Polu Ram And Another v. State Of Haryana And Another

G.S Singhvi, J.:— The petitioners, who are working as Lecturers, Masters/Mistresses Classical & Vernacular Teachers and J.B.T Teahcers, have filed these petitions for quashing the terms and conditions of the letters/orders by which the have been appointed on different posts. They have also prayed for issuance of a direction to the respondents to pay them salary in the regular pay scales and to allow them to continue in service till regular appointments are made in accordance with law.

2. In order to appreciate the contentions of the petitioners in a correct prospective, it will be useful to notice some common facts which will throw light on the background in which the petitioner's were appointed on different posts.

3. The petitioners were appointed on the posts of Lecturers, Master/Mistresses and Classical & Vernacular Teachers which were sanctioned/available in the Education Department, Haryana the details of which, as disclosed by the respondents, are given below:—

(1) LECTURERS Sr. No. SUBJECT POST AVAILABLE APPOINTMENT MADE ON CONTRACTUAL BASIS 1. ENGLISH 66 66 2. HINDI 84 84 3. HISTORY 110 110 4. POL. SCIENCE 86 86 5. PHYSICS 32 32 6. ECONOMICS 54 54 7. MATHEMATICS 61 61 8. COMMERCE 60 60 9. SANSKRIT 39 39 10. GEOGRAPHY 13 13 11. SOCIOLOGY 24 24 12. PUNJABI 22 22 13. HOME SCIENCE 26 26 14. FINE ARTS 01 01 (2) MASTERS/MISTRESSES 1. S.S 1100 854 2. SCIENCE 566 413 3. MATHEMATICS 476 348 4. HOME SCIENCE 37 06 5. MUSIC 03 03 (3) CLASSICAL & VERNACULAR TEACHERS 1. HINDI 486 325 2. SANSKRIT 840 506 3. PUNJABI 281 143 4. P.T.I 371 152 5. ART & CRAFT 455 170

4. These figures have been incorporated in the memo No. 4/25-98 Co-ordination (1) dated 20.3.1998 sent by the Director, Secondary Education, Haryana to the Advocate General, Haryana with reference to the letter's Memo No. 6164 dated 2.3.1999 The relevant extract of memo dated 20.3.1998 is reproduced below:

Reference your Memo No. 6164 dated 2.3.1998 on the subject cited above.

The requisite information regarding number of posts sanctioned/available for recruitment against which appointments were made for 89 days on direct basis is supplied as attached.”

5. It also appears that in pursuance of the requisitions sent to it, the Haryana Subordinate Services Selection Board (re-named as Haryana Staff Selection Commission) has made recommendations to the competent authorities for regular appointment of teachers on different posts. The detailed figures of the selection made by the Staff Selection Commission have also been placed before us by the Deputy Advocate General. The same are extracted below:—

Punjabi Teachers. Sanskrit Teachers Art & Craft Teachers. Hindi Teachers. 469 712 118 82

6. During the course of hearing of these petitions, learned Advocate General stated before the Court that for past some years, regular appointments have not been made against the sanctioned vacant posts and, therefore the government had to devise an appropriate mechanism for making temporay/ad hoc/contractual appointment. A perusal of the record of these petitions reveals that in the year 1996-97, a large number of teachers were appointed for fixed term of 89 days. They were given contractual appointment on consolidated salary of Rs. 3500/- or so. Some of them challenged the termination of their service/non-extension of the tenure of their appointments on the ground of violation of Articles 14 and 16 of the Constitution and arbitrariness. While declining to nullify the termination of the services of the petitioners in C.W.P No. 3411 of 1997 Anil Kumar… v. State Of Haryana…. decided on 11.3.1997, a Division Bench of this Court made the following observations:—

“Ordinarily we would have examined the constitutionality and the propriety of the policy adopted by the government of giving contractual appointment to the teachers and limiting such appointment to 89 days speriod in the context of the nature of job required to be performed by the teachers but keeping in view the fact that the posts of Masters/Teachers against which the petitioners were appointed/have been appointed were not advertised/publicised and opportunity of selection was not afforded to a large number of eligible persons, we do not consider it proper to exercise out extraordinary jurisdiction for issuance of a direction which will be contrary to the law laid down by the Supreme Court in the Excise Superintendent Malkapatnam, Krishna District, Andhra Pradesh v. K.B.N Visweshwara Rao, JT 1996 (9) S.C 638 : [1996 (3) SLR 649 (SC)].

