HIGH COURTOF CHHATTISGARH AT BILASPUR CORAM : Hon'ble Shri Jagdish Bhalla, Ag. CJ. & Hon'ble Shri Dilip Raosaheb. Deshmukh, J. WritPetitionNo.ieeS of 1997 QRDER FOR CONSIDERATION Sd/- Actfng Ouef Justice HON'BLE SHRI D.R. DESHMUKH. J. -?: o^^-. () Sd/- Dilip Raosaheb Deshmukh Judge POST FOR PRONOUNCEMENT OF THE ORDER: ?> O /07/20Q7 Sd/- Ag. CMef Justice / HIGH COURT OF CHHATTISGARH AT BILASPUR DMSION BENCH CORAM: HON'BLE SHRI JAGDISH BHALLA, Ag.CJ. & HON'BLE SHRI DILIP RAOSAHEB DESHMUKH, J. Writ PetitionNo. 1668 of 1997 Petitioner: RESPONDENTS Dr. B.P.Bansal Retired Asstt. Professor & l-1ead Sociology Deptt. Durga Mahavidyalaya, Raipur. M.P. - 492001 S/o Shri Kanhi^ilal Bansal aged 62 years QualificaBon: M.A., B.Com, LL.B(P), N.D., Yoga Visharad, Siddhant Ratna. Permanent Address:- Shiv Bawa Kaya Kalpa Nature Cure Clinic. Sai Bhawan, 552, C.P.Colony Post MORAR, GWALIOR - 474 006 (M.P.) Phone No. 0751-367763. Present Address : Dr. Bansats Nature Cure Clinic Near (Seth Alam Chand Khanduja Krishna Mandir) 2(V76. shakU Nagar, Delhi -110 007 Phone : 7142292, 7293122, 6426838 VERSUS M.P. Govemment, Higher EducaUon Department, for non- Govt. Institutions Through Commissioner Higher EducaUon Department, for non-Govt. Institutions M.P. Govemment E- 2/84, Mahavir Nagar Bhopal - 462014 (M.P.) M.P. Govemment, Higher EducaUon Department, Through: The Hon'ble Secretary Education Department, Secretariid Vallabh Bhawan, Bhopal (M.P.) Goveming Body of Durga Mahavidhyalaya, Through: The Hon'bte Chairman, Goveming Body, Durga Mahavidhyalaya Raipur-492)01 (M.P.) J 4. Governing Body of Madhav Mahavidhyalaya, Through: The Hon'ble Chairman, Madhav Mahavidhyalaya, Gwalior (M.P.) 5. Dr. Shrimati Professor Shyama Agarwal, Professor of Sociology, Sociology Department, Madhav Mahavidhyalaya, Gwalior (M.P.) 6. Ravishanker University - Raipur (M.P.) through - Registrar Ravishanker University, Raipur (M.P.) 7. "The Hon'ble Chairman, Governing Body, Maharaja Mansingh Mahavidyalaya Gwalior M.P. PIN 474008" 8. State of Chhattisgarh Through Commissioner Higher Education, Raipur (C.G.) Present: Petitioner in person. Shri Sachin Singh Rajput, counsel for the State of Madhya Pradesh. Shri Gautam Bhaduri, counsel for respondent No.3. Shri Vinay Harit, Deputy Advocate General for the State of Chhattisgarh. ^ ORDER (Delivered on 3 O^Julv. 2007) The following order of the Court was passed by Hon'ble Jagdish Bhalla, Ag. CJ. Short question involved in this writ petrtion is whether the petitioner is entitled for arrears of salary for the period between 02-11-1979, when his services came to an end / terminated and till he was again appointed as Assistant Professor in the year 1989 in Durga College Raipur, continuity & regularization of his service and in the process pensionary benefits from the aforesaid date? The petitioner was appointed as Lecturer in Sociology by an order dated 01-08-1977 against the leave vacancy in Maharaja Mansingh College, Gwalior caused because of the extraordinary study teave taken by the permanent incumbent Smt. Laxmi Tomar under University Grants Commission Scheme. At the outset, the petitioner in person submitted that he is not pressing for arrears of salary, however, he restricts his prayer only to the outcome of continuity and regularization of his service i.e. pensionary benefrts. It has been submitted by the petitioner in person ttiat though the peUtioner was appointed against a leave vacancy, all formalities as contemplated under Statute 28, Rule 17(2) of Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 were completed. In ttie above cireumstances, the petitioner represented to the authorities for inclusion of his name in Form No.Il of the statutory register, known as absorptlon register in accordance with Rule 5(2) of Bharti Niyam, 1979 and for the said purpose in light of Rule 5(1) it was mandatory upon the college authorities to send the name of the petitioner for entering the same into the register as referred hereinabove. Rules 5(1) and 5(2) of Bharti Niyam, 1979 read as under: "Rule 5(1) where the service of a teacher or an