Rajasthan High Court - Jodhpur

Smt. Savita Nanda vs Swami Keshvanand Raj. Agri. Uni. ... on 7 April, 2022

Bench: Rekha Borana

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 11522/2010

Smt. Savita Nanda W/o Sh. R.K. Nanda, aged 50 years, Resident of 5, Dhamani Quarters, Rani Bazar, Bikaner.

----Petitioner Versus

1. Swami Keshvanand Rajasthan Agricultural University through its Registrar, Bikaner.

2. The Dean, College of Home Science, Swami Keshvanand Rajasthan Agricultural University, Bikaner.

                                                                 ----Respondents


For Petitioner(s)         :     Mr. Prashant Tatia
For Respondent(s)         :     Mr. G.R. Punia, Sr. Advocate with
                                Mr. Jai Naveen



             HON'BLE MS. JUSTICE REKHA BORANA

                                     Order

07/04/2022

The present writ petition has been moved with a prayer for

regularization of the services of the petitioner.

The brief facts of the case are as under:

The petitioner was appointed as Lab Assistant on 26.09.1989

firstly, for a period of 3 months. In pursuance to the said

appointment order, she joined on 03.10.1989 and her services

were extended from time to time till 11.06.1991 on which date,

her services were discontinued. Against the said retrenchment of

her services the petitioner preferred a writ petition in which an

interim order was passed in her favour and she continued to

serve. The writ petition filed by the petitioner was disposed of on

18.03.1998 with an observation that the petitioner should

approach the Industrial Tribunal for adjudication of her disputes.

(2 of 9) [CW-11522/2010]

Further, while disposing of the writ petition, the Court directed for

continuance of the interim order passed in favour of the petitioner.

The petitioner then moved before the Industrial Tribunal and vide

award dated 08.11.2001, the Tribunal decided in favour of the

petitioner. [The award dated 08.11.2001 which was not a part of

the record earlier, has been permitted to be placed and taken on

record today.] The Tribunal directed for reinstatement of the

petitioner with full back wages and other consequential benefits.

The said award of the Tribunal was challenged by the respondent-

University vide writ petition (S.B. Civil Writ Petition No.4815/2002)

which was dismissed on 24.11.2012. The special appeal preferred

by the respondent-University against the order dated 24.11.2012

was also dismissed on 21.03.2014.

Meanwhile, during the pendency of these proceedings, order

dated 02.09.1994 was passed by the Registrar of the respondent-

University to the effect that the petitioner would now be charged

against the newly sanctioned post of Lab Assistant at the College

of Home Science, Bikaner with immediate effect. The order reads

as under:

"The Vice - Chancellor is pleased to order that Mrs. Savita Nanda who is working as Lab.

Assistant on casual basis in the College of Home Science, Bikaner and whose wages are paid from the College of Vety. & Animal Science, Bikaner is now be charged against the newly sanctioned post of Lab. Assistant at the College of Home Science, Bikaner with immediate effect."

When after having completed more than 20 years of service,

the services of the petitioner were not regularized she preferred

the present writ petition in the year 2010.

Counsel for the petitioner has submitted that it is a clear

case where the petitioner has served respondent-University right

(3 of 9) [CW-11522/2010]

from the year 1989 till the year 2019 when she superannuated i.e.

to say that she served for more than a period of 30 years.

Therefore, in view of the ratio laid down by the Hon'ble Apex Court

and the other High Courts from time to time her service deserves

to be regularized. Counsel for the petitioner has relied upon the

following judgments:

1. Secretary, State of Karnataka vs. Uma Devi [(2006) 4

SCC 1]

2. Ram Avtar Gurjar vs. The Chief Manager (IR), SBBJ

(Rajasthan) [(2015) WLC (Raj.)(UC) 119]

3. Prem Singh vs. State of Uttar Pradesh & Ors. [2019

(10) SCC 516]

4. Bharat Singh & Ors. vs. Union of India & Ors. [2017

(2) ESC 333]

5. Khama Ram Vishnoi vs. The Jai Narayan Vyas

University through its Registrar & Ors. [2019 LIC 378]