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7. Nevertheless we consider it necessary to observe that the methodology of giving contractual appointment for a limited period of 89 days should be reconsidered by the government in the light or the nature of work which is required to be performed by teachers. The element of continuity of teachers-taught relation is extremely important. Long association between the teachers and the students not only inculcate a Sensed of discipline in the institution but also enhances the quality of education. By engaging teachers for 89 days period and that too on contract basis, the government has introduced an element of uncertainty in the minds of those who are given such appointment and it is quite reasonable to take the view that such appointees cannot serve the purpose of providing effective education to the students. This may ultimately affect the future generation of the country, and it may not be possible to repair the damage caused to the system of education.

8. We, therefore, dispose of these writ petitions by directing the government to reconsider the desirability of giving contractual appointment to the Masters/Teachers for limited period of 89 days instead of appointing them in regular pay scale and allowing them to continue till the end of academic session or till the availability of regularly selected persons. We further direct the respondents to take effective steps to make regular recruitmnt against the existing posts of Masters/Teachers through the agency of the Subordicate Services Selection Board/others selecting bodies. We further direct that if regularly selected candidates are not available before the commencement of next academic session and it becomes necessary for the government to make temporary/adhoc appointments then appropriate requisitions should be sent to the employment exchanges concerned and the posts should also be advertised so as to give opportunity to the petitioners and other eligible candidates to compete for selection.”

9. Likewise, in C.W.P No. 1559 of 1997 Dr. Gulshan… v. The State Of Haryana…. decided on 21.5.1997 along with three other petitions, this Court, while refusing to nullify the action of the government to engage teachers on contract basis in that particular case, adversely commented upon the methodology of contractual engagements by making the following observations:—

“…. In its very nature the profession of teaching requires a close rapport between teachers and students. Continuity of relationship between the teachers and the taught is must for effective and useful education. Frequent change of the teachers or break of continuity of relationship between teachers is fraught with grave danger to the system of education. Therefore, in normal circumstances, the Court would deprecate the practice of making contractual appointments of Lecturers et cetera even though regular post is available and the employer and the Government are in need of teachers.”

10. It appears that keeping in view the observations made by the Court while declining interference in the case of Anil Kumar and Dr. Gulshan Kumari, the respondents issued public notices on 19.8.1997 and 29.8.1997 inviting applications for appointment of Lecturers, Master/Mistresses and Teachers on consolidated salary of Rs. 5000/- per month (for Lecturers), Rs. 3500/- per month (for Masters/Mistresses and C. & V. Teachers) and Rs. 2000/- per month (for J.B.T Teachers). In these advertisements, the respondents had indicated that the appointment will be on contract basis for 89 days. The petitioners and others who applied in pursuance of the advertisements issued by the respondents were interviewed by the Selection Committees constituted for the purpose and on the recommendations made by the Selection Committees, they were appointed on the posts of Lecturers, Masters/Mistresses, C. & V. Teachers and J.B.T Teachers on consolidated salary mentioned above.

11. We shall now briefly notice the facts of each petition:—

C.W.P No. 18835 of 1997

12. Polu Ram and Surinder Singh were appointed as Science Master and S.S Master respectively in September, 1997 on a consolidated salary of Rs. 3000/- per month for a period of 89 days. The orders of their appointment contained a stipulation that the employer could terminate their tenure at any time without assigning any reason. They are aggrieved by the action of the respondents to limit the tenure of their appointment to 89 days and to pay them fixed salary instead of paying them salary in regular time scale. The petitioners have averred that even though regular selections have not been made by the respondents through the agency of the Subordicate Services Selection, Board, by incorporating wholly arbitrary, unreasonable and unconscionable conditions of service, the respondents are threatening termination of their services. The petitioners have also averred that the quantum of work done by them as well as their duties and responsibilities are same as that of the regular masters, but they are being deprived of regular pay scale without any rhyme or reason and in this manner they are being denied the benefit of the doctrine of equal pay for equal work.

