1. The applicants in all the above twenty five original applications were appointed as School Teachers by Chandigarh Administration on contract basis for a specific period. In view of the various decisions of the Apex Court, High Court and this Tribunal the contract appointees have been allowed to continue in service till such time they are replaced by the duly selected and appointed teachers in accordance with the provisions of the Chandigarh Education Service (School Cadre) Group 'C' Recruitment Rules, 1991 (for short "School Cadre Rules of 1991").
The District Education Officer issued an advertisement dated 9th/10th August, 2002 inviting applications for appointment on contract basis with a view to replace the earlier contract appointees. This notification was challenged by another set of contract appointees by filing number of original applications, the leading of which was O.A.No. 126-CH-2002 (Krishan Kumar v. Union Territory Chandigarh and Ors.) decided on 2nd December, 2002. In that case the crucial question which arose for determination was--Whether the teachers appointed on contract basis could be replaced or substituted by a new set of contract appointees?. After taking into consideration the series of decisions of the Apex Court, High Court and this Tribunal and discussing elaborately each one of the respective contentions raised by the parties, the following operative order as contained in Para 28 of the judgment was passed: "28. In the result, all the six O.As. are allowed and the advertisement dated 9th/10th August, 2002 issued under the authority of the Distt. Education Officer is hereby quashed. The applicants or, for that matter, all school teachers similarly placed and claiming similar reliefs even though they are not parties to the present O.As. shall not be replaced or substituted by the new incumbents appointed or to be appointed on contractual basis or by transferring a regular recruit from one institution to another institution where the affected teacher may be serving or by posting an outsider on deputation. All the existing contract--appointees shall continue to work till they are relieved by the duly selected regular teachers appointed in accordance with School Cadre Recruitment Rules, 1991". It is, however, made clear that the respondents shall be at liberty to dispense with the services of the applicants and other school teachers similarly circumstanced on grounds of inefficiency, delinquency, misconduct or on the abolition of post. The school teachers including the applicants shall further be entitled to minimum of the pay scale as admissible to the regular teachers and no deductions shall be made for the period of artificial breaks or vacations." The services of the some of the teachers who were appointed on contract basis, pursuance to the advertisement dated 9th/10th August, 2002 (which was quashed by the decision aforesaid), were terminated by the Chandigarh Administration and a vigorous exercise has been undertaken to recruit the teachers on regular basis in accordance with the School Cadre Recruitment Rules of 1991. Some of the applicants appointed on contract basis have become apprehensive that after recruitment of the regular teachers in accordance with the Rules of 1991, they shall be thrown out of employment and, therefore, they have prayed that a direction be issued to the respondent to regularize their services and the respondents be further commanded not to substitute them by recruiting the regular teachers.
2. Some of the applicants whose services were likely to be terminated or had been terminated on account of the quashment of the advertisement dated 9th/10th August, 2002, approached this Tribunal to allow them to continue in service or be re-appointed and allowed to continue till such time they are replaced by the teachers recruited in accordance with the rules. They have also projected the grievance that while replacing the contract appointees, the respondent Administration and its functionaries are acting in an arbitrary manner by not following a uniform policy of relieving the teachers on the principle of "last come first go". The action of the respondents in shifting the teachers on transfer from one school to another or directing the teachers to report for duty before the District Education Officer has also been challenged on the ground that transfer/shifting sometimes amounts to relieving the contract appointees for 'good' as they are not allowed to join duties in another school. In some of the original applications, a prayer has been made to declare that the applicants are entitled to the regular scale of pay on the principle of "equal pay for equal work" and that in any case they may be held entitled to minimum of the pay scale as admissible to the regular teachers and no deductions be made for the period of artificial breaks or vacations and the female teachers may further be allowed the benefit of maternity leave.
3. Shorn of all superfluities, the reliefs claimed by the applicants may be summarized as below : (i) to frame a policy to regularize the services of all the contract appointees; (ii) to refrain from substituting the contract appointees by the teachers recruited in accordance with the School Cadre Rules of 1991.
(iii) to reinstate all the contract appointees whose services have been dispensed with even though their existed the requisite number of vacancies in the concerned discipline.
(iv) to replace the contract appointees by the regularly selected teachers by observing the principle "last come first go".
(v) to adjust the contract appointees against the vacancies which may otherwise be available in other schools, if a contract appointee is replaced by the regular teacher.
