* THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + WRIT PETITION NOS: 9076, 9077, 9086 AND 12021 OF 2004 W.P.NO. 9077 OF 2004: % 02.12.2005 # Dr. A.V.S.S.Prasad, S/o Late A. Kanna Rao, Aged: about 33 years, Occ: Adhoc Lecturer in Department of Chemistry, R/o D17/4, NITW Staff Quarters, NIT Warangal. ….. Petitioner Vs. 1. $ The Director, National Institute of Technology (Regional Engineering College) Warangal – 506004 and four others. ….Respondents. ! Counsel for the Petitioner: Sri P.V. Krishnaiah ^ Counsel for the Respondents:Sri Nooty Rammohan Rao < Gist: >Head Note ? Citations: [1] AIR 1992 SC 2130 2 AIR 1990 SC 2228 3 AIR 1989 Bombay 213 4 AIR 1990 SC 371 5AIR 1989 SC 111 6AIR 2000 SC 3299 7 AIR 2002 SC 2498 8AIR 1998 SC 1477 9AIR 1993 SC 1236 10AIR 1991 SC 1286 11AIR 1997 SC 1628 12 AIR 1998 SC 101 131987 Suppl. SCC 497 14(1990)2 SCC 396 15 AIR 1991 SC 295 16 AIR 1981 SC 41 17 (2001) 5 SCC 486 18 (1997) 6 SCC 365 19 (1999)7 SCC 120 20AIR 1987 SC 2034 21(2002)1 SCC 428 22 (1994)2 SCC 630 23 (1997)1 SCC 350 24 (2003)3 SCC 485 25 (1980)2 SCC 768 26(2004)1 SCC 663 27 (2003)5 SCC 437 28 AIR 1995 SC 705 29 AIR 1991 SC 1260 THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NOS: 9076, 9077, 9086 AND 12021 OF 2004 COMMON ORDER: Though these cases came to be listed pursuant to vacate stay petitions being filed by the respondents, both Sri P.V. Krishnaiah, learned counsel for the petitioner, and Sri Nooty Rammohan Rao, learned counsel for the respondents, would agree that the writ petitions could be finally heard and disposed of. In all the four writ petitions adhoc lecturers, working in National Institute of Technology, (Regional Engineering College), Warangal, (hereinafter referred to as the “Institute”), question the action of the respondents in terminating their services and seek a direction that their services be regularized with all service benefits including pay scales and allowances. Since the respondents, in this batch of writ petitions, are common and inasmuch as the reliefs sought for are similar, all the four writ petitions were heard together and are being disposed of by a common order. It would suffice if the facts in W.P.No.9077 of 2004 are taken note of. The petitioner is an M.Sc., M.Phil., and Ph.D., in Chemistry and had qualified in the State Level Eligibility Test for Lecturership for Universities/Colleges, (Accredited by the University Grants Commission). The Principal, Regional Engineering College, Warangal, vide proceedings dated 21.11.2000, invited applications with complete bio-data for appointment to the post of lecturer in Chemistry on an adhoc basis. The Registrar, vide letter dated 03.01.2001, requested the petitioner to be present for an interview on 17.01.2001, with all original certificates, to be considered for the post of adhoc lecturer. The selection committee, consisting of the Deans, academic affairs and administration, professors and head of the department of chemistry and the Registrar of the Institute selected the petitioner, as an adhoc lecturer, from among the three candidates who attended the interview. The petitioner was informed, vide order dated 17.01.2001, that he was appointed temporarily as an adhoc lecturer in the department of chemistry of the Institute on contract basis for one year on a consolidated salary of Rs.9,000/- per month. Among the conditions stipulated in the order of appointment was that the appointment was purely temporary and liable to be terminated at any time without notice and without assigning any reasons, that the contract appointment of one year was renewable after his satisfactory completion of one year’s service, and that he would not be paid any salary during the vacation period. The petitioner joined the services, of the respondents’ institute, on 25.01.2001 as an adhoc lecturer in the Department of Chemistry. Appointment of the petitioner as adhoc lecturer was extended, by order dated 30.01.2002, until further orders on a consolidated salary of Rs.10,000/- per month under the same terms and conditions. By proceedings dated 07.05.2004, services of all adhoc lecturers, including that of the petitioner, were terminated with effect from 14.05.2004 on the ground that their services were no longer required. It is the petitioner’s case that though he was working in a clear and regular vacancy, provided with quarters and entrusted with the work of a regular lecturer, he was denied the benefits of regularization of services and fixation of pay scales which amounted to exploiting his services by the respondents. Petitioner would submit that instead of being an ideal employer and regularizing the services of adhoc lecturers, thereby ensuring that the lecturers are not put on tenterhooks and are able to effectively teach students, the respondents had chosen to terminate their services for extraneous reasons. Petitioner would submit that, since there was enough work for adhoc lecturers in the respondent institution, the action of the respondents, in seeking to terminate the services of adhoc lecturers, is malafide. Petitioners would submit that the respondents had regularized the services of similarly situated persons and their action, in not extending the same benefit to the petitioner and other adhoc lecturers, was unfair, unreasonable, arbitrary and in violation of Articles 14 and 16 of the Constitution of India. In his counter affidavit the Registrar-incharge, of the respondent institution, would state that the Government of India had conceived of establishing engineering and technological colleges all over the country with a view to maintain uniform standards of education and as a result the Regional Engineering College, Warangal came to be established. Similar institutions established in various parts of the country, with the same structure, were registered under the