High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 18.12.2007CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE S.R. SINGHARAVELUWrit Petitions No.23479 of 2006, 12706 and 12707 of 2007 W.P.No.23479 of 2006:S.Srinivasan... Petitioner Vs.1.Union of India, rep.by the Government of Union Territory of Pondicherry, through the Secretary to Government, Law Department, Pondicherry.2.The Deputy Secretary (Law), Government of Pondicherry, Pondicherry.3.The Principal, Dr.Ambedkar Government Law College, Pondicherry.4.The Secretary, Union Public Service Commission, Dolphur House, New Delhi.5.The Registrar, Central Administrative Tribunal, Chennai.... Respondents W.P.No.12706 of 2007:The Union Public Service Commission,rep.by its Secretary,Dholpur House,Shahjahan Road,New Delhi.... Petitioner Vs. https://hcservices.ecourts.gov.in/hcservices/

1.S.Srinivasan2.Union of India, rep.by the Government of Union Territory of Pondicherry, through Secretary to Government, Law Department, Pondicherry.3.The Deputy Secretary (Law) Government of Pondicherry, Pondicherry.4.The Principal, Dr.Ambedkar Law College, Pondicherry.5.Registrar, Central Administrative Tribunal, Chennai Bench, Chennai.... RespondentsW.P.No.12707 of 2007:The Union Public Service Commission,rep.by its Secretary,Dholpur House,Shahjahan Road,New Delhi.... Petitioner Vs.1.D.Sankar2.Union of India, rep.by the Government of Union of Territory of Pondicherry, through Secretary to Government, Department of Law, Pondicherry.3.Registrar, Central Administrative Tribunal, Chennai Bench, Chennai.... Respondents * * * https://hcservices.ecourts.gov.in/hcservices/ W.P.No.23479 of 2006 has been filed under Article 226 of theConstitution of India to issue a writ of Certiorarified Mandamus,to call for the records relating to the impugned order dated29.6.2006 in O.A. No.290 of 2005 on the file of the CentralAdministrative Tribunal, Chennai Bench, Chennai and quash the sameand consequently direct the respondents to regularize the servicesof the petitioner in the post of Lecturer in Law in Dr. AmbedkarGovernment Law College, Pondicherry.W.P. Nos.12706 and 12707 of 2007 have been filed underArticle 226 of the Constitution of India to issue a writ ofcertiorari, to call for the entire records leading to the issue ofthe final orders in O.A. Nos.290 and 841 of 2005 dated 29.6.2006on the file of the Central Administrative Tribunal, Chennai Bench,Chennai and quash the same.* * *For Petitioners: Mr.K.Sridhar, S.C.G.S.C.inW.P.Nos.12706 & 12707 of 2007,who is R4 in WP.23479/2006For petitioner inWP.23479/2006,who is R1 in: Mr.Vijay Narayan,WP.12706/2007 and Senior Counsel forfor R.1 in WP.12707 Mr.G.R. Swaminathanof 2007 and Mr.Karthick For R.1 to R.3 inWP.23479/2006,For R.2 to R.4 in: Mr.T. Murugesan, WP.12706/2007 & Senior Counsel andfor R.2 in Govt. Pleader (Pondicherry)W.P.12707/2007: * * *COMMON ORDERELIPE DHARMA RAO, J.W.P.Nos.12706 and 12707 of 2007 have been filed by theSecretary of the Union Public Service Commission, seeking to issuea writ of certiorari, to quash the final order dated 29.6.2006 https://hcservices.ecourts.gov.in/hcservices/ passed in O.A. Nos.290 and 841 of 2005 on the file of the CentralAdministrative Tribunal, Chennai Bench, Chennai and W.P. No.23479of 2006 has been filed by the first respondent in W.P.No.12706 of2007 seeking to issue a Writ of Certiorarified Mandamus, to quashthe impugned order dated 29.6.2006 passed in O.A. No.290 of 2005on the file of the Central Administrative Tribunal, Chennai Bench,Chennai and consequently direct the respondents to regularize theservices of the petitioner in the post of Lecturer in Law in Dr.Ambedkar Government Law College, Pondicherry.2. The parties are referred to as per their ranking in O.A.Nos.290 and 841 of 2005.3. The applicant in O.A. No.290 of 2005 was appointed on adhoc basis for the post of Lecturer in Law as per the RecruitmentRules, 1988. Subsequently, the Recruitment Rules were amended andthe condition of clearing the eligibility test for Lecturershipconducted by the UGC was incorporated in 1995. As the saidapplicant did not get the opportunity to get recruited directly,he filed O.A. No.741 of 2000.4. The applicant in O.A. No.841 of 2005 was appointed as aLecturer on consolidated basis vide order dated 1.12.1989 as perthe Recruitment Rules, 1988 and was serving as any other regularlyappointed full time Lecturer. As he had also acquired Ph.D.degree in the year 2000, he was exempted from NET qualificationincorporated in the revised Recruitment Rules. He filedO.A.No.865 of 1991 seeking continuity of service, which ended ingetting pay on par with regular Lecturer and also continuity ofservice till regular selection was made by the UPSC. When theGovernment initiated action for regular selection in 1999, he wasleft out and hence he filed O.A. No.740 of 2000. 