(vi) to ensure that the shifting/transfer of contract appointees from one school to another does not result in break in service.
(vii) to pay the salary to the contract teachers in the regular pay scale as admissible to the regular teachers.
4. The respondents have filed written statements. The prayer for regularisation of the services of contract teachers has been resisted tooth and nail. It is maintained that teachers on contract basis have not been appointed by the Competent Authority as per the provisions of the recruitment rules and that the Chandigarh Administration cannot be restrained from recruiting the teachers in accordance with the School Cadre Rules of 1991, as amended from time to time. It is further stated that this Tribunal has held in the case of Krishan Kumar (supra) that all existing contract appointees shall continue to work till they are relived by the duly selected regular teachers appointed in accordance with the rules. In other respects, the stand taken by the respondents is that the contract teachers have already been held entitled to the minimum of the pay scale as admissible to the regular teachers and accordingly salary is being paid to each one of them. The shifting/transfer of the teachers has been justified on the ground of administrative expediency.
6. Since common questions of law and facts have been raised in all the O.As., we propose to decide them together by this judgment.
7. To begin with, it may be mentioned that the decision dated 2.12.2002 rendered by this Tribunal in O.A. No. 126-CH-02 in Krishan Kumar's case (supra), which has become final, has already taken care of the various grievances projected by the applicants in some of the present O.As.
From an analysis of the findings recorded and the reliefs granted in Krishan Kumar's case (supra), the following conclusions emerge: (i) The teachers appointed on contract basis could/can not be replaced or substituted by another set of contract appointees and consequently the advertisement dated 9th/10th August, 2002 issued in the name of the District Education Officer inviting applications for contractual appointment obviously to replace the earlier contractual appointees was bad in law.
(ii) All the school teachers appointed on contract basis were directed not to be replaced or substituted by new incumbents appointed on contract basis or by transferring regularly recruited teachers from one institution to another or by posting outsiders on deputation.
(iii) All the contract appointees are to continue in service till they are relieved by duly selected regular teachers appointed in accordance with the rules. Liberty was granted to the respondents to dispense with the services of contract appointees on grounds of inefficiency, delinquency, misconduct i.e. as a measure of disciplinary action or in the event of the abolition of the post.
(iv) The contract appointees were held entitled to minimum of the pay scale as admissible to the regular teachers without any deductions for the period covered by the artificial breaks or vacations.
On the strength of the decision in Krishan Kumar's case, the respondent-Administration initiated action to dispense with the services of those contract appointees who were selected in pursuance of the advertisement dated 9th/10th August, 2002, which has been quashed as being illegal. As a matter of fact, services of some of the teachers have been terminated. With a view to protect appointments made under advertisement dated 9th/10th August, 2002, O.A. No. 144-CH-03 (Abhishek Vashisht); 255-CH-03 (Anil Kumar); 256 (Anil Kumar and Ors.); 257 (Dr.
Ashwani Kumar); 262 (Rinku Arora and Ors.); 267 (Kirandeep Kaur and Ors.); 268 (Rajesh Kumar and Ors.); 273 (Aparna) and 45 l-CH-03 (Sarita Kumari), came to be filed in which an interim relief was prayed for. By order dated 28th March, 2003, a Division Bench of this Tribunal issued the following directions: "(i) The directions as given in the case of Krishan Kumar and Ors.
(supra), be complied with fully, which are that already working contractual appointees, prior to advertisement, Annexure A-1, are not to be replaced by fresh contractual appointees on the basis of advertisement, Annexure A-l; (ii) Once that part, as contained in (i) above, is taken care of, and the respondents find that they are still in need of services of contractual teachers till regular appointments are made, they shall continue the teachers selected and appointed on the basis of Annexure A-1, purely on provisional and ad hoc basis, till regularly selected candidates become available, on the basis of 'last come, first go' principle strictly; and (iii) While implementing the directions given in (ii) above, we clarify that in implementation of the directions and the mandate of judgment in Krishan Kumar's case (supra), persons who were contractual teachers prior to the advertisement, Annexure A-l, and have also been selected and appointed on the basis of Annexure A-l, shall not be thrown out merely because they have been appointed on the basis of this advertisement also. They shall continue to get protection under the judgment in the case of Krishan Kumar and Ors.
(supra)." 8. During the pendency of above cases, the respondent Chandigarh Administration took a decision which was circulated through Memo dated 27.5.2003 to the effect that various categories of teachers i.e.