Societies Registration Act, to ensure participation of the state governments concerned. It is stated that the Regional Engineering College at Warangal came to be established in 1959, the first of 17 such institutions in the country. It is also stated that the Regional Engineering Colleges had a Central as well as a State tie up, that majority of students were admitted from the regions concerned, that the Regional Engineering Colleges had been maintaining high standards of education and were recognized for their quality of education and research, and that 50% of the intake of students were specifically confined to the candidates from within the state and the balance 50% were drawn from the rest of the country. Respondents would submit that a study was undertaken to further improve the standards of Regional Engineering Colleges from 1999 onwards and ultimately in 2002, the Ministry of Human Resources Development, Government of India, had taken a firm decision to permit all the Regional Engineering Colleges to manage their affairs by themselves, thereby ensuring that the Regional Engineering Colleges were not confined to serving local interests alone and instead to take on a national hue and colour. Consequent thereto, the Regional Engineering colleges were elevated as National Institutes of Technology with a view to achieve the required standards of efficiency and improvement. Internationally followed practices and procedures were introduced. It is stated that necessary modifications had been brought about both in the system of teaching and research to be undertaken by the institute with the ultimate aim of achieving parity with the Indian Institutes of Technology, that the admission process was modified and all the seats are now filled up by an All India Common Entrance Test. It is stated that admissions, to MSc (chemistry) – Dyes, Drugs, Pharmaceuticals and pesticides course, was confined to students of Andhra Pradesh till the academic year 2003-2004. However consequent upon accreditation of the Regional Engineering College, Warangal to that of a National Institute of Technology, admissions to the course was made open to All-India competition from the academic year 2004-2005. Respondents would submit that in view of these reforms, which were under examination from 1999 onwards, the vacancies of teachers were asked not to be filled up on a regular basis. It is stated that the recruitment rules, of teaching and non- teaching staff in the National Institute of Technology, Warangal, had not been finalized earlier but were intended to be finalized shortly, and the regular process of recruitment was deferred to be taken up thereafter. It is stated that the recruitment process is to be on All-India basis and since necessary sanction had not been accorded, by the Ministry of Human Resources Development, for filling up the posts of lecturers in the National Institute of Technology, Warangal, the posts of lecturers could not be filled up on a regular basis. It is stated that in view of these facts, the Institute was resorting to appointment of adhoc lecturers by local selection, that advertisements through limited circulation, (attracting Universities, NITs, IITs and applications from local candidates), was taken up and candidates were informed that their recruitment as adhoc lecturer would not confer on them any right much less the substantive right of regularization in the Institute. Respondents would submit that while adhoc lecturers were selected by a selection committee constituted by the institute, their selection was not by the selection committee constituted for regular selection. It is stated that around 36 adhoc lecturers were recruited in various departments and on completion of the academic year 2003-2004 (by middle of May 2004) the services of adhoc lecturers were not extended for the period beyond 2003- 2004 and for the academic year 2004-2005 appropriate advertisements were taken out on an All-India basis and a selection committee was constituted for recruitment of such lecturers. It is stated that candidates who had worked earlier in the institute were also required to complete for recruitment along with other candidates for the post of adhoc lecturers/lecturers on contract basis. This procedure of filling up posts on an adhoc/ contract basis was resorted to pending clearance by the Ministry of Human Resource Development for filing up posts on a regular basis. It is stated that pursuant to the fresh selections for the academic year 2004-2005 two lecturers had been selected with instructions to report for duty latest by 02.08.2004 and though classes had commenced from 27.07.2004, the instructional activity was to commence in all earnest by the second week of August 2004. It is stated that the services of adhoc lecturers cannot be regularized since they did not face regular selection, that a regular selection committee must comprise of one representative of the AICTE, two External subject Experts and the Director of Institute, that the selection process is undertaken on all India basis and not based on local area interests, that the petitioner had not responded to the notification for recruitment as adhoc lecturer for the academic year 2004-2005 and as a result he could not get selected and, since the petitioner had not participated in the selection process, he was not entitled to claim that he should remain continuously in service as an adhoc lecturer of the Institute. It is stated that the respondents institute had nothing against the petitioner, that the institute had not terminated his services for extraneous reasons except for the reason that selection had to be undertaken afresh to attract the best available talent in the country to form part of the faculty of the institute with a view to maintain high standards of teaching and