5. The Tribunal, by its common order dated 3.10.2001 in O.A.Nos.740 and 741 of 2000, directed the Government to relax thecondition of age and qualification as a one time measure.Thereafter, the applicants participated in the personal talk heldby the Selection Committee of the UPSC. They thought that thepersonal talk was meant for regularisation, but their serviceswere not being regularised as they were not found suitable for thepost of Lecturer by the UPSC. Hence the applicants filed O.A.Nos.290 and 841 of 2005 before the Central AdministrativeTribunal, Madras Bench.6. The respondents 1 to 3 filed a common reply, stating thateven though the applicants were initially appointed as Part TimeLecturers based on the old Recruitment Rules, as per the directionof the Tribunal in O.A. Nos.740 and 741 of 2000, their serviceswere continued till regular selection was made by the UPSC. https://hcservices.ecourts.gov.in/hcservices/ Simultaneously, action was taken to fill up the vacant post on aregular basis. As per the directions of the Tribunal in O.A.Nos.740 and 741 of 2000, the case of the applicants was consideredfor regularisation, by relaxing some of the conditions pertainingto age and qualification as a one time measure and steps weretaken to regularise the services of the Lecturers by taking up thematter with the UPSC and by giving necessary relaxation. TheSelection Committee, based on the available ACRs, bio data and thepersonal talk, held that the applicants were not found suitablefor regularisation as Lecturers. The applicants havingparticipated in the Selection Committee meeting without raisingany objection and after giving a willingness letter to participatein the Selection Committee meeting, they cannot now question theselection process and the authority of the Selection Committee todecide since they were unsuccessful in the personal talk.7. The Central Administrative Tribunal, by an order dated29.6.2006, disposed of both the O.As. with a direction to therespondents to give the applicants one more chance for personaltalk/interview after giving them adequate notice, not less thantwo weeks time for such a notice and also directed that the saidexercise must be completed within a period of three months fromthe date of receipt of copy of the said order. As against thesaid order, the Union Public Service Commission filed W.P.Nos.12706 and 12707 of 2007 for the relief stated supra and theapplicant in O.A. No.290 of 2005 filed W.P. No.23479 of 2006 forthe relief stated supra.8. The core argument advanced on the part of the Union PublicService Commission and the Union Territory of Pondicherry is thatthe very appointment of the applicants being adhoc, they cannotseek for regularisation. In support of their arguments, thelearned counsel appearing for the Union Public Service Commissionand the learned senior counsel appearing for the Union Territoryof Pondicherry relied on the Constitutional Bench judgment of theHonourable Apex Court in the case of SECRETARY, STATE OFKARNATAKA AND OTHERS v. UMADEVI AND OTHERS [(2006) 4 SCC 1]. Thelearned senior counsel for the Union Territory of Pondicherrywould also rely on the judgment of the Honourable Apex Court inSURINDER PRASAD TIWARI v. U.P. RAJYA KRISHI UTPADAN MANDI PARISHAD[(2006) 7 SCC 684]. In both these judgments, the HonourableSupreme Court has observed that 'where appointments were madewithout following the procedure laid down under Articles 14, 16and 309 of the Constitution, they cannot be directed to beregularised in service.'9. On the contrary, the learned senior counsel appearing forthe applicants would argue that since the applicants were servingthe Law College for decades together, denying their regularisation https://hcservices.ecourts.gov.in/hcservices/ is not acceptable and the Tribunal should have straight awayordered their regularisation instead of directing the respondentsto grant one more opportunity to the applicants to participate inthe interview. In support of his arguments, the learned seniorcounsel for the applicants would rely on the decisions of theHonourable Apex Court in (1) BHAGWATI PRASAD v. DELHI STATEMINERAL DEVELOPMENT CORPORATION [AIR 1990 S.C. 371] and (2)DR.A.K.JAIN & OTHERS. ETC. v. UNION OF INDIA & OTHERS. [1988 SCR(1) 335:1987 SCC SUPL.497:JT 1987(4) 445:1987 SCALE (2) 1002].The learned senior counsel for the applicants would also produce acopy of the judgment of the Honourable Apex Court in U.P.STATEELECTRICITY BOARD vs. POORAN CHANDRA PANDEY AND OTHERS, dated9.10.2007 in Appeal (Civil) 3765 of 2001, which is subsequentlyreported in 2007 (7) SUPREME 374.10. From the materials placed on record, we are able to findthat when five vacancies of Lecturer posts arose in the GovernmentLaw College, Pondicherry in the year 1988, since there was a banon creation of posts as well as the filling up of the vacanciesand further since the Union Public Service Commission, which isthe competent body to make regular appointments, would be able todo so only after a considerable time and delay, in order to tideover the situation, steps were taken to fill up the vacanciesthrough the Employment Exchange. Accordingly, from out of thelist sent by the local Employment Exchange, a local RecruitmentCommittee interviewed and selected Dr.Sankar, who joined