Case: Univ.Of Rajasthan  Vs. Prem Lata Agarwal

authority and some non-compliance with the procedure or the manner which does not go to the root of the appointment. 33. We have already analysed the scheme of Section 3 and stated that there could not have been continuance of the service after the fixed duration as provided under Section 3(3) of the Act and such continuance is to be treated as null and void. That is how the Act operates in the field. That apart, regular selection was required to be made by a High Powered Committee as provided under Section 4. It is also pertinent to state that the Act lays down the procedure of the selection committee not leaving it to any authority to provide the same by rules or regulations. 34. In view of the aforesaid, the irresistible conclusion is that the continuance after the fixed duration goes to the root of the matter. That apart, the teachers were allowed to continue under certain compelling circumstances and by interdiction by courts. Quite apart from the above, this Court had categorically declined to accede to the prayer for regularization. In such a situation, we are afraid that the reliance placed by the High Court on paragraph 53 of the pronouncement in Uma Devi (supra) can be said to be justified. In this regard, another aspect, though an ancillary one, may be worth noting. Prem Lata Agarwal and B.K. Joshi had retired on 31.3.2001 and 31.1.2002, and by no stretch of imagination, Uma Devi (supra) lays down that the cases of any category of appointees who had retired could be regularized. We may repeat at the cost of repetition that the protection carved out in paragraph 53 in Uma Devi (supra) could not be extended to the respondents basically for three reasons, namely, (i) that the continuance of appointment after the fixed duration was null and void by operation of law; (ii) that the respondent continued in the post by intervention of the court; and (iii) that this Court had declined to regularize their services in 1998. 35. Though we have dealt with the statutory scheme, yet as the High Court has heavily relied on various regulations to extend the benefit, we think it seemly to advert to the approach of the High Court to find out whether it has appositely appreciated the purpose and purport of the regulations. The High Court, as is manifest from the orders, has made a distinction between a permanent employee and purely temporary appointee and observed that the services of the respondent could not be termed to be purely temporary or daily wages. In that context, it has referred to Regulation 22 which uses the words “regularly appointed employee”. We may reproduce the said part of the ratiocination:- “Regulation 2(ii) is applicable to all existing employees except the persons appointed on contract or part time basis; persons on deputation; purely temporary and daily wages staff; and re- employed pensioners. The case of the petitioners is not covered under any of the aforesaid four categories. Even otherwise, it cannot be said that appointments of the petitioners were made as stop gap arrangements. They have continued for more than two decades and therefore, they cannot in any manner be termed as “purely temporary”. Also the word “purely temporary” contained in regulation 2(ii)(c) is used in company with daily wages staff and there is distinction in concept of purely temporary and temporary as provided in regulation 2 and 22 of the pension scheme purely temporary is not covered whereas temporary or officiating appointment is covered under the purview of the pension regulation.” 36. The aforesaid analysis, according to us, is not correct inasmuch as the regulations do not take in their sweep an employee who is not regularly appointed. The distinction between temporary and purely temporary, as made by the High Court, does not commend acceptance as there is an inherent fallacy in the same inasmuch as Regulation 2(i) clearly provides “regularly appointed to the service of the University” which has been reiterated in Regulation 22. In fact, as we perceive, the High Court has proceeded on the basis that their services have to be treated as regular. Once it is not regular service, the infrastructure collapses as a consequence of which the superstructure is bound to founder and, hence, the distinction made by the High Court is flawed. 