training. It is stated that the institute had not violated any of the rights guaranteed in favour of the petitioners. Sri P.V. Krishnaiah, learned counsel for the petitioner, would refer to the case of one Sri M. Ravindranath Reddy, who was appointed in 1995 as a Senior Research Assistant, in the Entrepreneurship Development Cell, on tenure basis for a period of one year and whose services were regularized in May 1998, to contend that the same benefits ought to have been extended to the petitioners also. Learned counsel would submit that there is no justification for appointing persons on contract basis when regular vacancies are available and that no reasons had been assigned by the respondents for resorting to this action of terminating the services of adhoc lecturers. Learned counsel would contend that the very fact that the services of adhoc lecturers was extended until further orders gave rise to a legitimate expectation among them that their services would eventually be regularized and, as a result, the petitioners had avoided taking up other opportunities for appointment as lecturers hoping that their services would eventually be regularized in the Institute. Learned counsel would submit that while a person can be employed as an adhoc lecturer for a specified period, it is not open to the authorities to continue appointment on an adhoc basis indefinitely, and that one adhoc employee could not be replaced by another. According to the learned counsel, since the petitioners possessed the requisite qualification prescribed for being appointed as regular lecturers, even when they were initially appointed on an adhoc basis, they ought to have been appointed as regular lecturers and not on an adhoc basis. Learned counsel would submit that instead of resorting to fresh recruitment if the services of the petitioners were regularized, the respondent institute would have the benefit of fully qualified lecturers with experience of more than four years. Learned counsel would state that since only 7 of the 36 adhoc lecturers, whose services were terminated in May 2004 had approached this court and were continuing in service pursuant to an order of status quo passed by this court, the respondents could regularize their services while resorting to fresh recruitment for the remaining 29 posts. Learned counsel would rely on (1) State of Haryana Vs. Piara Singh[1] (2) Jacob M. Puthuparambil Vs. Kerala Water Authority[2]; Laxman Mahadev Teli Vs. Principal, Shri Pancham Khemraj Mahavidyalaya[3]; (4) Bhagwati Prasad Vs. Delhi State Mineral Development Corproation[4]; (5) O.P. Bhandari Vs. Indian Tourism Development Corporation Ltd[5]; ( 6 ) Kiran Gupta Vs. State of U.P.[6]; (7) M/s. National Aluminium Co.Ltd. Vs. Deepak Kumar Panda[7]; (8) Arun Kumar Rout Vs. State of Bihar[8]; (9) Rajendra Roy Vs. Union of India[9]; (10) Sri Rabinarayan Mohapatra Vs. State of Orissa[10]; (11) Ashwani Kumar Vs. State of Bihar[11]; (12) Smt. Vijay Goel Vs. Union of India[12]; (13) and A.K. Jain Vs. Union of India[13], in this regard. Learned counsel would contend that while the services of adhoc lecturers were sought to be terminated on the ground that the institute intended to resort to regular recruitment, it is not the case of the respondents that other lecturers, who had hitherto been appointed on regular basis, would also be required to undergo a process of fresh selection. According to the learned counsel depriving adhoc lecturers of their right of regularization was illegal, unjust and arbitrary. Sri Nooty Rammohan Rao, learned Counsel for the respondents, would submit that the petitioners, at the time of their initial appointment, were made aware that their appointment was only on an adhoc basis, it was not as if the petitioners were recruited by a selection process for which wide publicity was given and on the other hand, their cases were considered pursuant to a notification affixed on the notice board of the institute and by limited circulation to certain other institutes, that the selection committee, for selection of adhoc lecturers, was constituted from among the professors of the institute itself and since extension of services of the petitioners, beyond the original period of contract of one year, was also on an adhoc basis, no right accrued in their favour to claim that their services be regularized. Learned counsel would submit that with a view to further improve the academic standards of the institute, it was decided to invite applications, from all qualified lecturers, on an All-India basis and employ them on contract basis till rules are made by the Ministry of Human Resources Development for appointment of regular lecturers. According to the learned counsel, this step taken by the Director of the institute, to invite applications on an All-India basis, for the academic year 2004-2005, was only in the best interests of the institution since attracting highly qualified lecturers would result in further improving the standards of teaching in the institute and would immensely benefit students who would be imparted a far higher quality of education than before. Learned counsel would submit that the selections, which the institute carried out in 2004- 2005, pending approval from the Ministry of Human Resources Development, Government of India, for making regular appointments, was on inviting applications from all National Institutes and IITs also. According to the learned counsel, it is not a case of one adhoc lecturer substituting another, as the petitioners’ adhoc appointment in 2001 was on the basis of a limited notification affixed to the notice board of the institute and intimation to a few other institutes, while the selections held in 2004 was on an All-India basis, and applications were invited from all major National institutions including the Indian