Case: Univ.Of Rajasthan  Vs. Prem Lata Agarwal

Be it noted, as the main judgment was rendered in the case of Prem Lata Agarwal, we shall refer to the facts adumbrated therein. However, the initial dates of appointment and the dates of superannuation in case of every respondent as the same would be relevant in the course of delineation of the lis in question are stated herein. Prem Lata Agarwal, Vijaya Kabra, Janki D. Moorjani, B.K. Joshi and M.C. Goyal, the respondents herein, were appointed on 5.1.1981, 22.8.1984, 20.8.1985, 16.5.1978 and 5.8.1983 and stood superannuated on 31.3.2001, 31.8.2007, 30.6.2007, 31.1.2002 and 30.11.2007 respectively. Respondent-Prem Lata Agarwal and some others were appointed vide Office Order dated 5.1.1981 by the Vice-Chancellor in exercise of power vested in him for making the stop gap arrangement under Section 3(3) of the Act as Assistant Professors (Lecturers) in the subject of Chemistry. It was clearly mentioned in the letter of appointment that it was ad hoc in nature and it would continue upto the last working day of the current academic session or till further orders, whichever was earlier. The respondent and others were allowed to continue on the basis of the appointment letters issued from time to time. It may be noted that their services were terminated every year and fresh appointment orders were issued. In this manner, the respondent was allowed to continue upto 31.7.1988.4. At that juncture, the ad hoc teachers had invoked the jurisdiction of the High Court seeking a mandamus for the regularization of the services but such a relief was declined. S.L.P. No. 18993 of 1991 was preferred wherein two questions were raised, namely, (i) whether a lecturer duly selected by the selection committee for being appointed temporarily should automatically be confirmed on the post which he was holding for the past 7 years on temporary basis after being selected by a duly constituted selection committee under the provisions of the Act and approved by the syndicate of the university; and (ii) whether apart from the considerations of selection by the selection committee, did a lecturer teaching for the past 7 years acquire a right to continue on that post. This Court vide order dated 20th April, 1992, dismissed the said special leave petition. Though the special leave petition was dismissed and their right to be regularized was not accepted by this Court, yet they continued in service as the orders of termination could not be implemented. It is worth noticing that another petition by ad hoc appointees was filed in 1985 before the High Court wherein they claimed equal pay on the foundation of parity with the regularly appointed Assistant Lecturers. The High Court, vide order dated 1.3.1986, passed the followingthis special appeal is allowed and the order dated 8.03.1995 passed by the learned Single Judge is hereby set aside and accordingly it is declared that the appellants who have been appointed on honorarium basis to cover the uncovered load of the respective departments are entitled to the salary equivalent to the minimum of the pay scale of the regularly appointed lecturer of the Rajasthan University from today. The respondents are also restrained from discontinuing services of the appellants till regular appointments to the post of lecturers are made in accordance with law. The respondents shall be at liberty to assign the work to the appellants, which is assigned to the regularly appointed lecturers.The university, being grieved by the aforesaid order, preferred Special Leave Petition No. 13 of 1998 and number of S.L.Ps. wherein this Court passed the followingspecial leave petitions are dismissed. It is clarified that the continuation of the respondents shall be only till regular selections are made and it is upto the University to take expeditious steps for making regular selections.In view of the aforesaid order, the teachers were paid salary equivalent to the minimum pay scale of regularly appointed teachers and continued in service due to various orders of the High Court passed from time to time. The university, despite its best efforts, could not obtain the permission of the State Government to fill up the vacant posts on regular basis as various litigations were continuing in the Court at various stages as a consequence of which the respondent and her likes continued in service.7. It is apt to note here that the university brought the regulations which came into force with effect from 1.1.1990. After the regulations came into force, the respondent gave her option for the purpose of availing the benefit of pension and, thereafter, there was deduction from her salary in view of the postulates in the regulations till her date of retirement, i.e., 31.3.2001.8. It is pertinent to mention here that the RajasthanTeachers (Absorption of Temporary Teachers) Ordinance, 2008 (3 of 2008) was made and promulgated by the Governor with a purpose of providing absorption of temporary teachers of long standing, working in the universities of Rajasthan. After the said regulations came into existence on 12th June, 2008, the respondent preferred Writ Petition No. 2740 of 2010 putting forth the grievance that pensionary benefits had been denied to her after retirement. The learned Single Judge referred to the regulations and took note of the fact that she had continued in service for a period of 20 years and her option for grant of pension was accepted by the university and pursuant to such acceptance they deposited their contribution and, hence, the university was estopped to take a somersault the stand that she was not entitled to receive pension under the Regulations of 1990. That apart, the learned single Judge opined that the nature of her appointment could not be treated as ad hoc and temporary, regard being had to the length of service. Being of this view, he allowed the writ petition and directed the pensionary benefits be extended to her within a period of three months after completing the formalities.9. Being grieved by the aforesaid order, the university preferred Special Appeal (Writ) No. 292 of 2011. The Division Bench, after adverting to the facts and referring to various regulations and the provisions of the Act, came to hold that the action of the university was wholly unjustified and arbitrary. The said conclusion of the Division Bench was founded on the base that there was default on the part of the university in not appointing even a single person in the service of the universities of Rajasthan in a regular manner for a long period; that the university had invited the teachers to give their option and they deposited their contribution in the C.P.F. in the pension scheme; that the appointments of the teachers were not in contravention of the provisions of the Act; and that they were deemed to be confirmed in view of the provisions contained in Regulation 23 of the Regulations. After arriving at the said conclusions, the Division Bench adverted to the issue whether the teachers were entitled for the pensionary benefits in terms of the regulations and eventually, interpreting the regulations and placing reliance on the authorities in S.B. Patwardhan and another v. State of Maharashtra and others [AIR 1977 SC 2051 ], D.S. Nakara and others v. Union of India and others [(1983) 1 SCC 305]  and paragraph 53 of the pronouncement in Secretary, State of Karnataka and others v. Uma Devi (3) and others [(2006) 4 SCC 1] , came to hold that the appointments were made following due procedure of law and further the teachers, having been appointed in the cadre of substantive posts, could not be denied the pensionary benefits under the regulations. Being grieved, the University is in appeal by way of Special Leave Petitions.

Reasoning: 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