Shri Brajesh Choubey refuted
the aforesaid and pointed out that as petitioners were only appointed on
contract basis and as their appointment were not preceded by any regular
process of recruitment as contemplated under the Statute and Ordinance
issued by the University, it is stated that petitioners cannot claim any
regular appointment or regular salary. It is the case of the University that
petitioners are contract appointees and they continue on contract basis
till they are regularized or appointed to the post in accordance to the
requirement of the Statute and Ordinances governing regular
appointment to any post or service in the University.
5- By filing a rejoinder, learned counsel for the petitioners has
brought on record various other note-sheets and documents received by
the petitioners under the Right to Information Act and point out that the
petitioners having been regularized with effect from 1.6.99, respondents
cannot deny the claim made by the petitioners. Accordingly, Shri Ashish
Pathak submits that the petitioners having been treated as regular
employees with effect from 1.6.99, they are entitled to the benefit and
relief claimed in this writ petition.
6- I have heard learned counsel for the parties and perused the
records.
7- From the records it is clear that petitioners entered the
University by virtue of the so called selection conducted for appointment
in pursuance to the advertisement – Annexure P/1. The advertisement –
Annexure P/1 clearly stipulates that the appointment is on contract basis
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and the appointment orders issued in pursuance to the same – Annexure
P/2 dated 2.12.1997 is also a contract appointment on a consolidated
salary of Rs.1800/- per month. Thereafter, when the Head of the
Department processed the note-sheet – Annexure P/3 and proposed for
initially appointing the petitioners on contract basis for one year and
thereafter granting approval for their regularization, the Vice Chancellor
in his note-sheet dated 2.6.1999 granted the approval “We may appoint
the teachers on contract as proposed”. On the basis of this note of the
Vice Chancellor and approval granted on 2.6.99, the order-dated 10.6.99
– Annexure P/4 was issued again appointing the petitioners on contract
basis for a period of one year on a consolidated salary of Rs.5000/- per
month. If the note-sheet of the Vice Chancellor dated 2.6.99 and the
appointment of the petitioners ordered therein vide Annexure P/4 are
taken note of, it would be seen that the approval and proposal sanctioned
by the Vice Chancellor for appointment was only as a contract teacher
and there is nothing in the note-sheet or the order – Annexure P/4 to
indicate that the petitioners appointment was on regular post, on the
regular pay scale as a regular teacher/tutor.
8- Even though the Head of the Department had made
proposals, there is no document available on record to indicate that
petitioners were appointed on regular basis in accordance to the
requirement of law with effect from 1.6.99. The documents filed by the
petitioners’ alongwith the rejoinder, allegedly received by the petitioners
under the Right to Information Act, do indicate that petitioners were
regularized, but there is no order of regularization of the petitioners.
Annexures P/3 and P/5 are orders of appointment of the petitioners on
contract basis, on a consolidated salary for a particular period of time.
9- The Constitutional Bench of the Supreme Court, in the case
of Secretary, State of Karnataka and others Vs. Umadevi (3) and
others, (2006) 4 SCC 1, has considered various aspects with regard to
public employment and it is clearly laid down by the Supreme Court in
the aforesaid case that employment to public service has to be done
strictly in accordance to the requirement of Articles 14 and 16 of the
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Constitution. Opportunity to seek employment should be made available
to each and every unemployed citizen in the country and if an
appointment is made on contract basis or adhoc basis is regularized it
has the effect of depriving the rights guaranteed to many other persons
seeking appointment and is, therefore, violative of Articles 14 and 16 of
the Constitution. It is, therefore, a settled principle of law that public
employment has to be in accordance to the statutory rules and
regulations and if an appointment is made dehors the statutory rules or
regulations, regularization of such an appointment cannot be ordered by
a writ court. If the case of the petitioners are scrutinized in the backdrop
of the requirement of law as laid down by the Supreme Court in the case
of Umadevi (supra), it would be seen that appointment to the
Universities in the State of Madhya Pradesh are governed by the
statutory provisions contained in MP Vishwa Vidyalaya Adhiniyam,
1973 (hereinafter referred to as ‘Adhiniyam’) and a specific procedure
for appointment is contemplated under section 49 of the Adhiniyam.
Under the provisions of sub-section (2) of section 49, appointments have
to be made by a duly constituted selection committed nominated by the
Kuladhipati of the University and it is the Executive Council of the
University, which is the supreme authority, entitled to make
appointments to the University. That apart, in exercise of powers
conferred under the Adhiniyam of 1973, statutory rules in the form of
Statutes and Ordinances have been framed for appointment to service in
the University.
10- This Court can direct for regularization of the petitioners
only if it is established from the material available on record that the
appointment of the petitioners initially even on contract basis, is made
after following the procedure contemplated under the various statutory
provisions formulated under the Adhiniyam i.e… the Statute and
Ordinances, applicable to the University. There is nothing on record to
indicate that the appointments of the petitioners are made by following
the procedure prescribed under law. It is a case where an advertisement
for appointment on contract basis was issued and petitioners were
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appointed on contract basis. There is nothing on record to indicate that
appointment of the petitioners were made after following the procedure
contemplated and under the Statute and Ordinances. The petitioners have
not even brought on record the relevant Statute and the Ordinances,
contemplating procedure for appointment and have not demonstrated
before this Court that their appointment is after following the procedure
contemplated under these statutes and ordinances.
11- In that view of the matter, keeping in view the principles
laid down by the Supreme Court in the case of Umadevi (supra), it has
to be held that appointment of the petitioners being dehors the rules, this
Court cannot issue any mandamus for treating the petitioners to be
regularly appointed to the post and grant them the benefit of regular
salary. To this effect, no relief can be granted to the petitioners, as the
records indicate that petitioners were only appointed on contract basis
and continued to work on contract basis.
12- Accordingly, the prayer made by the petitioners for treating
them to be regularly appointed to the post in question and to grant them
regular salary is rejected.
13- As far as the salary for the period they remained out of
employment inspite of the order passed by this Court, in the earlier writ
petition filed by the petitioners’ i.e….. W.P.No.4821/2002, is concerned,
it is clear that after the petitioners termination was quashed by this Court
on 12.12.2002 in the writ petition referred above, petitioners reported for
joining duties on 18.12.2002 and respondents instead of permitting the
petitioners to join duties on 18.12.2002 kept the matter pending and
permitted them to join duties only on 8.4.2003, after orders – Annexure
P/14 was issued.
14- That being so, petitioners would be entitled to salary for the
period from 18.12.2002 upto 7.4.2003, due to their reporting for joining
duties on contract basis with effect from 18.12.2002. To that effect,
petitioners are entitled to the relief.
15- Accordingly, rejecting the claim of the petitioners for
regularization and regular salary on the post of Lecturers/Tutors,
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respondents are directed to pay salary to the petitioners with effect from
18.12.2002 upto 7.4.2003, treating them to be appointed on contract
basis and joined duties on 18.12.2002, at the rate prescribed for contract
appointment, which was granted to the petitioners, the said amount be
paid within a period of two months from the date of receipt of certified
copy of this order.
16- Petition stands allowed to the extent indicated hereinabove
and disposed of without any order so as to costs.
( RAJENDRA MENON )
JUDGE
Aks/-