Full Judgment Text
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CASE NO.:
Appeal (civil) 6491-6495 of 1997
PETITIONER:
Ramakrishna Kamat & Ors.
RESPONDENT:
State of Karnataka & Ors.
DATE OF JUDGMENT: 05/02/2003
BENCH:
SHIVARAJ V. PATIL & ARIJIT PASAYAT.
JUDGMENT:
J U D G M E N T
WITH
Civil Appeal Nos. 6547-51/97, 3986-92/99, 4524-25/99,
5690/2000 and 500/99
WITH
Civil Appeal No. 1049 of 2003
(Arising out of SLP(C) No. 7669/99)
AND
Civil Appeal No. 1047-48 of 2003
(Arising out of SLP(C) Nos.9078-79/99)
SHIVARAJ V. PATIL J.
Leave granted in special leave petitions.
The appellants in these appeals were appointed as
teachers for various schools run by Zilla Parishads
after being selected by Betterment Committees on
payment of honorarium of Rs. 200-300 per month in the
year 1988-89. They moved the State Government for
regularization of their services in the year 1991. The
State Government rejected their claims by the order
dated 27.2.1992. Thereafter they filed writ petitions
in the High Court for quashing the said Government
order and also for direction to treat them as having
been regularly appointed in the service of the
respective Zilla Parishads and also to pay the arrears
of salary and allowances from the date of their initial
appointment till the date of payment. In the writ
petitions, they pleaded that they were all working as
teachers in primary and high schools on honorarium of
Rs. 200-300 per month. According to them, Zilla
Parishads of Dakshina Kannada, Kodagu and Shimoga
passed resolutions with certain conditions as
authorized by the Government by its circular dated
15.10.1987 to open new primary and high schools in
rural areas. One of the conditions was that Zilla
Parishad will appoint one trained graduate teacher and
the remaining teachers shall be appointed by the
public. It was also asserted in the writ petitions
that in view of the aforesaid conditions it is the
School Management Committee presided by Mandal Pradhan
that had appointed teachers to teach students in Zilla
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Parishad primary and high schools. It was their
further case that Government granted post facto
approval to all these teachers by its communication
dated 9.7.1991. To put in nutshell, their case seems
to be that they are all qualified to be as teachers;
they were appointed at the instance of respective Zilla
Parishads in accordance with Government circulars and
in accordance with resolutions passed by Zilla
Parishads; having taken their services for nearly five
to eight years, State Government and Zilla Parishads
were bound to regularize their services from the date
of their initial appointment and were required to pay
arrears of salary on par with that of regularly
recruited teachers in both primary and high schools.
The writ petitions were resisted on various grounds
including that writ petitions were not maintainable.
It was contended that writ petitioners were honorary
teachers appointed by School Management Committee and
some of them by Pradhan of Mandal Panchayat on
honorarium of Rs. 200-300 per month; they were neither
appointed by Zilla Parishads nor their appointments
were approved by the State Government. It was further
contended that the appointments of the teachers were
not against the sanctioned posts and at no point of
time State Government had approved their appointments.
Ultimately, it was strongly contended that writ
petitioners were all teachers working in the schools on
honorary basis and honorarium was paid by School
Management Committees; as such they were not entitled
to any one of the reliefs sought in the writ petitions.
The learned Single Judge, after considering the
respective contentions and keeping in view the
decisions of the High Court as well as of this Court,
disposed of the writ petitions giving the following
directions:-
"i) That if the petitioners apply
for appointment at the time of making
regular appointment, their
application will be considered
subject to suitability, eligibility
and reservation policy, giving due
weightage for the period of service
said to have been rendered by them
and deducting the period of their
honorary service from their age, for
determining the question of age bar.
ii) If for any reason, the schools
in which petitioners are working have
been approved by the State Govt. in
their subsequent orders, the
Selection Committee while selecting
teachers for regular appointment will
give whatever possible weightage to
those teachers keeping in view their
selfless service for nearly 5 to 8
years in those institutions.
iii) Before parting with the case, it
should be mentioned that this Court
fully sympathises with the cruel fate
of these unfortunate teachers but
this court is helpless in view of the
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earlier decisions of this Court and
the Apex Court.
iv) Respondents are restrained from
terminating the services of the
petitioner till regular appointments
are made in the institution in which
petitioners are working.
v) In the facts and circumstances of the
case, parties are directed to bear
their own costs."
Not being satisfied with and aggrieved by the
order of the learned Single Judge, the writ petitioners
filed writ appeals before the Division Bench of the
High Court. The Division Bench of the High Court,
finding no merit in the appeals, dismissed them by the
impugned order affirming the order of the learned
Single Judge. Hence, these appeals.
