Madhya Pradesh High Court
Smt.Jyoti Mittal vs Maulana Azad National Institute on 28 April, 2011
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 7414 of 2008(S)
Smt. Jyoti Mittal
- V/s -
Maulana Azad National Institute of
Technology, Bhopal and others
Present : Hon'ble Shri Justice Rajendra Menon.
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Shri Sanjay K. Agrawal and Shri Amit Seth,
Advocates, for the petitioner.
Shri Brian D' Silva, Senior Advocate, with
Shri V. Bhide, Advocate for respondents 1 and 2.
None for respondent No.3.
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Whether approved for reporting: Yes / No.
ORDER
28/04/2011 Challenging the action of the respondents in denying regularization to the petitioner and apprehending that her services may be brought to an end, this writ petition is filed seeking a writ of mandamus directing the respondents to regularize the services of the petitioner on the post of Lecturer in the Department of Chemistry with effect from the date she was given adhoc appointment on the said post. 2- Petitioner claims to be a Post Graduate in Chemistry and having done her M.Phil in the year 1994 from IIT, Roorkee, she is also said to have done her Ph.D for the said subject. It is the case of the petitioner that on 17.1.2000, vide order - Annexure P/1 petitioner was granted appointment as a Visiting Faculty by the respondents on a payment of ` 80/- per period. Thereafter, the petitioner was continuously engaged as a Visiting Faculty on part-time basis upto the year 2004 vide orders collectively filed as Annexure P/2. According to the petitioner as the respondent Institute was in need of a regular Lecturer in the subject 2 of Chemistry, petitioner was appointed on contract basis in the Department of Applied Chemistry vide order-dated 20.7.2005 on a consolidated salary of ` 8000/- per month. This contract was extended from time to time vide Annexure P/4, upto the end of the year 2005. As a regular faculty was required for the said subject, it is the case of the petitioner that an advertisement was issued by the respondent Institute vide recruitment notice-dated 9.6.2005, vide Annexure P/5, and one post of Lecturer in Chemistry was advertised. Petitioner applied for appointment in pursuance to the said advertisement. About 17 candidates participated in the process of selection and a Seven Member Committee of Experts interviewed the 17 candidates for appointment on the post of Lecturer in the Department of Applied Chemistry. The merit list - Annexure P/8 was prepared and even though petitioner was at Serial No.1 as per the merit list, having received the highest average marks of 41. It is stated that the petitioner was not granted appointment and infact the Committee recommended that none is suitable for appointment on the post of Lecturer in Applied Chemistry. According to the petitioner, this action of the Committee was not proper, the Committee having not fixed any cut-off marks or bench mark and petitioner having received the highest marks should have been appointed. However, after the recommendation was made by the Committee, as the Institute was in need of a Lecturer, keeping in view the recommendations of the Committee, it is stated that petitioner was again granted contract appointment for a fixed period after confidential note - Annexure P/7 was prepared by the orders of the Chairman, Board of Governors on 16.10.2005, vide Annexure P/8. According to the petitioner she continued to work on contract basis after orders - Annexure P/9 was issued and now without any reason it is stated that the respondents are not regularizing her and are trying to terminate her services. Interalia contending that the Committee, which interviewed the petitioner on 11.7.2005, even though committee an error in not recommending the petitioner, but the Chairman of the Board of Governors having approved the appointment of the petitioner due to 3 need of a Lecturer, the appointment of the petitioner is in accordance with the Rules and, therefore, treating the said appointment to be a regular appointment it is stated that the petitioner should be regularized. 