Shruti Kanga v. Central University of Jharkhand through its Vice Chancellor
2017-01-13
SHREE CHANDRASHEKHAR
body2017
DigiLaw.ai
ORDER : 1. In both the writ petitions, the petitioners have challenged the legality of advertisement issued on 02.07.2016 whereby applications for temporary engagement of Assistant Professors at various centers in the Central University of Jharkhand were invited. 2. Heard. 3. Briefly stated, the petitioners in W.P. (S) No. 3782 of 2016 were selected pursuant to advertisement issued on 16.06.2011 and they were appointed as Assistant Professors (Guest Faculty) on contractual basis. Petitioners in W.P. (S) No. 3783 of 2016 were also appointed on the post of Assistant Professor in the same manner. Their contractual period was subsequently extended from time to time. It is pleaded that vide Resolution dated 08.05.2015 of Deans Committee further extension of contractual period for 11 months, in terms of Clause 13.1 of the U.G.C. Regulations, 2010, was granted and consequently the petitioners' contractual period was extended for further 11 months. On 02.07.2016, an advertisement for walk-in-interview was issued for engagement, on purely temporary basis, on payment of consolidated remuneration of Rs. 25,000/- per month. Mr. Anil Kumar, the learned Senior counsel for the petitioners has submitted that the petitioners, when advertisement dated 02.07.2016 was issued, were already getting remuneration @ Rs. 35,000/- and in terms of a decision dated 08.05.2015 of the Deans Committee they were to continue on the post of Assistant Professor and while so, they did not participate in selection process pursuant to the advertisement issued on 02.07.2016. Referring to the decision in Hargurpratap Singh vs. State of Punjab and Others, (2007) 13 SCC 292 and decisions in Barinder Kaur vs. Guru Nanak Dev University, (2015) 0 Supreme (P&H) 1031 and Pradeep Navinbhai Patel and Others vs. State of Gujarat and Others, (2014) 0 Supreme (Guj) 47, the learned Senior counsel contends that before regular appointments are made the petitioners cannot be removed from service, as it would amount to replacing one set of ad hoc employees by another set of ad hoc employees. The learned Senior counsel has further contended that appointment of the Assistant Professors pursuant to advertisement dated 02.07.2016 is in the teeth of Clause 18(6) of the Statute of the Central University of Jharkhand. 4. Mr. Rahul Gupta, the learned counsel for the respondent-Central University, however, controverts the plea raised by the petitioners. It is submitted that the petitioners who were appointed on contractual basis, cannot claim continuance in service for indefinite period.
4. Mr. Rahul Gupta, the learned counsel for the respondent-Central University, however, controverts the plea raised by the petitioners. It is submitted that the petitioners who were appointed on contractual basis, cannot claim continuance in service for indefinite period. Moreover, after the appointments were made pursuant to advertisement dated 02.07.2016, the petitioners cannot be restored to the post of Assistant Professor, on which they were appointed pursuant to advertisements issued in the year, 2011 and 2013. 5. Clause 18 (6) of the Statute of the Central University is extracted below: 18(6) Appointments to temporary posts shall be made in the manner indicated below: (i) If the temporary vacancy is for duration longer than one academic session, it shall be filled on the advice of the Selection Committee in accordance which the procedure indicated in the foregoing clauses: Provided that if the Vice-Chancellor is satisfied that in the interests of work it is necessary to fill the vacancy, the appointment may be made on a purely temporary basis on the advice of a local Selection Committee referred to in Sub-clause (ii) for a period not exceeding six months. (ii) If the temporary vacancy is for a period less than a year, an appointment to such vacancy shall be made on the recommendation of a local Selection Committee consisting of the Dean of the School concerned, the Head of the Department and a nominee of the Vice Chancellor: Provided that if the same person holds the offices of the Dean and the Head of the Department, the Selection Committee may contain two nominees of the Vice-Chancellor: Provided further that in the case of sudden casual vacancies of teaching posts caused by death or any other reason, the Dean may, in consultation which the Head of the Department concerned, make a temporary appointment for a month and report to the Vice-Chancellor and the Registrar about such appointment. (iii) No teacher appointed temporarily shall, if he is not recommended by a regular Selection Committee for appointment under the Statutes, by continued in service on such temporary employment, unless he is subsequently selected by a local Selection Committee or a regular Selection Committee, for a temporary or permanent appointment, as the case may be.” 6. Clause 18(6) of the Statute deals with temporary vacancy.