The learned counsel for the appellants in their
arguments reiterated the submissions that were made
before the High Court. They contended that having
regard to the facts and circumstances of the case and
taking note of length of service the appellants have
already put in, they ought to have been granted reliefs
by the High Court. The learned counsel also added that
in view of the amendments to Rules in 1997 even
honorary or part time teachers are entitled to the
benefit.
In opposition, the learned counsel for the
respondents made submissions supporting the impugned
order. Pointing out to certain statements made in the
counter, the learned counsel submitted that keeping in
view the directions given by the High Court, their
cases were considered. According to the learned
counsel, having regard to the facts of these cases and
the legal position as stated in the order of the
learned Single Judge, the impugned order does not call
for any interference. The learned counsel for the
respondents further submitted that the State Government
accepting the directions given by the High Court and
keeping in view the amended rules considered the cases
of the appellants and few of them even got the benefit.
It is not in dispute that the appellants were
appointed on payment of honorarium of Rs. 200-300 per
month by School Betterment Committees and in some cases
by the Presidents of Mandal Panchayats; the appointment
orders do not indicate that they were made either by
Zilla Parishad or officers of the State Government
against any sanctioned post. We repeatedly asked the
learned counsel for the appellants on what basis or
foundation in law the appellants made their claim for
regularization and under what rules their recruitment
was made so as to govern their service conditions.
They were not in a position to answer except saying
that the appellants have been working for quite some
time in various schools started pursuant to resolutions
passed by Zilla Parishads in view of the Government
orders and that their cases need to be considered
sympathetically. It is clear from the order of the
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learned single Judge and looking to the very directions
given a very sympathetic view was taken. We do not
find it either just or proper to show any further
sympathy in the given facts and circumstances of the
case. While being sympathetic to the persons who come
before the court the courts cannot at the same time be
unsympathetic to the large number of eligible persons
waiting for a long time in a long queue seeking
employment. The learned Single Judge in this view,
rightly so in our opinion, held that "in such
situation it is difficult to accept the plea of the
petitioners that they were appointed against regular
post and appointment orders would clearly indicate that
the appointment of the teachers was purely temporary
and on honorarium basis subject to its approval by the
State Government and petitioners have not produced any
document to show that their appointment has been
approved by State Government. Hence, petitioners are
not entitled to regularization. Since petitioners have
worked continuously as teachers, the services rendered
by them is entitled to be considered at the time of
regular appointment."
The learned Single Judge, having noticed a few
decisions of the High Court held that the plea of the
appellants could not be accepted. It appears to us
that the learned Single Judge, taking a sympathetic
view, gave the directions while disposing of the writ
petitions, which are already extracted above. The
decision of this Court in Union of India and Ors. vs.
Tejram Parashramji Bombhate & Ors. [(1991) 3 SCC 11]
is almost on similar facts. In the said judgment, this
Court observed that the teachers who were paid
honorarium from out of fees from children and other
donations, not by or on behalf of Central Government,
were not entitled for regularization on par with
Government teachers and the court or tribunal cannot
compel the Government to change its policy and accord
sanction to the schools which involves financial burden
on the Government. Para 5 of the said judgment reads:-
"5. Secondly, the respondents are not
paid by the Central Government. They
are not holding any appointment under
the Central Government. There is no
relationship of master and servant
between the Central Government and the
respondents. The respondents are
employed in the Secondary School by
local arrangement made by the officers
of the ordnance factory. It is not
proved that how the Central Government
is accountable to such arrangement made
by the local officers."
The respondents, accepting the directions given by
the learned Single Judge as affirmed by the Division
Bench, followed them and in that process some persons
got benefit of the directions. Many of the appellants
could not get the benefits of the directions in spite
of giving consideration and weightage to the services
rendered by them. As is clear from the directions of
the learned Single Judge, sympathizing with the
appellants, their services were also protected till
regular appointments were made. Under these
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circumstances, we do not find any good or valid ground
to interfere with the impugned order. This Court had
passed interim orders in these matters directing the
Zilla Parishads to pay the basic pay of Rs. 1520/- per
month to the appellants from November, 1995 upto-date
and continue to pay till the disposal of these appeals.
The learned counsel for the respondents submitted that
the payment made pursuant to the interim orders passed
by this Court to the appellants shall not be recovered.
In this view, we make it clear that the respondents
shall not make any recovery of amount from the
appellants paid to them by way of salary pursuant to
the interim orders passed by this Court. Thus finding
no merit, the appeals are dismissed subject to what is
stated above. No costs.