UNIVERSITY OF RAJASTHAN AND ANOTHERversusPREM LATA AGARWAL

                       [2013] 1 S.C.R. 758


A        UNIVERSITY OF RAJASTHAN AND ANOTHER
                                V.
                     PREM LATA AGARWAL
                 (Civil Appeal No. 919 of 2013)
                      FEBRUARY 05, 2013
B
      [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

       SERVICE LAW:

c      ss. 3(2) and (3) - Pension - Ad hoc Professors/Lecturers
  - Continued in service - Claim for pensionary benefits -
  Allowed by High Court - Held: The initial appointment would
  only protect the period fixed therein - There could not have
  been continuance of the service afte( the fixed duration as
0 provided u/s 3(3) and such continuance is to be treated as
  null and void regard being had to the language employed in
  s.3(2) - Regulations do not take in their sweep an employee
  who is not regularly appointed - High Court has applied the
  doctrine of deemed confirmation which is impermissible -
E Orders of High Court are set aside - Rajasthan Universities'
  Teachers And Officers (Selection For Appointment) Act, 1974
  - University Pension Regulations, 1990 - Regulations 2(i),
  22 and 23 - Service Jaw - Pension.

       The respondents in the instant appeals were
F appointed as ad hoc Assistant Professors/Lecturers in
  terms of s. 3(3) of the Rajasthan Universities Teachers and
  Officers (Selection for Appointment) Act, 1974. Their
  services were terminated every year and fresh
  appointment orders were issued and, as such, they
G continued till the age of superannuation. Thereafter they
  filed writ petitions claiming pensionary benefits stating
  that with the coming into force of the University Pension
  Regulations, 1990, deductions for the purpose were
  made from their salaries. The single Judge of the High
H                              758
     UNIVERSITY OF RAJASTHAN v. PREM LATA                759
                   AGARWAL
 Court allowed the writ petitions. The special appeals filed    A
 by the University were dismissed by the Division Bench
 of the High Court.
     Allowing the appeals, the Court
       HELD: 1.1. The provisions of the Rajasthan B
  Universities' Teachers and Officers (Selection for
  Appointment) Act, 1974, when read in a conjoint manner,
  make it crystal clear that the legislature had imposed
  restrictions on the appointment, provided for the
  constitution of Selection Committees and also laid down c
  the procedure of the said committees. The intention of
  the legislature is to have teachers appointed on the basis
  of merit, regard being had to transparency, fairness,
  impartiality and total objectivity. Sub-s. (3) of s. 3 permits
  stop-gap arrangements and only covers ad hoc or part- o
  time teachers with a small duration. It is intended to serve
  the purpose of meeting the situation where an
  emergency occurs. A proper schematic analysis of the
· provisions do not envisage any kind of ad hoc
  appointment or part-time appointment to remain in E
  continuance. Some of the respondents continued with
  certain breaks and also due to intervention of the court.
  That apart, this Court had not acceded to their prayer of
  regularization. A distinction has to be made because of
  the language employed in the provisions between regular
                                                                 F
  teachers and ad hoc teachers or part-time teachers who
  continue to work on the post sometimes due to fortuitous
  circumstances and sometimes due to the interdiction by
  the court. Their initial appointment could be regarded as
  legal for the limited purposes of s. 3(3) of the Act. That
  would only protect the period fixed therein. There could G
  not have been continuance of the service after the fixed
  duration as provided u/s 3(3) of the Act and such
  continuance is to be treated as null and void regard being
  had to the language employed in s.3(2) of the Act. That
  is how the Act operates in the field. That apart, regular H
    760    SUPREME COURT REPORTS              [2013] 1 S.C.R.


A selection was required to be made by a High Powered
  Committee as provided u/s 4. [para 22 and 33] [773-F-H;
  774-A-F; 779-G]

       University of Kashmir and Others v. Dr. Mohd. Yasin and
B Others 1974 (2) SCR 154 = 1974 (3) SCC 546; Anuradha
  Mukherjee (Smt) and Others v. Union of India and Others
  1996 (3) SCR 276 = 1996 (9) SCC 59; State of Haryana v.
  Haryana Veterinary & AHTS Association and Another 2000
  (3) Suppl. SCR 322 = 2000 (8) SCC 4; R.S. Garg v. State
C of U.P. and Others 2006 (4) Suppl. SCR 120 = 2006 (6)
  sec 430 - relied on
       1.2. The Constitution Bench in Uma Devis's case
  made a distinction between an illegal appointment and an
  irregular appointment. Protection carved out in paragraph
D 53 in Uma Devi could not be extended to the respondents
  basically for three reasons, namely, (i) the continuance
  of appointment after the fixed duration was null and void
  by operation of law; (ii) the respondents continued in the
  post by intervention of the court; and (iii) this Court had
E declined to regularize their services in 1998. [para 32 and
  34] [779-D-E; 780-D-E]

         *Secretary, State of Kamataka and Others v. Uma Devi
    (3) and Others 2006 (3) SCR 953 = 2006 (4) sec 1 - relied
    on
F
        1.3. The University Pension Regulations, 1990 do not
  take in their sweep an employee who is not regularly
  appointed. Regulation 2(i) clearly provides "regularly
  appointed to the service of the University" which has
G been reiterated in Regulation 22 stipulating conditions of
  qualifying service for pension. Regulation 23
  fundamentally deals with computation of the period of
  service of an employee. That apart, Regulation 23(b) uses
  the words "if he is confirmed". It is a conditional one and
H it relates to officiating services. Both the concepts have
     UNIVERSITY OF RAJASTHAN v. PREM LATA             761
                   AGARWAL
their own significance in service jurisprudence. The         A
respondents were not in the officiating service and by no
stretch of imagination, they could have been treated to
be confirmed because the words "if he is confirmed"
required an affirmative fact to be done by the University.
The High Court has applied the doctrine of deemed            B
confirmation to the case at hand which is impermissible.
Consequently, the orders passed by the High Court are
set aside. [para 36-38] [781-E-F, G-H; 782-A-C]

     Head Master, Lawrence School, Lovedale v. Jayanthi      C
Raghu and another 2012 (2) SCR 492 = 2012 (4) sec 793 -
relied on.

