Judgment:
1- Claiming salary and modification of the order of reinstatement, petitioners have filed this writ petition and the relief claimed for in paragraph 7.1, of the writ petition, reads as under:
"7. Relief sought:
(i) It is, therefore, prayed that this Hon'ble Court be kindly pleased to issue a writ of mandamus commanding the respondents to suitably modify the order dated 8.4.2003 so far as it relates to description of the petitioners as contract appointee. The Hon'ble Court be also pleased to
command the respondents to pay salary to the petitioners intervening the date of order of removal till reinstatement and other consequential benefits as accrued from time to time."
2- It is the case of the petitioners that respondent University issued an advertisement vide Annexure P/1, for appointment of Lecturers/Tutors in Physical Education on contract basis. Petitioners applied, and a Selection Committee consisting of four persons as indicated in paragraph 5(iii) of the writ petition, was constituted. Petitioners were found eligible and orders Annexure P/2 was issued appointing the petitioners on a consolidated salary of Rs.1800/- per month, for a period of 89 days initially. The appointment continued and it is the case of the petitioners that in the year 1999, the Head of the Department processed a note-sheet Annexure P/3, recommended for regular appointment of the petitioners on the ground that as per the National Council for Teachers Education (hereinafter referred to as 'NCTE') norms, there is requirement of five Lecturers/Tutors in the Institute. Recommendation was made to initially appoint the petitioners on contract basis for one year on payment of consolidated salary of Rs.5000/- and thereafter grant them regular appointment. It is the case of the petitioners that the Vice Chancellor of the University approved the proposal on 2.6.1999 and thereafter petitioners were appointed again vide Annexure P/4 on 10.6.1999, even though for a period of one year on contract basis, but the appointment was to be made regular after one year as per note-sheet Annexure P/3. Thereafter, again in the year 2000 another note-sheet Annexure P/5 was initiated wherein also the Vice Chancellor gave approval for appointment of the petitioners. It is stated that in this also the proposal was to grant regular appointment to the petitioners. However, nothing was done and the petitioners were kept as Contract Teachers. In the meanwhile, due to involvement of the petitioners in certain criminal case pertaining to offence under the Arms Act, petitioners' services were terminated vide Annexure P/9, on 24.8.2001. Petitioners challenged the termination by filing W.P.No.4821/2002 and a Bench of this Court allowed the writ petition on 12.12.2002 vide Annexure P/11 and found the termination to be illegal. Petitioners reported for joining on 18.12.2002, but they were not taken back on duty. It was only vide Annexure P/14 on 8.4.2003 that they were again granted contract appointment.
3- Interalia contending that petitioners are entitled to salary from the date their appointment was quashed by this Court in W.P.No.4821/2001, and further contending that in pursuance to the note- sheets and the approval of the Vice Chancellor, as is evident from Annexures P/3 and P/5, petitioners have been regularly appointed to the post and, therefore, they should be granted regular pay scale and appointment on regular basis, petitioners have filed this writ petition. 4- Respondents represented by Shri Brajesh Choubey refuted the aforesaid and pointed out that as petitioners were only appointed on contract basis and as their appointment were not preceded by any regular process of recruitment as contemplated under the Statute and Ordinance issued by the University, it is stated that petitioners cannot claim any regular appointment or regular salary. It is the case of the University that petitioners are contract appointees and they continue on contract basis till they are regularized or appointed to the post in accordance to the requirement of the Statute and Ordinances governing regular appointment to any post or service in the University. 5- By filing a rejoinder, learned counsel for the petitioners has brought on record various other note-sheets and documents received by the petitioners under the Right to Information Act and point out that the petitioners having been regularized with effect from 1.6.99, respondents cannot deny the claim made by the petitioners. Accordingly, Shri Ashish Pathak submits that the petitioners having been treated as regular employees with effect from 1.6.99, they are entitled to the benefit and relief claimed in this writ petition.
6- I have heard learned counsel for the parties and perused the records.
7- From the records it is clear that petitioners entered the University by virtue of the so called selection conducted for appointment in pursuance to the advertisement Annexure P/1. The advertisement Annexure P/1 clearly stipulates that the appointment is on contract basis and the appointment orders issued in pursuance to the same Annexure P/2 dated 2.12.1997 is also a contract appointment on a consolidated salary of Rs.1800/- per month. Thereafter, when the Head of the Department processed the note-sheet Annexure P/3 and proposed for initially appointing the petitioners on contract basis for one year and thereafter granting approval for their regularization, the Vice Chancellor in his note-sheet dated 2.6.1999 granted the approval "We may appoint the teachers on contract as proposed". On the basis of this note of the Vice Chancellor and approval granted on 2.6.99, the order-dated 10.6.99 Annexure P/4 was issued again appointing the petitioners on contract basis for a period of one year on a consolidated salary of Rs.5000/- per month. If the note-sheet of the Vice Chancellor dated 2.6.99 and the appointment of the petitioners ordered therein vide Annexure P/4 are taken note of, it would be seen that the approval and proposal sanctioned by the Vice Chancellor for appointment was only as a contract teacher and there is nothing in the note-sheet or the order Annexure P/4 to indicate that the petitioners appointment was on regular post, on the regular pay scale as a regular teacher/tutor.
