JUDGMENT Mahendra Bhushan Sharma, J.
1. Though the above number of petitions are not covered by the same set of Rules, in as much as some are governed by the Rajasthan Educational Service (Collegiate Branch) Rules, 1986 (for short here in after referred to as 'the Rules'), whereas others are not so governed, but a common question is involved in each of the writ petitions whether the practice of appointing Lecturers at the start of the academic session and terminating their services on the last day of the academic session, can be upheld and can be said to be in accordance with the Rules?
2. The above number of first five writ petitions are from the Lecturers each of whom was appointed under Rule 29 of the Rules by making urgent temporary appointment. Smt. Shashi petitioner in writ petition No. 1247 of 1988 was for the first time appointed as Lecturer in History subject vide order date November 20, 1987 in the Government Lal Bahadur Shastri Post Graduate College Kotputli. She in fact joined her post on November 27,1987. Prior to the aforesaid posting she also worked as Lecturer in different colleges as given below:
S No. Name of College Period  Ch. B.R.G. Govt. Girls College, Sri Ganganagar 14-12-1983 to 5-5-1984  - do - 19-7-1984 to 18-9-1984 & 5-11-1984 to 6-5-1984  -do - 12-7-1985 to 23-9-1985  Maharani Sudarshana College, Bikaner 24-9-1985 to 6-5-1986  Sona Devi Sethia Girls College, 1-8-1986 to 9-10-1986 Sujangarh, Distt. Churu 5-11-1986 to 6-5-1987 3-8-1987 to 2-11-1987
appointment and in accordance with Rule 29 of the Rules she was to be relieved on May 12, 1988, but was not relieved as a result of the stay in writ petition by this Court Harpit Singh in Writ Petition No. 1263 of 1988 after completing his post-graduation in the year 1984 was initially appointed on the post of Lecturer on urgent temporary basis under order dated November 24, 1984 under the Rajasthan Educational Service (Collegiate Branch) Rules, 1971, which Rules were repealed by Rule 38 of the Rules. He was reappointed on urgent temporary basis on July 5, 1985 and relieved vide order dated May 6, 1986, again reappointed on November 3, 1987 and he received an order that he was to be relieved in the after-noon on May 12, 1988, i.e., the last day of academic session. It may also be stated that the Rajasthan Public Service Commission (for short here in after referred to as 'the Commission') also issued advertisement on July 24, 1985, where by amongst other subjects, 35 posts of Lecturers in Physics were also advertised. The requirement was to be made under Part IV of the Rules. A screening test as well as interview was to held and the petitioner succeeded in the screening test and was called for interview on February 25, 1986 in which he was successful also and the Commission sent two lists, the main list and the reserve list to the Government and as per the case of the petitioner where as the main list contained names of 45 candidates, the reserve list contained names of 43 candidates and the name of the petitioner was placed at serial No. 24 in the reserve list. Rishbhan Chaturvedi in Writ Petition No. 1305 of 1988 after having obtained a degree of Master of Arts in English Literature was initially appointed as Lecturer in Government College, Barmer, where he served from September 17, 1984 to May 6, 1985. Thereafter he was reappointed as Lecturer in Government College, Sawai Madhopur, where he worked from July 8, 1985 to October 4, 1985. There after he was reappointed as Lecturer in English in Government College, Sirohi from October 5, 1985 to May 6, 1986, in Government College, Barmer from July 24, 1986 to October 4, 1986 and in Government College, Sawai Madhopur from October 5, 1986 to May 6, 1987. There after the petitioner was reappointed as Lecturer in English Literature in Government College, Karauli on July 2, 1987 where he was to serve till the end of the academic session, i.e., May 12, 1988 and before the end of the last day of the academic session he preferred a writ petition and continued under the stay order granted by this Court. Ramesh Kumar Sharma in Writ Petition No. l458 of 1988 after passing his M.A. and M.Phil, examinations in English subject in the years 1981 and 1982 respectively was initially appointed on the post of Lecturer on urgent temporary basis on December 1, 1984 and served as Lecturer till May 6, 1985 when summer vacation started and he was reappointed after summer vacation under order dated July 5, 1985 and worked as Lecturer till May 6, 1986. He was again reappointed on July 14, 1986 and worked as Lecturer till May 6, 1987 and re-appointed in the sessions 1987-88 under order dated July 28, 1987. His term was to expire on May 13, 1988 and relieving order was handed over to him by the Principal of Government College, Neem-ka-Thana where he was then working. He challenged that order and continued to work under stay order granted by this Court. Smt. Nalini Pareek in Writ Petition No. 1739 of 1988 is M Phil. from Gujarat University and though initially she worked as Lecturer in Gujarat, as a result of her marriage with one Shri Prabodh Pareek at Jaipur she relinquished job there and after applying for the post of Lecturer was initially appointed on urgent temporary basis under Rule 29 of the Rules on November 3, 1987 under the orders of the Director of College Education , Rjasthan, Jaipur. She was relieved from her post on May12, 1988 at the start of the summer break. An advertisement was issued by the Director of College Education, Rajasthan, Jaipur in News paper 'Rajasthan Patrika' dated May 31, 1988 and other papers by which the posts against which the petitioner and other persons were working were advertised for giving fresh appointments. She challenged the order relieving her. There is no stay from this Court and she is not continuing.
