ORDER Madan B. Lokur, J.
1. Rule D.B.
2. The Government of the National Capital Territory of Delhi and itsDirector of Education (hereinafter called the Petitioners) have filed asmany as 63 writ petitions under Article 226 read with Article 227 of theConstitution.
3. In one or the other writ petitions, the challenge is to the directionsgiven by the Principal Bench of the Central Administrative Tribunal (here-
inafter called the Tribunal) in Original Applications decided on 7th May,1999, 1st September, 1999 and 6th September, 1999. The Original Applica-
tions were similar in nature and so the directions were identical exceptfor the change of a few words in the directions issued on 1st and 6thSeptember, 1999. We will advert to this a little later.
4. When these writ petitions were listed before us on 11th November, 1999we made it clear to learned counsel for the parties that we proposed tofinally hear all these petitions on the adjourned date. With the consent oflearned counsel Civil Writ Petition No. 6363 of 1999 was taken as the maincase for the purpose of filing affidavits, written synopsis etc. However,one of the learned counsel heard the writ petition number incorrectly andso he filed a counter affidavit in Civil Writ Petition No. 6375 of 1999.Mercifully, he referred to only two pages from that affidavit, saving usthe labour of juggling huge paperbooks.
5. We decided to hear these writ petitions out of turn for two reasons,namely, because it involved the jobs of 805 Respondents and secondly,because by a quirk of fate, 537 of the Respondents were said to continue tobe in the employment of the Petitioners (having the benefit of interim stayorders) while 268 of them were said to be out of employment since they didnot have the benefit of interim stay orders. We felt that all the 805Respondents deserved to be treated equally, one way or the other.
6. We wish to clarify two things in this regard. Firstly, the figures of537 and 268 are theoretical. How many are actually employed today and howmany are not employed today, does not seem to be known to anybody. This isbecause much water has flowed since May, 1999. Secondly, the batch of 537Respondents were the beneficiaries of the order/ directions dated 7th May,1999 while the batch of 268 Respondents were the beneficiaries of theorders dated 1st and 6th September, 1999. The change of a few words madeall the difference between their continuing in employment or being out ofit.
7. We heard learned counsel for the parties on 29th and 30th November,1999 and 1st and 7th December, 1999 when judgment was reserved.
8. The facts of the case are many and some of them are unfortunatelyhidden in obscurity. We hope to state all essential facts for the decisionof the case. The directions given by the Tribunal are, however, not socumbersome and we propose to deal with them after we iron out the creasesin the factual matrix.
9. We are concerned with three categories of teachers employed by THE petitioners. These categories are Post Graduate Teachers (PGTs), TrainedGraduate Teachers (TGTs) and Assistant Teachers (ATs) which category includes Language Teachers (LTs) and Domestic Science Teachers (DSTs). Wewere told that as per the Recruitment Rules (which don't seem to have anyname), PGTs are appointed 75% by promotion from amongst TGTs and 25% bydirect recruitment; TGTs are appointed 75% by promotion from amongst ATsand 25% are directly recruited. ATs are all appointed by direct recruitment.
10. Sometime in March, 1998 the Delhi Government considered a proposal tore-employ retiring school teachers till the end of the academic session soas to maintain continuity in teaching. While this was being discussed, aproposal appears to have been mooted to engage teachers on a contract basisin schools run by the Petitioners in the interior areas of Delhi includingslum areas and resettlement colonies. This proposal appears to have beenmade because of a large number of continuing vacancies (about 3000 at thattime) and also because of far too many vacancies in schools in the interiorareas, which touched 40% in some schools.
11. In view of this "emergent situation" the Delhi Government apparentlytook a decision on 17th March, 1998 to re-employ retired/retiring teachersand to appoint teachers in schools in the interior areas of Delhi on acontract basis and to fill up vacancies on a regular basis through theauspices of the Delhi Subordinate Staff Selection Board (hereinafter re-
ferred to as the Board) which came into existence by a Notification dated3rd April, 1997 (in accordance with a Resolution dated 4th October, 1996 ofthe "Services Department").
12. In accordance with this decision of the Government, the Petitionerstook out an advertisement dated 7th April, 1998 in some newspapers invitingapplications from eligible candidates for posting in schools located inrural and interior areas of Delhi. The list of such schools was also indicated in the advertisement but this list appears to have been amended at alater date. It was made clear in the advertisement that the appointmentswill be on a contract basis upto 31st December, 1998 which could be extend-
ed upto 30th April, 1999 which was the end of the academic session. Thepayment of a consolidated salary was also indicated. It was mentioned thatretired teachers who have not attained the age of 65 years as on 31stMarch, 1998 could also apply. We were, however, told at the Bar that noretired teachers were engaged on contract basis. The advertisement finallystated that a walk-in interview would be held.