13. The respondents have relied on the judgment in Anil Kumar's case (supra) to justify the methodology of the contractual appointment. In the written statement filed by them through Shri Raj Kumar, Assistant Director, Co-ordination, the respondents have averred that the petitioners cannot challenge the terms and conditions of their appointment and they are not entitled to be appointed on regular basis.

C.W.P No. 19066 of 1997

14. Ram Krishna Srivastava and others are working as Lecturers/Masters/Mistreses/Classical & Vernacular Teachers. They were appointed on the basis of the selection made from among those who had applied in pursuance of the advertisements issued by the respondents. The averments made in paragraph 9 of the writ petition filed by them show that the respondents had adopted the following criteria for appointment of ad hoc teachers:

CRITERIA FOR APPOINTMENT OF ADHOC TEACHER

1. For appointment to the post of Master: Qualification 1st Class 2nd Class 3rd Class Total Marks B.A/B. Sc 25 15 10 25 B.Ed 7-½ 5 3 7-½ M.A (only one) 5 3 1 5 M. Phil 5 3 I 5 Marks fixed for interview 7−½ ……… 50 2. FOR SANSKRIT TEACHERS Shastri 25 15 10 25 O.T 7-½ 5 3 7-½ B.A 5 3 3 5 M.A (Sanskrit) 5 3 1 5 Marks fixed for interview 7−½ 50 3. FOR HINDI TEACHERS Prabhakaar 25 15 10 25 O.T 7-½ 5 3 7-½ B.A/M.A (Hindi) 5 3 1 5 Interview 7-½ 50 4. FOR ART AND CRAFT TEACHER Matric 20 10 5 20 Diploma 15 10 5 15 B.A 2-½ 2 1 2-½ Higher qualification in Art & Craft 5 3 1 5 Interview 7-½ 50 5. FOR P.T.I Matric 15 10 5 15 C.P.Ed 17-½ 10 5 17-½ Higher Education in Phy. Education 5 3 1 5 Interview 7-½ 50

15. Note:— Apart from this no marks have been given for experience, sports, cultural activities, etc.

16. They have challenged the terms and conditions incorporated in the letters/orders of appointment by dubbing the same as arbitrary, oppressive, unreasonable, unconscionable and violative of Articles 14 and 16 of the Constitution of India. They have also pleaded that the payment of fixed salary is not only discriminatory vis-a-vis regularly appointed Lecturers, Masters, Language Teachers etc. but also vis-a-vis Instructors appointed in the Industrial Training Institutes by following identical methods. The petitioners have asserted that the Instructors are being paid salary in the regular pay scale but similar benefit has not been given to them.

17. The reply filed by the respondents is similar to the one filed in C.W.P No. 18835 of 1997. The only additional point raised in the written statement is that the process of regular selection has already been initiated and as soon as the regularly selected candidates become available, the respondents will replace the contractual appointees. The justification offered for not paying the salary to the petitioners in accordance with the doctrine of equal pay for equal work embodied in Article 39(d) of the Constitution is that being fixed term appointees, the responsibility of the petitioners are less andthey cannot be made accountable for academic achievements and examination results and also that they were not assigned duties like, collection of fee, funds collection etc. which are assigned to the regular teachers.

C.W.P No. 19144 of 1997

18. Devender Singh and others are working as Lecturers in different subjects in Government Senior Secondary Schools in Districts Hisar, Bhiwani, Fatehabad, Kaithal, Jind, Rohtak, Mohindergarh, Kurukshetra, Gurgaon and Yamuna Nagar. They too were appointed by the mechanism of contractual engagement after being selected on the basis of the interviews held by the Selection Committees in pursuance of the advertisements issued by the respondents. The petitioners have made reference to the letter No. 12/46/97-Edu.II(3) sent by the Financial Commissioner and Secretary to Government, Haryana Education Department to the Director, Secondary Education Haryana conveying upgradation of 330 Govt. schools and creation of 2835 various posts on plan side and 126 posts of Principals by upgradation from those of Head Masters on non-plan and for incurring expenditure amounting to Rs. 10,72,62,800/- on plan side and Rs. 11,70,000/- on non-plan side. The grounds on which the petitioners have challenged the terms and conditions incorporated in the letters/orders of their appointment are similar to those contained in C.W.P Nos. 18835 and 19066 of 1997. Likewise, the written statement filed in this petition is similar to the written statements filed in the above mentioned writ petitions. Therefore, it is not necessary to make detailed reference to these pleadings.