3. In the second batch of writ petitions Narendra Yadav in writ petition No. 75 of 1988 came to be appointed on the post of Lecturer in Applied Arts in the Rajasthan School of Arts, Jaipur by the Director, College Education, Rajasthan, Jaipur under order dated February 28, 1986. The said order was passed under Rule 29 of the Rules. He was re-appointed on the basis of his merit for the year 1986 on July 5, 1986 but he was not re-appointed on December 22, 1987 and he filed the writ petition in this court on January 7, 1988 challenging the decision not to re-appoint him and it was ordered that he shall not be relieved. Gopal Ram Joshi in writ petition No. 148 of 1988 was also like Narendra Yadav appointed as Lecturer in Applied Arts in the Rajasthan School of Arts, Jaipur on July 5, 1986, was re-appointed on the basis of his merit from July, 1987, but he was not re-appointed on December 22, 1987, whereas others were appointed. He too filed writ petition in this Court and it does not appear that there is any stay so far as this case is concerned. Binod Kumar Singh in writ petition No. 1121 of 1988 was appointed as Lecturer on urgent temporary basis also in the Rajasthan School of Arts, Jaipur under order dated October 8, 1982 until either at the end of the academic session or until such time as the Commission makes the selection, whichever is earlier. He was relieved on May 7, 1983. He was re-appointed in subsequent years at the beginning of the academic session and relieved at the end of it and continued till August 14, 1987. He was re-appointed on July 31, 1987, the term was extended till the end of the academic session. Ultimately he was relieved on May 6, 1987 last day of the academic session. He filed writ petition in this Court and this Court ordered that his service shall not be terminated. Ankit Patal in writ petition No. 1173 of 1988 was appointed as Lecturer in Sculpture at the Rajasthan School of Arts Jaipur vide order dated September 24, 1983. He was relieved at the end of the academic session on May 5, 1984. He was re-appointed at the beginning of every session and was relieved at the end of every session. He was again appointed at the beginning of the Session 1987-88 upto the end of the current academic session and he apprehending that he will be relieved on May 6, 1988 the last day of the academic session, preferred a writ petition in this Court and this Court ordered that he shall not be relieved unless regularly selected candidates from the Commission are available. Harshiv Kumar in writ petition No. 1196 of 1988 was appointed as temporary Lecturer in Painting in March, 1986, relieved on May 6, 1986, re-appointed on July 8, 1986 and relieved on May 6, 1987. He was re-appointed on January 1, 1988 till the academic session and apprehending that he will be relieved on May 6, 1988 filed writ petition in this Court and this Court like any other writ petition stayed his relieving.
4. In the third batch of writ petitions Miss Prabha Mathur in writ petition No. 1195 of 1988 was appointed as temporary Lecturer in Music on November 7, 1983 and was relieved on May 5, 1984, was re appointed at the beginning of every academic session and relieved at the end of it till May 6, 1987. She was lastly appointed on January 1, 1988 and apprehending that she will be relieved on May 6, 1988, the last day of academic session-preferred a writ petition in this Court and this Court passed an order that her service shall not be terminated till further orders. Miss Madhu Saxena in writ petition No. 1197 of 1988 was appointed as temporary Junior Lecturer in Dancing by the Rajasthan Sangeet Sansthan on December 10, 1985 and was relieved on May 6, 1987 and was re-appointed for the academic session 1987-88 and was lastly appointed on January 1, 1988 and apprehending that she may be relieved on May 6, 1988, the last day of, academic session preferred a writ petition and her termination was stayed by this Court. Smt. Urmila Upadhyay in writ petition No. 1198 of 1988 was appointed as Lecturer in Tabla on October 27, 1984 and was relieved at the end of session on May 6, 1985. She was then re-appointed at the beginning of every academic session and relieved at the end of it. She was lastly appointed on January 1, 1988 and apprehending that she will be relieved filed writ petition in this Court and this Court stayed the termination of her service. Rajeev Agarwal in writ petition No. 1199 of 1988 was appointed as temporary Junior Lecturer in Violin on December 10, 1985, was relieved of his post on May 6, 1986, re-appointed on the same post for academic session 1986-87 and was relieved at the end of the academic session. He was re-appointed on January 1, 1988 and apprehending his termination on the last day of the academic session preferred writ petition in this Court and his Court stayed the termination of his service.