Lecturers, Masters, Mistresses, CER teachers, PTIs, JBT Teachers and Nursery Teachers, shall be allowed to continue during the vacations starting on 1st June, 2003 till the posts are regularly filled up, as per the relevant recruitment rules. This decision was made subject to the condition that their work and conduct is satisfactory and they have efficiently performed their duties. The order dated 27.5.2003 issued by the respondent administration was to be implemented by all the institutions where appointments on contract basis had been made. Every Head of the Institution was required to send a report regarding the work and conduct of teachers by 10th of July, 2003. Accordingly, most of the cases filed by the contract teachers were disposed of as having been rendered infructuous in view of the above administrative decision.
It appears that the respondent-Administration was in need of the teachers and with a view that the education of the students does not suffer, they allowed every contract-appointee including the appointees in pursuance of the advertisement 9th/10th August, 2002, to continue till they are replaced by duly selected incumbents in accordance with the rules.
9. The effect of the decision in Krishan Kumar's case (supra) and subsequent decision of this Tribunal dated 5th June, 2003 in O.A. No.144-CH-2003- Abhishek Vashishta v. U.T. Chandigarh and Ors.--is that the teachers appointed on contract basis shall continue to perform their duties till they are replaced or substituted by regular teachers recruited in accordance with the rules, subject to the condition that their work is satisfactory and they are not found guilty of misconduct etc. All the contract appointees are being paid minimum of the pay scale with allowances as admissible to the regular teachers. As discussed in Paragraph 19 of the judgment in Krishan Kumar's case, the Chandigarh Administration has issued an order on 24th July, 2002 for the payment of consolidated contractual amount to the contract appointees to be calculated on the basis of the minimum of the pay scale plus dearness allowance as admissible to regular employees at the time of appointment against the vacant post. The Director of Public Instructions (Schools), has also issued instructions on 14th of March, 2003, allowing contract appointees to draw the minimum of the pay scale as admissible to the regularly appointed teachers.
10. Now the main question for determination is--Whether the respondents can be commanded to consider regularisation of the services of the contract appointees?. Mr. R.P. Bali and Mr. T.S. Chauhan, learned Counsel for some of the applicants vehemently argued that in view of the decisions of the Apex Court in the cases of Jacob M. Puthuparambil and Ors. v. Kerala Water Authority etc., AIR 1990 SC 2228 and State of Haryana v. Piara Singh, AIR 1992 SC 2130=1992(3) SLJ 34 (SC), followed by subsequent decisions of various High Courts in a number of cases including Sanjay Kumar v. Indian School of Mines, Dhanbad and Ors., 2000(3) SLR 62; Rashtriya Koila Mazdoor Congress etc. v. Steel Authority of India and Ors. etc., 2000(7) SLR 252; Awadesh Kumar Yadav v. Divisional Forest Officer (D.F.O), Mainpuri and Ors., 2001(2) SLR 90; Mahabir Singh and Ors. v. State of Haryana and Ors., 2001(1) SLR 482; Chief General Manager, Reserve Bank of India, Bangalore v.Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Bangalore and Anr., 2002(2) SLR 417; Hassan Mohd. and Ors. v.State of Haryana and Ors., 2003(4)SLR 1 and a decision of Principal Bench of the Tribunal in the case of Mehar Chand v. Union of India and Ors., 1993(3) SLR 176 and the decision of this Bench dated 13.9.1990 in O.A. No. 1105-CH-89--Smt. Baljit Kaur v. Union of India and Ors., the teachers appointed on contract basis are entitled to the regularisation of their services as they have been working for a number of years. This submission has been repelled by Mr. N.K. Bhardwaj, learned Counsel for the respondent-Administration. We have given our thoughtful consideration to the matter. The school teachers are appointed in accordance with the School Cadre Rules of 1991. Since for variety of reasons, as discussed in Krishna Kumar's case, regular recruitment could not take place, there arose a necessity to appoint the teachers on contract basis so that the education of the students may go on. The appointment of the contract appointees obviously is de hors the School Cadre of Rules 1991. The appointments on contract basis have been made by way of stop gap arrangement which were to last, in any case, till the appointment of duly selected regular teachers under the statutory rules are made. Not only this, the contract teachers have not been appointed by the Competent Authority under the rules. The procedure prescribed for selection and recruitment under the rules was never followed. In these circumstances, the contract appointees have not acquired a vested or indefeasible right to seek regularisation of their services.