C.W.P No. 19138 of 1997

19. Rakesh Kumar Sharma and others who are working as Lecturers, Masters and Teachers, have filed this petition for quashing of the condition No. 1 of the appointment letters issued by the respondents No. 3 and 4 on the ground similar to those set out in C.W.P No. 18835 of 1997. The defence of the respondents is similar to their defence in the aforementioned writ petitions.

C.W.P No. 19308 and C.W.P No. 19309 of 1997

20. C.W.P No. 19308 of 1997 filed by Surjit Singh and others who are working as Lecturers and C.W.P No. 19309 of 1997 filed by Shis Pal and others who are working as Masters/Mistresses and Language Teachers, contain pleadings similar to those in C.W.P No. 1885 of 1997. Written statement filed by the respondents is also similar to the one filed in C.W.P No. 18835 of 1997.

C.W.P No. 267 of 1998

21. This petition has been filed by Parmod Singh and others who are working as Lecturers, Masters and Language Teachers. They too are aggrieved by terms and conditions contained in the letters of appointment. They have also prayed for quashing of the terms and conditions incorporated in the appointment letters and for directing the respondens to pay them salary in the regular pay scales. The respondents have justified the fixed term contractual appointment on fixed salary on the ground that the work and duties of the petitioners are not similar to those of regular appointments and also on the ground that the contractual appointments were made with a view to meet the emergent situation created due to non-availability of the regularly selected persons.

22. C.W.P Nos. 288, 1887, 4077, 4285, 4319, 4324, 4658, 4715 and 5027 of 1998 have been filed with more or less similar facts and identical prayers. Therefore, it is not necessary to give details of the pleadings.

23. Having noticed the relevant facts we shall now deal with the contentions urged by the learned counsel. At the threshold, we deem it appropriate to dispose of an objection raised by the respondents to the maintainability or the writ petitions on the ground that having accepted the terms and conditions on which they were offered employment, the petitioners cannot challenge the same by way of writ petitions. Learned Advocate General argued that after having accepted fixed term contractual engagement, the petitioners are estopped from challenging the terms and conditions of the letters/orders by which they were appointed/engaged and they do not have the right to be continued in service till the availability of the candidates selected by the Staff Selection Commission. Learned Advocate General submitted that the government had to resort to the methodology of contractual appointments in order to meet the situation created due to non-availability of regularly selected persons. He further submitted that due to non-finalization of rules and the litigation pending in the Courts, the Commission could not make recommendations for regular appointments and, therefore, the government was justified in engaging the petitioners for fixed period. He stated that the Commission has now taken up the process of selection and regular appointments may be made before the commencement of the new academic session.

24. In our opinion, the objection of the learned Advocate General to the maintainability of the writ petitions on the ground that the petitioners have accepted the terms of engagement without any protest is clearly misconceived. The petitioners do not have any say in the matters relating to enactment of the rules, creation of the posts or mode of selection. All these matters lie in the exclusive domain of the government/employer. They are not in a position to make a bargain with the government regarding the conditions of employment. They are not in a position to dictate the terms to the government. If they make an attempt to enter into a bargain with the government about the terms and conditions of employment/engagement and insist on incorporation of those conditions which are more favourable to them, the appointing authority can refuse to appoint/engage them. Therefore, acceptance of the conditions incorporated in the orders of appointment/letters or engagement cannot be made a ground to deny hearing to the petitioners in support of their plea that the respondents have acted arbitrarily in appointing them with wholly unreasonable and oppressive conditions of employment. An identical objection was raised on behalf of the respondents in Rajni Bala v. State of Haryana. 1995 (4) R.S.J 329 : [1996 (1) SLR 271 (Pb. & Hry.)]. The same was rejected by placing reliance on the observations made by three-Judges Bench of the Supreme Court in Government Branch Press v. D.B Belliapa, (1979) 1 SCC 477 : AIR 1979 S.C 429. A similar objection was raised to the maintainability of the writ petition filed by Dr. Gulshan Kumari (supra) but same was overruled by placing reliance on the decision in Rajni Bala's case (supra). For the detailed reasons recorded in Rajni Bala's case (supra) and Dr. Gulshan Kumari's Case (supra) which we need not repeat here, we overrule the objection raised to the maintainability of the writ petitions.