    S.B. Patwardhan and Another v. State of Maharashtra
and Others 1977 (3) SCR 775 =1977 AIR 2051; D.S. Nakara
and Others v. Union of India and Others 1983 (2)             D
SCR 165 = 1983 (1) sec 305 - cited.
                    Case Law Reference:
   1977 (3) SCR 775           cited             para 9
                                                             E
   1983 (2) SCR 165           cited             para 9
  2006 (3) SCR 953            relied on         para 9
  1974 (2) SCR 154            relied on         para 24
  1996 (3) SCR 276            relied on         para 25      F

   2000 (3) Suppl. SCR 322 relied on            para 26
  2006 (4) Suppl. SCR 120 relied on             para 27
  2012 (2) SCR 492            relied on         para 37      G
    CIVIL APPELLATE JURISDICTION: Civil Appeal No. 919
of 2013.

    From the Judgment & Order dated 15.09.2011 of the High
                                                             H
    762      SUPREME COURT REPORTS                  [2013) 1 S.C.R.


A Court of Judicature for Rajasthan at Jaipur Bench Jaipur in D.B.
  Special Appeal (Writ) No. 292 of 2011.

                                 WITH

    C.A. Nos. 920, 921, 922 & 923 of 2013
B
       Manoj Swarup, Lalita Kohli, Abhishek Swarup (for Manoj
    Swarup & Co.) for the Appellants.

      S.K. Keshote, Dr. Manish Singhvi, AAG, Rashmi
C Singhania, Sarad Kumar Singhania, Amit Lubhaya, Pragati
  Neekhra, Ajay Choudhary, Sushil Kumar Jain for the
  Respondent.

          The Judgment of the Court was delivered by

D         DIPAK MISRA, J. 1. Leave granted in all the special leave
    petitions.

       2. The controversy that arises for consideration in this batch
  of appeals is whether the respondents, who were appointed to
E the teaching post, namely, Assistant Professors/Lecturers in
  different subjects and continued as such for more than two
  decades, would be entitled to get the benefit of pension under
  the University Pension Regulations, 1990 (for short "the
  Regulations") framed by the University of Rajasthan which came
  into force with effect from 1.1.1990, regard being had to the
F language employed in Regulation 2 that deals with the scope
  and application of the Regulations read with Regulations 22 and
  23 that stipulates the conditions of qualifying service and the
  period that is to be counted towards pension in addition to the
  fact that the University had accepted the contribution to the
G Pension Fund as defined in Regulation 3(5), despite the stand
  and stance put forth by the University that the respondents were
  not regularly appointed to the posts in question in accordance
  with the provisions contained in Section 3(3) of the Rajasthan
  Universities' Teachers and Officers (Selection for Appointment)
H
       UNIVERSITY OF RAJASTHAN v. PREM LATA                    763
             AGARWAL [DIPAK MISRA, J.)
 Act, 197.4 (for brevity "the Act") and, hence, are not entitled to   A
 the benefit provided under the Regulations.

       3. Be it noted, as the main judgment was rendered in the
 case of Prem Lata Agarwal, we shall refer to the facts
 adumbrated therein. However, the initial dates of appointment
                                                                      8
 and the dates of superannuation in case of every respondent
 as the same would be relevant in the course of delineation of
 the lis in question are stated herein. Prem Lata Agarwal, Vijaya
 Kabra, Janki D. Moorjani, B.K. Joshi and M.C. Goyal, the
 respondents herein, were appointed on 5.1.1981, 22.8.1984,           C
 20.8.1985, 16.5.1978 and 5.8.1983 and stood superannuated
 on 31.3.2001, 31.8.2007, 30.6.2007, 31.1.2002 and
 30.11.2007 respectively. Respondent-Prem Lata Agarwal and
 some others were appointed vide Office Order dated 5.1.1981
 by the Vice-Chancellor in exercise of power vested in him for
 making the stop gap arrangement under Section 3(3) of the Act        D
 as Assistant Professors (Lecturers) in the subject of Chemistry.
 It was clearly mentioned in the letter of appointment that it was
 ad hoc in nature and it would continue upto the last working day
 of the current academic session or till further orders, whichever
 was earlier. The respondent and others were allowed to               E
 continue on the basis of the appointment letters issued from
 time to time. It may be noted that their services were
 terminated every year and fresh appointment orders were
 issued. In this manner, the respondent was allowed to continue
 upto 31.7.1988.                                    ·                 F

       4. At that juncture, the ad hoc teachers had invoked the
  jurisdiction of the High Court seeking a mandamus for the
  regularization of the services but such a relief was declined.
  S.L.P. No. 18993of1991 was preferred wherein two questions          G
  were raised, namely, (i) whether a lecturer duly selected by the
  selection committee for being appointed temporarily should
· automatically be confirmed on the post which he was holding
  for the past 7 years on temporary basis after being selected
  by a duly constituted selection committee under the provisions
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    764      SUPREME COURT REPORTS                  [2013] 1 S.C.R.

