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2023 DIGILAW 857 (PNJ)

Priya Swami v. Pt. B. D. Sharma University Of Health Sciences, Rohtak

2023-02-23

JAISHREE THAKUR

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JUDGMENT Jaishree Thakur, J. The instant writ petition has been filed under Articles 226/227 of the Constitution of India, seeking issuance of a writ in the nature of certiorari for quashing advertisement No.02/2012 (Annexure P-8), inviting applications to fill up 27 posts of Demonstrator on tenure basis, though the petitioner herein is already working on the same post, with a further prayer to issue a writ in the nature of mandamus directing the respondents to allow the petitioner herein to continue on the post of Demonstrator till the same is filled up on regular basis. 2. In brief, the facts as alleged are that the petitioner herein did her Bachelor of Dental Sciences from the respondent-University and applied for the post of a Demonstrator, for which she was called for a screening test on 19.07.2009. Thereafter, she was called for interview before the Selection Committee and was offered appointment on the post of Demonstrator (tenure basis) in Dental College, Rohtak. She was recruited on tenure basis in Dental College, Rohtak for a period of three years in the pay scale of Rs. 17440/- + Grade Pay 5400/- + DA. Consequent to the said appointment, the petitioner joined on 26.08.2009 and continued to work satisfactorily. The petitioner vide letter dated 30.08.2012 applied for issuance of experience certificate and character certificate, which was duly issued to her. The petitioner was given appointment as Demonstrator on 21.08.2009 for a period of three years and again on 04.09.2012, the tenure of the petitioner as Demonstrator was extended for a period of three months or till regular incumbent joins. The letter granting extension to the petitioner is dated 04.09.2012 (Annexure P-6). Instead of allowing the petitioner to continue in service as a Demonstrator, the respondent-University issued an advertisement No.02/2012 (Annexure P-8) inviting applications for the said post on tenure basis for a period of three years. Aggrieved against the impugned advertisement issued and the proposal to fill up the posts of Demonstrators again for a period of three years on tenure basis, the instant writ petition has been filed. 3. Mr. Sanjay Kaushal, learned Senior Advocate assisted by Mr. Anurag Goyal and Ms. Ojaswini Gagneja, Advocates appearing on behalf of the petitioner would contend that the law is well settled that a contractual/ad hoc appointee cannot be replaced by a similar arrangement except in the case of misconduct or inefficiency. 3. Mr. Sanjay Kaushal, learned Senior Advocate assisted by Mr. Anurag Goyal and Ms. Ojaswini Gagneja, Advocates appearing on behalf of the petitioner would contend that the law is well settled that a contractual/ad hoc appointee cannot be replaced by a similar arrangement except in the case of misconduct or inefficiency. It is submitted that the petitioner, who was appointed on tenure basis has worked satisfactorily without any complaint as would be evident from the experience certificate issued by the Head of the Department. Furthermore, the respondent-University itself had extended the tenure period of the petitioner based on her successful performance. He would urge that the respondents are again making appointment on tenure basis for a period of three years, but have also changed the qualification for the said post by making it M.D.S. instead of B.D.S., the qualification as possessed by the petitioner herein. It is further submitted that as per the minimum qualifications for Teachers in Medical Institutions Regulations, 1998 (amended upto November, 2010) as issued by the Medical Council of India the minimum qualification for the post of Demonstrator is B.D.S. and, therefore, by changing the qualification, an attempt is made to oust the petitioner from the said post held by her. 4. Per contra, Mr. S. K. Garg Narwana, learned Senior Advocate assisted by Mr. Sanjiv Kumar Aggarwal, Advocate appearing on behalf of the respondents would submit that the petitioner herein was appointed on "tenure basis" as would be evident from the very appointment letter issued (Annexure P-3). It is submitted that initially B.D.S. alone was the qualification for being appointed as a Demonstrator but with effect from 2011, the minimum qualification for the post of Demonstrator was made as M.D.S. by the Executive Council of Pt. B. D. Sharma University of Health Sciences, Rohtak (the Supreme Body of the University) vide agenda Item No.14 dated 02.12.2011. It is submitted that the respondent-University issued a fresh advertisement, which is now sought to be challenged, in which the qualification for the post of Demonstrator has been prescribed as M.D.S. In the said advertisement, it has specifically been mentioned that a Demonstrator and Senior Resident, who have already completed one term of three years appointment are not eligible to apply for second term of three years tenure. It is further submitted that the appointment of the petitioner and 12 others was extended for a period of three months or till new incumbent joins only because the interview of the candidates, who had applied under the advertisement (Annexure P-8) was cancelled due to administrative reasons. Moreover, the said appointment as Demonstrator/Senior Resident is a tenure post and not a contractual/ ad hoc post and tenure posts are being designed so that the candidates may gain essential teaching experience to become eligible for the post of Assistant Professor. It is further contended that a tenure post filled by direct recruitment means a term during which an office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on the completion of the tenure. Reliance in this regard has been placed upon a judgment rendered by the Supreme Court in Dr. L. P. Agarwal v. Union of India, AIR 1992 SC 1872 : a judgment rendered by Delhi High Court in Ravi Kumar Mathur v. Union of India and another, 2008 (102) DRJ 227 and a judgment rendered by Gauhati High Court in Dr. Biswaiit Sarnia v. The State of Assam and others, 2022 (2) GAULT 518 . 