5. Shree Mohan Mathur in writ petition No. 1200 of 1988 was appointed as temporary Lecturer in instrumental Sitar at the Rajasthan Sangeet Sansthan in 1981, was relieved at the end of session 1981-82, was re-appointed in the academic session 1982-83 and was relieved in 1983, re-appointed in academic session 1987-88 on 1-1-1988 and apprehending that he will be relieved on the last day of the academic session i.e. May 6, 1988 preferred writ petition in this Court and his termination was stayed. Vijay Kumar Sidh in writ petition No. 1201 of 1988 was for the first time appointed as temporary Junior Lecturer in Tabla at the Rajasthan Sangeet Sansthan from January 1, 1986. He was relieved at the end of academic session, was re-appointed and was relieved in May, 1987. He was lastly appointed on January 1, 1988 and apprehending that he may be relieved on May 6, 1988 filed writ petition in this Court has ordered stay in his favour. The last of the petitioner in batch of these writ petitions in respect of the Rajasthan Sangeet Sansthan Jaipur is Smt. Prem Dave in writ petition No. 1202 of 1988. She was appointed as a Teacher in 1982 in Vocal Music, was relieved at the end of every term and reappointed at the beginning of every academic session. She was lastly appointed on January 1, 1988 and apprehending that she may be relieved on the last day of academic session on May 6, 1988, preferred writ petition in this Court and this Court granted a stay order in her favour.
6. Having stated the facts in each case and before we deal with the question raised before us by the learned Counsel for the parties, we may state that so far as the first five writ petitions are concerned, the appointments are governed by Rule 29 of the Rules. The second batch of five writ petitions is in respect of the Lecturers of Rajasthan School of Arts, Kishanpole Bazar, Jaipur and their appointments were earlier made under the Rajasthan Educational Service (Collegiate Branch) Rules, 1971 and now are being made under the Rules. So far as the last batch of seven writ petitions is concerned, they are in respect of the Rajasthan Sangeet Sansthan, Kishanpole Bazar, Jaipur and the said Institution was already being controlled and run by the Director, Primary and Secondary Education, Rajasthan because the status was only of a School and not of a college. It was only in the year 1980 that the Institution was transferred to the Directorate of College Education with a view to raise the status of the Institution to the status of a college and administrative decision was taken vide Government order dated September 27, 1980. A separate Governing Council and Board of Studies was constituted and it was under the Ministry of State for Arts and Culture. The Governing Council was empowered to lay down the over all policy to supervise the function of the Institution and also to supervise the business and work of the school. There were no Rules in force governing the service conditions of Lecturers of this School. The Rules are in process of being framed. It may be stated that till the finalisation of the Rules the policy of the State Government regarding appointment of temporary Lecturers is being made applicable.
7. After notice was given to the non-petitioners, replies have been filed in some of the writ petitions, but as the replies in the three batches of he above number cases relating to Lecturers appointed by the Director of College Education in Government Colleges, in the School of Arts and Sangeet Sansthan have been filed in one or the other case, they will be considered for all the cases.