25. We shall now deal with the argument of the learned counsel for the petitioners that the respondents cannot by taking advantage of their dominating opposition vis-a-vis the candidates who applied for recruitment as teachers, offer employment on most inequitable, arbitrary and unreasonable conditions of service. Learned counsel argued that in spite of the availability of the sanctioned posts and sanction of budget for such posts, the respondents cannot resort to the methodology of contractual engagement for fixed period and on consolidated salary so as to deprive the petitioners of their legitimate right to be continued in employment till the availability of the regularly selected candidates and to pay salary in the regular pay scale. Learned counsel relied on the observations made in Anil Kumar's case (supra) and Dr. Gulshan Kumari's case (supra) to support their contention that the policy of appointing teachers on contract basis is unjust. Learned Advocate General countered this submission by arguing that though the petitioners were appointed against duly sanctioned posts, the right of the employer to choose terms and conditions of employment cannot be questioned by employees and the Court cannot introduce revised contract of employment between the petitioners and the government. He also relied on the orders passed in Anil Kumar's case (supra) and Dr. Gulshan Kumari's case (supra). We have considered their respective submissions and are of the opinion that the writ petitions deserve to be allowed.

26. The role of teacher in educating younger generation and the need for ensuring appropriate service conditions for teachers was highlighted in the new education policy. An extract of paragraph 9 of this policy which was circulated by the Ministry of Home Resource Development reads as under:—

PART IX THE TEACHER

9.1 The status of the teacher reflects the socio-culturar ethos of a society it is said that no people can rise above the level of its teachers. The Government and the community should endeavour to creat conditions which will help motivate and inspire teachers on constructive and creative lines. Teachers should have the freedom to innovate, to devise appropriate methods of communication and activities relevant to the needs and capabilities of and the concerns of the community.

9.2 The methods of recruiting teachers will be reorganised to ensure merit, objectivity and conformity with spatial and functional requirements. The pay and service conditions of teachers have to be commensurate with their social and professional responsibilities and with the need to attract talent to the profession.

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27. The Courts have also taken cognizance of the need of well equipped teachers for inspiring the pupils. In Andhra Kesari Education Society v. Director of School Education, JT 1988 (4) SC 431, the Apex Court expressed itself in the following words:

“Though teaching is the last choice in the job market, the role of teacher is central to all processes of formal education. The teacher alone could bring out the skills and intellectual capabilities of students. He is the engine of the educational system. He is a principal instrument in awakening the child to cultural values. He needs to be endowed and energised with needed potential to deliver enlightened service expected of him. His quality should be such as would inspire and motivate into action the benefitter. He must keep himself abreast of ever changing conditions. He is not to perform in a wooden and unimaginative way. He must eliminate fissiparous tendencies and attitudes and infuse nobler and notional ideas in younger minds. His involvement in national integration is more important, indeed indispensable.”

28. In State of Maharashtra v. Vikas Sahebrao Roundale, JT 1992 (5) SC 175 : [1992 (5) SLR 74 (SC)], K. Ramaswamy. J. speaking for this Court observed as under:

“The teacher plays pivotal role in moulding the career, character and moral fibres and aptitude for educational excellence in impressive young children. The formal education needs proper equipment by the teachers to meet the challenges of the day to impart lessons with latest technics to the students on secular, scientific and rational outlook. A well equipped teacher could bring the needed skills and intellectual capabilities of the students in their pursuits. The teacher is adorned as Gurudevobhava, next after parents, as he is a Principal instrument to awakening the child to the cultural ethos, intellectual excellence and discipline.”