A of the Act and approved by the syndicate of the university; and
  (ii) whether apart from the considerations of selection by the
  selection committee, did a lecturer teaching for the past 7 years
  acquire a right to continue on that post. This Court vide order
  dated 20th April, 1992, dismissed the said special leave
B petition. Though the special leave petition was dismissed and
  their right to be regularized was not accepted by this Court, yet
  they continued in service as the orders of termination could not
  be implemented. It is worth noticing that another petition by ad
  hoc appointees was filed in 1985 before the High Court wherein
c they claimed equal pay on the foundation of parity with the
  regularly appointed Assistant Lecturers. The High Court, vide
  order dated 1.3.1986, passed the following order:-

          "Consequently, this special appeal is allowed and the
          order dated 8.03.1995 passed by the learned Single
D         Judge is hereby set aside and accordingly it is declared
          that the appellants who have been appointed on honorarium
          basis to cover the uncovered load of the respective
          departments are entitled to the salary equivalent to the
          minimum of the pay scale of the regularly appointed
E         lecturer of the Rajasthan University from today. The
          respondents are also restrained from discontinuing
          services of the appellants till regular appointments to the
          post of lecturers are made in accordance with law. The
          respondents shall be at liberty to assign the work to the
F         appellants, which is assigned to the regularly appointed
          lecturers."

       5. The university, being grieved by the aforesaid order,
  preferred Special Leave Petition No. 13 of 1998 and number
G of S.L.Ps. wherein this Court passed the following order:-
          "The special leave petitions are dismissed. It is clarified
          that the continuation of the respondents shall be only till
          regular selections are made and it is upto the University
          to take expeditious steps for making regular selections."
H
    UNIVERSITY OF RAJASTHAN v. PREM LATA                    765
          AGARWAL [DIPAK MISRA, J.]
    6. In view of the aforesaid order,. the teachers were paid     A
salary equivalent to the minimum pay scale of regularly
appointed teachers and continued in service due to various
orders of the High Court passed from time to time. The
university, despite its best efforts, could not obtain the
permission of the State Government to fill up the vacant posts     B
on regular basis as various litigations were continuing in the
Court at various stages as a consequence of which the
respondent and her likes continued in service.

     7. It is apt to note here that the university brought the     C
regulations which came into force with effect from 1.1.1990.
After the regulations came into force, the respondent gave her
option for the purpose of availing the benefit of pension and,
thereafter, there was deduction from her salary in view of the
postulates in the regulations till her date of retirement, i.e.,
31.3.2001.                                                         D

      8. It is pertinent to mention here that the Rajasthan
Universities' Teachers (Absorption of Temporary Teachers)
Ordinance, 2008 (3 of 2008) was made and promulgated by
the Governor with a purpose of providing absorption of             E
temporary teachers of long standing, working in the universities
of Rajasthan. After the said regulations came into existence
on 12th June, 2008, the respondent preferred Writ Petition No.
2740 of 2010 putting forth the grievance that pensionary
benefits had been denied to her after retirement. The learned      F
Single Judge referred to the regulations and took note of the
fact that she had continued in service for a period of 20 years
and her option for grant of pension was accepted by the
university and pursuant to such acceptance they deposited their
contribution and, hence, the university was estqpped to take a     G
somersault the stand that she was not entitled to receive
pension under the Regulations of 1990. That apart, the learned
single Judge opined that the nature of her appointment could
not be treated as ad hoc and temporary, regard being had to
the length of service. Being of this view, he allowed the writ     H
     766       SUPREME COURT REPORTS                [2013] 1 S.C.R.


A petition and directed the pensionary benefits be extended to
  her within a period of three months after completing the
  formalities.

        9. Being grieved by the aforesaid order, the university
B preferred Special Appeal (Writ) No. 292 of 2011. The Division
   Bench, after adverting to the facts and referring to various
   regulations and the provisions of the Act, came to hold that the
   action of the university was wholly unjustified and arbitrary. The
  said conclusion of the Division Bench was founded on the base
  that there was default on the part of the university in not
C appointing even a single person in the service of the universities
  of Rajasthan in a regular manner for a long period; .that the
   university had invited the teachers to give their option and they
  deposited their contribution in the C.P.F. in the pension
  scheme; that the appointments of the teachers were not in
D contravention of the provisions of the Act; and that they were
  deemed to be confirmed in view of the provisions contained in
  Regulation 23 of the Regulations. After arriving at the said
  conclusions, the Division Bench adverted to the issue whether
  the teachers were entitled for the pensionary benefits in terms
E of the regulations and eventually, interpreting the regulations
  and placing reliance on the authorities in S.B. Patwardhan and
  Another v. State of Maharashtra and Others1, D.S. Nakara and
  Others v. Union of India and Others2 and paragraph 53 of the
  pronouncement in Secretary, State of Kamataka and others
F v. Uma Devi (3) and Others 3 , came to hold that the
  appointments were made following due procedure of law and
  further the teachers, having been appointed in the cadre of
  substantive posts, could not be denied the pensionary benefits
  under the regulations. Being grieved, the University is in appeal
G by way of Special Leave Petitions.
           10. We have heard Mr. Manoj Swarup, learned counsel for
    1.   AIR1977SC2051.
    2.   (1983) 1 sec 305.
H   3.   c2ooe) 4 sec 1.
    UNIVERSITY OF RAJASTHAN v. PREM LATA                    767
          AGARWAL [DIPAK MISRA, J.]
the appellants, Mr. S.K. Keshote, learned senior counsel for the    A
respondents in Civil Appeals arising out Special Leave
Petitions (C) Nos. 35974 of 2011 and 18020 of 2012, Dr.
Manish Singhvi, learned Additional Advocate General for the
State, and Mr. Sushil Kumar Jain, learned counsel for the
respondents in Civil Appeals arising out Special Leave              B
Petitions (C) Nos. 33969 of 2011 and 20637 of 2012.

