R.S. Mongia, J.@mdashThis writ petition is confined to sixteen petitioners other than petitioners No. 12 and 15, who nave since resigned from
their job as Lecturer.
2. Prior to the reorganisation of the State of Punjab on November 1, 1966, the post of Lecturer in all the Colleges in the erstwhile State of Punjab
was class III post and the appointment/recruitment to the said post was governed by the statutory rules known as Punjab Subordinate Education
Service Rules, 1937 (hereinafter called ''the 1937 Rules''). The Lecturer being a class III post did not fall within the purview of the Punjab Public
Service Commission. On reorganisation of the State of Punjab on November 1, 1966, and on the formation of the U.T. Chandigarh, 1937 Rules
continued to remain in force and operation in the U.T. Chandigarh by virtue of the provisions of Section 88 of the Punjab Reorganisation Act,
1966. Appointments were made in U.T. Chandigarh against the posts of Lecturer under the 1937 Rules on regular basis by treating the post of
Lecturer as class III post. The appointments under the 1937 Rules were made after the same were notified to the Employment Exchange and/or
advertisement in the newspapers. The selection was made by a selection committee constituted under the 1937 Rules consisting of Education
Secretary, D.P.I. (Colleges), Experts in the subject and the Principal of the College concerned.
3. In the State of Punjab, the 1937 Rules were replaced by 1976 Rules and the post of Lecturer under the 1976 Rules was treated as a class II
post. Consequently, the recruitment to the post of Lecturer in the State of Punjab after 1976 was to be made through the Punjab Public Service
Commission. It may be observed here that there was no corresponding amendment by the U.T. Chandigarh and the post of Lecturer continued to
be class III post. Despite this it seems that the U.T. Chandigarh started treating the post of Lecturer to be a class II post even though the Lecturers
thereafter were being recruited following same procedure as in 1937 Rules but in the appointment letters it was being mentioned that the
appointment of the Lecturer was ''ad hoc'' and such an appointment would continue till such time the regular recruitment was made through Union
Public Service Commission (in short ''UPSC'').
4. Some Lecturers who had been appointed in UT Chandigarh during the period 1985 and 1986 filed Writ Petition (Civil) No. 368 of 1987
directly in the Supreme Court under Article 32 of the Constitution of India. The same was titled as Dr. Gagan Inder Kaur and others v. U.T.
Chandigarh and others. Dr. Gagan Inder Kaur and others claimed that though their appointments had been described as ad hoc appointments, yet
they were entitled to be treated as regular Lecturers in the College cadre w.e.f. the date they were recruited and appointed. The writ petition was
allowed by the Apex Court on October 17, 1995. Copy of the judgment has been appended as Annexure P-1 with the written-statement of the
U.T. Before making reference to the judgment of the Apex Court in Dr. Gagan Inder Kaur''s case, it may be observed here that on February 21,
1991, the Chandigarh Administration published in the gazette a notification dated September 14, 1990, notifying Rules whereby the Chandigarh
Administration for the first time declared the post of Lecturer to be class II post with retrospective effect from April 1, 1975. These rules are
known as Chandigarh Educational Service (Group ''B'' Gaz.) Government Arts and Science College Rules, 1990 (hereinafter called 1990 Rules).
Apart from conferring class II status to the post of Lecturer w.e.f. April 1, 1975, the mode of recruitment and qualifications were given in Rule 4 of
the 1990 Rules. After making the 1990 Rules and prior to their publication in the Gazette, a letter dated January 9, 1991, was addressed by the
Education Secretary, Chandigarh Administration, to UPSC wherein after referring to the rules it was stated as under :-
You were earlier requested to consider the cases of rcgularisation of service of the ad hoc Lecturers appointed by the Chandigarh Administration
in various Government Colleges for which this Administration has already placed requisition with your office vide this Administration Letter No.
DP1-UT-C2- 12(170)83 dated 21st April, 1988. A further request was made vide this office letter of Even No. dated 29th November, 1988 for
the relaxation of the age in respect of ad hoc Lecturers to the extent of their service subject to a maximum of 10 years. They were appointed on
the basis of recommendation by Selection Committee which includes an Expert from the Panjab University, Chandigarh. These Lecturers fulfil the
qualifications prescribed by UGC. There are now 123 Lecturers working with the Chandigarh Administration and most of them are working for
the last 6-7 years. A considerable hardship would be caused in case their services are terminated now. Some of them have become overage and
are not likely to get employment elsewhere. You are, therefore, requested kindly to consider the claim of these Lecturers for regularisation of their
services and convey your decision in the matter at the earliest.
