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CASE NO.: Appeal (civil)  130 of 2007

PETITIONER: Yamuna Shankar Sharma                                   \005..Appellant

RESPONDENT: State of Rajasthan & Ors.                                       \005.Respondents

DATE OF JUDGMENT: 09/01/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (C) Nos. 18638-39 of 2004)

Dr. ARIJIT PASAYAT, J.

Leave granted.  

Challenge in these appeals is to the judgment rendered  by a Division Bench of the Rajasthan High Court at Jodhpur,  partly allowing the Civil Special Appeal filed by the present  Vice Chancellor, Mohan Lal Sukhadia University (in short the  ’Union’) and others questioning correctness of the order  passed by the learned Single Judge.  By the order which was  impugned before the Division Bench, the learned Single Judge  held that order dated 25.4.2003 passed by the University was  not sustainable and both the Vice Chancellor and the  University were directed to take back the present appellant in  service as Legal Assistant with all consequential benefits. The  Single Judge directed the University and the Vice Chancellor  to absorb the present appellant on a regular post from the  date when the vacancy arose pursuant to the order of this  Court dated 16.9.1992.

Background facts in a nutshell are as follows:

Appellant acquired L.L.M Degree in the year 1977. The  Udaipur University, re-christened as Mohan Lal Sukhadia  University, appointed him as Assistant Professor of Law in its  College of Law, Udaipur on ad hoc basis in the regular pay  scale of Assistant Professor. The post also entitled the  appellant to regular annual grade increments, which were  consequently given during the course of his service in his  capacity as assistant Professor. Later, in the year 1983 the  appellant was interviewed for the purposes of selection to the  post of Assistant Professor on regular basis.  He, however, was  not selected and as a result whereof, his services were not  continued after 31.5.1983. Thus, he worked as Assistant  Professor from 14.11.1977 until 31.5.1983 in the regular pay  scale of Assistant Professor on ad hoc basis in the college of  Law, Udaipur University.  After a gap of about nine months, he  was again appointed in the University on 23.2.1984 against  the post of Legal Assistant but the appointment was liable to  be terminated without notice.  Subsequently, the post of Legal  Assistant was re-designated as Legal Associate by the order of  the University dated 19.9.1987. As Legal Assistant/Legal  Associate, appellant was paid a consolidated salary of  Rs.1,200/- per month. By the order dated 19.6.1987 the  consolidated salary was enhanced to Rs.1,620/- per month.

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On 3.3.1990, the University terminated the services of the  appellant with effect from 14.11.1988 on account of the  absence of the appellant from duty. The absence was  occasioned by the fact of his having proceeded for undertaking  Ph.D work at University of Delhi.

After he acquired the Ph.D Degree, the appellant was  again appointed by the University on the post of Legal  Assistant by its order dated 8.2.1990 on fixed salary of  Rs.2,070/- per month as stop-gap arrangement until  31.3.1991 or till the selection and appointment of a candidate  to the post of Legal Associate, whichever was earlier. The  appointment as Legal Associate was extended from time to  time and the final extension was granted to him until  31.3.2003. After 31.3.2003 services were not extended, with  the result that the appellant ceased to be an employee of the  University. In this regard the Registrar of the University by its  letter dated 25.4.2003 informed the Dean, College of Law,  Udaipur that the term of temporary appointment of the  appellant as Legal associate has not been extended beyond  31.3.2003.

In order to complete the narration of facts, it is necessary  to refer to a development which took place as a result of filing  of a batch of writ petitions before this Court by Research  Assistants/Associates on account of refusal of the University  to grant to them the scale of Rs.700/1600 recommended by  the Grant Commission with effect from 1.1.1973. Even though  the University had implemented the UGC recommendations  and granted UGC scales in the case of members of teaching  staff, it failed to grant the benefit of UGC scale to the Research  Assistants/Associates.