     11. Before we proceed to scrutinize the defensibility of the
judgment of the High Court, it is apposite to survey the scheme
of the Act and the regulations. Section 3(3) of the Act, as it
stood at the relevant time, being of immense signification, is      C
reproduced in entirety hereinbelow: -                           ·

     "3. Restrictions on appointments of teachers and
     officers. - (1) Notwithstanding any thing contained in the
     relevant law, as from the commencement of this Act, no         D
     teacher and no officer in any university in Rajasthan shall
     be appointed except on the recommendations of the
     Selection Committee constituted under Section 4.

     2. Save as otherwise provided in sub-section (3), every        E
     appointment of a teacher or of an officer in any University
     made in contravention of sub-section (1) shall be null and
     void.

    3. Nothing herein contained shall apply to the appointment
    of a teacher or an officer as a stop-gap arrangement for        F
    a period not exceeding one year or to the appointment of
    a part-time teacher or of a teacher or officer in the pay
    scale lower than that of Lecturer or Assistant Registrar
    respectively.
                                                                    G
    Explanation: The expression "appointed" in sub-section
    (1) shall mean appointed initially and not appointed by way
    of promotion."

     12. Section 4 at the relevant time pertained to the
.constitution of Selection Committees. It read as follows:-         H
    768           SUPREME COURT REPORTS               [2013] 1 S.C.R.

A         "4. Constitution of selection committees. - (1) For
          every selection of a teacher or of an officer in a University, ·
          there shall be constituted a committee consisting of the
          following: -
           (i)      Vice-Chancellor of the University concerned, who
B                   shall f>e the Chairman of the committee;
           (ii)     an eminent educationist to be nominated by the
                    Chancellor for a period of one year;
           (iii)    an eminent educationist to be nominated by the
c                   State Government for a period of one year;
           (iv)    one member of the Syndicate to be nominated by
                   the State Government for a period of one year; and
           (v)     such other persons as members specified in
D                  column 2 of the Schedule for the selection of the
                   teachers and officers mentioned in column 1
                   thereof:
                   Provided that where the appointment of a teacher
E                  is to be made in the faculty of agriculture in any
                   University or in any University-College imparting
                   instruction of guiding research in agriculture there
                   shall be one more expert to be nominated by the
                   Syndicate out of a panel of names recommended
F                  by the Indian Council of Agriculture Research:
                   Provided further that the Selection Committee for
                   teaching posts in the faculty of engineering and
                   technology shall also include an expert to be
                   nominated by the Syndicate out of a panel of names
G                  recommended by the All India Council of Technical
                   Education.
      (2) The eminent educationists nominated under clause (ii)
      and clause (iii) of sub-section (1) and the member of the
      Syndicate nominated under clause (iv) of the said sub-
H
       UNIVERSITY OF RAJASTHAN v. PREM LATA                     769
             AGARWAL [DIPAK MISRA, J.]
       section shall be members of every Selection Committee            A
.,.,   constituted during the course of one year from the date of
       his nomination:
             Provided that the member for a Selection Committee
       nominated under clauses (ii), (iii) or (iv) of sub-section (1)   8
       shall continue to be the member of every Selection
       Committee even after the expiry of his term until a fresh
       nomination is made by the Chancellor or, as the case may
       be, by the State Government subject, however, that fresh
       nomination of such member for Selection Committee shall          C
       be made within a period not exceeding three months from
       the date of expiry of his term.
       (3) No person shall be eligible to be nominated as an
       expert on any Selection Committee in any one year if he
       has been a member of any two Selection Committees                D
       during the course of the same year."
     13. Section 5 of the Act at the time of appointment dealt
with the procedure of Selection Committee. It was as follows:-
       "5. ,Jrocedure of Selection Committee - (1) The                  E
       Syndicate of the University concerned shall prescribe, by
       rules, the quorum required for the meeting of a selection
       committee required to be constituted under section 4
       which shall not be less than one-half of the members of
       each selection committee.                                        F
       (2). The selection committee shall make its
       recommendations to the Syndicate. If the Syndicate
       disapproves the recommendations of the selection
       committee, the Vice-Chancellor of the University concerned       G
       shall submit such recommendations alongwith reasons for
       disapproval given by the syndicate to the Chancellor for
       his consideration and the decision of the chancellor
       thereon shall be final.
                                                                        H
         770       SUPREME COURT REPORTS                    [2013) 1 S.C.R.


     A         (3) Every selection committee shall be bound by the
               qualifications laid down in the relevant law of the University ·
               concerned for the post of a teacher or, as the case may
               be, of an officer."