5. The aforesaid letter has been noticed by the apex Court in the judgment of Gagan Inder''s case. The Apex Court noticed the argument of the
learned counsel for Gagan Inder and others in the following terms :-
Shri P.K. Goswami, the learned senior counsel ap- pearing for the petitioners, has submitted that since the appointment of the petitioners (and
other persons similarly situate) on the post of Lecturer was made in accordance with the procedure that was followed for regular appointment on
the post of Lecturer under Punjab Rules of 1937, which were in force at that time, the appointment of the petitioners should be treated as regular
appointment even though in the letter of appointment it is described as being ad hoc in nature. In support of this submission, Shri Goswami has also
pointed out that the petitioners have been given salary, increments, housing allowance, housing facilities, medical leave, maternity leave, leave travel
concession, ex-India leave, long leave, earned leave and other pre-requisi-tes/facilities of service while they have been working as Lecturers ever
since appointment. It has also been submitted that many of the Lecturers, who have been described as Lecturers appointed on ad hoc basis, have
been discharging the duties of Head of Department in their respective departments of the colleges in which they are working and are performing
various duties of Registrar (Examination) and others, which posts are meant to be filled by Lecturers with at least 10 years experience. These facts
are set out in the additional affidavit of Kanwaljeet Kaur Dhillon filed on behalf of the petitioners and have not been controverted by the
respondents.
6. The Apex Court after noticing the provision of the 1990 Rules that status of class II post had been conferred on the Lecturers with retrospective
effect from April 1, 1975, held as under :-
In view of the facts mentioned above, it appears that the appointment of the petitioners and other Lecturers in the Union Territory of Chandigarh,
who were appointed on ad hoc basis during the period 1977 till the publication of the 1990 Rules, Ihough described as an ad hoc appointment, is
really an appointment on regular oasis made in accordance with the procedure that was required to be followed for making a regular appointment .
under the Punjab Rules of 1937 which were in force at that time. The said appointments have been described as being ad hoc in nature on the
erroneous impression that consultation with the UPSC was necessary after 1977 for making regular appointment on the post. Since the Punjab
Rules of 1937 had continued in force, consultation with UPSC was not required for the post of Lecturer which continued to be a class HI post till
the publication of the 1990 Rules on February 21, 1991. It is no doubt true that as a result of the retrospective effect given by Rule 1(iii) of the
1990 Rules Class II status (Group B) has been conferred on Lecturers with effect from April 1, 1975 and as a result the post of Lecturer has to be
treated as Class II post with effect from April 1, 1975 and the said post has come under the purview of the UPSC by virtue of the UPSC
(Consultation) Regulations, 1958, which only exclude Class III and IV posts from the purview of the UPSC. The said retrospective amendment
cannot, in our opinion, have the effect of depriving the petitioners of their right of having been sub-stantively appointed on the post of Lecturer prior
to the coming into force of the 1990 Rules on February 21, 1991. Since we are of the opinion that the appointment of the petitioners on the post of
Lecturer was made under the Punjab Rules, 1937, which were in force at that time, and the said appointment, though described as being ad hoc in
nature was a regular appointment, the petitioners and other Lecturers similarly situate would not be affected by the retrospective effect given by
Rules I (iii) of the 1990 Rules so as to require the appointment of the petitioners to be regularised in consultation with the UPSC.
The writ petition is accordingly allowed and it is directed that the appointment of the petitioners and other Lecturers similarly situate who were
appointed prior to the publication of the 1990 Rules on February 21, 1991, though described as being ad hoc in nature shall be treated as a
regular appointment and the said Lecturers shall be given the benefits accruing to them on that basis. We do not express any opinion as regards
appointments on the post of Lecturer that were made after coming into force of the 1990 Rules on February 21, 1991. No costs.
7. Before coming to the facts regarding the petitioners it may be observed here that on December 9, 1990, certain posts of Lecturer were
advertised by the U.T. Administration. The academic qualifications, which were mentioned in this advertisement, were the same as in the 1990
Rules, which were published in the gazette on February 21, 1991. Interviews were held on different dates but for the post of Lecturer in Zoology
and Botany interviews were held on February 23, 1991, and March 10, 1991, i.e., after the publicationof the 1990 Rules in the gazette on
February 21, 1991. All Lecturers selected by the Selection Committee were given appointment after February 21, 1991.