The appellant was also one of the writ petitioners before  this Court. In that batch of writ petitions this Court rejected  the demand of the petitioners for placement in the scale of  Rs.700-Rs.1600/-. This Court, however, directed that the  Research Associates be allowed a consolidated salary to be  worked out by placing them at a basic salary of Rs.700/- per  month, which was the minimum of the scale of Rs.700-1600.  This Court also allowed monetary benefits in the form of  allowances admissible to regular employees drawing a basic  pay of Rs.700/- per month. It was clarified that the  appointments will continue to be what they were and the  incumbents will not belong to the cadre of Research Assistants  merely because their consolidated salary is ordered to be  worked out on the minimum of the time scale allowed to  Research Assistant. It was further clarified that they will not  be equated with Lectures/Assistant Professors. They were to  continue to carry on the same duties, which they were  carrying out including assisting Assistant Professors. The  benefit of the revised consolidated salary was made available  to them from the date of their appointment as Research  Associates. On behalf of the petitioners it was urged before  this Court that even though they had put in long years as  Research Associates they were still treated as ad hoc  employees with no security of service.  This Court, keeping in  view the plea of the petitioners, observed as follows: -

"We would leave it to the authorities to  consider the feasibility of preparing a scheme  whereunder such research Associates can be  absorbed in the regular cadre of research  Assistants as and when vacancies arise. Since  the educational requirements, process of

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selection and jobs-charts are also identical  such a scheme can be of mutual benefit to the  employees as well as the University, the  employees getting security of tenure and  University getting experienced hands. We  would expect the University to examine the  feasibility of preparing such a scheme at an  early date". Keeping in view the order passed by this Court and on  the recommendation of the Committee constituted by the  Board of Management, the Vice Chancellor was allowed the  UGC pay scales to the appellant.  An undertaking was given  on 27.12.1999 pursuant to the aforesaid order.  Though  initially the appellant was allowed to draw the UGC pay scale,  on 13.1.2003 notice was issued to show cause as to why the  excess payment made was not to be recovered from him.  Notice referred to the order of this Court dated 16.9.1992 by  which it was directed that Research Associates were to be  allowed a consolidated salary to be worked out by placing  them on a basic salary of Rs.700/- per month. It was indicated  that the UGC scale was wrongly allowed to the appellant which  resulted in excess payment. Subsequently, Registrar of the  University informed the Dean, College of law, Udaipur that the  term of temporary appointment to the appellant was not  extended beyond 31.3.2003 as per the decision of the Board of  management.  This order and the show cause notice formed  subject matter of challenge before the learned Single Judge  who as noted above allowed the writ petition. The order was challenged before the Division Bench  which as noted above partly modified the order and held that  regularization was not be granted as claimed but directed that  the appellant’s case was to be considered on following the  criteria as per the applicable rules.  It was further directed  that while subjecting appellant for selection process, pass  service rendered by him was to be given due weightage.  It was  further directed that he was not to be denied regularization on  the ground that he has become overage. But no other relief  was given.

In support of the appeals learned counsel for the  appellant submitted that the High Court did not consider the  effect of the fact that the appellant was highly qualified and  had rendered uninterrupted and unblemished service of more  than a decade.  To deny regularization would be in equitable  and unjust.  It was further submitted that the notice on the  ground that excess payment have been made is without basis.   The conclusion that over payment has been made is really not  correct. This Court’s order is being wrongly interpreted.   A review petition was filed before the High Court which  was dismissed.  But, however, time for compliance was fixed.

Learned counsel for the respondents on the other hand  supported the judgment of the High Court.  

The manner in which the claim for regularization has to  be dealt has been the subject matter of this decision in several  cases. In Secretary, State of Karnataka and Ors. v. Uma Devi  (3) and Ors. (2006 (4) SCC 1), a Constitution Bench of this  Court has considered the matter at great length.  In view of  what been held therein, the conclusions of the High Court in  the matter of regularization suffered from no infirmity.   

The residual question is whether the University’s view  regarding the alleged over payment is correct.  In the order  dated 27.12.1999 it was indicated that the appellant will be

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placed in the pay scale of Rs.8000-275-13500 w.e.f. 1.1.1996.   He was also treated to be entitled in the scale equivalent to  Assistant Professor for the purpose of scale only not for  designation.  This Court in its order dated 16.9.1992 directed  that the consolidated salary be worked out by placing the  petitioners in the scale of Rs.700-1600/- which was the  minimum in the scale and allowing benefits thereof in the form  of such allowance allowed to be a regular employee drawing a  basic pay of Rs.700/- per month.

The order passed by the University was on the basis of  the recommendations of the Committee to pay the UGC pay  scale at a particular scale which was applicable at the relevant  point of time and revised pay scale. That being so, the view  that he had been paid contrary to the order of this Court is not  correct and cannot be maintained.  Accordingly, the notice for  recovery cannot be maintained.  To that extent the appellant is  entitled to the benefit.   

The appeals are disposed of. No costs.