5. I have heard learned counsel for the parties and with their able assistance, have gone through the pleadings of the case. 6. Admittedly, the petitioner herein having the qualification of B.D.S. was appointed on a tenure post as a Demonstrator for a period of three years on 21.08.2009 (Annexure P-3) in the pay scale of Rs.17440/- + Grade Pay 5400/- + DA. On the asking of the petitioner, experience certificate was issued to her showing her work and conduct to be very good. However, the tenure of the petitioner and others, who had been appointed along with her was extended for a period of three months "or till new incumbent joins. " Thereafter, advertisement No.02/2012 (Annexure P-8) was issued inviting applications to fill up vacant posts of Demonstrators on tenure basis for a period of three years, who had a qualification of M.D.S. from a recognized institution. " Thereafter, advertisement No.02/2012 (Annexure P-8) was issued inviting applications to fill up vacant posts of Demonstrators on tenure basis for a period of three years, who had a qualification of M.D.S. from a recognized institution. The said advertisement further stipulated that a Demonstrator and Senior Resident, who had already completed one term of three years appointment are not eligible to apply for the second term of three years tenure. 7. The question that needs to be addressed is whether the petitioner herein was appointed on contractual basis as a Demonstrator or whether the said post was a tenure post? As per the Oxford Dictionary, the term tenure would mean the condition of service. In other words, the term tenure would mean the term during which the office is held. The term tenure came up for interpretation in the judgments rendered in Dr. L. P. Agarwal's case (supra); Ravi Kumar Maihur's case (supra); Dr. Biswajit Surma's case (supra) and Dr. S. K Kacker v. All India Institute of Medical Sciences, 1996 (10) SCC 734 . Even the term "tenure post" has also been defined in the Haryana Civil Services (General) Rules, 2016 as a permanent or temporary post, which an individual Government employee may not hold for more than a limited period. 8. The Supreme Court examined the question of tenure appointment in the case of Dr. L. P. Agarwal's case (supra) and held it as "an appointment to a permanent post, which an employee may or may not hold for more than a limited period; the term during which the office is held". Following the Supreme Court, the Delhi High Court and Gauhati High Court in Ravi Kumar Mathur's case (supra) and Dr. Biswajit Sarma's case (supra) respectively, have also held the same. 9. Reverting to the case of the petitioner, the appointment letter issued clearly spelt out the terms and conditions of the appointment and it is abundantly clear that the petitioner was appointed as a Demonstrator for a period of three years on a tenure post. The appointment on tenure post would come to an end on the expiry of the period as specified in the appointment letter and, therefore, the argument as raised that the petitioner is being replaced by set of other contractual employee on tenure post, is not acceptable. The appointment on tenure post would come to an end on the expiry of the period as specified in the appointment letter and, therefore, the argument as raised that the petitioner is being replaced by set of other contractual employee on tenure post, is not acceptable. As held above, the post of a Demonstrator was limited for a period of three years and even though extended, it still remained a tenure post, which period would expire on the date as specified. 10. The second question as raised by learned Senior Advocate appearing on behalf of the petitioner is that a fresh advertisement issued, has included M.D.S. as a basic qualification for a person to be appointed as a Demonstrator, which is a qualification not in consonance with the requirements of the qualifications as prescribed by the Dental Council of India. However, this argument would not be available to the petitioner as the Executive Council of Pt. B. D. Sharma University of Health Sciences, Rohtak (the Supreme Body of the University) vide agenda Item No. 14 dated 02.12.2011 had decided to consider and approve the change of qualification for the post of Demonstrator (Dental) from a basic B.D.S. to M.D.S. from any Institution/University recognized by the Dental Council of India. The said agenda item has not been challenged in the present writ petition and moreover, there is no bar on the Executive Council in laying down an enhanced qualification over and above, as specified by the Dental Council of India. 11. The question whether it is permissible to prescribe higher qualification criteria than minimum standard prescribed by the expert body, like Dental Council of India (as in the present case), came up for consideration before the Supreme Court in State of Tamil Nadu and another v. S.V. Bratheep and others AIR 2004 SC 1861 . The Supreme Court has considered the question of eligibility qualifications fixed by the State Government vis-a-vis the norms fixed by All India Council of Technical Education (for short AICTE). The State Government prescribed higher qualification than what had been prescribed by AICTE, which was a subject of challenge in writ petitions. The Supreme Court has considered the question of eligibility qualifications fixed by the State Government vis-a-vis the norms fixed by All India Council of Technical Education (for short AICTE). The State Government prescribed higher qualification than what had been prescribed by AICTE, which was a subject of challenge in writ petitions. The Supreme Court while upholding the higher qualification/norms fixed by the State Government, laid down that if higher qualification is prescribed by the State Government than what had been prescribed by the AICTE, it cannot be said that it is in any manner adverse to the standards fixed by the AICTE or reduced the standard fixed by it. In Dr. Preeti Srivastava and another v. State of M.P. and others and other connected matters (1999) 7 SCC 120 . it has also been held that once the minimum standards are laid down by the authority having the power to do so, any further qualifications laid down by the State, which will lead to the selection of better students, cannot be challenged on the ground that it is contrary to what has been laid down by the authority concerned. In D.N. Chanchala v. State of Mysore and others AIR 1971 SC 1762 . it has been laid down by the Supreme Court that the rules cannot be challenged for providing requirements over and above the minimum qualifications laid down by the Universities in the State for eligibility for admission. In State of Tamil Nadu and another v. S.V. Bratheep and Others 2004 (4) SCC 513 . the impugned Government order in that case was of converse effect, namely, reducing the required minimum marks. While dismissing the Special Leave Petition filed by the Government, the Supreme Court made it clear that it was certainly permissible for the State Government to prescribe higher qualifications for the purposes of admission to the Engineering Colleges than what had been prescribed by the A.I.C.T.E but could not lower it. Therefore, relying on the ratio of the aforesaid judgments, it cannot be held that the qualification of M.D.S. as prescribed for appointment as a Demonstrator is illegal and the advertisement deserves to be quashed. 12. Consequently, the instant writ petition being devoid of merit, is hereby dismissed.