8. The contention of learned Counsel for the petitioners is that practice of appointing Lecturers on urgent temporary/ad-hoc basis at the beginning of each academic session and terminating their services on the last day of academic session, re-appointing them again at the beginning of the next session is arbitrary, contravenes Articles 14 and 16 of the Constitution amounts to the policy of 'hire and fire' and, therefore, must be struck down by this Court and such of the temporary Lecturers who are appointed on urgent temporary/ad-hoc basis must be allowed to continue till regularly selected candidates under the Rules are available through the media of the Commission. In support of their contention the learned Counsel for the petitioners have placed reliance on the case of Ratan Lal v State of Haryana AIR 1987 SC 478. They also placed reliance on a decision of this Court dated November 30, 1987 in D.B. Civil Writ Petition No. 1583 of 1987 Anita Mehta v. State of Rajasthan and Ors. It is contended by the learned Counsel for the petitioners that taking advantage of unemployment of educated youth appointments are being made for the academic session, they are terminated of the last day of the academic session, no salary for vacation is paid to such of the Lecturers. They are deprived of such other benefits to which they would be otherwise entitled in case a policy of 'hire and fire' is not adopted. In case of Ratan Lal (supra) the Supreme Court was considering the case of ad-hoc appointees at the commencement of an academic year and terminating their services before the coming of the next summer vacations, or earlier, and to reappoint them again under the same terms and conditions. In their cases, it appears, that a substantial number of ad-hoc appointments were made in the then existing vacancies which remained unfilled for three to four years. The Supreme Court observed as under:
It is the duty of the State Government to take steps to appoint teachers in those vacancies in accordance with the rules as early 2 possible. The State Government of Haryana has failed to discharge that duty in these cases. It has been appointing teachers for quite some time on an ad-hoc basis for short periods as stated above without any justifiable reason. In some cases the appointments are made for a period of six months only and they are renewed after a break of a few days. The number of teachers in the State of Haryana who are thus appointed on such ad-hoc basis is very large indeed. If the teachers had been appointed regularly, they would have been entitled to the benefits of summer vacation along with the salary and allowances payable in respect of that period and to all other privileges such as casual leave, medical leave, privilege leave, etc, available to all the Governments servants These benefits are denied to the ad-hoc teachers unreasonably on account of this pernicious system of appointment adopted by the State Government. These ad hoc teachers are unnecessarily subjected to an arbitrary 'hiring and firing' policy. These teachers who constitute the bulk of the educated unemployed are compelled to accept these jobs on an ad hoc basis with miserable conditions of service. The Government appears to be exploiting this situation. This is not a sound personnel policy. It is bound to have serious repercussions on the educational institutions and the children studying there. The policy of 'adhocism' followed by the State Government for a long period has led to the breach of Article 14 and 16 of the Constitution. Such a situation cannot be permitted to last any longer. It is needless to say that the State Government is expected to function as a model employer.
The Supreme Court directed the State Government to take immediate steps to fill up the vacancies in accordance with the relevant rules. It was further observed that the State Government may also consider sympathetically the question of relaxing the qualification of maximum age prescribed for appointment to those posts in the case of those who have been victims of this system of 'adhoc' appointments. The Supreme Court also deprecated the policy of the State Government under which 'ad-hoc' teachers were denied by resorting to the fictional breaks of the type referred in the judgment the various benefits and ordered that they shall be paid salary and allowances for the period of summer vacation as long as they hold the office under the orders of the Supreme Court and those who are entitled to maternity or medical leave. They will also be granted such leave in accordance with the Rules.
9. This Court in the case of Antia Mehta (supra), a case of a temporary Lecturer appointed in Government Womens' Polytechnic College, Jaipur, where there were no Rules governing the conditions of service, placing reliance on the aforesaid case of Ratanlal held that the practice followed by the State Government in making ad-hoc appointments on the posts of Lecturers in the Government Womens' Polytechnic College in one session only i.e. from July/August to May and terminating their services in May and to make fresh appointments for the next session again, cannot be approved.
10. The question is as to whether the above referred two cases, one of the Supreme Court as well as the other of this Court would or would not govern the present cases? Mr. M.I. Khan, learned Additional Advocate General has contended that so far as the case of Ratanlal (supra) is concerned, it will have no application in as much as there is no challenge to Rule 29 of the Rules under which urgent temporary/ad-hoc appointments are made from session to session and secondly, so far as the appointment under Rule 29 of the Rules is concerned, it is based on a policy decision in as much as guidelines have been issued laying down the manner and mode in which the appointments are to be made. In making the appointments, there is no arbitrariness and the guidelines issued by the Government have stood the test of time and such of the persons who are appointed as temporary Lecturers under Rule 29 of the Rules, in most of the cases are not only entitled for the salary during the period of vacations, but are also entitled to the other benefits in accordance with the relevant rules. It was also contended by Mr. Khan, learned Addl. Advocate General that so far as the case of Miss Anita Mehta is concerned, the learned Judges did not discuss the guidelines issued by the Government in respect of appointments of Lecturers on temporary/ad hoc basis and placed reliance on the case of Ratan Lal (supra), which, according to Mr. M.I. Khan, for the reasons submitted by him is not applicable to the present cases.