theservices of the College on 1.12.1989 and Mr.S.Srinivasan joined on6.12.1991. It is also seen that artificial breaks were given tosimilarly selected candidates. Thus, the applicants are servingas Lecturers on adhoc/temporary basis in Dr.Ambedkar Law College,Pondicherry having been appointed between 1989 and 1991 i.e. wellbefore 10.4.1995 from which date onwards the Recruitment Ruleswere amended. Prior to the coming into force of the RecruitmentRules of the year 1995, the educational qualification required fordirect recruitment to the post of Lecturer was I or II ClassMaster's degree in Law from a recognized University or equivalent.Thereupon, as per the Recruitment Rules of the year 1995, thequalification was changed to a Master's Degree in the concernedsubject from a recognized University, who have cleared theeligibility test for lecturership conducted by the UGC or asimilar test accredited by the UGC, not exceeding 35 years of age.11. When Dr.Sankar and others were terminated from service onground that they are only part-time lecturers, they haveapproached the Tribunal in O.A.Nos.446 of 1991, 461 of 1991 and865 of 1991 and the Tribunal, by its common order dated 13.7.1993,has allowed all the said Original Applications, directing theirreinstatement, further directing that their pay shall be fixed onpar with that of regular lecturers, having regard to their length https://hcservices.ecourts.gov.in/hcservices/ of service from the date of their initial appointment by ignoringthe break in service. This order of the Tribunal has become finalresulting in the issuance of G.O.Rt.No.8133, dated 17.11.1993.12. It is also seen from the materials placed on record thatwhen a similarly situated Lecturer by name Mr.V.Krishan Kumar,filed O.A.No.462 of 1986 before the Tribunal seekingregularization of his services, taking into consideration the factthat he was serving in the Government Law College, Pondicherry fora long period, the Tribunal has turned down his plea by its orderdated 23.4.1987, resulting in the said Lecturer approaching theHonourable Supreme Court in Civil Appeal No.781 of 1988 and theHonourable Supreme Court, by its order dated 8.9.1994 has allowedthe said appeal with the following observations:"Keeping in view the fact that the appellant iscontinuing to serve as a Lecturer in Law College,Pondicherry for almost two decades, it would be travestyof justice to hold that he is not entitled to beregularised in the said post. We are of the view thatit would be in the interest of justice to direct therespondents to treat the appellant as a regularsubstantive lecturer in the service of the PondicherryAdministration. We order accordingly. We make it clearthat we are regularising the services of the appellant,keeping in view the special facts and circumstances ofthe case specially the long period of service renderedby the appellant. We allow the appeal, set aside theorder of the Tribunal and direct the respondents toregularise the appellant as a lecturer in Government LawCollege, Pondicherry."13. There is no dispute with regard to the fact that theapplicants were appointed in regular vacanciesbetween 1989 and1991, through Employment Exchange, since there was urgent need tofill up the vacancies and they are continuing in their servicesall these years, either with or without artificial breaks. It hasalso been seen that they were selected by a local SelectionCommittee. When such a procedure was admissible under the oldRecruitment Rules, which were in vogue at the time of theirappointment, it cannot be said that they were recruited byresorting to back door methods, so as to deny theirregularisation. It is to be pointed out that the selection itselfhas been done by the organs of the Government of Pondicherry andnot by any private management of any educational institution, atthe cost of the regular selection process. The age andeducational qualification of the applicants was held to beperfectly fit for the post by the respondents at the time of theirselection under the old Recruitment Rules. Admittedly, the new https://hcservices.ecourts.gov.in/hcservices/ Recruitment Rules came into force much later the selection of theapplicants, i.e. w.e.f. 10.4.1995 only. Therefore, we wonder asto how such new Recruitment Rules could be pitted against thecandidates like the applicants who were selected by the procedurecontemplated under the old Recruitment Rules. At the cost ofrepetition, we are unable to accept the contention raised on thepart of the UPSC and the Government of Pondicherry that theappointments of the applicants is a back door method. 14. No doubt, the Honourable Apex Court in its ConstitutionalBench judgment in Umadevi's case (cited supra), which was followedin Surinder Prasad Tiwari's case (also cited supra), has held thatthe employees, who were appointed without following the procedure,cannot be directed to be regularised in service. But, as hasalready been held supra, the applicants were appointed followingthe procedure contemplated and the method permitted by the oldRecruitment Rules, which were in vogue at the time of theirselection. 