13. According to learned counsel for the Petitioners, the total number ofpersons appointed on contract basis was 1007. She also stated that theappointments were made without scrutinising the genuineness of the docu-
ments, without verifying the character and antecedents of the applicantsand without following any procedure prescribed for selection under theRules. This does not appear to be correct because in the counter affidavitfiled in Civil Writ Petition No. 6375 of 1999 it has been stated that theoriginal documents were scrutinised and the qualifications were verifiedbefore the appointments were made. Two documents were annexed in support ofthis averment. These documents are a Memorandum dated 12th August, 1998requiring the production of all educational certificates in original forverification and a proforma of verification of particulars. We also findfrom paragraph 4 of the impugned order dated 7th May, 1999 that the Petitioners had worked out some norms in the month of May, 1998 and these normswere on the lines of the relevant recruitment rules and the selections weremade on the basis of these norms.
14. Pursuant to the advertisement and the walk-in interview, the Petitioners began making appointment on contract basis and this process of appointment continued for quite some time apparently from July, 1998 onwards uptoJanuary, 1999. Those teachers who had joined before 31st December, 1998 gotextensions. Some of the teachers were on contract upto 31st March, 1999 andsome upto 30th April, 1999.
15. As regards filling up the vacancies on a regular basis, the petitioners appear to have approached the Board in June, 1998 for selecting candidates by direct recruitment.
16. Thereafter, some more vacancies arose and so the Petitioners againapproached the Board in March, 1999 for filling up these vacancies bydirect recruitment. We were told that in terms of the requests made to theBoard in June, 1998 and March, 1999 about 688 vacancies were to be filledup by direct recruitment. The Board appears to have issued public advertisements for recruitment only in March and June, 1999. We were also toldthat during the pendency of these writ petitions, the recruitment processhad been completed and almost all the direct recruits have since beenappointed. Promotions of Assistant Teachers and TGTs and PGTs have alsotaken place in many cases and are expected to be completed very soon.
17. 537 teachers whose contract was due to come to an end on 31st March,1999 approached the Tribunal praying that the termination of their serviceswith effect from 31st March, 1999 be declared illegal and also praying forthe same pay which was being paid to regular teachers. The Tribunal grantedan order of status quo and it is on the basis of this interim order thatthese teachers are said to be continuing in their jobs.
18. 268 teachers approached the Tribunal after 31st March, 1999 and theTribunal did not find it appropriate to direct their reinstatement by aninterim order.
19. In the first batch of cases involving 537 teachers, the Tribunalallowed their Original Applications by the impugned order dated 7th May,1999 and passed the following directions : [we are really concerned onlywith directions (A) and (B)] "(A) Applicants shall be allowed to continue in the present posts till regular candidates duly selected by DSSSB/or appropriate authority are available to replace the applicants.
(B) Those selected regularly shall first be posted in the existing vacant positions and only if enough vacant posts are not available, they should be posted against the posts held by ad hoc appointees, Replacement of the latter should be on the principle of last come first go. Those so displaced should be accommodated in vacancies that may be existing in other Districts.
(C) The ad hoc appointees shall be paid minimum pay in the pay scale of regular teachers plus DA in terms of law laid down by Hon'ble Supreme Court in the case of Daily Rated Casual Labourer Vs. UOI & Ors. (1998 (1) SCC 122).
(D) No ad hoc appointee shall be replaced by any newly appointed employee.
(E) Those of the applicants who have applied or may apply for regular selection, necessary relaxation in age shall be given to the extent of the period of service put in by them.
(F) There shall be no order as to costs."
In the other two batches of Original Applications, the Tribunal passed identical orders except with regard to direction (A) where the words "Applicants shall be allowed to continue in the present posts till regular candidates......." were substituted by the words "Applicants shall be re-engaged on the present posts forth-
with till regular candidates........".
20. Learned counsel for the Petitioners stated on affidavit that thesanctioned strength of PGTs in the Delhi Administration is 7,266 and thesanctioned strength of TGTs (including LTs and DSTs) with which we areconcerned is 25,362 and the sanctioned strength of ATs with which we areconcerned is 2,556. She also stated that the total number of sanctionedposts from Principal downwards is 43,109. According to her, looking to thesheer magnitude of numbers there were bound to be vacancies at any givenpoint of time either on account of superannuation, voluntary retirement,resignation or death. Apart from this, many teachers may also be on leave.She submitted that the effect of the directions given by the Tribunal wasthat the Respondents will continue indefinitely because it was impossiblefor the Petitioners to have a zero vacancy situation. This was all the moreso because the process of direct recruitment is, by its very nature, timeconsuming.