emptoyee is terminated by an institution whether as a result of closure of the Institution or abolition of post or for anv ottier reason whatsoever, such institution shall send information in respect thereof to the concemed Education Officer and DMsionat Superintendent of Education in case of School and to the Education Officer and Ayog in case of Cotleges in Form No. 1. FORM-1 [SeeRuteNo.SdM S.No. Nameof Dateof Post Frmn to QuaUficatlon Reasonfor Teacher Blrth Held tenrinafion Emptoyee ofseretoe (1) (2) (3) (4) (5) (6) (7) (8) 1. Shri B.P.Bansal 05.01.1936 Asstt. Asstt. Prof. Prof. Sociology 1.8.77 4.1.79 M.A. ResimpUon Sociotogy of (Mies comlng back From Teacher Fellowship of UGC by Laxmi TomarAsstt. Prof. Sodotogy Rule 5(2) : "The Education Officer, Divisional Superintendent of Education and the Ayog shall keep a record ofthe information recewed under sub-rule(1) in a register to be maintained In Form No.Il. FORM-11 [See Rute No. 5(2)] S.No. Named Dateof Post From to Teacher/ Blrift Held employee Qualifications Reasonforpost tennlnatlon ofsavlce (1) (2) (3) (4) (S) (6) (7) (8) According to the pefitioner, in spite of his best efforts he could not get his name entered in Form No. II of the statutory register for absorption. The petitioner filed Misc. Petition No.367/1982 and the said petiton was decided on 28.03.1989 with a specific direction to the Ayog to enter the name of the petitioner in Form No. II. Aggrieved by the same, the petitioner filed S.L.P. No. 1901 of 1990 before Hon'ble Supreme Court and ths same was dismissed by ordar dated 09.07.1990. Thereaflar, tt»e peUUoner filed M.C.C. No.83 of 1991 against the judgment dated 28.03.1989, passed in Misc. PeBtkm No.367 of 1982 and no interference was shown by the Madhya Pradesh High Court in light of the fact that the petitioner's S.L.P. referred hereinabove was dismissed on 09.07.1M0. The petiUoner was still not satisfied and he again flled another ^4.C.C. No.229 of 1992 against the order passed in M.C.C. No.83 of 1991 dated 29.07.1992. Even, the said M.C.C. was rejected by order dated 22.11.1994. /^grisved by the order (assed in M.C.C. No.229 of 19M, the peStioner preferred S.L.P. No.19243 <tf 1995 before Hon'ble Apex Court which was dispossd of by order datod 25.07.1997 wltti an observaUon that it would be open for ttie peUtioner to ventilate his grievances by way of a separate petitlon before appellate forum. In these circumstances, the petlUoner has flled this writ peUtion which was heard and disposed of by order dated 21.08.1998. AtK)"®vsd by the same, the petittoner titod S.L.P. which was converted into Clvil Appeal No.^32 of 2000. The said civil appaal was allowed by order dated 26.09.2001 and the matter was remanded back to reconstder the matter on its merits by this Court as after reo^anisation of the State of Madhya Pradesh on 01.11.20)0, this Court came into eidstence and jurisdiction of Raipur beit^ that of High Court of ChhatUsgarh, this writ prfiUon was transferred to ttiis Court for consideration. In light of the order passed by Ntadhya Pradesh Hlgh Court in Misc. PeBUon No.367/1982, the name of the petitfoner was entered in Form No. II and in the process he was adju^ed and appointed as Lecturer in Soclology d^artment in Durga College, Raipur in the year 1989. Thereaftw, the peBUoner startad represenUng with respect to the claim of seniority and regularization in light of his appointment s^ain^ leave vacancy Maharaja Mansingh Coltege, GwaBor. Accordlng to Ihe petHtoner, he decMett to fito this writ pdilon in light of the oreter passed by Hon'bte Supreme Court dated 25-07-1^7, in SLP No. 19243/19%. The aforesaidSLP wss fitod by the peBfioner after being aggrieved by the order of the High Court rejecting review applicaUon moved against an order passed in contempt petition. The petiUoner in person has raised the following grievances: "i) That he was wrongly not diiectly absorbed as a Lecturer in Sociology hi Raipur Collet^; ii) His second grievance is ttat in Uie llght of the High Couffs eartier decision in M.P.367/S2 dated March 28,1989 he was enBttod to be abswbed against an eartier vacancy availabto in Madhav College, Gwalior. iiD His third grievance is that ha was entttled to arrear of satary from 4-11 -1979 to Augurt 23,1989. h/) His other grievance is thsrt in any case he could not have been kept on probafion in Rajpur Colleae and he should have been given consequaiUal further reliefe Including promotion ete. v) It was ateo his contentton thart in Form No.2 his name shoukl have been inserted from 1979.