15. Further more, in U.P.STATE ELECTRICITY BOARD vs. POORANCHANDRA PANDEY AND OTHERS [2007 (7) SUPREME 374], where 34petitioners who were daily wage employees of the CooperativeElectric Supply Society had prayed for regularization of theirservices in the U.P.State Electricity Board, Their Lordships ofthe Honourable Apex Court, while referring to variouspronouncements made by the Apex Court earlier, have held:"The decision in Uma Devi's case [(2006) 4 SCC 1],cannot be applied to a case where regularization hasbeen sought for in pursuance of Article 14 of theConstitution and often Uma Devi's case is being appliedby Courts mechanically as if it were a Euclid's formulawithout seeing the facts of a particular case. Theratio of any decision must be understood in thebackground of the facts of that case. A case is only anauthority for what it actually decides, and not whatlogically follows from it. A little difference in factsor additional facts may make a lot of difference in theprecedential value of a decision."It has also been held in para No.18 of the Judgment:"We may further point out that a seven-Judge Benchdecision of this Court in MANEKA GANDHI vs. UNION OFINDIA AND ANOTHER [AIR 1978 SC 597] has held thatreasonableness and non-arbitrariness is part of Article14 of the Constitution. It follows that the governmentmust act in a reasonable and non-arbitrary mannerotherwise Article 14 of the Constitution would beviolated. Maneka Gandhi's case (supra) is a decision ofa seven-Judge Bench, whereas Uma Devi's case (supra) isa decision of a five-Judge Bench of this Court. It is https://hcservices.ecourts.gov.in/hcservices/ well settled that a smaller bench decision cannotoverride a larger bench decision of the Court. Nodoubt, Maneka Gandhi's case (supra) does notspecifically deal with the question of regularization ofgovernment employees, but the principle ofreasonableness in executive action and the law which ithas laid down, in our opinion, is of generalapplication.19. In the present case many of the writ petitionershave been working from 1985 i.e. they have put in about22 years service and it will surely not be reasonable iftheir claim for regularization is denied even after sucha long period of service. Hence apart fromdiscrimination, Article 14 of the Constitution will alsobe violated on the ground of arbitrariness andunreasonableness if employees who have put in such along service are denied the benefit of regularizationand are made to face the same selection which freshrecruits have to face."16. In view of such a categorical observation made by theHonourable Apex Court, which is aptly applicable to the case onhand and further since in the case on hand also, the petitionersare working for the last 25 years or so without any benefit whencompared to other similarly situated persons, the prayer of theapplicants to regularize their services deserves to be allowed.17. As has already been seen supra, even on an earlieroccasion, the Tribunal in O.A.No.741 of 2001, has directed therespondents to regularize the services of Mr.S.Srinivasan, thepetitioner in W.P.No.23479 of 2006, having found him eligible toseek for regularization. The said order of the Tribunal seems tohave become final. However, the respondents, in spite of gettingextension of time many times, did not comply with the direction ofthe Tribunal, forcing him again to approach the Tribunal.18. The Tribunal should have considered all these aspects andshould have ordered the respondents to regularise the services ofthe applicants, who are rendering their services for decadestogether, also considering the fact that by this time, they shouldhave been over-aged to pursue any other job to eke out theirlivelihood. Therefore, the order of the Tribunal needs to bemodified since it has not taken into consideration the above factsand thus has landed in an erroneous conclusion.19. Accordingly, the order of the Tribunal is modified andthe respondents are directed to regularise the services of theapplicants within a period of eight weeks from the date of receiptof a copy of this order. https://hcservices.ecourts.gov.in/hcservices/ With this direction, W.P.No.23479 of 2006 stands allowed andW.P.Nos.12706 and 12707 of 2007 stand dismissed. No costs.Connected Miscellaneous Petitions shall stand closed.ssa/RaoSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary to the Government of Union Territory of Pondicherry, Law Department, Pondicherry.2.The Deputy Secretary (Law), Government of Pondicherry, Pondicherry.3.The Principal, Dr.Ambedkar Government Law College, Pondicherry.4.The Secretary, Union Public Service Commission, Dolphur House, New Delhi.5.The Registrar, Central Administrative Tribunal, Chennai.•3 ccs to mr. K. Sridhar, Advocate SR No. 74863•1 cc to M/s. G. R. Swaminathan, Advocate SR No. 75478•1 cc to Mr. Karthik Muukundan & Neelakantan, SR No. 75628•3 ccs to Government Pleader, Pondy, SR No. 74870, 74874, 74875KS(CO)SR/5.1.2008Common Order in W.P.Nos.23479 of 2006, 12706 & 12707/2007