29. The importance of the role of a teacher has also been highlighted by this Court while deciding C.W.P No. 14457 of 1997 Mohita Goyal v. Kurukshetra University, Kurukshetra, decided on 10.11.1997 A Division Bench to which one of us was a member, observed as under:—

“The role of a teacher is extremely important not only to the society but also to the nation. The teacher alone can bring about a skill and intellectual capability in the students. He is the principal instrument in awakening the child to cultural values. He moulds the career, character and morale fibre and aptitude for educational excellence. A teacher has to keep himself abreast of even changing needs of the educational system because unless he is fully equipped with the latest developments, the teacher cannot effectively play his/her role of national building. Therefore, the quality of teacher shold be such which would inspire the pupils.”

30. If these observations are read in conjunction with what we have said in Anil Kumar's case (supra) and Dr. Gulshan Kumari's case (supra), it is not possible to find any justification for the methodology adopted by the respondents to appoint teachers on contract basis for fixed term by paying them consolidated emoluments despite the availability of the sanctioned vacant posts carrying regular pay scales. Whatever may have been the cause for making contractual appointments for fixed terms in the year 1996 or the first part of 1997, there is no rational justification for continuing the same policy of contractual appointment/engagement. We can take judicial notice of the fact that the respondents were fully aware of the fact that the process of selection initiated by the recuiting agency like Subordinate Services Selection Board/Staff Selection Commission will take sufficiently long time. They were also conscious of the fact that the Court had adversely commented upon the methodology and mechanism of appointing teachers on fixed term contracts. Yet, with a view to deprive the persons like the petitioners of their legitimate right to continue in employment till the availability of candidates selected by the Board/Commission and also to deprive them of the benefit of regular pay scale, the respondents issue advertisements for contractual appointment of teachers. Indeed, it is not a case in which the government was forced to engage teachers on contact basis for fixed tenure due to non-availability of vacant posts or a case in which the government was forced to make such appointments to meet the additional work load. Rather, the uncontested facts which have come on record show that:

(1) The competent authority had sanctioned sufficient number of posts of Lecturers, Masters/Mistresses, C. & V. Teachers and J.B.T Teachers.

(2) For the purpose of making appointments against the available vacant posts, the respondents issued public advertisements and invited applications from the eligible candidates.

(3) Selection Committees were constituted to interview the candidates. The recommendations made the Selection Committees, after interviewing the eligible persons, were acted upon by the competent authorities and then the petitioners were appointed against the vacant posts.

31. It is, thus, clear that before appointing the petitioners, the posts were duly advertised in the newspapers and all eligible persons were given opportunity to compete. The appointments were made on the basis of the recommendations made by the duly constituted selection committees which had interviewed the candidates and determined their merit by evaluating academic attainments and performance at the viva voice test in accordance with a well-defined criteria. In other words, the selection made by the respondents was consistent with the doctrine of equality enshrined in Articles 14 and 16 of the Constitution as interpreted by the Supreme Court in the Excise Superintendent, Malkpatnam v. K.B.N Vishweshwara Rao's case (supra).

32. The respondents have not explained as to why the petitioners were appointed for fixed term of 89 days even though it was known to them that the Subordinate Services Selection Board/Staff Selection Commission will not be able to finalise the selection in a short span of three months. Likewise, they have not explained as to why the petitoners were given contractual appointment on fixed salary even though duly sanctioned posts in the regular pay scale were available. Therefore, we are constrained to hold that the action of the respondents to apoint the petitioners on contract basis for a fixed tenure of 89 days and to pay them fixed emoluments in spite of the availability of vacant posts carrying regular pay scales is arbitrary, oppressive, unreasonable and violative of Articles 14 and 16 of the Constitution.