11. There is yet another aspect of the matter. The teachers appointed on contract basis have taken up the assignment knowing it full well that they are to be substituted and replaced by the regularly selected teachers. Earlier on the expiry of the term of contract appointment, when it was not proposed to be extended, a chain of litigation ensued.
Matter was considered by this Bench, Punjab & Haryana High Court as well as the Supreme Court in different cases filed by the contract teachers. All these cases have been discussed in Krishan Kumar's case.
The firm legal position which flows from the various decisions is that all the contract appointees are subject to replacement and substitution by the teachers appointed on regular basis in accordance with statutory rules. Some of the present applicants have prayed for a direction to the respondents to regularise their services after framing a scheme. If this prayer is allowed it would tantamount to setting at naught and rendering nugatory all the decisions rendered in the past. The various decisions on which reliance has been placed by the learned Counsel for the applicants who have claimed regularisation of their services are not applicable to the facts of the case, particularly keeping in view the statutory rules. Mr. N.K. Bhardwaj places reliance on the decision of this Tribunal in O.A. No. 159-CH-2001 Anupama Bhardwaj and Ors. v.U.T. Chandigarh and Ors., decided on 11th October, 2002 to lend strength to his submission that regularisation of contract appointees is not possible as it has been refused after deliberating the issue threadbare. The respondents have initiated the exercise to recruit the teachers in accordance with the School Cadre Rules of 1991. No mandamus can be issued to prevent an authority from performing a duty according to law. No Court would say that an authority should commit the breach of law. In substance, no mandamus issues to violate the law. For these reasons, the prayer for regularisation of services or for restraining respondents from selecting the regular teachers according to the rules cannot be granted. To say the least, this prayer is misconceived.
12. An almost a new point of controversy has been raised with regard to the admissibility of maternity leave to female teachers. In some of the O.As. it has been prayed that the benefit of maternity leave, which has hitherto been denied by the respondent-Administration, be directed to be extended in accordance with the rules. Mr. R.P. Bali, learned Counsel for some of the applicants urged that the action of the respondents in denying the benefit of maternity leave like other regular employees is violative of the principles enshrined in Articles 14 and 15 of the Constitution of India as it denies the benefit of beneficial provisions of law to a female teacher. Mr. N.K. Bhardwaj, learned Counsel for the Administration urged that maternity leave is not admissible to contract employees as they are not covered by the Punjab CSR Vol. I, Part-I. According to him the benefit of maternity leave with pay is payable to permanent/regular female employees and that the Administration is justified in carving out a distinction between the regular female teachers and the teachers appointed on part time or contract basis, as is in the present case. Let us examine the respective contentions of the parties.
13. The claim for maternity leave is founded on grounds of fair play and social justice. Before the advent of the Constitution and for a sufficiently long time thereafter it was customary or say traditional for women to stick to their homes but now they seek various jobs so as to attain economic independence by utilising their talent, education, industry etc. Sometimes the jobs are taken up by them to overcome economic hardship. For a woman to become a mother is most natural phenomenon in her life. Whatever is needed to facilitate the birth of a child to a women who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working women would face in performing her duties at work place while carrying a baby in the womb or while rearing a child after birth.
Our Constitution which, in its preamble, promises social and economic justice, enshrines certain radical provisions in the form of Articles 42 and 43 which deal with the just and humane conditions of work and maternity relief as well as living wage, conditions of work ensuring a decent standard of life, and full enjoyment of leisure and social and cultural opportunities. These principles are required to be followed by the State as enjoined by Article 39. In the background of these Articles, the Parliament has enacted Maternity Benefit Act, 1961 (Act No. 53 of 1961) with a view to regulate the employment of women in certain establishments for certain periods before and after child birth and to provide for maternity benefit and certain other benefits.
Sub-section (3) of Section 4 makes a provision that no pregnant woman shall on a request being made by her in this behalf, be required by her employer to do during the period specified in Sub-section 4, any work which is of a arduous nature or which involves long hours of standing or which in any way is likely to interfere with pregnancy or the normal development of the foetus or is likely to cause her miscarriage or otherwise to obviously affect her health. It is for this reason that it is provided in the Act that a female worker would be entitled to maternity leave for certain periods prior to and after delivery.