8. By way of different advertisements issued after February 21, 1991, the petitioners were also appointed as Lecturer in different subjects and on
different dates. It is the case of the petitioners that the qualifications which were advertised for the different posts were not the one mentioned in
1990 Rules but were those qualifications which had been recommended by the U.G.C. On being selected after following the same selection
procedure as in Gagan Inder Kaur''s case the petitioners were issued appointment letters. However, in the letters of appointment it was mentioned
that the appointment was on ad hoc basis or till regular appointments were made through the UPSC on regular basis. The letter of appointment of
one of the petitioners (Guneeta Chadha) dated October 11, 1991, has been appended as Annexure P-2. The dates of appointments of the
petitioners and the subject in which they were appointed are mentioned below :-
Petitioner No.1 16.10.1991 Fine Arts
Petitioner No.2 14.10.1991 Defence
Studies
Petitioner No.3 1.12.1992 Physics
Petitioner No.4 7.1.1993 Chemistry
Petitioner No.5 15.1. 1993 -do-
Petitioner No.6 16.1.1993 Sanstrit
Petitioner No.7 -do- Chemistry
Petitioner No.8 -do- -do-
Petitioner No.9 -do- Sociology
Peiitioner No.10 8.2.1993
Petitioner No.11 17.2. 199J English
Petitioner No.13 26. 5. 1993 -do-
Petitionei No.14 2.7.1993 Geography
Petitioner No.16 18.7.1993 English
Petitioner No.17 4.10.1993 Sanskrit
Petitioner No.18 22.3.1994 History
It may further be observed here that on May 17, 1993, the Chandigarh Administration recommended the case of the petitioner for reguiarisation of
services to the UPSC. The recommendations read as under :-
From
The Education Secretary,
Chandigarh Administration.
To
Sh. S.K. Arora,
Under Secretary,
Union Public Service Commission.
Dholpur House, New Delhi.
Dated Chandigarh the 17.5.1993
Sub : Regularisation of ad hoc appointments to the post of Lecturers in various Govt. Colleges under the Chandigarh Administration
Sir,
I am directed to letter No. F-4/32(i)91-AU2 dated 24.9.1991 on the subject cited above and to state that the matter regarding regularisation of ad
hoc appointments to the post of Lecturers in various Govt. Colleges under Chandigarh Administration was referred to the Department of Personnel
and Training, Ministry of Home Affairs, New Delhi vide letter No. DPI-UT-C2-3666- 12(171)84, dated 17.1.1992(copy enclosed). The
Director, Ministry of Personnel, Public Grievance and Pension, Deptt. of Personnel and Training, New Delhi, vide their letter dated 25.2.1992 has
desired to put up the case of regularisation of these Lecturers as one time measure in relaxation of Rules notified on 19.10.1990 (copy enclosed)
before the Union Public Service Commission, New Delhi, for consideration. Accordingly, the case for regularisation of ad hoc lecturers (Group
''B'') who have completed one year service as on 31.3.1993 is submitted narrating the factual circumstances resorting to recruit lecturers on ad hoc
basis in the ensuing paras.
2. The college Cadre Lecturers (Class III) during the year 1967 to 31.3.1975 were appointed on regular basis by the duly constituted Selection
Committee in accordance with the relevant provisions of the Punjab Education Service (Class-III) Rules, 1937 as applicable to Union Territory,
Chandigarh by virtue of Sections 88 and 89 of the Punjab Reorganisation Act, 1966 and in consonance with the Punjab University Regulations.
On revision of pay scales in 1977 and as per U.G.C. pattern adopted by the State of Punjab w.e.f. 1.1.1973, the Govt. of Punjab granted Class II
status of all lecturers w.e.f. 1.4.1975. Accordingly, treating all lecturers as Class II on Punjab Pattern w.e.f. 1.4.1975 no regular appointment of
lecturer was made by the Chandigarh Administration after 1977. In order that the instructional work in the Colleges of Chandigarh Administration
resorted to recruit Class II lecturers on ad hoc basis under Regulation 4 of the Union Public Service Commission (Exemption from Consultation)
Regulations in the public interest at large. All these lecturers used to be appointed during the period from July to September every year for one
academic session were relieved by the end of March/April next year before vacations. The consultation with the UPSC was not felt necessary for
making ad hoc appointments as the period was less than a year.
3. In the year 1983,63 Lecturers filed a writ petition in the Supreme Court of India in its original jurisdiction titled as Sahib Singh and others versus
Union Territory and through its Secretary and others vide C.W.P. Nos. 1551 to 1594 of 1984. The Supreme Court of India passed the order on
13.8.1984 saying that the petitioners who were appointed on ad hoc basis will be continued in service until the Govt. makes regular appointments
on the recommendations of the Union Public Service Commission and in the meanwhile the petitioners will get their salary for the period of
vacations. A copy of the order of the Supreme Court is also enclosed. Further in the case of Mrs. Gagan Inder Kaur and 15 others lecturers in
SLP 8656 of 87, the Supreme Court of India restrained the Chandigarh Administration from terminating the services of the petitioners, a copy of
the Supreme Court order passed in SLP No. 8656 is also enclosed.