33. The suggestion made by the learned Advocate General and the Deputy Advocates General that such appointments were made because the petitioners were not to be held responsible for the results of the students is rather intriguing and shocking. Indeed, it is not possible to visualise the existence of a welfare State in which teachers are engaged with oppressive, arbitrary, unconscionable and inequitable conditions of service with the idea that they may not be responsible and accountable for the results of the students. How can a civilized society accept the idea of having teachers who may not be accountable for the studies of the students, their results and over all development. We are sure that the Government of Haryana does not want to declare that it has no concern for the welfare, of the future generation of the State and it will appoint teachers for fixed term and pay them consolidated salary with the object of saving some money and simultaneously turn a blind eye to the well being of the student community. We expect and hope that policy, if any, framed with such an assumption will be immediately given up by the government.

34. On the basis of the above discussion, we hold that the condition of limiting the appointment of the petitioners to 89 days is ante-thesis of doctrine of equality of the matter of employment, as embodied in Articles 14 and 16 of the Constitution and as interpreted in Rajni Bala's case (supra), CWP No. 3037 of 1994 Dr. Subedar Singh Arya v. State of Haryana, decided on 12.5.1994, C.W.P No. 6276 of 1994 Kumari Veena Rani… v. State Of Haryana & Others…, decided on 2.6.1994, Goverdhan Gulia v. State of Haryana, 1996 (1) A.I.J 276 : [1997 (1) SLR 353 (Pb. & Hry.)], C.W.P No. 14464 of 1995 Rohtas Singh v. State of Haryana, decided on 29.1.1996, C.W.P 13905 of 1995 Suraj Bhan v. State of Haryana, decided on 21.3.1996, C.W.P No. 8468 of 1996 Rekha Rani v. State of Haryana, decided on 26.8.1996, C.W.P No. 14877 of 1994 Rohtas v. State of Haryana, decided on 19.4.1996 and L.P.A No. 56 of 1985 V.P Prasher v. State of Punjab, decided on 1.12.1988

35. We also find considerable merit in the argument of the learned counsel for the petitioners that the decision of the respondents to pay fixed emoluments to their clients is violative of Articles 14 and 16 read with Article 39(d) of the Constitution. The doctrine of equal pay for equal work embodied in Article 39(d) had been read as a part of the larger concept of equality enshrined in Articles 14 and 16. The Courts have interpreted this doctrine to mean that persons holding similar posts and discharging similar duties are entitled to similar wages, though in some cases quality in the nature of work and degree of responsibility, have been accepted as factors justifying payment of different salaries to apparently similarly situated persons. However, as far as these cases are concerned, we find that averments made by the petitioners about the nature, quality and quantity of their work of teaching vis-a-vis-regularly appointed Lecturers, Masters/Mistresses, Classical & Vemaular Teacher and J.B.T Teachers have not been controverted by the respondents by placing any cogent material before the Court. They have assigned the following two reasons in justification of their action to pay consolidated salary to the petitioners:—

1. The petitioners cannot be held accountable for results of the students.

2. The petitioners were not assigned duties of collection of fee etc. or maintaining records etc.

36. The first of the two reasons given by the respondents, as already held herein above is totally untenable. That apart, no evidence has been produced before the Court to show any difference in the nature and quality of duties performed by the petitioners vis-a-vis their regular counter parts. The second reason given by the respondents is equally untenable. If the respondents thought it appropriate not to ask the petitioners to do the duties of collecting fees or maintaining records, the fault lies with them and not with the petitioners who never declined to do all such duties. In any case, the non-assignment of ancillary and inconsequential duties to the petitioners cannot be made a legitimate ground to deprive them of the benefit of payment of salary in regular pay scales.

37. For the, reasons mentioned above, the writ petitions are allowed. The conditions incorporated in the letters/orders appointing the petitioners limiting their appointment to 89 days are declared illegal, unconstitutional and are struck down. Likewise, the condition of paying consolidated salary, to the petitioners is declared ultra vires to Articles 14 and 16 and 39(d) of the Constitution. The respondents are directed to allow the petitioner to continue in service till the availability of regularly selected candidates. However, their services can be terminated/discontinued on the ground of unsuitability or unsatisfactory performance. The respondents can also dispense with the services of the petitioners in accordance with the rule of last come first go if the sanctioned posts are abolished. The services of such of the petitioners, who may be found guilty of misconduct may also be terminated. The respondents are directed to pay to the petitioners salary in the regular pay scales from the date of their appointment/engagement.

38. Petition allowed.