* In light of the order passed by the Hon'bte Supren®Court, we conskier it necessary to reexamine the matter in accordance with law, in 1he backaroui'Kt of facls at the petiUoner'scase hascheckered hlstory. Petitioneris liUgating since long. PeUttoner, a senlorciUzen, had argued hts own case befbre ttre Hon'ble Supreme Court and in Uie H^h Court, obviously with tull emotions. We had made eamest endasn/our to offer full opportunity to ttre petittoner to ptace his grievances before Ihis Court even at the cost of repeUUon. It has been submitted that re^ondent No.1 i.e. Ayog did n<rt perform its duty as public authority by not entertr^ the name of the petHioner in the said register thereby denying the absorption of the petidoner as ttiere was a vacancy of Lecturer in sociohw ttopsfftment. It has bsen further submitted that the petiUoner is covered ureler the definitton of teacher as provided un^r Sectlon 2(1) of Bharti Nlyam, 1979. It has been submittod bythepetittonerttiathe has worked against leave vacancy for two yeare three months and fmirdays and prior approvat fer terminaUon of his senriceswas given underSectkm 6(a) (ii^ of Madhya Pradesh Ashasgldya Shistdian Sandta (Adhiyapakon tatha Anya Karmachariyon ke vetano ka sanday) Adhlniyam, 1978. It was pointed out by the petittoner that he made flve representations b^ore ttie Commission (Ayog) for absorpCon in diflerent colleges, but the Commission reftjsed to enter his name for bemg sponsorad on illegal grounds that absorption is done for surplus peisons retrenchwt due to rationalizaUon and lack cf work toad and not for substitutes appointed temporarily. Shri J.P. Singhal, Secretary, M.P. Uchcha Shiksha Anudhan Ayog by an oreter datsd 22-11-1979 communicatBd thatsince the peUUoner was wortdng as substihtted teacher in piace of Smt. Laxmi Tomar, he was not enUUed for absorption elsewhere. According to the prtiBoner, thisground is nottenabte in the eyes of law. According to the paBtioner, he was enfitled for absorption because he is covered by the deflntUon of teacher and In light of Rute 5 he has a right to be absorbed. It was further argued by Itie petiUoner that accordlng to Rule 8(1) of Bharti Niyam.1979 whenever vacancy is to be filled up for fte post of teacher or other employee a reference has to be made in accordance with Rule 8(1) to the EducaUon Officer, the DivistonalSuperintendent of EducaBon or fiyog, as the case may be, atong with a requisitton in Form No.lll which is as Tollows : Rute8(1) Where an InstituBon desires to fill up anyvacancy of a post of a teacher or ofter employees, it shall make a reference to that effect to the EducaCon Officer, the Dhrisional Superintendent of Education or the Ayog as the case may be, alongwith a requisltfon in Form No. III. Form No. III [SeeRute8(ia RequisiUon under sub-rule(1) of Rute 8 ofthe Madh^Pradesh A.S.S. Ni^m 1979 to fill up Post of Teacher/other Employee. S.No. NameoTPost Number<rf\fiKandes Dunaonorvacancles Remarit ill. 12L m^ 14L i5L 1. 2. 3. 4. 5. Commerce Hlndi Sodotogy MaratN EngBsh Permanent Pennanent Pennanent Pennanent Pemmnert AsstProf.are woridngonttieirPost as Ad-hoc Teacher. —do- —do— -do- —do- Sd/- (t-lariram Venna) Principal 18.11.1981 Madhav Mahavidyalaya Gwaliar (M.P.) Rules 8(2) and 8(3) ofthe Bharti Niyam, 1979 read as follows: "Rute 8(2):- On receipt of a reference under sub-Nle(1), fte EducaUon Officer, the Divisional Superintenderrt of EducaUon or ttie Ayog.as the case may be, shatl fumfeh information to the Institution concemed in Form IV." Rute8(3):- If no suitabte and otherwise qualified teacher or other employee is avallable, the Educatton