21. Learned counsel for the Petitioners further submitted that there wasno warrant for the Tribunal to direct the Petitioners to first fill up theexisting vacant posts and only after all of them are filled up that theposts held by the Respondents should be touched and if in the meanwhileother vacancies arose then the displaced Respondents should be accommodatedagainst those vacancies. She did not attempt to challenge directions (C),(D) and (E) given by the Tribunal, and we think, rightly.
22. Learned counsel for the Petitioners was rather vehement in her submis-
sion that all the Respondents were entitled to apply for direct recruitmentthrough the Board which had issued advertisements in March and June, 1999.According to her, if the Respondents chose not to apply for direct recruit-
ment through the Board, they should not be given any sympathetic considera-
tion by this Court. She further submitted that as per her information,many, if not most, of the Respondents had applied for direct recruitment.In this context, she draw our attention to our order dated 25th October,1999 directing the Respondents to file an affidavit stating whether theyhad competed in the examination held by the Board and whether they hadcleared the same or not. None of the Respondents have filed an affidavit incompliance with our order dated 25th October, 1999. We, therefore, assumethat all of them did compete in the examination. Learned counsel submitsthat some Respondents were able to make the grade and are, therefore, nolonger interested in these writ petitions and it is only, those who wererejected by the Board or who chose not to apply for direct recruitment whoare contesting these writ petitions. According to her, teachers who havebeen rejected for selection by an impartial Board should not be allowed tocontinue and take advantage of something which arose as a result of anemergent situation.
23. Finally, it was submitted by learned counsel for the Petitioners thatthey can manage their affairs with the existing number of teachers and theyare no longer interested in making any appointments on a contract basis.The adjustment of vacancies can always be met by shuffling teachers aroundand it is not as if the situation is completely out of control. It is verymuch under control and it is possible for the petitioners to carry on withtheir work without the assistance of the Respondents.
24. As regards the vacancy position as on date, learned counsel for THE petitioners filed an affidavit before us stating that there are some vacancies. The figures given were totally incomprehensible partly because wesuffer from numerical dyspepsia; but, the point that she wanted to makethrough this jungle of numbers is that there were not too many vacancies,and of those that existed, many of them were reserved for members of theScheduled Castes and Scheduled Tribes. According to her, none of the Respondents belong to any of the Scheduled Castes and Scheduled Tribes and sothey cannot seek to take advantage of the existing vacancy position.
25. Learned counsel for the Respondents contended that the issues raisedin these writ petitions are not longer res integra and they relied upon ajudgment of this Court in Government of NCT of Delhi & Ors. Vs. Dr. V.S.Chauhan, 1998 VI AD (Delhi) 81. Special Leave Petitions being SLP (C) No.949-957/1998 preferred by the petitioners therein were summarily dismissedby the Supreme Court on 1st December, 1998 and Review Petitions (C) No.547-555/1999 filed by the Petitioners therein were also dismissed on 28thApril, 1999. They also placed reliance upon a judgement of the Tribunal inthe case of Dr. (Mrs.) Sangeeta Narang & Ors Vs. Delhi Administration etc.1988 (6) ATC 405 against which order, a Special Leave Petition was pre-
ferred by the Government of NCT of Delhi which Special Leave Petition wasalso summarily dismissed by the Supreme Court. Learned counsel for THE petitioners, of course, contended that these cases were distinguishable.
26. With regard to the ability of the petitioners to manage their affairswithout the Respondents, it was submitted by their learned counsel that THE petitioners had recently issued a letter dated 20th August, 1999 intimatingtheir decision to re-employ "retired teachers against the existing vacancies for a period upto 31.3.2000 or till the teachers regularly appointedjoin, whichever is earlier ........". According to learned counsel for theRespondents this letter clearly showed that the petitioners wanted tosomehow or the other dislodge the Respondents and that their submissionthat they could manage their affairs without the Respondents was not bonafide.
27. In view of the submissions made before us, we have to first considerwhether the facts of Sangeeta Narang and V.S. Chauhan are similar to thefacts in the present writ petitions.
28. In Sangeeta Narang, the Delhi Administration had engaged doctors on anad hoc basis for short durations while in V.S. Chauhan, it had engageddoctors on a short term contract. In both the cases, the recruitments weremade in view of the fact that there were, at any given point of time, about150 vacancies in various hospitals and dispensaries managed by the DelhiAdministration. Regular recruitment to these posts were to be made throughthe Union Public Service Commission which was a time consuming process.Consequently, the Delhi Administration made ad hoc appointments or appoint-
ments on contract to relieve the pressure and strain on the health careservices.