11. In the reply filed on behalf of the State it has been stated that the College Education Department is a very big department in the Department of Education, Government of Rajasthan. There are 63 Government Colleges with about 4000 Lecturers on its roll and the strength is increasing day by day. The details of the posts subject-wise and the nature-wise have been given in the Schedule attached to the reply, which Schedule has been prepared for the vacancies as they existed on April 1, 1988. The same is Annexure-R/1. It is further the case that generally the substantive and temporary vacancies likely to continue indefinitely are being determined as per rules and requisition is being sent to the Commission for making selection. After the Commission makes selection, the selectees are being appointed as per rules from year to year. So far as temporary vacancies which are short term and long term leave vacancies are concerned, the State Government is resorting to Rule 29 of the Rules and it is resorting to the aforesaid provision for reasons that some vacancies occur for reasons not immediately known or contemplated or anticipated but remain unfilled at the start of the session. Such vacancies which remain unfilled or which cannot be immediately filled in by direct recruitment or by promotion in the regular manner, are being filled in by this procedure in officiating capacity from amongst eligible persons on the basis of merit which is being prepared by the State Government yearly. So far as the merit is concerned, according to the reply it is being evaluated in the following manner:
[a] The marks obtained in M.A./J S.C /M.Com. are being taken as basic merit. This merit is liable to be enhanced or reduced;
[b] The 6% marks will be added to the basic merit if the candidate is holding qualification of Ph. D.;
[c] If the candidate is holding qualification of M.Phil in I-Division, then the candidate will further get a weightage of 4% and if Division-II, then the weightage will be of 2%;
[d] For candidates having the qualification of B.A. (Hons.) 5% weightage will be given for I-Division and for Second Division, the weightage of percentage will be of 2%;
|e] The candidate holding B.A., in I-Division, will get weightage of 3%. If the candidate is I-Division in Higher Secondary, he will further get weightage, of 2%. Similarly, he will get weightage of 1% if he is I-Division of Secondary examination. On the contrary of IIIrd Division, deduction will be as under:
(i) B.A. 3%
(ii) Higher Secondary 2%
(iii) Secondary 1% [f] That the State Government is giving further weightage of experience for evaluating merit. If the candidate has worked for more than 5 months in a session, then he will get 2% more weightage over and above the basic merit with all addition if any upto the maximum extent of 10% (upto 5 session).
In accordance with the above formula for determination/assessment of the merit, for such of the temporary and leave vacancies which remain unfilled or which are likely to remain unfilled, and advertisement is issued in May every year for inviting applications for the posts of all subjects in the next session. After the last date fixed for receipt of the applications, all the applications are being examined, biodata of all the applicants are being prepared and from that bio-data merit is being computed as stated above. Immediately at the start of the session, looking to the needs of the institution, students or other administrative exigencies, appointments are made. These appointees are required to join within the time specified in the appointment order. It is further stated in the reply that the above system of making urgent temporary appointments under Rule 29 of the Rules neither amounts to 'hire and fire', nor to 'exploitation', nor to, promote the adhocism' in violation of the service Rules. It does not deprive the appointees in all eventualities from the pay of summer vacation, leave benefits, pensionary benefits etc., the facts in respect of which have been stated in para 6 sub-paras (i) to (vi) of the reply in writ petition of Rajeev Agarwal as well as in some other replies filed to the writ petitions.
12. It can, therefore, be said that the appointments are being made under Rule 29 of the Rules. It may be stated that Rule 29 appears in Part VII of the Rules. It deals with provisions of appointment, probation and confirmation. The said Rule 29 was amended by Rule 5 of the Rajasthan Educational Service (Collegiate Branch) (Amendment) Rules, 1987 and retrospective effect had been given to the said Amendment and it has been mentioned in Rule 1(ii) of the aforesaid Amendment Rules that it shall be deemed to have come into force with effect from January 29, 1986. Rule 29 as amended reads as under:
29. Urgent temporary appointment: (1) A vacancy in the service which cannot be filled in immediately either by direct recruitment or by promotion under the rules may be filled in by the Government or by the Authority Competent to make appointments as the case may be; by appointing in an officiating capacity thereto an officer eligible for appointment to the post by promotion or by appointing temporarily thereto a person eligible for direct recruitment to the service, where such recruitment has been provided under the provisions of these rules.