Officer. The D'lvisional Superintenderrt of EducaUon or Ayog, as ttie case may be, shall ftimish a non-availabiltty certificate to the Institution concemed. FORMIV [SeeRute8(2n The grievance of the peBBoner is that after his termination on 2nd November, 1979 there were several vacancies for the post of Lecturer in d'rfferent colleges but the peUtioner could nol be absorbed becayse his name did not find place in the statulory register of the Ayog as referred hereinabove and accordingly his name was notsponsored by the Ayog. According to the petiUoner, he was g'lven arb'rtrary and discriminatory treatment and it violated the fundamental right of the petiUoner guaranteed under Articles 14, 16 and 21 of the ConsUtuUon of India. The petiUoner was deprived of an opportunBy of employment on the vacancy of Assistant Professor in ^4adhav Coltege, Gwalior. It h^been Name of pereon Name of the Institutton where ftom service tenninatsd Date of Blrth Period or seivlce on post From To' Date ot termlnaton ofsentee Qualtfl- caton Reasons fcr Tenninaton of Service T T ~s~ ~4~ '5~ T T T ~9~ 10 further contended by the petttioner that the petiUoner's appointment as Lecturer was a Stahitory in nature, hence peBtioner is covered by the defin'rtion of SecUon 2(1) of the Bharti Niyam, 1979 and, therefore, he had a stataitory right to get his name entered in the register prescribed under the provisions of ttie Act and get absorbed in Madhav College, Gwatior where vacancy was existed on the post of Smt. Shyama Agrawal who was working as Assistant Professor in Sociology on ad-hoc basis. It was further submitted by the peBtioner that since the petiUoner has already faced selecUon committee and he was found suitable and recommended for appointment against leave vacancy, it was not required for the petitioner to face tte SelecUon Committee again and the Ayog failed to enter petiUoner's name in the statutory register for appointment of Assistant Professor, tn the process has failed to perform Hs publte duty. This inacUon on the part of the authoriUes caused the peBUoner loss cf 10 valuable years fbr no fault of his i.e. from the year 1979, accordingly the petiUoner claimed salary, allowances and pensionary beneftts for the said period. It was argued by the petitioner that if 10 yeara period is included In his service then he would be eligible for the pensionary beneffls as qualified service for the pension is 10 years and the petiUoner could not put qualiRed senrice because of illegat refusal ofthe Ayog to enter his name in the statutory registw. In these circumstances, 'rt was submtttBd by the petiUoner in person that since ttie public authority failed to perform his duty or refused to perform his dufy, 'rt has infringed ftie petiUoner's fundamental right. However, the peUtioner submttted that he is ready to give up his salaryand altowances for the said period, but prayed that his servtees be noUonally counted for tha purpose of his service and penUonaiy benefits and accordingly he be 11 paid pension and other benefits from the dato of his retirement as if the pefitioner was in service right from the date of his appointment i.e. 1977. In Uie altemative, the petiUoner submitted that th® State Govemment be directed to compensate him adequately so that he will be able to llve a peaceful retired life and the State Govemment be also directed to provide free treatment to his mother. The peWoner flled a statement claiming compensation of Rs.25,00,000/- along with interest @ 6% per annum for 18 yeare. tn support of his submission, H: was pointed out by the petftioner that there are catena ofdecisions of Hon'ble Supreme Court granting damage^compensation in cases where public authority infringed the fundamental rightor statutoiy right of a ciUzen. In such circumstances, this Court has power under Articte 226 of the ConsBtuUon oflndia to award damages/compensation to the petltioner. In support of his submission he relied upon ttie decision of Hon'ble Supreme Court in Common Causes vs.Unlon oflndla (AIR 1999 SC 2979/wherein the Hon'bte Supreme Court held as under: There is, therefore, not much of a difference between the powers of e Court exereised here in this country under Art.32 or 226 and those exercised in England for judicial review. Public law remedies are available in both the countries and the Courts can award damages against public authoritles to compensate for the loss or injury caused to the plaintiff/petitioner, provided the case invoh/es, in this country, the vtolation of fundamental rights by the Govt. or other public authorities or ttiat their actfon was wholly arbitrary or oppresswe in vlolation of Art. 14 or in breach of statutory duty and is not a purely 1 private matter directed against a private indMdual." 12 It was contended by the petitioner that for the period aforesaid, the petitioner remained unemployed and suffered a loss i.e. (a) individual disorganization (b) family disorganization and (c) social disorganization. It was atso pointed out that the petitioner lost his wife Smt. Sushila Devi Bansal on 16.09.2006 because of mental harassment and depression. In such circumstances, the petitioner prayed ftat a direction be issued to the Ayog to enter his name notionally in Form No.Il in the year 1979, when Form No.l was received on 20.09.1979 from Maharaja Mansingh College, Gwalior by ttie Ayog. The petitioner also prayed that in case notional seniority is given to the petitioner, he will get continuity in service and would be entitted for pensionary benefits. In support of his submissions, the petftioner relied upon the decisions of Hon'ble Apex Court in Smt Wlabatl Behra Vs. State of Onssa (AIR 1993 SC 19 ) and Pilla Sitaram Patrudu and others vs. Uni'on of India and others (AIR 1997 SC 250). The above referred case law was cited by the petitioner while he was arguing the case, however, after few days reserving the judgment, petitioner requested in open Court that he be altowed to furnish a list of three cases in support of his case and the same is handed over to the Court Master. We have even considered the said three judgments as well. In 1989 LAB. I.C. 336 (Dr.Jai Prakash Narain Srivastava Vs. Director of Higher Education, U.P. Allahabad & others), the Allahabad High Court observed as under: "It does not require that a teacher who has been appointed against a leave vacancy likely to last for more than six months after facing a Selection Committee constituted under the Act shall have to be appointed or face Selection Committee every time a leave vacancy jeiljes psifJOM OI|M euo 841 leyi siepueiu 'suua} ui 'iou ssop s|nj sqi teqi erui si D '|ooi|os siues si|i ui jaie| p8)|jom OL|M jeyoesi e JOAO ii|By leguejspjd e sey jsjijee AOUBOGA e ui p85|joM pei| oyM J9i|oeei e jsiffsqm si ps.iemsue sq 01 seq yev^ uogssnb A|UO aqi •psysi.iBS SJB e|ny sitfl p uoiieoiidde ioi suoiiipuoo 94} 11V •ssea SIIB ui leusieui tou si osiAojd eqi •AoueBy uoffeonpg euies si|i jspun si iL|Snos si lusuquiodde sjsym 100405 ei|i •ussue sey AoueoeA sjrqni v "AousBy |euo!}eonp3 sues eifl japun siooqos ui ssiaueoeA ejntry 01 lusiuiuiodde jo^ sousjs^sjd SAB4 iieys sjsqoesi yons leyi ssieis sjny syi -ssiaueoeA ^o uonBuiiujei p lunoooe uo psAeiiej eje»sisyoes} 941 yioq '3ja|-| •sa|ru sssyi 4ljM peiueouoo iou SJB e<v\ 'iustuijedsp sqi p sjspjo jspun sisod ;o jsquinu SIB ui uoipnpej p lunoooe uo p9Aai|8j siei|3B8i p s^eeds zg-y pue uoiieoeA jsiuuins JSAO pusjxe }|JOM ASL|I MOiqM ui AOUEOBA SL|I uaym 'UOIIBOBA jsye sjsyoesi jo uoiieuiiujet ys s)|esds 6t?'y 'sspueoeA ys uoiieuiiujet 10 lunoooe uo jo gg-y jo sfr 'y Jsd se psAaiiej Buisq sjsyoeat p sE>|eeds »| •lueiusjinbsj siyi A(S!IBS luepuodsej t? eq} pue iUB||8dde siff iftog •sjeyoeei psyi|enb p sijeads a|m sii|j. 