29. The syllogisms in the present cases are identical. There were vacancies which put a strain on the teaching community. Regular appointmentsthrough the Board were a time consuming process. Consequently, it becameessential for the petitioners to engage teachers on a short term contractbasis to relieve the strain and ensure continuity in teaching.
30. However, learned counsel for the Petitioners stressed two distinguishing facts, namely, that in the present cases, direct recruitment throughthe Board had already taken place and departmental promotions were beingeffected. In view of this, the Petitioners could manage their affairs butthe same was not so in Sangeeta Narang and V.S. Chauhan. The second distinguishing fact that was urged was that the Respondents were those teacherswho either chose not to compete in the examinations or had failed in theopen examinations, which situation was not present in Sangeeta Narang andV.S.Chauhan.
31. It is true that in these writ petitions, recruitment has since beenmade through the Board and promotions have been effected. This is a factwhich will have a bearing on the ultimate relief to be granted to THE petitioners. This fact is of no relevance so far as the legal principleslaid down in Sangeeta Narang and V.S. Chauhan are concerned. The legalprinciples laid down in these two cases were that even though the appoint-
ments (of the Respondents) originate in a contract, by virtue of the factthat they become Government servants, they acquire a certain status. Theyare then governed by the rules and regulations applicable to the post thatthey hold and not by the terms of the contract. In other words, theirrelationship is to be governed by the rights and duties imposed upon boththe employer and the employee by public law. This jural relationship can besevered in a variety of ways and for a variety of reasons, one of thembeing that the services of the employees are not longer required.
32. Therefore, what is required to be examined in the facts of these writpetitions is whether the petitioners can manage their affairs without theservices of the Respondents or persons similarly placed as the Respondents.
33. The Petitioners are the best judges of their requirements. They aredealing with about 40,000 teachers on a daily basis and presumably theyknow how to run the schools under their jurisdiction. Considerable weighthas, necessarily, to be given to their opinion. We cannot, with our limitedexpertise, claim to be able to tell the petitioners how to manage theiraffairs nor do we propose to do so. Ordinarily, therefore, we would haveaccepted the statement of the Petitioners that they can manage their af-
fairs without the services of the Respondents.
34. Unfortunately, by seeking to requisition the services of retiredteachers through the letter dated 20th August, 1999, the Petitioners havelet the cat out of the bag (as it were). If they could manage their affairswithout the services of the Respondents, what was the reason for seeking tore-employ retired teachers.
35. We can fathom only one reason, namely, that the services of the Re-
spondents (or others similarly placed) are required. It is a differentmatter that the Petitioners have now chosen to avail the services of re-
tired teachers who are tried and tested as against the Respondents who havenot been found suitable for recruitment by the Board. Which set of teachersthe Petitioners want to engage is within their domain provided, however,the decision conforms to Article 14 of the Constitution. But, the inarticulated substance of the matter here is that the petitioners do requireadditional hands and this belies their contention that they can managetheir affairs without the services of the Respondents. Strictly speaking,yes they can manage their affairs but only by resorting to a subterfugeinstead of the Respondents, engage somebody else. It is unfortunate thatsuch a stance has commended itself to the State.
36. It may be mentioned, en passant, that we have been informed throughthe written submissions filed by one of the learned Counsel for the re-
spondents that the implementation of the letter dated 20th August, 1999 wasstayed by the Tribunal. The petitioners have not challenged this order ofthe Tribunal.
37. Under the circumstances, we have no hesitation in coming to the conclusion that the petitioners do require the services of additional teachers. As per the letter dated 20th August, 1999 this requirement is for aperiod upto 31st March, 2000 (the end of the academic session) or tillregularly appointed teachers join, whichever is earlier. The petitionerswould have preferred retire teachers, but they have been restrained fromengaging them. Consequently, we see no reason why the respondents, most ofwhom are already in place, should be dislodged, especially at the fag endof the academic Session.
38. Furthermore, the petitioners have not challenged direction (D) givenby the Tribunal which is to the effect the no ad hoc appointee shall re-
placed by any newly appointed ad hoc appointee. Therefore, on what basiswere the petitioners wanting to re-employ retired teachers? Surely, itcould not have been on a regular basis. On the one hand, the petitionerssay that they are content with direction (D), but on the other, they try tobypass it. The stand of the petitioners is a little baffing.