Provided that such an appointment will not be continued beyond a period of one year without referring the case to the Commission for concurrence, where such concurrence is necessary; and shall be terminated immediately on its refusal to concur:
Provided further that in respect of a post in the service for which both methods of recruitment have been prescribed, the Appointing Authority or the Authority competent to make appointments, shall not, save with specific permission of the Government in the Department of Personnel, fill the temporary vacancy against the direct recruitment quota by a whole time appointment for a period exceeding three months otherwise than out of persons eligible for direct recruitment and after a short term advertisement as per procedure which may be laid down by the Government from time to time, upto the end of the academic session or till a candidate selected by the Commission is made available, which ever is earlier.
(2) In the event of non-availability of suitable persons, fulfilling the requirements of eligibility for promotion, Government may, not with standing the conditions of eligibility for the promotion required under Sub-Rule 0) above, lay down general instructions for grant of permission to fill the vacancies on urgent temporary basis subject to such conditions and restrictions regarding pay and other allowances as it may direct. Such appointment shall, how ever, be subject to concurrence of the Commission as required under the said sub-rule.
A bare reading of the aforesaid Rule 29 will show that the Rule can only be attracted into service in case vacancy in the service cannot be filled immediately either by direct recruitment or by promotion under the Rules. In that eventuality the power has been vested in the Government or the competent authority to make appointments by appointing in an officiating capacity' there to an officer by appointing there to a person eligible for direct recruitment in the service. Under the proviso urgent/temporary appointment cannot be continued beyond a period of one year without referring the case to the Commission for concurrence, where such concurrence is necessary; and shall be terminated immediately on its refusal to concur. Prior to the aforesaid amendment there was a provision in Rule 29 for making urgent/temporary appointments upto the end of academic session or till a candidate selected by the Commission is made available, which ever is earlier. But even under the amended Rule 29 under which urgent temporary appointments may be made in case a vacancy of Lecturer in the service cannot be filled in immediately by direct recruitment or by the competent authority, urgent/temporary appointments can be made for a period not exceeding one year, one year being the outer limit and even if an appointment is made for an academic sessions, it will fall within the outer limit of one year. In our opinion, no urgent temporary appointment, therefore, under Rule 29 can be continued beyond a period of one year without referring the case to the Commission for concurrence and shall be terminated immediately on its refusal to concur. It will, therefore, be clear that before an urgent temporary appointment under Rule 29 can continue beyond a period of one year, a reference has to be made to the Commission for concurrence, because recruitment to the post of Lecturer is within the purview of the Commission and if the Commission did not give its concurrence, the appointment has to be terminated. Two courses, therefore, are open for the appointing authority in case of urgent temporary appointments under Rule 29, the first is that either it can refer the case of the appointee appointed under Rule 29 of the Rules to the Commission for its concurrence and on the refusal of the Commission to give its concurrence to terminate the service immediately, the second is that such an appointment could only be terminated by efflux of time, the appointment being made for academic session and as such coming to an end on the last day of academic session. It appears that the appointing authority is adopting the second of the above referred two courses open to it. It is in accordance with the merit formula in inviting applications each year, making appointments, re-appointing such of them whose names again appear in the merit list. Can it be said that the second method being adopted by the authority is arbitrary and is violative of Articles 14 and 16 of the Constitution of India?