Besides the provisions contained in the Maternity Benefit Act, 1961, a specific provision for maternity leave has been made in SR 43 as contained in Chapter V--Special kinds of leave other than study leave--of FRSR which reads as follows: (1) A female Government servant (including an apprentice) with less than two surviving children may be granted maternity leave by an authority competent to grant leave for a period of 90 days (on the recommendations of the 5th Central Pay Commission, the number of days has been increased to 135 w.e.f. 7.10.1997) from the date of its commencement.
A doubt arose with regard to admissibility of maternity leave to unmarried female Government servants. The Government of India through the nodel Ministry, DOPT, in a clarificatory letter dated 28th April, 1986, considered the matter and found that the word 'female' in SR 43 does not specifically refer to marital status of the female teacher and the word 'marriage' is not prefixed to the word 'female' and consequently clarified that as the rule does not make any distinction in this regard, the maternity leave as admissible may be granted to an unmarried female Government servant. It was further mentioned in the said clarification that at the time of grant of the leave, the welfare of the mother and the child which is the primary concern, shall also be kept in view. From the above provisions it is clear that a female Government servant--whether married or un-married--is entitled to maternity leave in accordance with the rules. Learned Counsel for the respondent-Administration, however, urged that the provisions of the Maternity Act, 1961 and Rule SR 43 are not applicable to school teachers of Chandigarh Administration and in any case they are not attracted to the female teachers appointed on contract basis. In our view, this is a narrow way of looking at the problem which essentially is human in nature and anyone acquainted with the working of the constitution which aims at providing social and economic justice to the citizens of this country would outrightly reject the contention. The Apex Court has times out of number emphasised the relevance and significance of doctrine of social justice in a series of decisions which it is not necessary to recount. Women who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the place where they work, they must be provided all the facilities to which they are entitled.
14. Now comes the question--whether school teachers appointed on contract basis, who obviously are not the regular employees appointed under the statutory rules, are entitled to claim the benefit of maternity leave or not? This aspect of the matter came to be considered by the Apex Court in the case of Rattan Lal and Ors. v. State of Haryana and Ors., 1985(3) SLR 548=1985(2) SLJ 437 (SC). In that case the grievance of the teachers appointed on ad hoc basis by the State of Haryana with regard to nonpayment of salary during the summer vacations and denial of other privileges such as casual leave, medical leave, maternity leave etc., came to be considered. The Apex Court noticed that if the teachers had been appointed regularly, they would have been entitled to the benefits of summer vacations alongwith salary and allowances payable in respect of that period and to all other privileges such as casual leave, medical leave, maternity leave, etc., available to all the Government servants. These benefits are, the Court observed, denied to the ad hoc teachers unreasonably on account of the pernicious system of appointment adopted by the State Government. In Paragraph 3 of the report, the Apex Court observed: "3. We strongly depricate the policy of the State Government under which 'ad hoc' teachers are denied the salary and allowances for the period of the summer vacation by resorting to the fictional breaks of the type referred to above. These 'ad hoc' teachers shall be paid salary and allowances for the period of summer vacation as long as they hold the office under this order. Those who are entitled to maternity or medical leave, shall also be granted such leave in accordance with the rules."Municipal Corporation of Delhi v. Female Workers (Muster Roll) and Anr., 2000(2) RSJ 131=2000(3) SLJ 369 (SC), the Apex Court had to consider the question--Whether the female workers (muster roll), engaged by the Municipal Corporation of Delhi who raised a demand for grant of maternity leave, which was available only the regular female workers, but was denied to them on the ground that their services were not regularized, were entitled to any maternity leave?, came to be considered. After elaborately discussing the legal provisions and taking note of the social and human aspects, the Hon'ble Court allowed the claim of the Female Workers (Muster Roll) for maternity leave at par with regular female workers. Jammu & Kashmir High Court in the case of Simi Dutta v. State, 2001(4) SCT 726, has allowed the claim of a lecturer appointed on ad hoc basis for maternity leave, rejecting the stand of the State Government that there has to be a distinction between regular female employees and the ad hoc one. A Division Bench of the Punjab & Haryana High Court in the case of Raj Bala v. State of Haryana and Ors., 2002(3) RSJ 43, had the occasion to consider the claim of the mistresses, teachers, lecturers etc., appointed on contract basis in different schools and colleges in the State of Haryana. Their claim was resisted by the State Government on the ground that the petitioners being the contractual appointees are not entitled to the maternity leave. This contention was rejected on the basis of the decisions of the Apex Court in the case of Rattan Lal (supra) and Municipal Corporation (supra). Directions were issued to the State Government to grant the benefit of maternity leave to the petitioners.