Per contra counsel for the respondents submitted that the

service of the petitioner could not have been regularized as she

was not qualified for the post. Counsel argued that even if the

ratio as laid down in Uma Devi's case (supra) is to be applied in

the present matter, it has to be first seen whether the

appointment was a regular one or an illegal one. So far as the

appointment of the petitioner is concerned the same was an illegal

one and therefore cannot be covered by the ratio as laid down in

Uma Devi's case (supra). Counsel also pointed out the Rules as

approved by the University wherein, the qualification for the Lab

Assistant is prescribed as:

                                           (4 of 9)                 [CW-11522/2010]


     "17. Lab. Assistant                 610-1090          B.Sc. with Physics,
          (Science Graduate)                               Chemistry, Maths.
              (Non-Diploma)

        18.    Lab. Assistant            490-840          Higher Secondary
              (Non-graduate)                              (Science) OR
                                                          Secondary with
                                                          Science having
                                                         two years experience."

Counsel argued that the petitioner was a student of Arts

having Home Science as one of the subjects which cannot be

termed to be a qualification as prescribed in the rules and

therefore, she not being qualified at the inception only, her

services cannot be regularized. Counsel further argued that in the

earlier round of litigation also, the Division Bench of this Court

considered this aspect and kept the question open therefore the

University is at liberty to raise the ground in the present writ

petition.

Counsel has relied upon the judgment passed by the Hon'ble

Apex Court in cases of State of Karnataka & Ors. Vs.

Gadilingappa & Ors. [(2010) 2 SCC 728] and Union of India

& Anr. Vs. Kartick Chandra Mondal & Anr. [(2010) 2 SCC

422].

Heard the counsel for the parties and perused the material

available on record.

Before adverting into the facts, it is essential to deal with the

issue whether the question of qualification of the petitioner had

been raised by the respondent-University in the earlier round of

litigation or not. A perusal of the award passed by the Industrial

Tribunal makes it clear that the said ground was raised by

respondent-University in unequivocal terms and the same was

considered and adjudicated by the Tribunal in specific terms. The

(5 of 9) [CW-11522/2010]

ground raised by the respondent-University before the Tribunal

was as follows:

" 4- vizkFkhZ fu;kstd }kjk mDr Dyse fooj.k dk izfrokn djrs gq, vius tcko esa ;g vafdr fd;k x;k gS fd izkfFkZuh dh ftl le; fu;qfDr dh x;h Fkh og iz;ksx"kkyk lgk;d ds in dh ;ksX;rk ugha j[krh Fkh vkSj rFkkdfFkr NaVuh dh fnukad 11&6&91 dks Hkh og ;ksX;rk ugha j[krh Fkh] izkfFkZuh us iz;ksx"kkyk lgk;d ds in ds fy;s vkosnu Hkh ugha fd;k Fkk] mlus [email protected]"kfuLV ds fy;s vkosnu fn;k Fkk] izkfFkZuh us lgh rF;ksa dks fNik;k gSA vU; lHkh rF;ksa dks vLohdkj djrs gq, ;g tcko fn;k gS fd izkfFkZuh dh fu;qfDr xyrh ls dh x;h Fkh vkSj og fu;qfDr ds ;ksX; o l{ke ugha Fkh] iz;ksx"kkyk lgk;d dh tks ;ksX;rk,a foKkfir dh x;h Fkh mUgsa og iwjk ugha djrh Fkh] mldh izkjafHkd fu;qfDr gh xyr FkhA Learned Tribunal considered and adjudicated the said ground

in the following terms:

8- --------------------- gekjs le{k eq[; :i ls fopkj.kh; iz"u ;gh gS fd D;k vizkFkhZ ds dFkukuqlkj izkfFkZuh x`gfoKku dkWyst esa iz;ksx"kkyk lgk;d in ds fy;s ;ksX; ugha Fkh \ bl lEcU/k essa ge ns[krs gS fd fu;kstd i{k ,d vksj rks ;g dgrk gS fd izkfFkZuh us [email protected] in ds fy;s vkosnu fd;k Fkk ijUrq fu;kstd us mDr dfFkr vkosnu U;k;ky; ds le{k vius rdksZa dh iqf'V esa izLrqr ugha fd;k gSA vr% fu;kstd dk ;g rdZ cyghu o lkjghu ik;k tkrk gSA i{kdkjksa dh cgl ls ,d Lohd`r fLFkfr ;g Hkh lkeus vkrh gS fd izkfFkZuh dh fu;qfDr midqyifr dh vuqefr ls jftLVªkj us izn"kZ MCyw-4 ds ek/;e ls dh Fkh ftlesa izkfFkZuh dks iz;ksx"kkyk lgk;d ds in ij fu;qfDr djus dk mYys[k gS ,oe~ izkfFkZuh dh "kS{kf.kd ;ksX;rkvksa ,oe~ iz;ksx"kkyk lgk;d ds in ds fy;s vko";d "kS{kf.kd ;ksX;rkvksa dk dksbZ mYys[k ugha gSA ;fn izkfFkZuh us [email protected] in ds fy;s vkosnu fd;k Fkk rc fQj fcuk "kS{kf.kd ;ksX;rk ds iz;ksx"kkyk lgk;d ds in ij izn"kZ MCyw-4 }kjk D;ksa fu;qfDr dh xbZ bldk dksbZ dkj.k fu;kstd i{k us ugha crk;k gSA tcfd bl fLFkfr dks fu;kstd i{k ds lk{kh us izfrijh{k.k esa Lohdkj fd;k gS ;g rF; Hkh fu;kstd ds i{k dks detksj cukrk gSA izn"kZ MCyw-4 ;g Hkh n"kkZrk gS fd izkfFkZuh dks x`gfoKku dkWyst esa fu;qfDr iznku dh x;h gSA bl vkns"k izn"kZ Mcyw- 4 esa izkfFkZuh dh lsok mn;iqj ls izfrfu;qfDr ij ysus dk Hkh dksbZ mYys[k ugha gSA ---------------------------------------------------- ,d vksj rks fu;kstd i{k ;g dgrk gS fd izkfFkZuh iz;ksx"kkyk lgk;d ds in ij dk;Zjr jgus gsrq okafNr ;ksX;rk /kkfjr ugha djrh gS ijUrq ge ns[krs gS fd ,slh fdlh Hkh "kS{kf.kd ;ksX;rk dk mYys[k izkfFkZuh dh lsok;sa tkjh u j[kus dh lwpuk izn"kZ MCyw-10 esa ugha gSA izkfFkZuh dks lsokeqDr djrs le; mldh lsokeqfDr dk dkj.k D;ksa ugha cryk;k x;k bldk Hkh dksbZ Li'V dkj.k fu;kstd us ugha fn;k gSA lsokeqfDr dk dfFkr dkj.k izn"kZ MCyw-15 ds }kjk izkfFkZuh dks lwfpr fd;k x;k Fkk ,oe~ mldk tcko izn"kZ MCyw-16 izkfFkZuh }kjk fn;s tkus ij mldh "kS{kf.kd ;ksX;rk ekurs gq, fu;kstd us izkfFkZuh dk lsokdky vkxs c<k;k gS tks rF; tkfgj djrk gS fd fu;kstd izkfFkZuh dh "kS{kf.kd ;ksX;rkvksa ls larq'V FkkA ;fn izn"kZ ,e-2 esa in la 08 esa of.kZr vuqlkj izkfFkZuh iz;ksx"kkyk lgk;d ds in ds fy;s ;ksX; ugha Fkh rks bldk mYys[k lsok eqfDr vkns"k izn"kZ MCyw-

(6 of 9) [CW-11522/2010]

10 es D;ksa ugha fd;k x;kA izkfFkZuh dks iz;ksx"kkyk lgk;d ds in ij 3&10&89 dks fu;qDr fd;k x;k Fkk ,oe~ ml in ds fy;s "kS{kf.kd ;ksX;rk fu/kkZfjr djus ckcr vkns"k izn"kZ ,e&2 1&12&90 dks tkjh fd;k x;k] ,slk vkns"k iwoZ ls gh dk;Zjr deZpkfj;ksa ij izHkkoh ugha gks ldrkA fdlh deZpkjh dks fdlh in fo"ks'k ij fu;qfDr nsus ds i"pkr ml in fo"ks'k dk "kS{kf.kd ;ksX;rk cnyrs gq, deZpkjh dks lsok ls i`Fkd fd;k tkuk iw.kZ :is.k vuqfpr ,oe~ voS/k gSA fu;kstd ;g ugha cryk ldk gS fd dyk Lukrd ,oe~ foKku Lukrd ds x`g foKku fo'k; esa D;k vUrj gS vkSj og vUrj iz;ksx"kkyk lgk;d ds dk;Z ij fdl izdkj vkSj D;k vlj Mkyrk gSA vr% fu;kstd dk ;g rdZ Hkh cyghu o lkjghu gS fd foKku esa Lukrd u gksdj dyk esa Lukrd gksus ds dkj.k x`g foKku esa iz;ksx"kkyk lgk;d ds in ds fy;s v;ksX; gSA"

The said award of learned Tribunal was in challenge by way

of a writ petition before this Court which was dismissed and

further a special appeal against the same was also dismissed. A

perusal of the judgment passed in the writ petition and even in

the special appeal makes it clear that the findings as reached at

by the Tribunal were affirmed with no concessions or distinctions.