13. There can be no dispute that substantive vacancies or such vacancies of Lecturers which are likely to continue for some period must be filled in accordance with the provisions of Part IV and the practice of making urgent temporary/ad hoc appointments against any of those vacancies cannot be approved and must be deprecated. Rule 7A of the Rules, which too was introduced by the Amendment Rules, 1987 cast a duty on the appointing authority to determine as soon as possible after 1st April every year, the actual number of vacancies occurring as on 1st April and also anticipated during the financial year. After the aforesaid determination of vacancies, a requisition is sent to the Commission and direct recruitment in accordance with Part IV of the Rules is to be made by the Commission. Therefore, the appointing authority cannot and should not fill vacancies under the provisions of Rule 29 of the Rules for making urgent temporary appointments for such vacancies which are substantive or are likely to continue for future years, unless recruitment every year for vacancies determined for some reasons is not held by the Commission, though it should be held in accordance with the Rules. A reference has also been made to the formula-preparation of the merit list for appointment on urgent temporary basis under Rule 29 of the Rules. A look at the position of vacancies as on April 1, 1988 and as given in the Schedule marked as Annexure-R/1 in the reply will show that as on April 1, 1988 there were total 3286 sanctioned posts. Out of these posts regularly selected candidates 3077 were working. It is further revealed from the aforesaid Schedule that there are 83 long term and 126 short term vacancies. There are also 162 leave vacancies and the total of long term, short term and leave vacancies is 371. It is the case of the non-petitioners in the reply that except the two subjects namely English and Home Science every year regular selections are being made and only if thereafter any vacancy remains unfilled, the recourse is being had to Rule 29 of the Rules to make urgent temporary/ad hoc appointments. The reason for not making any recruitment for the posts of Lecturers in English that there is some dispute about the qualification of the candidates for those posts, which is likely to be fixed shortly. It will, therefore, be clear that only for a few hundred posts in different subjects and that too when the posts are either not filled through the Commission or some Lecturers proceeding on leave and there are vacancies which are vacancies of long term or short term, urgent/temporary appointments are being made. It is not that such of the persons who are appointed on urgent/temporal basis are denied benefits which are available to the regularly recruited and appointed candidates. An appointee will be entitled to pay of summer vacation if he or she was appointed in the previous sessions on December 31, 1986 and further if he joins within one month from the date the next session starts and continues in service that year. A reading of the Government decision under Rule 97 of the Rajasthan Service Rules, 1951 will show that it is to this effect:
It has been decided that persons temporarily appointed on teaching side in Schools and Colleges on or before 31st December against clear vacancies under orders of the competent authority may be allowed vacation salary, provided no other Government servant draws vacation pay against the same post and provided further that such Government servants join their duty within a period of one month from the date of opening of the session and remains in service upto 31st December of that Session.
The service of all such temporary teachers who are appointed before 1st January in leave vacancies or by authorities incompetent to make such appointment and of all temporary teachers who are appointed after 31st December, shall be terminated on the last working day of the Session.
Not only this, all such temporary appointees under Rule 29 of the Rules whose appointment is followed by confirmation or regular selection through the Commission also get advantage of computation of period and experience of temporary appointment on urgent temporary basis for computation of pension gratuity etc. They can avail of as many chances for appearing before the Commission as age limit permits except in those categories for which number of attempts is limited and in those categories the leave benefits are also extended to the appointees as per the Rajasthan Service Rules and are not being denied to them. They are also entitled to GPF from their pay like other regular appointees. A look at Rule 24 of the Rajasthan Service Rules will show that it relates to pay and its exception is as under:
Except in the case of a Government servant on teaching side in Schools and Colleges, who is entitled t6 draw vacation salary in, accordance with para 1 of Government of Rajasthan's decision No. 1 below Rule 97 of the Rajasthan Service Rules the initial pay on re-appointment to the same post in the new academic session, shall not be less than the pay other than special pay, personal pay or emoluments specially classed as pay, which he drew on the last such occasion, and he shall count the period during which he drew that pay on such last occasion for increment in the stage of the time scale equivalent to that pay, provided he joins his duty within a period of one month from the date of opening of the next session.
It will, therefore, be clear that not only a person appointed as Lecturer temporarily under Rule 29 of the Rules is entitled for salary to the period of vacations under certain conditions, but is also entitled to increment. They are also entitled to leave benefits in accordance with the Rajasthan Service Rules.