8- Even though the Head of the Department had made proposals, there is no document available on record to indicate that petitioners were appointed on regular basis in accordance to the requirement of law with effect from 1.6.99. The documents filed by the petitioners' alongwith the rejoinder, allegedly received by the petitioners under the Right to Information Act, do indicate that petitioners were regularized, but there is no order of regularization of the petitioners. Annexures P/3 and P/5 are orders of appointment of the petitioners on contract basis, on a consolidated salary for a particular period of time.
9- The Constitutional Bench of the Supreme Court, in the case of Secretary, State of Karnataka and others v. Umadevi (3) and others, (2006) 4 SCC 1, has considered various aspects with regard to public employment and it is clearly laid down by the Supreme Court in the aforesaid case that employment to public service has to be done strictly in accordance to the requirement of Articles 14 and 16 of the Constitution. Opportunity to seek employment should be made available to each and every unemployed citizen in the country and if an appointment is made on contract basis or adhoc basis is regularized it has the effect of depriving the rights guaranteed to many other persons seeking appointment and is, therefore, violative of Articles 14 and 16 of the Constitution. It is, therefore, a settled principle of law that public employment has to be in accordance to the statutory rules and regulations and if an appointment is made dehors the statutory rules or regulations, regularization of such an appointment cannot be ordered by a writ court. If the case of the petitioners are scrutinized in the backdrop of the requirement of law as laid down by the Supreme Court in the case of Umadevi (supra), it would be seen that appointment to the Universities in the State of Madhya Pradesh are governed by the statutory provisions contained in MP Vishwa Vidyalaya Adhiniyam, 1973 (hereinafter referred to as 'Adhiniyam') and a specific procedure for appointment is contemplated under section 49 of the Adhiniyam. Under the provisions of sub-section (2) of section 49, appointments have to be made by a duly constituted selection committed nominated by the Kuladhipati of the University and it is the Executive Council of the University, which is the supreme authority, entitled to make appointments to the University. That apart, in exercise of powers conferred under the Adhiniyam of 1973, statutory rules in the form of Statutes and Ordinances have been framed for appointment to service in the University.
10- This Court can direct for regularization of the petitioners only if it is established from the material available on record that the appointment of the petitioners initially even on contract basis, is made after following the procedure contemplated under the various statutory provisions formulated under the Adhiniyam i.e the Statute and Ordinances, applicable to the University. There is nothing on record to indicate that the appointments of the petitioners are made by following the procedure prescribed under law. It is a case where an advertisement for appointment on contract basis was issued and petitioners were appointed on contract basis. There is nothing on record to indicate that appointment of the petitioners were made after following the procedure contemplated and under the Statute and Ordinances.
11- The petitioners have not even brought on record the relevant Statute and the Ordinances, contemplating procedure for appointment and have not demonstrated before this Court that their appointment is after following the procedure contemplated under these statutes and ordinances. 11- In that view of the matter, keeping in view the principles laid down by the Supreme Court in the case of Umadevi (supra), it has to be held that appointment of the petitioners being dehors the rules, this Court cannot issue any mandamus for treating the petitioners to be regularly appointed to the post and grant them the benefit of regular salary. To this effect, no relief can be granted to the petitioners, as the records indicate that petitioners were only appointed on contract basis and continued to work on contract basis.
12- Accordingly, the prayer made by the petitioners for treating them to be regularly appointed to the post in question and to grant them regular salary is rejected.
13- As far as the salary for the period they remained out of employment inspite of the order passed by this Court, in the earlier writ petition filed by the petitioners' i.e .. W.P.No.4821/2002, is concerned, it is clear that after the petitioners termination was quashed by this Court on 12.12.2002 in the writ petition referred above, petitioners reported for joining duties on 18.12.2002 and respondents instead of permitting the petitioners to join duties on 18.12.2002 kept the matter pending and permitted them to join duties only on 8.4.2003, after orders Annexure P/14 was issued.
14- That being so, petitioners would be entitled to salary for the period from 18.12.2002 upto 7.4.2003, due to their reporting for joining duties on contract basis with effect from 18.12.2002. To that effect, petitioners are entitled to the relief.
15- Accordingly, rejecting the claim of the petitioners for regularization and regular salary on the post of Lecturers/Tutors, respondents are directed to pay salary to the petitioners with effect from 18.12.2002 upto 7.4.2003, treating them to be appointed on contract basis and joined duties on 18.12.2002, at the rate prescribed for contract appointment, which was granted to the petitioners, the said amount be paid within a period of two months from the date of receipt of certified copy of this order.
16- Petition stands allowed to the extent indicated hereinabove and disposed of without any order so as to costs.