4. In line with the above orders of the Supreme Court of India, the Chandigarh Administration has been appointing lecturers on ad hoc basis
against the vacancies of duration of one year or more in the public interest at large and these lecturers arc continuing on ad hoc basis continuously
for the last 1 to 8 years. It is worthwhile to mention here that the case regarding recruitment rules relating to the post of lecturers in Union Territory
Chandigarh had been shuttling between Chandigarh Administration and the Union Public Service Commission till 19.10.1990 when these rules
were notified. These ad hoc lecturers have been appointed by the competent appointing authority on the recommendations of the selection
committee. All these lecturers fulfil the qualifications prescribed by the UGC/Panjab University when they were initially recruited except Mrs.
Sharda Kaushik, Sr. No. 316 who obtained diploma from CIEFL, Hyderabad after joining the Department appointed after giving her relaxation in
age. This Administration placed requisition with the Union Public Service Commission from time to time for advertising the post of Lecturers to be
appointed on regular basis but these were not entertained in the absence of recruitment rules which were notified on 19.10.1990.
5. Obviously, these ad hoc lecturers (Class-11) are continuing as such for more than about 1 to 8 years continuously in view of the ruling of the
Supreme Court of India. Since all these lecturers were appointed by the competent appointing authority on the recommendations of the duly
constituied selection committee as they fulfil Ihe qualifications prescribed by the Punjab Univer-sity/UGC and now most of them have become over
age, it is imperative that the services of all these ad hoc lecturers are regularised as one time measure in relexation of the recruitment rules notified
on 19th Oct., 1990. Accordingly, you are requested to accord necessary approval to regularise the service of all the ad hoc lecturers who have
completed about 1 to 8 years service as a one time measure in relaxation of Chandigarh Education Service (Group B Gazetted) Rules, 1990.
The UPSC, however, did not agree to accept the recommendations of the Chandigarh Administration.
9. The petitioners filed OA No. 620/CH/97 before the Central Administrative Tribunal, Chandigarh Bench, for getting the same relief as was
granted to Gagan Inder Kaur and others by the Apex Court vide judgment dated October 17, 1995, to which detailed reference has already been
made above. The following reliefs were sought by the petitioners before the Central Administrative Tribunal :-
(i) to regularise their appointment 10 the post of Lecturers (College cadre), Union Territory Chandigarh from the date of their appointment;
(ii) To quash the rules known as Chandigarh Educational Services (Group B Gazetted), Government Arts and Science College Rules, 1990, as
notified in Chandigarh Administration Gazette Extraordinary dated 21.2.1991 in accordance with the orders passed by this Tribunal in the case of
Sapna Nanda in OA No. 267-CH of 1991 vide order dated 1.2.1994 being violative of the guidelines issued by the Govt. of Indiaand the
qualifications laid down by the University Grants Commission.
(iii) To direct the respondents to apply the Punjab Rules of 1937 to the applicants and all those appointed till the matter regarding amendment of
the recruitment rules as directed by this Tribunal in the case of Sapna Nanda stands finalised.
The Original Application was dismissed vide order dated April 2, 1998, copy Annexure P-15. Hence the present writ petition.
10. Before noticing and dealing with the arguments of the learned counsel for the parties, it will be apposite to notice some more facts. In terms of
judgment of the Apex Court in Gagan Inder Kaur''s case (supra), the U.T. Administration vide order dated January 25, 1996, regularised the
services of as many as 117 ad hoc Lecturers who were appointed prior to the coming into force of the 1990 Rules. However, eight Lecturers,
who were appointed after February 21, 1991 (after the 1990 Rules were published) but in whose cases the process of selection had been initiated
prior to the publication of 1990 Rules on February 21, 1991, made representation and the U.T. Administration vide order dated December 9,
1996, copy Annexure P-7, regularised their services also in consonance with the judgment of the Apex Court in Gagan Inder Kaur''s case (supra).
The eight Lecturers were regularised w.e.f. the dates of their initial appointments. The dates are as follows :-
S.No. Name of Lecturer Subject Date of reglarisation
1. Smt. Sushma Gupta, GCG- Zoology 28.2.1991
42. Chandigarh
2. Smt. Rcwa Sharma, GCG- -do- 27.2.1991
42. Chandigarh
3. Smt. Deepika Kansal Chemsitry 28.2.1991
GCG-42. Chandigarh
4. Smt. Monica Vi. GCG Sociology 27.2.1991
M.Chandigarah
5. Smt. Ranjna Shanna. Govt. Rotany 16.3.1991
Home Science College,
Sector-10,Chandigarh
6. Smt. Sapna Malhotra. Hindi 22.8.1991
GCG-42. Chandigarh
7. Smt. Narinder Kaur. -do- 27.9.1991
GCG-42.Chandigarh
8. Sh. Rajinder Pal Singh. Hindi 30.12.1991
GCG-42. Chandigarh
It would be seen that Rajinder Pal Singh had even joined after petitioners No. 1 and 2, Guneeta Chad ha and Satyavir Singh, in the present case.
11. One Mrs. Madhurima Sharma, a Lecturer in Zoology, had been working in that capacity since January 26, 1991. She filed O.A. No.