     8      14. We may note with profit that the 1974 Act was
       amended by Act No. 24 of 1976 and Act No. 18 of 1984 and
       afterwards, many insertions were made. We have reproduced
       the provisions after the 1976 Act was brought into existence.
       Section 4 which dealt with the constitution of selection
       committee was renumbered by Act No. 18 of 1984 as Section
     C 5 and Section 5 which dealt with the procedure of selection
       committee was amended by Act No. 9 of 1977 and Act No.
       18 of 1984 and was renumbered as Section 6. Certain
       amendments were carried out in the said provision by which
       the quorum required for the selection committee was changed
     D and sub-section (4) was added on 15.11.1984. For proper
       appreciation, we reproduce the said sub-section (4): -

               "(4) The Selection Committee, while making its
               recommendations to the Syndicate under sub-section (2)
     E         shall prepare a list of candidates selected by it in order of
               merit and shall further prepare a reserve list in the same
               order and to the extent of 50% of the vacancies in the
               posts of teachers or officers for which the Selection
               Committee was constituted under sub-section (1) of
     F         Section 5 and shall forward the main list in the reserve list
               along with its recommendations to the Syndicate."

              15. Presently, we shall refer to the relevant regulations.
         Regulation 2 that deals with the scope and application reads
         as follows:-
     G
,.             "Reg. 2 : Scope and Application :

               (i) These regulations shall apply to all persons regularly
               appointed to the service of the University of Rajasthan on
               or after 1.1.1990.
     H
    UNIVERSITY OF RAJASTHAN v. PREM LATA                      771
          AGARWAL [DIPAK MISRA, J.]
    (ii) These regulations shall also apply to all existing          A
    employees - both teaching and non-teaching- who opt for
    pension scheme under these regulations within the period
    specified in Reg. 4 for exercising option. In case of
    employees who do not exercise option within the specified
    period, it will be deemed that the concerned employee has        B
    opted for the pension scheme under these regulations.

    Provided that these regulations shall not apply to :

      (a)   Persons employed on contract or part-time basis,
                                                                     c
      (b)   Persons on deputation to the University.

    · (c)   Purely temporary and daily wages staff.

      (d)   Re-employed pensioners."
                                                                     D
    Thus, from the aforesaid, it is quite clear that the
regulations are only applicable to the persons who have been
regularly appointed and do not take in its sweep the persons
employed on contract or part-time basis and purely temporary
and daily wages staff.                                               E

    16. Regulation 3(5) defines 'pension fund'. It is as follows:-

    "Reg. 3(5) "Pension Fund' means the fund created for the
    purpose of transferring the total accumulated amount of
    University contribution in C.P.F. (including the amount of       F
    loan taken out of it) and interest thereon as on date of
    commencement of these regulations and monthly
    contribution made thereafter in respect of such employees
    who opted or are deemed to have opted the pension
    scheme under these regulations. The pension paid to the          G
    retired employees shall be charged to this Fund."

     17. Regulation 4 deals with the exercise of option. The
relevant part of the said regulation is reproduced below:-
                                                                     H
    772       SUPREME COURT REPORTS                   [2013] 1 S.C.R.

A         "Reg. 4 : Exercise of Option :

          All existing employees who were in service on 1.1.1990
          shall have to exercise their option in writing, either for the
          pension scheme under these regulations or for
          continuance under the existing C.P.F. Scheme, within 3
B
          months from the date of notification of these regulations
          and shall submit the same to the Comptroller of Finance/
          Finance Officer in the prescribed form."

       18. Be it noted, though there are three provisos to
C regulation 4, yet the same need not be referred to as they are
  not necessary for the adjudication of the present case.

         19. Regulation 2~ provides for calculation of qualifying
    service. It reads as follows:-
D         "Reg. 22 : Conditions of Qualifying Service:

               The service of an employee does not qualify for
          pension unless it conforms to the following conditions:

E         (1) It is a paid service of a regularly appointed employee
          under the University.

          (2) The employment is in substantive, temporary or
          officiating capacity."

F        20. Regulation 23 which has been taken aid of by the High
    Court to confer the benefit of pension on the respondent is as
    follows: -

          "Reg. 23:
G          (a)   The service of an employee transferred from a
                 temporary to permanent post shall be counted, if
                 the post was at first created experimentally or
                 temporarily.

H          (b)   The officiating services of an employee, without a
     UNIVERSITY OF RAJASTHAN v. PREM LATA                      773
           AGARWAL [DIPAK MISRA, J.]

            substantive appointment, in a post which is vacant         A
            or the permanent incumbent of which does not draw
            any part of the pay or count service, shall be counted
            if he is confirmed without interruption in his service."

     21. Regulation 47 provides for creation of the pension            8
fund. It is as under:-

     "Reg 47 : Creation of the Pension Fund :
           In case of all such employees who opt for the
    pension scheme and are governed under these                        C
    regulations, the total accumulated amount of University
    contribution in C.P.F. (including the amount of loan taken
    out of it) and interest there on as on 1st January 1990 will
    be transferred to the pension fund created under these
    regulations. Thereafter, the University's share of monthly         o
    contribution in respect of all such employees, as aforesaid
    will be deposited in the pension fund every month latest
    by 1Oth of the next month."