In the said decision it was further observed that there is hardly any distinction between an ad hoc employee and a contractual employee. Both are engaged for a definite term as may be specified in the letter of appointment. So far as they are performing the same duties and functions and are holding the same post, it will be very difficult to draw the fine line of distinction between these two classes. Making a reference to the other decisions in C.W.P. No. 2783/96 titled Sunita Rani v. State of Punjab and Ors., C.W.P. No. 527 of 1999 titled as Vijay Bala and Ors. v. State of Haryana decided on 10.7.2000, C.W.P.No. 2375/ 2000 - Uma Rani v. State of Haryana decided on 5.7.2001 and the earlier decisions in the case of Polu Ram v. State of Haryana, 1998(4) RSJ 162, it was held that it was difficult to hold that contractual appointees would not be entitled to relief prayer for.
15. A contrary decision of the Division Bench of the Punjab and Haryana High Court is to be found in the case of Santosh Malik v. State of Haryana, 2000(2) RSJ 765, in which maternity leave was not made permissible to part time employees. In that case the earlier decisions of the Apex Court such as Rattan Lal (supra), Municipal Corporation of Delhi (supra) have not been considered. This decision cannot, therefore, be treated as a precedent or authority on the point.
16. The weight of the law discussed above is that the contract appointees who cannot be differentiated in any manner with the ad hoc appointees are entitled to the benefit of maternity leave. It would not be out of place to mention that the question of grant of maternity leave to female teachers appointed on contract basis during the first six months of service or lesser period would not arise because women candidates, if found to be pregnant at the time of entry would be temporarily held unfit and will not be recruited in service even on contract basis till they are fit for duty. The contingency of making a claim for the maternity leave would arise only in respect of the teachers who have put in service of more than six months. In our view, all the female teachers appointed on contract basis, are entitled to maternity leave as is admissible to the regular employees in accordance with the rules.
17. A dispute has come to be raised with regard to the transfer/shifting of the school teachers from one place to another.
Some of the school teachers (applicants) have raised a grievance that while they are relieved from a particular school, they are not allowed to join duties in another school on the ground that no vacancy is available in that school to accommodate him/her .In some cases the teachers are directed to report to the District Education Officer, who in turn, orders them to join in a particular school and most of the time the orders are not carried out for want of vacancy or otherwise.
This practice, it is stated, visits the teachers with evil consequences inasmuch as they not only lose the salary and other emoluments but the job itself. In some cases they are faced with avoidable breaks in service. It is not that the Administration is always to be blamed.
Sometimes the teachers are reluctant to move as they prefer to stick to a particular institution. This problem has to be tackled in the background of the fact that there is one integrated cadre of School teachers under the Chandigarh Administration. They are liable to be shifted or posted on transfer in different schools run, controlled and managed by the Chandigarh Administration, on account of the administrative expediency or exigencies of service. Shifting or transfer is a natural incidence of service. One cannot grudge or take exception to shifting or transfer from one school to another particularly keeping in view the fact that it is virtually a local arrangement as all the schools are located within limits of the Union Territory of Chandigarh. Nobody is supposed to go outside Chandigarh.
The school teachers have to comply with the orders of shifting/transfer from one school to another. They cannot take any objection on this score. If any teacher flouts or circumvents the order of transfer, he/she shall be subject to disciplinary action. Now, we look to the other side of the picture. Indiscriminate, unthoughtful and arbitrary transfers/shifting add to the difficulties of the school teachers. They are made to toss about from one end to another. There does not appear to be any understandable reason why a school teacher is required to report for duty to the District Education Officer after being relieved from a school where he/she was already working. The teachers are not to be treated as chattles. The Competent Authority should in all fairness work out the vacancies in every school in advance. This exercise should precede the transfer orders. The idea is that no teacher should be allowed to shunt from one place to another without any corresponding advantage and to his or her serious detriment. The orders of transfer should be firm and specific so that there is no difficulty in their implementation.