400/CH/97 before the Central Administrative Tribunal that she should be regularised as Lecturer from the initial date of appointment. She was also
claiming regularisation on the basis of judgment in Gagan Inder Kaur''s case of the Apex Court. It may be noticed that U.T. Administration while
passing the order dated December 9, 1996, copy Annexure P-7, regularising eight persons had left her out. The stand of the respondents before
the C.A.T. was that Mrs. Madhurima Sharma had not been regularised with other similarly placed eight persons (who were regularised vide
annexure P-7) because the appointment of other eight persons was against advertised posts out of which only two were for the department of
Zoology. The Selection Committee had prepared a panel of three names in which Madhurima Sharma was place at Sr. No. 3. The U.T.
Administration had appointed the first two persons against the advertised posts and the applicant Madhurima Sharma had been appointed against a
leave vacancy on February 25, 1991. On these grounds, the U.T. Administration sought to non-suit Mrs. Madhurima Sharma. Mrs. Madhurima
Sharma had contended before the Tribunal that original order of appointment did say that she was being appointed against a leave vacancy but on
her representation the Administration realised its mistake. Apart from two vacancies in Zoology in Government College, Sector 42, Chandigarh,
there was one vacancy in existence in the Government College, Sector 11. Another order was issued one month later i.e. on March 25, 1991, in
which the words leave vacancy were deleted. While repelling the argument of the Administration, the Tribunal vide its judgment dated December
9, 1997, copy annexure P-9, held as under :-
7. We do not find it possible to accept the contention of Respondents that even though a substantive vacancy existed since 3.4.1990, yet the
applicant cannot be regularised along with other eight candidates only because the initial letter issued on 25.2.1991 (Annexure A-2) is against a
leave vacancy. It is despite the fact that the Chandigarh Administration issued a subsequent letter one month later on 25.3.1991 (Annexure A2/A)
deleting the word leave vacancy from the order. We find that the case of the applicant is not different from the other persons who were regularised
by the Respondents by order dated 9.12.1996 (Annexure A-8). Shri Sethi, Advocate for the respondents urged that since the initial appointment
was against the leave vacancy, its character could not change subsequently and the applicant was not entitled to regularisation alongwith the eight
other persons as the appointment was after the cut off date of 21.2.1991. We are unable to accept this distinction when the recruitment of the
applicant was from the same advertisement by same Selection Committee and she was appointed though against a leave vacancy, but there was a
post existing since 3.4.1990. The respondents have not rebutted this averment of the applicant either by filing documents or by production of
original records before us. Moreover, as already discussed above, the respondent Administration by an order issued one month later i.e. on
25.3.1991 (Annexure A2/A) in continuation of '' their letter Annexure A-2 and on the representation of the applicant made the appointment
temporary and ad hoc"".
8. In these circumstances, me application is allowed with a direction to the Respondents that they will extend to the applicant the same benefit as
extended to the other eight persons by their order dated 9.12.1996 (Annexure A-8). This order will be complied with within a period of three
months from the date of receipt of its order.
12. As mentioned in the earlier paragraphs, before the 1990 Rules were published in the Government gazette on February 21, 1991, The
Chandigarh Administration had issued an advertisement on December 9, 1990, for recruitment to the posts of 17 Lecturers in different subjects,
two of them were for recruitment as Lecturers in the Home Science. One Mrs. Sapna Nanda filed Original Application No. 267 of 1991 in the
Chandigarh Bench of C.A.T. challenging the said advertisement and the selection made pursuant thereto on the ground that the qualifications
prescribed for the post of Lecturer in the advertisement were against the UGC guidelines duly adopted by the Government of India and the UT
Administration. She had also challenged the Notification dated February 21, 1991, promulgating the 1990 Rules on the ground that the
qualifications prescribed in the Notification were those which had been advertised on December 9, 1990, but the same were against the UGC
guidelines. That OA was allowed by the Bench of the CAT on February 1, 1994. Copy has been appended as Annexure R-2 with the written-
statement. It may be observed here that the qualifications which were mentioned in the 1990 Rules and the one recommended by the UGC were
different. The advertisement dated December 9, 1990, as also the Notification dated February 21, 1991, publishing the 1990 Rules were set aside
in the following terms :-
8. In the light of what is stated above, we have no hesitation in corning to the conclusion that the impugned advertisement which appeared in The
Tribune dated 9.12.1990 (Annexure P-1) was not in conformity with the instructions of the Chandigarh Administrative itself as conveyed to the
Director Public Instructions (Colleges), Chandigarh Administration by the letter dated 26.2.1990. (Annexure P-5) and as such was legally not sus-
tainable. Therefore, this advertisement has to be quashed and consequently, the selection made in pursuance of that advertisement cannot be
sustained. However, we would not like to pass any orders for taking the benefit granted to one of the two se.lectees who has served for a few
months till he resigned in August, 1991 after his selection in February/March, 1991. Similarly, the Recruitment Rules, notified on 19.10.1990 as at
Annexure P-2 insofar as these do not prescribed qualifications for recruitment to the post of Lee- turer as per guidelines issued by the UGC and
conveyed by the Govt, of India and adopted by the Chandigarh Administration and as finally adopted by the Panjab University in the circular dated
18.5.1990 (Annexure P-5) have to be held to be arbitrary and to that extent these rules are quashed. Here it may be mentioned that the
notification dated 19.10.1990 (Annexure P-2) by which Recruitment Rules were notified, was published in the Chandigarh Administration Extra
Ordinary Gazette only'' on 21.2.1991. It is well settled that any Rules notified under proviso to Article 309 of the Constitution of India in the
absence of any statute on the subject passed by the Parliament or the State Legislature as the case may be, are issued under the plenary powers of
the Executive and have as such the force of Law. Such a notification unless published in the Govt. Gazette does no! come into force. Even on this
count, the interviews held on 19.12.1990 prior to the publication of the Notification containing the Recruitment Rules on 21.2.1991, cannot beheld
to be legally sustainable.