      22. On a studied scrutiny, it is found that the High Court
has placed reliance on Section 3(3) of the Act and the                 E
regulations which we have reproduced hereinabove to arrive
at the conclusion that the respondents were entitled to be
treated as regular teachers and, therefore, it was obligatory on
the part of the University to extend the benefit of pension. The
provisions of the Act, when read in a conjoint manner, make it         F
crystal clear that the legislature had imposed restrictions on the
appointment, provided for the constitution of Selection
Committee and also laid down the procedure of the said
committees. The intention of the legislature is, as it seems to
us, to have teachers appointed on the basis of merit, regard           G
being had to transparency, fairness, impartiality and total
objectivity. Under sub-section (2), it has been clearly postulated
that any appointment made barring the arrangement under sub-
section (3) of Section 3 would be null and void. The language
is clear and categorical. The exception that had been carved           H
    774     SUPREME COURT REPORTS                 [2013) 1 S.C.R.


A out under Section 3(3) is for an extremely limited purpose. It
  permits stop-gap arrangements and only covers ad hoc or part-
  time teachers with a small duration. It is intended to serve the
  purpose of meeting the situation where an emergency occurs.
  It was never intended to clothe any authority with the power to
B make any appointment beyond what is prescribed therein. The
  scheme of the aforesaid provisions go a long way to show that
  the legislature, in fact, had taken immense care to see that no
  one gets a back door entry and the selections are made in a
  seemly manner. A proper schematic analysis of the provisions
c enumerated hereinabove do not envisage any kind of ad hoc
  appointment or part-time appointment to remain in continuance.
  As is demonstrable from the factual depiction in the present
  batch of cases, some of the respondents continued with certain
  breaks and also due to intervention of the court. That apart,
  this Court had not acceded to their prayerofrogtt\afizatioA. The
0
  only direction that was issued in Special Leave Petition (c) No.
  3238 of 1997 and other connected matters, was that they
  would continue in service till the regular selections were made.
  It is noteworthy that a distinction has to be made and we are
  obliged to do so because of the language employed in the
E provisions between a regular teacher and an ad hoc teacher
  or a part-time teacher who continues to work in the post
  sometimes due to fortuitous circumstances and sometimes due
  to the interdiction by the court. Their initial appointment could
  be regarded as legal for the limited purposes of Section 3(3)
F of the Act. That would only protect the period fixed therein.
  Thereafter, they could not have been allowed to continue, as it
  was only a stop gap arrangement and was bound to be so under
  the statutory scheme. Their continuance thereafter by operation
  of law has to be regarded as null and void regard being had to
G the language employed in Section 3(2) of the Act.

      23. Be it stated, the High Court has placed reliance on
  Section 3(3) to come to the conclusion that as they were
  appointed legally, they are entitled to be regularized in terms
H of paragraph 53 of the pronouncement in Uma Devi (supra).
      UNIVERSITY OF RAJASTHAN v. PREM LATA                    775
            AGARWAL [DIPAK MISRA, J.]
Before we proceed to deal with the question whether the               A
protection granted to certain employees in paragraph 53 in
Uma Devi (supra) would be applicable to the present case or
not, we think it appropriate to refer to certain authorities in the
field.
                                                                      B
      24. In University of Kashmir and Others v. Dr. Mohd.
Yasin and Others", the question arose whether the continuance
of a lecturer made in violation of the ordinance of the university
would confer any right on him solely on the ground that he had
de facto continued subsequent to the statutory cessation of
office and whether the principle of implied employment could          C
be attracted. The Court, after referring to the powers and duties
and the canalisation by the statutory body like the University,
came to hold that when the selection committee had not
considered or recommended the respondent therein for
appointment and there was no suggestion that the university           D
council appointed the respondent to the post of Professor,
regard being had to the said fact situation, the ad hoc
arrangement by which the respondent therein remained to teach
did not acquire any legal validity because the Vice-Chancellor
went through the irregular exercise of extending his period of        E
probation. We think it apt to quote an instructive passage from
the said judgment: -

      "When a statute creates a body and vests it with authority
      and circumscribes its powers by specifying limitations, the     F
      doctrine of implied engagement de hors the provisions
      and powers under the Act would be subversive of the
      statutory scheme regarding appointments of officers and
      cannot be countenanced by the Court. Power in this case
      has been vested in the University Council only and the          G
      manner of its exercise has been carefully regulated.
      Therefore, the appointment of the respondent could be
      made only by the Council and only in the mode prescribed
      by the statute. If a Vice-Chancellor by administrative drift
4.   (1974) 3 sec 546.                                                H
    776       SUPREME COURT REPORTS                  [2013] 1 S.C.R.

A         allows such employment it cannot be validated on any
          theory of factum valet. We cannot countenance the alleged
          continuance of the respondent in the University campus as
          tantamount to regular service under the University with the
          sanction of law. In short, the respondent has no presentable
B         case against the direction to quit."

       25. In Anuradha Mukherjee (Smt) and Others v. Union
  of India and Others5, this Court, while dealing with the issue of
  seniority, opined that when an employee is appointed de hors
C the Rules, he cannot get seniority from the date of his initial
  appointment but from the date on which he is actually selected
  and appointed in accordance with the Rules.

       26. In State of Haryana v. Haryana Veterinary & AHTS
  Association and Another6, while dealing with the issue of
D regular service under the Haryana Service of Engineers, Class
  II, Public Works Department (Irrigation Branch) Rules, 1970, a
  three-Judge Bench observed that under the Scheme of the said
  Rules, the service rendered on ad hoc basis or stop-gap
  arrangement could not be held to be regular service for grant
E of revised scale of pay.