Therefore, the findings of the Tribunal having become final for all

purposes the same cannot be re-opened in the present matter.

Once the finding having become final for all purposes, the natural

consequence of the same would be the conclusion that the

appointment of the petitioner was not an illegal one.

So far as the case of Gadilingappa (supra) relied upon by the

counsel for the respondents is concerned, the same would not be

applicable in the present matter as the Hon'ble Apex Court had, in

that matter, reached to a specific finding that the respondents

therein did not possess the minimum prescribed qualification and

therefore, their appointments were termed to be illegal

appointments.

Moresover, the rules as relied upon by the counsel for the

respondents had been approved in the year 1998 whereas the

petitioner was appointed in the year 1989 and therefore, even if

(7 of 9) [CW-11522/2010]

the said rules comprised of any educational qualification, the same

could not be said to be applicable to the petitioner. The Rules

which applied to the petitioner were the Rules of 1986 which were

approved by the then Mohanlal Sukhadia University, Udaipur. The

qualification as prescribed in the Rules of 1986 for Lab Assistant

(other than engineering) was as under:

"Higher Secondary (Science) or Secondary with Science having two years experience."

A perusal of the abovementioned qualification makes it clear

that the qualification prescribed was just Secondary with science

or higher secondary with science and so far as the petitioner is

concerned she was a student of Home Science in Secondary. The

qualification as prescribed does not distinguish in the subject of

science or home science. So far as the present petitioner is

concerned she was admittedly a Lab. Assistant with the Home

Science College, Bikaner. Furthermore, in the year 1994 she was

directed to be charged against the newly sanctioned post of Lab.

Assistant with the College of Home Science, Bikaner. Therefore,

by any stretch of imagination it cannot be presumed or concluded

that the petitioner did not possess the required qualification for

being appointed as a Lab. Assistant. Even for the post of Lab.

Assistant (non-graduate engineering branch) the same

qualification was prescribed. Therefore, this Court is of the

specific opinion that the petitioner did possess the required

educational qualification at the relevant point of time, that is, at

the time of appointment in the year 1989.

Admittedly, the petitioner was appointed in the year 1989

and has continued to work with the Department till the year 2019,

the year of her superannuation. So far as the period from

(8 of 9) [CW-11522/2010]

11.06.1991 (when her service was terminated) to 08.11.2001 (the

date of award of the Tribunal) is concerned the same can also not

be concluded to be a period spent in service with intervention of

the Court as held in case of Magan Lal Damore vs. The State of

Rajasthan (S.B. Civil Writ Petition No.6038/2013) decided on

09.08.2016. In Magan Lal Damore's case a Co-ordinate bench of

this Court observed as under:

"In the opinion of this Court, the authority who has taken decision not to regularize the services of petitioner has usurped the power to define that adjudication made by the Judge, Labour Court, Jodhpur which is upheld by this Court is intervention of the Court. In fact, it is not interference of the Court but it is an adjudication made by the Court whereby, order of termination was set aside in legal proceeding. Interference can be understood if any person is working under the interim orders of the Court but petitioner has not worked under the interim orders of this Court but while quashing his termination order dated 01.11.1995, the Judge, Labour Court, Jodhpur held that petitioner is entitled for continuity in service."

Therefore, the conclusion arrived at would be that if an

award has ultimately been passed in favour of the employee and a

specific relief has been granted by the Tribunal for reinstatement

of the petitioner with continuity in service, that is the final

adjudication and thus, the period spent in service by virtue of

interim order cannot be termed to be a period with intervention of

the Court.

Therefore in view of the ratio as laid down in Uma Devi &

Magan Lal Damore's case (supra), undisputedly the petitioner has

completed her 10 years of service and deserves to be regularized.

In view of the above observations, the present petition is

allowed. The respondent-University is directed to regularize the