9. In the light of the foregoing discussion, the OA is allowed in terms of the following direclions :-
(i) The advertisement which appeared in The Tribune dated 9.12.1990 (Annexure P-1) insofar as it relates to prescribing qualifications for the
post of Lecturer in Home Science is quashed and consequently, the selection made pursuant to this advertisement on the basis of interviews held
on 19,2,199! is also quashed without, however, affecting the appointment of one of the Lecturers in Home Science who functioned on selection as
such from Feb/March, 1991 till he resigned on 8.8.1991.
(ii) The Chandigarh Educational Service (Group B gazetted) Govt. Home Science College Rules, 1990 issued by Notification dated 19.10.1990
and published in the Gazette Extraordinary of Chandigarh Administration on February 2i, 1990 (Annexure P-2) are quashed insofar as the
qualification prescribed for recruitment to the post of Lecturer e.g. Lecturer, Home Science, does not prescribe the qualification as laid down by
the Panjab University in its circular dated 18.6.1990 (Annexure P-4), as extracted in para 5 at page 8.
(iii) The respondents are directed to hold selection for the post of Lecturer Home Science (College Cadre) Chandigarh Administration provided,
of course, that both the posts for which the selection was held in February, 1991 are lying vacant, on the basis of fhe qualifications prescribed by
the Panjab University in the circular dated 18.6.1990 (Annexure P-4) by necessary amendment in the Recruitment Rules referred to above as
expedi-tiously as possible. We were informed by the learned counsel for the respondents that the proposals to amend these Rules on this point
were sent to the Govt. of India about six months back. We, therefore, do hope that the decision of Ihe competent authorities and the issue of the
revised Notification should not now take more than 6 to 8 weeks.
(iv) If the applicant applies forthe selection to be held as in (iii) above, and if by that time she crosses the maximum age which may be prescribed in
the relevant rules, her application shall not be rejected on the basis of over- age, if she was within the prescribed age limit when she was
interviewed for the selection held in February, 1990.
13. Though vide the aforesaid judgment the advertisement dated December 9, 1990, and the Notification dated February 21, 1991, publishing the
1990 Rules were quashed to the extent it laid down Ihe qualifica-lions for the post of Lecturer in Home Science only but qualifications of Lecturers
in other subjects also suffered from the same vice as Ihe guidelines of the UGC regarding qualifications had not been incorporated in the Rules. The
UT Administration vide Notification dated December 22,1997, published in the official gazette on January 1,1998, amended the Rules purporting
to bring the qualifications of Lecturer in different subjects in conformity with the UGC guidelines. This amendment was again challenged before the
C. A.T. by one Gian Chand vide OA No. 93-CH of 1999. The same was decided on May 5, 1999, in the following terms :-
11. In the result, we allow this OA; quash the Recruitment Rules (Annexure A-2) to the extent whereby they do not include the requirement of
''good academic record'' as one of the criteria for appointment to the post of Lecturer. Resuitantly, the requisition/advertisement (Annexure A-12)
dated 10-16.4.1999 issued by the Chandigarh Administration to the UPSC stand quashed to that extent. Accordingly, the respondents are
directed to take necessary action in the matter of recruitment to the post of Lecturer by incorporating in the said Rules (A-2) Ihe eligibility criteria
in all respects as prescribed by Ihe UGC including the ''good academic record'' and to consider all those candidates including the applicant who
fulfil the eligibility criteria in terms of the UGC guidelines.
No costs,
14. It may be observed here that pursuant to the aforesaid judgment of C. A. T., the U.T. Administration had further amended the Rules vide
Notification dated January 17, 2000, published in the Chandigarh Administration gazette dated February 1, 2000.