Clause 18(6) of the Statute deals with temporary vacancy. It is provided that appointment on temporary vacancies shall be on the recommendation of the local Selection Committee and period of appointment shall not exceed six months. The plea taken by the petitioners that now the appointment of the Assistant Professors pursuant to advertisement dated 02.07.2016 has been extended for another six months and thus, it would be contrary to Clause 18(6) of the Statute, deserves to be rejected. In the first place sub-clause (ii) to Clause 18(6) contemplates appointment for a longer duration than one academic-session. The fact that the initial appointment pursuant to advertisement dated 02.07.2016 was made for six months cannot be lost sight of. Moreover, at the time when challenge to advertisement dated 02.07.2016 was made, the aforesaid situation had not arrived. 7. In view of the U.G.C. Regulations, the petitioners who were appointed on contractual basis on a consolidated remuneration, cannot be regularised on the post of Assistant Professors. It is pleaded that the contractual period expired on 21.06.2016 and the matter was examined in the light of guidelines contained in letter dated 03.03.2016 of the Ministry of Human Resource Development. The respondent-university has asserted that the petitioners' appointment was in breach of Clause 18(6) of the Statute. Regularisation in service contrary to the recruitment procedure provided under the Statute of the Central University and the U.G.C. Regulations cannot be ordered. In the context of the plea that the appointment on purely temporary basis after removing the petitioners would be in breach of the law laid down by the Supreme Court, it needs to be recorded that the petitioners were neither removed nor barred from participating in the selection process. Their term of contractual appointment had lapsed. After the decision of the Supreme Court in State of Haryana & Others vs. Piara Singh and Others, (1992) 4 SCC 118 and State of Karnataka vs. Uma Devi, (2006) 4 SCC 1 : 2006 (2) JLJR (SC) 282, the law on the subject is by now well settled. It has been held that an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee. However, whether an ad hoc/temporary employee should be reinstated, till regular appointment is made, is a question which can be decided in the facts of a case.
It has been held that an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee. However, whether an ad hoc/temporary employee should be reinstated, till regular appointment is made, is a question which can be decided in the facts of a case. The plea raised on behalf of the petitioners that they were replaced by another set of temporary employees and while so, till regular appointment is made they must be reinstated on the post of Assistant Professors cannot be accepted for two reasons. First, for the present academic-session it would not be in the interest of students and now, it would be unfair to those who were appointed pursuant to advertisement dated 02.07.2016 (not made party in the present proceeding). The need for making regular appointment is to avoid arbitrary action on the part of the appointing authority. In the affidavit dated 13.01.2017, the respondent-university has elaborated the process of selection which includes demo classes by the short-listed candidates before a Selection Committee constituted in terms of U.G.C. Regulations, 2010 and Clause 18 (2) of the Statute of the Central University of Jharkhand and while so, there is no necessity for ordering any additional benefit to the petitioners on the basis of their past services. There cannot be a quarrel on the issue that the respondent-university is under a duty to make regular appointment on the sanctioned vacant posts. Accordingly, it is hereby ordered that the Registrar, Central University of Jharkhand-respondent no. 2 shall initiate the process of regular appointment on all vacant posts in the Central University of Jharkhand, within four weeks from today. It is expected that all the appointments shall be made before the next academic-sessions commences. 8. I.A. No. 7542 of 2016 in W.P. (S) No. 3783 of 2016 and I.A. No. 7543 of 2016 in W.P. (S) 3782 of 2016 have been filed by the petitioners for payment of additional salary from December, 2014. The learned Senior counsel for the petitioners has referred to the Resolution of the Executive Committee which took a decision for payment of enhanced salary to the contractual faculty from the month of April, 2015. In reply to the aforesaid applications, the respondent-university has taken a stand that the Resolution, a copy of which has been annexed as Annexure-B by the petitioners, was never accepted and acted upon by the University.
In reply to the aforesaid applications, the respondent-university has taken a stand that the Resolution, a copy of which has been annexed as Annexure-B by the petitioners, was never accepted and acted upon by the University. The further stand taken by the respondent-university is that the constitution of the Selection Committee was not in terms of the U.G.C. Regulations and while so, the petitioners' appointment was illegal and therefore, they cannot be paid enhanced amount. 9. Considering the aforesaid facts, I am not inclined to issue a direction for payment at the enhanced rate. 10. In the light of the aforesaid discussions, both the writ petitions are dismissed.