- (1.) S. K. Phaujdar, J. The nine petitioners in this case are assistant teachers in different subjects in the Nagar Palika Inter College, Kathgodam, District Nainital. They have made a prayer for a direction or order in the nature of mandamus com manding the respondents to regularise their services as teachers in the concerned institu tion and to pay salary to them together with other admissible benefits as are given to regular teachers. On presentation of the writ petition, there was an interim direction dated 3-2-1994 that until further orders the services of the petitioners would not be ter minated. This order was passed with refer ence to a Govt. Order dated 8-1-92.
(2.) THE institution in question is run by the Nagar Palika, Haldwani. It was initially a High School and subsequently it was upgraded as an Intermediate College in the year 1989. THEir appointment letters were for a period 60 days and the petitioners were to make applications to continue as teachers. In terms of such arrangement, the management/chairman of the institution went on issuing sanction letters from time to time to each of the petitioners. THE latest sanction was granted on 27-12-1993 for a period of 58 days. No regular appointment had been made against the substantive vacancies. THE petitioners were discharging their duties as teachers in all earnest without any complaint from any quarters. THE petitioners relied on a Govt. Order dated 8-1-92, as per Annexure 11 to the writ petition, to say that employees like the petitioners who had been working in the local units such Nagar Palika Balika Inter College under the Nagar Palika, Haldwani would be entitled to be regularised if they had completed three years of service from 11-3-1989 and if they had worked for 240 days in a year. THE petitioners were ap pointed prior to 11-3-1989 and were work ing for about 5 years on the date of filing of the writ petition and they claimed that they should be regularised fn terms of the said Government Order. THE petitioners also al leged that they were not being paid the salary and other benefits as were admissible to regular teachers. THEy were threatened with termination of services which promted them to come to the Court to seek relief. A counter affidavit was filed by the Executive Officer of the concerned Nagar Palika. It was accepted that the institution was aided by the Government. It was not, however, accepted that a large number of posts of teachers was sanctioned for the institution on its upgradation. It was as serted that the petitioners were not ap pointed against any sanctioned vacant posts. They were, rather, engaged purely on daily wage basis. They were appointed on a clear stipulation that their appointment or engagement was automatically terminable on the expiry of the period indicated but such periods were extended from time to time in view of the exigency of work. It was stated that no such exigencies existed and each engagement was a fresh one and was not in continuity with the earlier engage ments. It was stated that the Govt. Order quoted by the petitioners was not ap plicable to their cases. No counter affidavit was filed by the other respondents. The G. O. referred to in the writ petition is Annexure-II to the writ petition. It was issued by the Secretary, Govt. of Uttar Pradesh and was directed to all the District Magistrates. It related to daily wages employees working under local bodies on 11-10-1989. This G. O. directed that the daily-wage employees working under the local bodies on 11-10-1989 and who had on that date completed three years' service and had worked for 240 days in each year would be adjusted against the future vacancies and their services would not be terminated. This G. O. may not come to the rescue of the present petitioners. They were employed on different dates in 1989 and were no doubt working on 11-10-1989 under the Haldwani Nagar Palika but they had not completed three years on that date. The policy of the Government is, however, clear in paragraph 2 thereof that all daily-wage employees working on 11-10- 1989 would not retrenched unless such employees kept absent for a long time or were unfit from administrative point of view. In this connection, it was argued on behalf of the respondents that when the appointments were not made through a regular selection process then regularisation of these teachers would encourage backdoor entry in service. It was argued on behalf of the respondents that in this con nection there was no direction from the Education department. The learned coun sel for the State indicated that the State would be liable to pay only when a post is sanctioned. The petitioners, according to the learned Standing Counsel, had never averred that the posts were sanctioned. The responsibility of payment may not, there fore, be fastened with the State Government under the Payment of Salaries Act. In this connection reliance was placed on the decision of the Supreme Court in the ease of Karnataka State Private College Stop Gap Lecturers Association, as reported in AIR 1992 SC 677. It was in relation to an institu tion receiving cent percent grant-in-aid con trolled financially and administratively by the Education department of the State Government of Karnataka. Certain teachers were appointed temporarily for three months or less by the institution which was a privately managed degree college. They sought regularisation of their services invoking the principle of equitable estoppel arising from the employers' assurance due to their continuous service as temporary teachers for years with a break of a day or two every three months. The Supreme Court in that case issued certain directions in paragraphs 6 and 7 of the judgment (as reported ). The directions were:- (1 ). The provision in the relevant order of one day's break in service was struck down. (2 ). The payment of fixed salary to the temporary teachers was declared to be in valid but prospective effect. A temporary teacher was directed to be paid salary that was admissible to a regularly appointed teacher. (3 ). Such temporarily appointed teachers were to continue till the purpose for which they were appointed was ex hausted or if it was in waiting of regular selection, they till such selection was made. (4 ). The management was directed to take steps to fill up the posts in accordance with Rules and delay in filling up such vacancies would not entitled the manage ment or the Director to terminate the ser vices of the temporary teachers except for adequate reasons but the Government was entitled to take such steps including super session of management or stop grant-in-aid if permitted under the law to compel the institution to comply with the Rules. (5 ). The services of temporary teachers who have worked for three months includ ing the breaks till the date of judgment would not be terminated. The teachers would be absorbed as and when regular vacancies arise. If regular selection has been made, the Government shall create addi tional posts to accommodate such selected candidates. The temporary teachers were to continue in service even during vacation.
(3.) RELIANCE was placed on a decision of this High Court in the case of Km. Manisha Verma as reported in (1993) 2 UPLBEC at page 1166. It was a case of certain ad hoc appointment of teachers in a Central School. Such ad hoc appointment were per missible under the Rules. For making ad hoc appointments two conditions were there, (1) that a selected panel was not avail able or (2) a selected panel was not prepared. The ad hoc appointment was not to go beyond six months or for the period during which a selected panel for a par ticular post is not prepared. The Court observed that in general vacancies must be filled in so that adhocism does not continue. If the vacancies are not filled, then giving the intermitent stop-gap appointments of ad hoc teachers was bad and suffered from constitutional discrimination. The Court directed that the ad hoc teachers will only be replaced by freshly empanelled recruits selected by direct recruitment from the selected panel. But the ad hoc teachers will not be replaced by transferred teachers. They will be entitled to salary and allowan ces admissible to regularly appointed teacher. Such of the ad hoc teachers who have worked for three months including the breaks shall not be terminated and they shall be absorbed as and when regular vacancies arise. If regular selection had been made the management shall create addi tional posts to accommodate such selected candidates. The ad hoc teachers were directed to continue in service even during vacation. In the case at our hand, no doubt, the teachers were appointed on daily-wage basis but there is no averment that the posts were ever sanctioned or created by the State Government. It has only been urged that continual ad hoc appointments on daily-wage basis for a period covering five years would indicate that each vacancy was sub stantive ones. The law relating to creation of posts and responsibility of payment so far Uttar Pradesh is concerned may now be seen.;