       27. In R. S. Garg v. State of U. P. and Others7, while dealing
  with the concept of recruitment, this Court has categorically laid
  down that the expression "recruitment" would mean recruitment
  in accordance with the Rules and not dehors the same and if
F an appointment is made dehors the Rules, it is not an
  appointment in the eye of law.

        28. Coming back to the decision in Uma Devi (supra), the
  Constitution Bench, after survey of all the decisions in the field
G relating to recruitment process and the claim for regularization,
  in paragraph 43, has held that consistent with the scheme for

    5.   (19960 9 sec 59.
    6.   c2000) a sec 4.
H 1.     c2006) 6 sec 430
      UNIVERSITY OF RAJASTHAN v. PREM LATA                    777
            AGARWAL [DIPAK MISRA, J.]
public employment, it is the duty of the court to necessarily hold   A
that unless the appointment is in terms of the relevant rules, the
same would not confer any right on the appointee. The Bench
further proceeded to state that merely because a temporary
employee or a casual wage worker is continued for a time
beyond the term of his appointment, he would not be entitled         B
to be absorbed in regular service or made permanent, merely
on the strength of such continuance, if the original appointment
was not made by following a due process of selection as
envisaged by the relevant rules. After so stating, it has been
further ruled that merely because an employee had continued          c
under cover of an order of the court, he would not be entitled
to any right to be absorbed or made permanent in service.

     29. It is worthy to note that while repelling the contention
pertaining to the legitimate expectation of a person to be
regularized, the Court held that when a person enters a              D
temporary employment or gets engagement as a contractual
or casual worker and the engagement is not based on a proper
selection as recognized by the relevant rules or procedure, he
is aware of the consequences of the appointment being
temporary, casual or contractual in nature. Such a person            E
cannot invoke the theory of legitimate expectation for being
confirmed in the post when an appointment to the post could
be made only by following a proper procedure.

     30. The Court, eventually, in paragraph 53, issued certain      F
directions relating to regularization of irregular appointments.
We think it apt to reproduce the relevant part from the said
paragraph: -

      "One aspect needs to be clarified. There may be cases
      where irregular appointments (not illegal appointments) as     G
      explained in State of Mysore v. S. V. Narayanappa 6, R.N.
      Nanjundappa v. T. Thimmiah 9 and B.N. Nagarajan v.

8.   (1967) 1 SCR 128.
9.   (1972) 1 sec 409.                                               H
    778         SUPREME COURT REPORTS                   [2013] 1 S.C.R.


A         State of Kamataka 10 and referred to in para 15 above, of
          duly qualified persons in duly sanctioned vacant posts
          might have been made and the employees have continued
          to work for ten years or more but without the intervention
          of orders of the courts or of tribunals. The question of
B         regularisation of the services of such employees may have
          to be considered on merits in the light of the principles
          settled by this Court in the cases abovereferred to and in
          the light of this judgment. In that context, the Union of India,
          the State Governments and their instrumentalities should
c         take steps to regularise as a one-time measure, the
          services of such irregularly appointed, who have worked
          for ten years or more in duly sanctioned posts but not under
          cover of orders of the courts or of tribunals and should
          further ensure that regular recruitments are undertaken to
          fill those vacant sanctioned posts that require to be filled
D
          up, in cases where temporary employees or daily wagers
          are being now employed."

      31. To appreciate what has been stated in the said
  paragraph, it is imperative to refer to paragraph 15 of the
E judgment wherein it has been held thus: -

          "Even at the threshold, it is necessary to keep in mind the
          distinction between regularisation and conferment of
          permanence in service jurisprudence. In State of Mysore
F         v. S. V. Narayanappa this Court stated that it was a
          misconception to consider that regularisation meant
          permanence. In R.N. Nanjundappa v. T. Thimmiah this
          Court dealt with an argument that regularisation would
          mean conferring the quality of permanence on the
          appointment. This Court stated: {SCC pp. 416-17, para
G
          26)

                 "Counsel on behalf of the respondent contended
                 that regularisation would mean conferring the quality

H   10. (1979) 4 sec 507.
    UNIVERSITY OF RAJASTHAN v. PREM LATA                          779
          AGARWAL [DIPAK MISRA, J.]
            of permanence on the appointment whereas                      A
            counsel on behalf of the State contended that
            regularisation did not mean permanence but that it
            was a case of regularisation of the rules under
            Article 309. Both the contentions are fallacious. If
            the appointment itself is in infraction of the rules or       B
            if it is in violation of the provisions of the Constitution
            illegality cannot be regularised. Ratification or
            regularisation is possible of an act which is within
            the power and province of the authority but there has
            been some non-compliance with procedure or                    c
            manner which does not go to the root of the
            appointment. Regularisation cannot be said to be
            a mode of recruitment. To accede to such a
            proposition would be to introduce a new head of
            appointment in defiance of rules or it may have the           D
            effect of setting at naught the rules"."

    32. From the aforesaid delineation, it is quite vivid that the
Constitution Bench made a distinction between an illegal
appointment and an irregular appointment and for the said
purpose, as noted above, reliance was placed on the earlier               E
deajsion in T. Thimmiah (supra) which makes a distinction
betWeen the power of ratification which is possible within the
power of the authority and some non-compliance with the
procedure or the manner which does not go to the root of the
appointment.                                                              F

     33. We have already analysed the scheme of Section 3
and stated that there could not have been continuance of the
service after the fixed duration as provided under Section 3(3)
of the Act and such continuance is to be treated as null and              G
void. That is how the Act operates in the field. That apart,
regular selection was required to be made by a High Powered
Committee as provided under Section 4. It is also pertinent to
state that the Act lays down the procedure of the selection
committee not leaving it to any authority to provide the same             H
by rules or regulations.
    780      SUPREME COURT REPORTS                 (2013] 1 S.C.R.