37. The High Court, as has been stated earlier, has pressed into service Regulation 23 and relying on the same, it has held that the services of the respondents shall be deemed to have been confirmed as in the instant cases the University has never opined that their services were not satisfactory. The language of Regulation 23 is couched in a different manner. It fundamentally deals with the computation of the period of service of an employee. That apart, Regulation 23(b) uses the words “if he is confirmed”. It is a conditional one and it relates to officiating services. Both the concepts have their own significance in service jurisprudence. The respondents were not in the officiating service and by no stretch of imagination, they could have been treated to be confirmed because the words “if he is confirmed” required an affirmative fact to be done by the University. The High Court, as we find, has applied the doctrine of deemed confirmation to the case at hand which is impermissible. In this context, we may, with profit, refer to the decision in Head Master, Lawrence School, Lovedale v. Jayanthi Raghu and another [(2012) 4 SCC 793] wherein it has been ruled thus: - “A confirmation, as is demonstrable from the language employed in the Rule, does not occur with efflux of time. As it is hedged by a condition, an affirmative or positive act is the requisite by the employer. In our considered opinion, an order of confirmation is required to be passed.” Thus analyzed, the conclusion of the High Court which also rests on the interpretation of the regulations does not commend acceptation. 38. Consequently, the

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We have already analysed the scheme of Section 3 and stated that there could not have been continuance of the service after the fixed duration as provided under Section 3(3) of the Act and such continuance is to be treated as null and void. That is how the Act operates in the field. That apart, regular selection was required to be made by a High Powered Committee as provided under Section 4. It is also pertinent to state that the Act lays down the procedure of the selection committee not leaving it to any authority to provide the same by rules orirresistible conclusion is that the continuance after the fixed duration goes to the root of the matter. That apart, the teachers were allowed to continue under certain compelling circumstances and by interdiction by courts. Quite apart from the above, this Court had categorically declined to accede to the prayer for regularization. In such a situation, we are afraid that the reliance placed by the High Court on paragraph 53 of the pronouncement in Uma Devi (supra) can be said to be justified. In this regard, another aspect, though an ancillary one, may be worth noting. Prem Lata Agarwal and B.K. Joshi had retired on 31.3.2001 and 31.1.2002, and by no stretch of imagination, Uma Devi (supra) lays down that the cases of any category of appointees who had retired could be regularized. We may repeat at the cost of repetition that the protection carved out in paragraph 53 in Uma Devi (supra) could not be extended to the respondents basically for three reasons, namely, (i) that the continuance of appointment after the fixed duration was null and void by operation of law; (ii) that the respondent continued in the post by intervention of the court; and (iii) that this Court had declined to regularize their services inwe have dealt with the statutory scheme, yet as the High Court has heavily relied on various regulations to extend the benefit, we think it seemly to advert to the approach of the High Court to find out whether it has appositely appreciated the purpose and purport of the regulations. The High Court, as is manifest from the orders, has made a distinction between a permanent employee and purely temporary appointee and observed that the services of the respondent could not be termed to be purely temporary or daily wages. In that context, it has referred to Regulation 22 which uses the wordshe aforesaid analysis, according to us, is not correct inasmuch as the regulations do not take in their sweep an employee who is not regularly appointed. The distinction between temporary and purely temporary, as made by the High Court, does not commend acceptance as there is an inherent fallacy in the same inasmuch as Regulation 2(i) clearly providesappointed to the service of thewhich has been reiterated in Regulation 22. In fact, as we perceive, the High Court has proceeded on the basis that their services have to be treated as regular. Once it is not regular service, the infrastructure collapses as a consequence of which the superstructure is bound to founder and, hence, the distinction made by the High Court isHigh Court, as has been stated earlier, has pressed into service Regulation 23 and relying on the same, it has held that the services of the respondents shall be deemed to have been confirmed as in the instant cases the University has never opined that their services were not satisfactory. The language of Regulation 23 is couched in a different manner. It fundamentally deals with the computation of the period of service of an employee. That apart, Regulation 23(b) uses the wordsIt is a conditional one and it relates to officiating services. Both the concepts have their own significance in service jurisprudence. The respondents were not in the officiating service and by no stretch of imagination, they could have been treated to be confirmed because the wordsrequired an affirmative fact to be done by the University. The High Court, as we find, has applied the doctrine of deemed confirmation to the case at hand which is impermissible