'uonsanb ui e|m sqi pesj sn }s-|,, : jepun se psAissqo ynoo xsdy 941 'dooqas yBjH •iflro-ui 'ja6euBW sqi -SA uauiiuoo AJBM •lius) S91.1. OS Z861. ytV U| ,/Me| p) jojjs Aue psffltuiuoo 9861. "! psiBSJO SBM }sod jB|nBsj usym A|8A!iueisqns jauoiuted Busuiodde lusLusBeueui 10 eeuiiuuioo jo uojin|osej 941 leifl p|04 01 UOSBSJ Aue jesdde iou ssop sjsqi stusuisjinbej jaiflo ||E psilttini 84 sauis •AOUBOBA jeiljes ui pstuiodde SB sq ueqm SSBIUIUIOO uoipsies psoei pey 94 se 2961. u; (q) (s) l.S'oss -ispu" psiuiodde uesq SABI( p|noo jeuoiiBsd eifl 'ajoiejsqi 'sgsue £T 14 should be preferred to the one who worked later. But would it be in accord with justice and fair play, to prefer the one who worked later to the one who worked earlier in the absence of anything in the Rule ymry to the management a right to choose between the two, on the ground of suitability, merit or efficiency. The judgment of the Division Bench under appeal was delivered on 18-01-1973. The note quoted above was inserted on 04-07-1972. This note leaves no doubt as to how Rule 51-A has to be construed. The Rule states that preference will be given with reference to the date of appointment. When the date of appointment is the same, age should prevail; the elder being given the first preference. Of course, it contains a rider that due regards shoutd be given to the requiremente of subject as far as High Schools are concemed. The Division Bench did not choose to accept the clarification contained in the note. The learned Judges held against the appellant, on the wording of the Rule that, in terms, it did not provide for any preference between two or more persons and did not consider it proper to read more into this Rule by considering the Note to R.5 in the same chapter. Although we do not say that a Npte to a Rule has any binding effect, it does indeed have a persuasive force. It cannot be ignored that this Note has come as an appendage to R.51-A for clarificatory purposes though it does not form a part of the Rule. The learned Judges felt that propriety and faimess required a decision in favour of the appellant, when they observed: "It woutd be proper no doubt to give an eariier appointee preference. But seeing the rule as we ought to see every rule and every section in the Kerala Education Rules and the Kerala Education Act 15 $1 as restrictions or regutations in the matter of the free right of the manager to choose and appoint, it is impossible to read more into the rule."" In AIR 1997 SC 1310 (State of Kerala Vs. Mother Anasthasia, Superior General & others), the Apex Court observed as under : "A reading thereof would indicate that nofrw'rthstanding anything contained in sub-section (1) and (sub) Section (4) of Section 57, a teacher discharged from a private college on or after Mareh 14,1974, due to abolition of a couree of study in that college or for any other reason except on disciplinary action agalnst him, shall be given preference in future appointments in a proate college or any of the private colleges under the Management of the educational agency within the University area. Admittedly, the third respondent was appointed in a leave vacancy for a short period of three months. The intendmentofsub-section (6) appearsto be only that when permanent teacher or teacher appointed on a regular basis is discharged from semce due to abolition of the course of study in that college or for any other reason, obviously, other analogous causes other than disciplinary action, such a teacher who held the post was given preferential treatment for future appointment. A temporary teacher in a leave vacancy cannot be considered as discharged nor clalmed the status as discharged employee. Discharge would connote for any other reason ejusdem generis due to abolition of the post or course of study or such similar circumstances except for discharge due to misconduct. Such a teacher only will be eligible to set up preferential claim for appointment but not a teacher who fortuitously came to be appointed in a leave vacancy much less for a limited period." 16 The petitioner in pereon emphatically argued that he was not directly absorbed as Lecturer in Sociology Department in Durga College, Raipur after his services came to an end in the year 1979 white he was working on the post of Lecturer against leave vacancy and in light ofthe judgment in Misc. Petition No.367/1982, dated 28.03.1989 he was entitied to be absorbed against an eariier available vacancy in Madhav Coltege, Gwalior. It was Turther contended that he