15. The following points were raised by the learned counsel for the petitioners :-
(i) The posts against which the petitioners were appointed on the dates mentioned in the earlier part of the judgment were vacant prior to the
promulgation of the 1990 Rules on February 21, 1991. These vacancies were required to be filled by the Rules earlier in force, i.e. 1937 Rules
and consequently the petitioners case is covered by the judgment of the apex Court in Gagan Inder Kaur''s case (supra).
(ii) The petitioners have been discriminated by not regufarizing them when Lecturers similarly situated who were appointed on ad hoc basis after
February 21, 1991, had been regularised vide order dated December 10, 1996, copy annexure P-7. on the basis of the judgment in Gagan Inder
Kaur''s case. Similarly the C.A.T. had also ordered the regularisation of one Madhtirima Sharma who had been appointed after February 21,
1991.
(iii) That the 1990 Rules had been struck down by the Central Administrative Tribunal regarding the qualifications and unless the qualifications
were amended, the Rules had become unworkable and in the eyes of law were a dead letier. In the absence of the 1990 Rules, the appointment to
the post of Lecturer was required to be made under 1937 Rules.
16. Learned counsel for the petitioners or point No. 1 submitted that it was specifically pleaded before the C.A.T. and it has also been pleaded in
this writ petition that the posts against which the petitioners had been appointed as Lecturers were vacant prior to February 21, 1991, i.e. prior to
the promulgation of the !990 Rules. This has not been denied by the respondents. Learned counsel drew our attention to paragraph 5(x) of the
Original Application filed before the C.A.T. in which the following averments were made :-
That it is evident from the annexure that there were 370 sanctioned posts of the U.T. Administration for the post of Lecturers in Arts and Science
Colleges under the Education Department. These posts of 370 existed prior to the 1990 Rules and date of notification, i.e., Feb., 1991. Hence
these posts were regular posts and the appointments against them were, therefore, regular. The petitioners have also been appointed against these
very posts which existed prior to 1990 Rules. Hence the Rules 1937 are applicable to these 370 posts which existed prior to the coming of the
1990 Rules. In any case these 1990 Rules cannot be enforced as the same have yet to be amended.
The following reply was given by the Administration to the aforesaid averment :-
In reply to para it is stated that with corning into force of recruitment rules notified on 21.2.1991, the posts are to be filled in accordance with the
provisions of rules as amended from time to time. This has no relevance to the plea that old posts arc to be covered under old rules. As already
submitted, University Grants Commission/Panjab University can amend the qualifications at any time and with the change of qualification, status of
applicants cannot be changed and for all intents and purposes, they are Gazetted Group-B,
17. In this writ petition, the following averments have been made by the petitioners in paragraph 12(iv):-
(iv) That further it is submitted that it was specifically averred by the petitioners in para 5(x) of OA that the posts against which they were ap-
pointed/recruited were in existence prior to the publication of 1990 Rules on 21.2.1991. This fact was not denied by the Administration in its reply.
It is now settled that the qualifications/conditions for recruitment which were applicable at thai time when the vacancies came into existence are to
apply to those vacancies. At the relevant time, 1990 notification did not exist. Therefore, on this ground also since the posts were in existence,
prior to the enforcement of 1990 Rules would also be governed under the 1937 rules and the 1990 rules cannot be applied to those posts.
Therefore, on this ground also, the petitioners are entitled to regularisation;
Reply of the Administration to the aforesaid averment is as follows :-
12(iv) That in reply to this sub-para, it is stated that with the coming into force of recruitment rules notified on 21.2.1991, the posts are to be filed
in accordance with the provision of rules as amended from time to time. This has no relevance to the plea that old posts are to be covered under
old rules. As already stated, the University Grants Coinmission/Panjab University can amend at any time the qualifications and the status of
petitioners cannot be changed and for all intents and purposes they are Gazetted Group-B.
18 Learned counsel argued that from the above averments it is clear that the posts against which the petitioners were appointed were in existence
and vacant prior to February 21, 1991, when the ! 990 Rules were promulgated and consequently, these posts had to be filled as per 1937 Rules
which were in existence prior to February 21, 1991. In support of his contention, learned counsel cited two judgments of the apex Court reported
as Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, , and P. Ganeshwar Rao and others v. Stale of Audhra Pradesh and others,
Judgments Today 1988(3) SC 570. On the other hand learned counsel for the respondents argued that the posts having been filed after the
promulgation of the 1990 Rules on February2l, 1991, and the process of filling these posts also having started after February 21, 1991, the posts
had to be filled as per the 1990 Rules and, therefore, petitioners, were rightly appointed on ad hoc basis till regular appointments through the
UPSC.