A       34. In view of the aforesaid, the irresistible conclusion is
  that the continuance after the fixed duration goes to the root of
  the matter. That apart, the teachers were allowed to continue
  under certain compelling circumstances and by interdiction by
  courts. Quite apart from the above, this Court had categorically
B declined to accede to the prayer for regularization. In such a
  situation, we are afraid that the reliance placed by the High
  Court on paragraph 53 of the pronouncement in Uma Devi
  (supra) can be said to be justified. In this regard, another
  aspect, though an ancillary one, may be worth noting. Prem
C Lata Agarwal and B.K. Joshi had retired on 31.3.2001 and
  31. 1.2002, and by no stretch of imagination, Uma Devi (supra)
  lays down that the cases of any category of appointees who
  had retired could be regularized. We may repeat at the cost
  of repetition that the protection carved out in paragraph 53 in
  Uma Devi (supra) could not be extended to the respondents
0
  basically for three reasons, namely, (i) that the continuance of
  appointment after the fixed duration was null and void by
  operation of law; (ii) that the respondent continued in the post
  by intervention of the court; and (Hi) that this Court had declined
  to regularize their services in 1998.
E
        35. Though we have dealt with the statutory scheme, yet
  as the High Court has heavily relied on various regulations to
  extend the benefit, we think it seemly to advert to the approach
  of the High Court to find out whether it has appositely
F appreciated the purpose and purport of the regulations. The
  High Court, as is manifest from the orders, has made a
  distinction between a permanent employee and purely
  temporary appointee and observed that the services of the
  respondent could not be termed to be purely temporary or daily
G wages. In that context, it has referred to Regulation 22 which
  uses the words "regularly appointed employee". We may
  reproduce the said part of the ratiocination:-

          "Regulation 2(ii) is applicable to all existing employees
          except the persons appointed on contract or part time
H         basis; persons on deputation; purely temporary and daily
     UNIVERSITY OF RAJASTHAN v. PREM LATA                    781
           AGARWAL [DIPAK MISRA, J.]
     wages staff; and re-employed pensioners. The case of the       A
      petitioners is not covered under any of the aforesaid four
     categories. Even otherwise, it cannot be said that
     appointments of the petitioners were made as stop gap
     arrangements. They have continued for more than two
     decades and therefore, they cannot in any manner be            B
     termed as "purely temporary". Also the word "purely
     temporary" contained in regulation 2(ii)(c) is used in
     company with daily wages staff and there is distinction in
     concept of purely temporary and temporary as provided
     in regulation 2 and 22 of the pension scheme purely            c
     temporary is not covered whereas temporary or officiating
     appointment is covered under the purview of the pension
     regulation."

      36. The aforesaid analysis, according to us, is not correct
inasmuch as the regulations do not take in their sweep an           D
employee who is not regularly appointed. The distinction
between temporary and purely temporary, as made by the High
Court, does not commend acceptance as there is an inherent
fallacy in the same inasmuch as Regulation 2(i) clearly provides
"regularly appointed to the service of the University" which has    E
been reiterated in Regulation 22. In fact, as we perceive, the
High Court has proceeded on the basis that their services have
to be treated as regular. Once it is not regular service, the
infrastructure collapses as a consequence of which the
superstructure is bound to founder and, hence, the distinction      F
made by the High Court is flawed.

     37. The High Court, as has been stated earlier, has
pressed into service Regulation 23 and relying on the same, it
has held that the services of the respondents shall be deemed       G
to have been confirmed as in the instant cases the University
has never opined that their services were not satisfactory. The
language of Regulation 23 is couched in a different manner. It
fundamentally deals with the computation of the period of
service of an employee. That apart, Regulation 23(b) uses the       H
    782       SUPREME COURT REPORTS                  [2013) 1 S.C.R.


A words "if he is confirmed". It is a conditional one and it relates
  to officiating services. Both the concepts have their own
  significance in service jurisprudence. The respondents were
  not in the officiating service and by no stretch of imagination,
  they could have been treated to be confirmed because the
B words "if he is confirmed" required an affirmative fact to be done
  by the University. The High Court, as we find, has applied the
  doctrine of deemed confirmation to the case at hand which is
   impermissible. In this context, we may, with profit, refer to the
  decision in Head Master, Lawrence School, Lovedale v.
c Jayanthi Raghu and Another11 wherein it has been ruled thus:-
           "A confirmation, as is demonstrable from the language
           employed in the Rule, does not occur with efflux of time.
           As it is hedged by a condition, an affirmative or positive
           act is the requisite by the employer. In our considered
D          opinion, an order of confirmation is required to be passed."

         Thus analyzed, the conclusion of the High Court which also
    rests on the interpretation of the regulations does not commend
    acceptation.
E
       38. Consequently, the appeals are allowed and the orders
  passed by the High Court are set aside. However, if any
  amount has been paid on any count to any of the respondents
  in the appeals pursuant to the orders passed by the High Court,
F the same shall not be recovered on any count. There shall be
  no order as to costs.

    R.P.                                            Appeals allowed.




     11. c2012) 4 sec 793.