18. Learned Counsel for the applicants have attacked the replacement or substitution of the contract teachers by the respondents in an arbitrary and capricious manner inasmuch as regularly selected teachers according to the rules, are being posted without following the principle of 'first come last go' or put it differently 'last come first go' and ignoring the vacancies in other institutions. It was pointed out, what the respondent authorities are doing is that they pass orders posting the regular teachers selected according to the rules to relieve any contractual appointee in an arbitrary and selective manner. This aspect of the matter needs to be taken care of as the respondent-Administration has to exhibit fairness and impartiality in relieving and substituting the contract appointees. As said above, there is one integrated common cadre of teachers at the State level. The cadre is not schoolwise. The total sanctioned strength of the school teachers in the different places is spread over the different schools under the Administration. The Administration knows the length of service of the contract appointees as well as the various vacancies occurring in the different subjects/discipline in various schools. To put an end to the controversies which sometimes have reflection on the integrity and impartiality of the authorities concerned and to maintain transparency in the administration, it would be necessary to prepare a consolidated list of all the contract appointees with reference to the date of their appointment. If there are more than one or many teachers appointed on the same date, in that event, the date of birth shall determine seniority, meaning thereby who is older in age would be senior to the younger one, if appointed on the same date. Similarly, there should be a list reflecting the sanctioned posts and vacancies in various disciplines in different schools. Once it is done, the authorities concerned shall appoint the regularly selected teachers in the first instance against the vacant posts and, if at all, it is necessary to relieve a contractual appointee in that event, the principle of 'last come first go' shall be followed i.e.
junior most contract-teacher, regardless of the fact in which school he/she is working, shall be relieved. This procedure shall be followed and repeated while posting the regular selected teachers to replace and substitute the contract appointees.
19. It was urged on behalf of the applicants that such of the applicants who fulfil the requisite qualifications as prescribed in the School Cadre Rules, 1991, should be allowed to under-go regular recruitment process and if some of the contractual appointees have become overage, age relaxation may be directed to be granted to them.
There can possibly be no objection to this prayer. This aspect of the matter was also considered by the Apex Court in the case of Rattan Lal (supra). In Paragraph 2 of the report the Apex Court had directed that the teachers who are working on ad hoc basis and if they have the prescribed qualifications may apply for being appointed on regular basis and the State Government may also consider sympathetically the question of relaxing the prescription of maximum age for appointment to those posts in case of those who have been victims of the system of ad hoc appointment. These observations apply equally to the contract appointees. We are in agreement with the learned Counsel for the applicants that a direction has to issue to the respondent administration that those teachers appointed on contract basis who fulfil the requisite qualifications, as prescribed in the rules should be permitted to apply for being considered for appointment on regular basis and if they are otherwise eligible in all respects but have crossed the prescribed age-limit, their cases be considered sympathetically for relaxation.
20. A faint suggestion came to be made with regard to the payment of arrears of salary and other allowances to be calculated on the basis that the contract appointees are also entitled to the fixation of their pay at the minimum of the pay scale with other allowances as admissible to the regular teachers. The relief of arrears of pay and other allowances has to be considered with reference to the plea of limitation also. A blanket order cannot be passed to allow arrears of salary to the applicants right from the date they are working. Here it would be worthwhile to mention that the case of teachers appointed on contract basis prior to the advertisement dated 9th/10th August, 2002, issued by the District Education Officer is covered by the decision of Krishan Kumar's case (supra). The cases of those contract appointees who came to be appointed pursuant to the advertisement aforesaid, are to be dealt with in the light of the orders dated 27th May, 2003 issued by the Chandigarh Administration as well as the decision of the Division Bench of this Tribunal dated 5th June, 2003 in O.A. No.144-CH-2003, Abhishek Vashisht v. Union Territory of Chandigarh and Ors. For such contract appointees, the payment of arrears shall be restricted to a period of 18 months to be reckoned from the date of filing of the O.A. or the date of last continuous appointment (ignoring the artificial breaks or vacation period), whichever is later.
20A. Before parting it may be mentioned that it is the duty of the respondent-Administration to prevent unnecessary litigation. While it takes policy decisions, it is the inherent duty of the concerned authorities to take into consideration the effect and impact of pronouncement of the Apex Court, High Courts and this Tribunal. Such an approach on the part of the respondent-Administration would, on the one hand, prevent fruitless, frivolous litigation and wasteful expenditure while, on the other, would further the cause of justice. Taking a different view or giving a twist to the matter by ignoring the directions amounts to un-called for adventurism which cannot be permitted. With a view to prevent or curtail unnecessary litigation and to enlarge and enhance the image of the administration as a model employer, we have to issue certain directions for strict observance and compliance.
