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2013 DIGILAW 470 (JK)

Asmat Ara v. State Of J&K

2013-08-20

DHIRAJ SINGH THAKUR, M.M.Kumar

body2013
Per D.S. Thakur, J. 1. The present Letters Patent Appeal is preferred against the judgment and order dated 6th of June, 2013 passed by the writ court in SWP No. 480/2012. 2. At this stage, it would be relevant to submit in brief the facts leading to the filing of the present Letters Patent Appeal. 3. Appellant No. 1 came to be appointed as a contractual Lecturer in the year 2007 by virtue of order dated 25th of July, 2007. 4. Appellant No. 2 came to be selected and appointed as Assistant Programme Coordinators (Contractual basis) on a consolidated salary of Rs. 10,000/- per month in the Directorate of Distance Education. 5. It was made clear in both the orders that the appointment would be for a period of 89 days or till the available positions are filled up, whichever was earlier. It was also made clear in both the orders that the appointees would not be entitled to any appointment/service benefit on account of this engagement, which was purely on academic arrangement basis. 6. It appears that based on an erroneous assumption that in case the status of the appellant No. 1 was changed from contractual to casual, she would be entitled to seek regularization as per some scheme prevalent in the University, an application appears to have been forwarded by appellant No. 1 addressed to Director, Distance Education, University of Kashmir, who forwarded the same with recommendations to the Vice Chancellor for conversion of the post held by appellant from contractual Lecturer to that of Assistant Coordinator on casual basis. This recommendation of the Director was accepted by the Vice Chancellor for converting the post held by appellant No. 1 from contractual Lecturer to Assistant Coordinator on casual basis. 7. A similar recommendation was made by the Director, DDE, University of Kashmir on a request made by appellant No. 2, who had been appointed on contractual basis as Assistant Programme Coordinator for conversion of her contractual status to that of Assistant Programme Coordinator (Casual). 8. The Vice-Chancellor readily agreed to this proposal leading to an order by Director of Distance Education, which is Annexure R-6 with the writ record. By virtue of this order, w.e.f., 19th of April, 2010 status of appellant No. 1 was changed from contractual lecturer to Assistant Coordinator (casual) and appellant No. 2 to that of Assistant Programme Coordinator (casual). 9. The Vice-Chancellor readily agreed to this proposal leading to an order by Director of Distance Education, which is Annexure R-6 with the writ record. By virtue of this order, w.e.f., 19th of April, 2010 status of appellant No. 1 was changed from contractual lecturer to Assistant Coordinator (casual) and appellant No. 2 to that of Assistant Programme Coordinator (casual). 9. It appears that with the change of hierarchy in the University of Kashmir, a meeting was held on 17-11-2011 in the office of Vice Chancellor, University of Kashmir wherein it was resolved as under: "i) that the Contractual Lecturers will be given salary as presently in vogue in the University and will simultaneously be governed by the same procedure as is laid down by University of Kashmir in respect of Contractual Lecturers; ii) that the Assistant Programme Coordinators engaged in the Directorate will also get the revised salary as per the University order No. F (Salary-C/L) Adm/TW dated 09.07.2009; provided they accept the standard procedure of the University for appointment of Contractual Lecturers; iii) that the withheld arrears due to Contractual/Assistant Coordinators from the date of order of enhancement be released; iv) that the contractuals working in DDE as Lecturers or Assistant Programme Coordinators shall have to appear in the interview with other applicants in the month of December, 2011 (i.e., for the academic session) and selection will be made as the University norms and procedures; v) that if the Assistant Programme Coordinators claim that they are working on casual basis, then their salary will be paid as per University norms applicable to casual labourers (i.e., @ Rs. 125 per day) and their appointment will be strictly governed by University norms and procedure for Casual Labourers. vi) that if the Assistant Programme Coordinators demand enhanced salary at par with contractual lecturers, then their nature of job is contractual and will have to be engaged (on academic arrangement basis) strictly as per University procedure and norms applicable to contractual appointments on yearly basis through local selection committees." 10. vi) that if the Assistant Programme Coordinators demand enhanced salary at par with contractual lecturers, then their nature of job is contractual and will have to be engaged (on academic arrangement basis) strictly as per University procedure and norms applicable to contractual appointments on yearly basis through local selection committees." 10. Following this resolution, the Assistant Registrar (Administration) by virtue of its letter dated 14-12-2011 communicated the decision to the DDE, University of Kashmir informing him that all contractual lecturers or Assistant Programme Coordinators (Contractual) would have to appear in the interview with other applicants in December, 2011 for academic session 2012 in the selection to be made by University as per norms and procedure. 11. Subsequently, by virtue of circular dated 6-1-2012, it was decided that these contractual appointees would work for the period, 2nd of January, 2012 to 15-2-2012 to enable the Departments/Directorates to conduct examination and other academic activity smoothly. 12. By virtue of letter dated 25-1-2012 issued by the Assistant Registrar (Administration) and addressed to the DDE, Kashmir, it was conveyed that in view of the decision/resolution (supra), the Assistant Programme Coordinators (casual) be asked to opt whether they would like to work on casual basis @ Rs. 125/- per day or to work as contractual lecturers/Assistant Programme Coordinators (contractual). 13. Upon expiry of the period prescribed in the circular dated 6-1-2012, it appears that the University of Kashmir prevented the appellants to work any further. This led to the filing of the writ petition before the writ court. In the writ petition, a relief of mandamus was sought, permitting the petitioners to hold the post of Assistant Coordinators on casual basis. Further mandamus was sought, prohibiting the respondents from disengaging the services of the petitioners and further seeking consideration for regularization at par with employees working on casual basis. 