Institutes of Technology. Learned counsel would submit that even this selection process in 2004 was for appointment of lecturers for a limited duration pending clearance from the Ministry of Human Resource Development and necessary rules and regulations being made for recruitment of regular and full time lecturers in the National Institutes of Technology. Learned counsel would submit that it was open to the petitioners also to participate in the selection process held in May/June 2004 and having failed to do so it was not open for them to turn around and contend that the institute should not resort to this procedure or that their services should be regularized. Sri Nooty Rammohan Rao, on instructions, would submit that the Ministry of Human Resources Development, Government of India, had almost completed the modalities to be prescribed for appointment of regular lecturers and for the next academic year 2006-2007 the National Institutes of Technology, (the erstwhile RECs), would make recruitment only on a regular basis and the practice of engaging services of adhoc lecturers would end with the current academic year 2005-2006. REGULARISATION OF SERVICES: ADHOC LECTURERS IN INSTITUTES OF HIGHER LEARNING. Are lecturers appointed on an adhoc basis, in premier institutions of higher education, without undergoing a regular process of selection, entitled to seek regularization of their services on the ground that they were continued in service for more than four years? While Sri P.V. Krishnaiah, learned counsel for the petitioner, placing reliance on the aforesaid judgments, would contend that they are, Sri Nooty Rammohan Rao learned counsel for the respondents, would submit to the contrary. Now the judgments cited across the bar. In Piara Singh (1 supra), regularization of persons, working on adhoc basis in class III and class IV posts in the services of the State of Punjab and Haryana, was in issue. The Supreme Court, after referring to the earlier judgments in Dharwad District P.W.D. Literature Daily Wage Employees Association Vs. State of Karnataka[14] and Jacob M.Puthuparambil (2 supra), held that courts, while giving directions to regularize services of such employees must first ascertain the relevant facts, be cognizant of several situations and eventualities that may arise on account of such directions, take a practical and pragmatic view, (in asmuch as every such direction not only affected the public exchequer but also resulted in increasing the cadre strength of a particular service of a class or category), that the relief must be moulded having regard to the facts and circumstances of each case, that such an exercise cannot be mechanical but must be a judicial one, that it was no part of the jurisdiction of the court to issue general declarations of indulgence and that in such cases courts could only observe that it was for the respective governments to consider the feasibility of giving appropriate relief particularly in cases where persons had been continuing for a long number of years, were eligible and qualified on the date of their adhoc appointment and whose record of service was satisfactory. The Supreme Court further held thus: “Before parting with this case, we think it appropriate to say a few words concerning the issue of regularisation of adhoc/temporary employees in government service. The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee. Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority. Thirdly, even where an adhoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. An unqualified person ought to be appointed only when qualified persons are not available through the above processes. If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.” I n Jacob M.Puthuparambil (2 supra), Rule 9(a)(i) of the Kerala State and subordinate service Rule, 1958, which enabled the appointing authority to appoint person temporarily, came up for consideration before the Supreme Court and it was held that the rule was intended to be invoked to serve emergent situations which could not brook delay, that such appointments were intended to be stop-gap temporary appointments to serve the stated purpose and not long term ones and that the rule was not intended to fill a large number of posts in the service but only those which could not be kept vacant till regular appointments were made in accordance with the rules. The Supreme Court held that once appointments continued for long, the services had to be regularized if the incumbent possessed the requisite qualifications as prescribed under the rules. The Supreme Court took note of the consequences of terminating the services of such employees, (cleaners, pump operators, drivers etc), and held thus: “It is unfair and unreasonable to remove people who have been rendering service since some time as such removal has serious consequences. The family of the employee which had settled down and accommodated its needs to the emoluments received by the bread winner, will face economic ruination if the job is suddenly taken away. Besides, the precious period of early life devoted in the service of the establishment will be wholly wasted and the incumbent may be rendered ‘age barred’ for securing a job elsewhere. It is indeed unfair to use him, generate hope and a feeling of security in him, attune his family to live within his earnings and then suddenly to throw him out of job. Such behaviour would be an affront to the concept of job security and would run counter to the constitutional philosophy, particularly the concept of right to work in Article 41 of the Constitution. Therefore, if we interpret Rule 9(a)(i) consistently with the spirit and philosophy of the Constitution, which it is permissible to do without doing violence to the said rule, it follows that employees who are serving on the