39. Learned counsel for the Petitioners, however, insisted that thepresent cases were distinguishable inasmuch as in these cases, the Respond-
ents had participated in an open competition and had failed to make thegrade. According to learned counsel, there was no reason why teachers, whohad failed an open competitive examination, should be allowed to teachstudents who are being taught so that they do not fail (and in this case byteachers who have themselves failed).
40. We agree with learned counsel for the Petitioners. We are not infavour of persons rejected by the Board being allowed to continue in theirposts. But, unfortunately, no alternative solution was forthcoming from THE petitioners except a bald suggestion that they can manage their affairs ontheir own-which suggestion is contradicted by cold facts. Re-employment ofretired teachers was one possible solution. But this process was halted bythe Tribunal and the Petitioners chose to keep silent. Furthermore, aspointed out above, the Petitioners have no grievance with regard to direc-
tion (D) given by the Tribunal. The Petitioners have woven a web and have,unfortunately, got enmeshed in it.
41. Learned counsel for the Respondents contended that merely becausetheir clients had not succeeded in the open competitive examinations, itwas no ground to dislodge them from their position. Reliance was placed ona passage from V.S. Chauhan.
42. On going through the above decision we find that the fact that theRespondents therein were "rejects" was held to be not material for thegrant of the benefit of equal pay for equal work. The Division Bench ofthis Court did not take this factor into consideration for the purposes ofretaining them or not retaining them in service.
43. We are of the view that persons who have been rejected by a dulyconstituted Board should not be allowed to continue to hold their posts,but in the facts of the present cases and in the absence of any viablealternative, the Respondents have necessarily to be allowed to continuetill they are replaced by regular appointees/promotes as the case may be.We, therefore, do not feel it appropriate to set aside the substance ofdirection (A) given by the Tribunal.
44. Learned counsel for the Petitioners cited quite a few decisions of theSupreme Court in support of her contentions. None of these decisions werequite apposite to the facts of these writ petitions (the facts of thesecases being most peculiar) and so we do not propose to deal with them. Thefacts of these cases are similar to Sangeeta Narang and V.S.Chauhan and wehave dealt with those decisions.
45. With regard to direction (B) issued by the Tribunal, we feel that thisis really concerned with the mechanics of working out direction (A). Thisis clearly not within the domain of judicial review. Once a direction isgiven, how it is to be adhered to or worked out is to be decided by theconcerned authority which is given the direction. It is not within thejurisdiction of the Tribunal to say, "This is how our direction should becomplied with. "It is also not within the Tribunal's ken to decide whom topost where and why. Consequently, we see no alternative but to quash direc-
tion (B) given by the Tribunal.
46. Even otherwise, we find direction (B) to be completely unworkable. Weare not living in Utopia and, therefore, it is too much to expect a zerovacancy situation to be achieved. In terms of direction (B), if a zerovacancy position is not achieved, many Respondents will continue to remainas teachers, almost in perpetuity. These Respondents will have no reason toappear for subsequent examinations to be conducted by the Board for directrecruitment and in any case we will be permitting persons who have not beenselected by the Board to continue to be in position, more or less, perpetu-
ally. Surely, this cannot be permitted. We may add that the last sentenceof direction (B) postulates that a zero vacancy situation cannot beachieved.
47. In view of our discussion, we need to give a little thought to thefinal order that should be passed. Under somewhat congruent circumstancesthe Supreme Court had in Rattan Lal & Ors. Vs. State of Haryana & Ors., directed the State Government "to allow all those teacherswho are now holding these posts on ad hoc basis to remain in those poststill the vacancies are duly filled up." The directions given by the Tribu-
nal in Sangeeta Narang (and upheld by the Supreme Court) were to a similareffect. So also in V.S.Chauhan (also upheld by the Supreme Court).
48. Consequently, we too would direct the Petitioners to allow the Re-
spondents to remain in their posts till their vacancies are duly filled upaccording to Rules. If the replacements of some of the Respondents havealready been found, those Respondents must give way to the regular appoint-
ees regardless of any interim orders in their favour. Such of the Respond-
ents who were out of employment because they were not beneficiaries of anyinterim orders of the Tribunal should be reinstated by 31st December, 1999unless their posts have been occupied by regular incumbents. Since learnedcounsel for the Petitioners stated on affidavit that there are not too manyvacancies, we think that many of the Respondents will not benefit. Thiscannot be helped.
49. The Petitioners should complete their entire exercise of disengagingsome teachers (wherever necessary or reemploying them (if necessary) on orbefore 31st December, 1999. Direction (A) is upheld to this extent. Direc-
tion (B) given by the Tribunal shall stand quashed. Directions (C), (D) and(E) given by the Tribunal were not challenged before us and so are maintained.
50. All these writ petitions are disposed of as directed above, but withno order as to costs.