19. After hearing learned counsel for the parties on this point, we are of the view that there is substance in the argument of the learned counsel for
the petitioners. From the averments above, it is evident that there is no denial on the part of the Administration that the posts against which the
petitioners were appointed were in existence and vacant prior to February 21, 1991, i.e. promulgation of 1990 Rules. In Y.V. Rangaiah''s case
(supra), the Apex Court in para 9 of the judgment observed as under :-
.....The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by
counsel for both the parties that henceforth promotion tc the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis
and not on the Statewide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that
occur prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed
by the old rules and not by the new rules.
20. Similarly in P. Ganeshwar Rao''s case (supra) it was held that the vacancies which were in existence prior to the amendment of the Rules for
direct recruits had to be filled by following the unamended rules. That being the position, according to us. the petitioners'' recruitment having been
done by following the due procedure under the 1937 Rules (which is not disputed), the petitioners'' appointments for all intents and purposes were
regular in nature. In the appointment letter, the mention of the word ""ad hoc"" was a misno-mer and under the erroneous belief that to such
vacancies Ihe 1990 Rules were to be made applicable. According to us, the case of the petitioners is no different than the law laid down in Gagan
Inder Kaur''s case. In our view, the date of appointmenl would not matter but the date of occurrence of vacancy would be Ihe sine qua non. The
petitioners are eniitled to be considered regular from the date of their appointment.
21. Learned counsel for the petitioners on point No. (ii) argued that pursuant to Ihe judgment of the Apex Court in Gagan Inder Kaur''s case, eight
Lecturers whose names have already been given above were regularised vide order dated December 9,1996, copy an-nexure P-7, w.e.f. the date
of their initial appointment. These eight Lecturers had also been appointed after February 21, 1991, i.e. the promulgation of the 1990 Rules.
Similarly, the Central Administrative Tribunal had allowed the O.A. of one Mrs. Madhurima Shanna though she had also been appointed after
February 21, 1991. The petitioners had also been appointed after February 21, 1991, therefore, they could not be treated differently then the
Lecturers mentioned in Annexure P-7 as also Mrs. Madhurima Sharma. It was further argued that in 1988 as well as in 1993, the Chandigarh
Administration itself had recommended to the UPSC for regularising the petitioners. Communications of the years 1991 and 1993 have already
been reproduced above.
22. On the other hand learned counsel for the respondents argued that in case of the Lecturers mentioned in Annexure P-7 their process of
selection and recruitment had commenced before the promulgation of the Rules on February 21, 1991. Similar is the case of Madhurima Sharma.
Therefore, the petitioners cannot equate their cases with the aforesaid Lecturers. So far as recommendations of the Chandigarh Administration are
concerned, learned counsel submitted that despite the recommendations having been made, the UPSC did not agree to regularise the petitioners.
23. After hearing learned counsel for the parties we are of the view that merely because process of selec- tion and recruitment in case of Lecturers
mentioned in Annexure P-7 and Madhurima Sharma had started prior to February 21, 1991 (the date of promulgation of 1990 Rules), according
to us, would not make any difference. The appointments in both the cases were made afier the promulgation of the Rules. In our view the sine qua
non is the date of the vacancy. As per the judgments of the apex Court referred to in point No. (i). the posts which are vacant prior to the
amendment of the Rules have to be filled by the unamended Rules. In these circumstances as to when did the process of recruitment started pales
into insignificance. The petitioners were entitled to be regularised in the same terms as Lecturers in Annexure P7 (supra) as also Madhurima
Shanna. Apart from this the petitioners are working as Lecturers for the last about seven to nine years and have become over age now.
24. So far as point No. (iii) is concerned, we have already referred to details as to how and to what extent the Central Administration Tribunal had
quashed the 1990 Rules. There is no doubt that so far as laying dawn of the qualifications in the 1990 Rules are concerned, the same were
quashed twice by the C.A.T. firstly in Sapna Nanda''s case on February 1, 1994, and after the amendment was brought about again on May 5,
1999, in Gian Chand''s case (supra). Now the Rules have again been amended on January 17, 2000, vide notification dated February 1, 2000.
For the view we have taken on points No. (i) and (ii), we refrain ourselves from finally opining on this point though prima facie we are of the
opinion that in view of the judgment of the Apex Court in State of Sikkim Vs. Dorjee Tshering Bhutia and others, in the absence of
Disqualifications having been laid down by the Rules or by executive instructions, the 1990 Rules cease to be workable. However, as observed
above, we are not finally opining on this point.
25. For the foregoing reasons, we allow this writ petition, set aside the order of the Central Administrative Tribunal dated April 2, 1998, copy
annexure P-15, and hold that the petitioners are to be treated as having been regularly appointed as Lecturer with effect from the dates of their
initial recruitment with all consequential benefits. There will be no order as to costs.
26. Petition allowed.