21. In the conspectus of the above discussion, all the twenty five O.As. are decided, with the following directions: (1) The order and the directions dated 2.12.2002 rendered in O.A. No. 126-CH-2002 (Krishan Kumar v. Union Territory and Ors.) shall be followed and complied with by the respondents in letter and spirit.
All the contract appointees who possess the requisite minimum qualifications for the post at the time of their initial appointment shall not be replaced by any contract appointee. Their appointment on contract basis shall, however, stand terminated or come to an end on their replacement and substitution by the teachers recruited and appointed in accordance with School Cadre Rules, 1991, as amended upto date. The expression "duly selected teachers" shall take within its sweep the teachers recruited by either of the three methods prescribed in the rules such as direct recruitment, promotion or by transfer on deputation within the ceiling of percentage prescribed for each category.
(2) The services of the teachers appointed on contract basis who fulfill the requisite qualifications at the time of their appointment, shall not be dispensed with merely on the ground that they fall short of the subsequently amended prescription of the educational qualifications.
(3) The respondent-Administration shall have the liberty to dispense with the services of the contract appointees as a measure of disciplinary action, or for not possessing the requisite qualifications as applicable at the time of selection for contract appointment, or in the event of the abolition of the post. In the latter case i.e. abolition of the post, the services of the junior most contract appointee appearing in the consolidated seniority list (as explained hereinafter) shall be dispensed with.
(4) Each, one of the contract employees appointed before or after the advertisement dated 9th/10th August, 2002 shall be entitled to minimum of the pay scale as admissible to the regular teachers and no deduction shall be made for the period of artificial breaks or vacations. The instructions issued by the Director Public Instruction (Schools), contained in letter No. DPI-UT-S-II (186)/2002 dated 14.3.2003 allowing minimum of the pay scale as admissible to the regularly appointed teachers shall continue to be followed and implemented from the date of last continuous appointment (ignoring the artificial breaks and vacation period) after adjusting the amount already paid. The claim for arrears etc., shall, however, be restricted to a period of eighteen months to be reckoned from the date of the filing of the O.A. or the date of last continuous appointment, whichever is later.
(5) Since there is one integrated cadre of the school teachers at the State level, the Director Public Instructions (Schools) shall cause to be prepared a composite list of the sanctioned posts of School teachers, subject or discipline-wise, spread over the schools under his control and administration showing the vacancies, if any, subject-wise, in each one of the schools. Consolidated seniority list of the contract-appointees manning the specified posts in different schools, shall be prepared with reference to the date of their appointment. If there are more than one or many teachers appointed on the same date, in that event the date of birth shall determine seniority, meaning thereby who is older in age would rank senior to the younger one appointed on the same date. These lists shall be circulated amongst all the Principals of the Schools for being displayed on the notice board for the information and inspection of/by all concerned. This exercise must be completed within a period of two months from the date of this order.
(6) The contract appointees have no right to be regularised in service and their appointment/engagement has to come to an end no sooner they are replaced/substituted by the regularly selected teachers. The regularly selected teachers shall be posted in the first instance against the vacant posts. If at all, it is necessary to relieve a contractual appointees, in that even the principle of 'last come first go' or say 'first come last go' shall be followed.
To clarify it further, the junior most contract appointee, regardless of the fact in which school he/she is working, shall be relieved.
(7) Transfer of the school teachers, as a matter of administrative expediency and exigencies of services, from one school to another, is permissible and the teacher who has been transferred or shifted from one school to another, obviously locally, has to join duties at the place of new posting soon after he/she is relieved from the earlier place of posting. The need based transfer orders shall be passed by the Competent Authority only after ascertaining the vacancies and, in no case, the transferred teacher should be left in lurch. In case he/she is not able to join the duties for any reason, which is not attributable to him/her, the period spent in between relieving and joining, shall be treated as 'on duty'.
(8) Those contract teachers who fulfill the requisite qualifications as prescribed in the School Cadre Rules 1991, as amended upto date, may be permitted to apply for being considered for appointment on regular basis and if they are otherwise eligible in all respects but have crossed the prescribed age limit, their cases be considered sympathetically by the Competent Authority for relaxation.
(9) The female teachers appointed on contract basis shall be entitled to maternity leave with pay in accordance with the rules as are applicable to the regular teachers.
(10) For the reasons stated above, the prayer of the contract teachers for regularisation of their services and for restraining the respondents from continuing with the process of selection and appointment of regular teachers in accordance with the School Cadre Rules, 1991, is rejected.