14. A reference has already been made to the guidelines of the State Government under which the merit of a candidate is to be assessed for appointment to a post of Lecturer on a urgent temporary basis. While determining the merit of such of the candidate for appointment, the state Government is giving weightage of experience and if a candidate has worked for more than five months in a sessions he or she will get 2% more weightage over and above to be determined in accordance with conditions and if a candidate works upto five or more sessions he is entitled to weightage to the maximum extent of 10 per cent. It will, therefore, be clear that weightage of 2 per cent to 10 per cent which cannot be said to be negligible, is being given to such of the candidates depending on their having worked in academic session as and when a fresh merit is prepared for the new academic Session. If a candidate is reappointed as per his merit and we may state that the very fact that all the petitioners in the writ petitions have been appointed, re-appointed for year to year goes to show that barring a few exceptions such of the temporary Lecturers who are being appointed on urgent temporary basis are being re-appointed and are getting salary for the vacations, increment in the pay and the leave etc. in accordance with the Rules. If such of the persons who are appointed on urgent temporary basis and as stated earlier the outer limit is one year under Rule 29 and has to be terminated on refusal by the commission to concur to which a reference has to be made, are allowed to continue from year to year, it will be in contravention of Rule 29 of the Rules and not only this, it will debar the freshers who may be still more meritorious despite the fact that the urgent temporary appointees are entitled to weightage as aforesaid. Even regular selections have to be held in case the vacancies are substantive and are likely to continue for long, such of the candidates who are appointed on urgent temporary basis are appointed for one session will have to compete with The freshers of that year and, therefore, if every year merit is being prepared and urgent temporary appointees are to compete with the freshers of that year making urgent temporary appointments under Rule 29 of the Rules is arbitrary or amounts to 'higher and fire'. Thus, as already said earlier that the very fact that such a number of persons are re- appointed under Rule 29 of the Rule goes to show that the system is reasonable, not arbitrary and has stood the test of time. It may be stated that it has so happened, and is not disputed on behalf of the petitioner, that even such of the candidates who faced the Commission for regular recruitment and did the succeed were allowed to continue on the posts and were re-appointed in case Of evaluation of the merit as per the formula of the state Government if they stood in merit. We are, therefore, of the opinion that the appointments under Rule 29 of the Rules, which have to be made as Lecturers may proceed on leave, there may be leave vacancies, there may be vacancies which remained unfilled even though regular selections are held by the Commission do not amount to 'hire and fire.' It cannot be said that is a arbitrary or that it violates Articles 14 and 16 of the Constitution of India. So far as the case of Ratan Lal (supra) is concerned, we may state that it does not appear from the perusal of the judgment that there was any well defined policy/guidelines for making appointments and the practice of making ad hoc appointments for short periods, then re-appointing and giving a break was deprecated. In the instant cases the appointments are being made in accordance with well defined policy which policy/guidelines stood the test of time and if urgent temporary appointees are allowed to continue beyond a period of one year, it will amount to contravention of Rule 29 of the Rules. In view of the fact that appointments even earlier years under Rule 29 of the Rules are being made on merit and such of the appointees who are re-appointed get weightage from 2 per cent to 10 per cent depending on the session they have served in our opinion the case of Ratan Lal (supra) will not apply. So far as the case of Miss Mehta (supra) is concerned, we have already said earlier that the decision of that case is based on the case of Ratan Lal and it does not appear that either the policy or the guidelines of the State Government in making the appointments and evaluating the merit of the candidates was brought to the notice of the Court or was gone into by it. That apart is appears that there were no rules governing the recruitment and the learned Court did not considered and was not required to consider the provisions of Rule 29 of the Rules under which urgent temporary appointments are made on the post of Lecturers by the Director of College Education and such appointment cannot continue beyond one year. So far as the appointments in Sangeet Sansthan are concerned, the Rules are under preparation and their appointments are being made as per the guidelines referred to above. We may also state that under Rule 10(2) of the rules there is a provision that the temporary appointees shall be deemed to be within the age limit prescribed under Rule 10(1) if they were within the age limit when initially appointed though they have crossed the age limit when they appear finally before the Commission and further they will be allowed upto two chances had they been eligible as such at the time of their initial appointment. That apart under Rule 39 of the rules power is vested in the State Government also to relax age in exceptional cases. Thus there are sufficient safeguards in the Rules to safeguard the interest of such of the appointees who are and have to be appointed on urgent temporary basis under Rule 29 of the Rules. We may further state that any other view will be un-reasonable in as much as if the appointees under Rule 29 are allowed to continue beyond a period of one year, it will not only be in contravention of Rule 29 of the rules, but the possibility that such appointees may be allowed to continue for a number of years by not resorting to recruitment under Part-IV of the rules such cannot be excluded. It may deprive the freshers who is recruited under Part-IV of the rules is not held for a few years may become overage, to compete with the urgent temporary appointees of the earlier year/years. Such deprived freshers will not have and can have no benefit of Sub-rule (2) of Rule 10 of the rules in respect of age.
15. For the reasons aforesaid we find no merit in any of the writ petitions and they all are dismissed. We how ever direct the non-petitioners to fill all substantive vacancies and vacancies which are likely to continue for years in various subjects under Part-lV of the rules and to resort to Rule 29 of the rules only when making urgent temporary/ad-hoc appointments become necessary. Costs made easy.