14. In the writ petition, a relief of mandamus was sought, permitting the petitioners to hold the post of Assistant Coordinators on casual basis. Further mandamus was sought, prohibiting the respondents from disengaging the services of the petitioners and further seeking consideration for regularization at par with employees working on casual basis. 14. The writ court by virtue of judgment and order dated 6-6-2013 impugned in the present Letters Patent Appeal dismissed the writ petition by holding that the decision of the University to convert the status of the appellant No. 1 from contractual lecturer to Assistant Programme Coordinator (Casual) and the change of status of appellant No. 2 from Assistant Programme Coordinator (contractual) to Assistant Programme Coordinator (Casual) was in fact a colourable exercise of powers by the University of Kashmir to confer undue benefit on the petitioners, which was subsequently remedied by virtue of the decision/resolution dated 17.11.2011. 15. Mr. Haqani, learned counsel appearing for the appellants submitted that the appellants had a right to continue working as Assistant Coordinator and Assistant Programme Coordinator on casual basis till such time as their cases were considered for regularization and in the alternate submitted that they had a right to continue to work as such Assistant Coordinator and Assistant Programme Coordinator till regular selection was made against clear available positions on permanent basis. 16. Heard the learned counsel for the parties. 17. Learned counsel for the appellants has failed to bring to our notice any scheme which pertains to regularization of Assistant Coordinators and Assistant Programme Coordinators whether working on contract or casual basis. Not only this, he also failed to satisfy this court as regards their right to continue as such beyond the period prescribed in their orders of engagement. 18. By converting the post held by appellant No. 1 from that of Lecturer (Contractual) to that of Assistant Coordinator (Casual), the appellant No. 1 did not get any indefeasible right to continue as such ad infinitum or till regularization. Similarly, by changing the status of appellant No. 2 from Assistant Programme Coordinator (contractual) to Assistant Programme Coordinator (casual), no better right was created, which would permit her to continue beyond the period of 89 days, as a matter of right. 19. The right to work was limited to 89 days only. Similarly, by changing the status of appellant No. 2 from Assistant Programme Coordinator (contractual) to Assistant Programme Coordinator (casual), no better right was created, which would permit her to continue beyond the period of 89 days, as a matter of right. 19. The right to work was limited to 89 days only. Pursuant to the decision of the University dated 17-11-2011, their engagements came to an end when the University had proposed to conduct a fresh selection in December, 2011. However, in between, to meet the academic exigencies, the appellants were permitted to continue to work for the period w.e.f., 2.1.2012 to 15.2.2012 only. Beyond that period, the appellants had absolutely no right to continue to work as such. 20. The decision dated 17.11.2011 taken by the University has not been challenged by the appellants before the writ court. This decision envisaged inter alia that all lecturers or Assistant Programme Coordinators working in the department of Distance Education on contract basis shall have to appear in the interview with other applicants in the month of December, 2011 in the process of selection to be conducted by the University as per norms and procedures. 21. This decision was binding on the appellants also. An option was given to the appellants that in case they wanted their status to be that of casual employees, they would be paid salary @ 125 per day and their appointment would be strictly governed by the University norms and procedures as casual labourers. There is nothing on record, despite a specific question in this regard to Mr. Haqani, which could show that the appellants had exercised their option to be treated as casual labourers @ 125/- per day. 22. There could not have been such an exercise of option inasmuch as it would be ridiculous for any lecturer to opt for conferment of status as a casual labourer to be regularized ultimately in case the policy of the university so permitted as class-IV employee. 23. In fact, the entire effort of the appellants in getting their status changed from contractual to that of casual appears to have been under some mistaken belief and assumption that a lecturer like a casual labourer would also be entitled for regularization as per the existing norms in the University. 24. 23. In fact, the entire effort of the appellants in getting their status changed from contractual to that of casual appears to have been under some mistaken belief and assumption that a lecturer like a casual labourer would also be entitled for regularization as per the existing norms in the University. 24. The argument of the learned counsel for the appellants that the terms of engagement of the appellants gave them a right to hold the post of lecturer/ Assistant Programme Coordinator till selection was made by the University on regular basis is an assertion, which is absolutely contrary to the terms of the engagement, which clearly stated that the engagement would be for a period of 89 days or till the positions were filled up whichever was earlier. 25. We notice with some pain the manner in which the Directorate of Distance Education had acted in making the recommendations in favour of the appellants to the then Vice Chancellor, who appears to have taken a decision casually, unknown to service jurisprudence. In fact, the decision taken subsequently by the University dated 17-11-2011 attempted to extract the University from the predicament and restore order. 26. We cannot persuade ourselves to take a view different from the one that has been taken by the writ court. The University had decided to make a fresh selection for contractual lecturers and Assistant Programme Coordinators, which would enable other eligible candidates also to apply, making it easy for University to choose the best from the lot. 27. For the reasons mentioned hereinabove, the appeal is found to be without merit and is dismissed with cost of Rs. 10,000/-. Interim application No. 235/2013 also stands disposed of accordingly.