3- Shri Sanjay K. Agrawal, learned counsel for the petitioner taking me through the documents available, particularly an enquiry conducted on the complaint with regard to the selection and the finding recorded by the Central Bureau of Investigation (hereinafter referred to as 'CBI'), in the matter of irregularities in the appointment to the Institute and the fact that no illegality was found in the recruitment process, it is argued that the action of the respondents in not regularizing the petitioner in service is unsustainable and the same is liable to be interfered with. Interalia contending that the petitioner is appointed by the Chairman of the Board of Governors, of the respondent Institute, and the Selection Committee without any just cause or reason has refused to recommend the petitioner, interference into the matter is sought for. 4- Respondents represented by Shri Brian D' Silva, learned Senior Advocate, have filed a detailed reply and it is the case of the respondents that as per the Rules governing appointment to the Institute in question, appointment is done by an interview conducted by an Expert Body, which consists of 5-7 Members, who are Experts of the subject. It is stated that in the present case the Committee interviewed the petitioner and 16 other candidates and none of the candidates were found suitable for appointment. Accordingly, it is stated that the petitioner having been found unsuitable for appointment cannot be regularized now. It is stated that the action of the respondents in granting contract appointment to the petitioner will not confer upon her any right to seek regular appointment. Further pointing out that there were serious irregularities committed by various persons, who were holding key posts in the respondents' University, and for the same a CBI enquiry was conducted and offences under various provisions of the Indian Penal Code and Prevention of Corruption Act have been registered against officers of the Institute in the matter of illegal appointment. Accordingly, Shri Brian D' Silva, learned Senior Advocate, submits that no case is made out for 4 interference. Placing reliance on the judgment of the Supreme Court, in the case of Secretary, State of Karnataka and others Vs. Umadevi (3) and others, (2006) 4 SCC 1, and the observations made in the said judgment, it is argued that the appointment of the petitioner is infact an illegal appointment and, therefore, such an appointment cannot be regularized.
5- Further, inviting my attention to a judgment of this Court in the case of Pankaj Saxena Vs. State of MP, 2006(4) MPLJ 449, Shri Brian D' Silva argued that petitioner being an adhoc contract appointee is not entitled for appointment. Finally, contending that a decision taken by the Expert Body for not recommending the case of the petitioner cannot be interfered with by this Court exercising limited scope of judicial review in an writ petition under Article 226 of the Constitution, Shri Brian D' Silva seeks for dismissal of this writ petition and in support of his last contention he invites my attention to a judgment of the Supreme Court, in the case of Basavaiah (Dr) Vs. Dr. H.L. Ramesh and others, (2010) 8 SCC 372.
6- I have heard learned counsel for the parties and perused the records.
7- From the records it is clear that the initial appointment of the petitioner on part-time basis ordered in the year 2000 and the subsequent conversion of this appointment to a contract appointment after orders were passed in the year 2004, vide Annexures P/2 and P/3, were not preceded by following any procedure known to law. Infact there is nothing on record to indicate nor is it the case of the petitioner that her initial engagement on part time basis on 17.1.2000 vide Annexure P/1 and the subsequent contract appointment granted vide Annexure P/2, in the year 2003-2004, was after a due selection process conducted in which she was selected for appointment. That being so, the appointment initially of the petitioner on part time basis and subsequently on contract basis will fall in the category of 'illegal' appointment and such an appointment cannot be regularized in the light of law laid down by the Supreme Court, in the case of Umadevi (supra).
5Thereafter, when the employment and recruitment notice - Annexure P/5 was issued on 9.6.2005, a Seven Member Committee, consisting of Senior Faculty Members and Professors of the Institute, interviewed the candidates and the recommendation of such an Expert Body was that none of the candidates is found suitable for regular appointment to the post of Lecturer. Merely because the Committee had not fixed any bench mark or because the petitioner had received 41 marks i.e.... the maximum marks, that by itself cannot be a ground for this Court to issue a mandamus and direct for regular appointment of the petitioner. Appointment to the post in question is done in accordance to the recommendations of an Expert Committee and this Court cannot sit over the assessment and finding of such an Expert Committee as if this Court is exercising appellate jurisdiction. In the matter of appointment to a technical post of Lecturer in Applied Chemistry, it is the Expert Body which has the final say in the matter and interference with the recommendations of such a body can be made by a Court exercising jurisdiction in a petition under Article 226 of the Constitution only if statutory provisions are shown to be violated or malafides or bias of the members of the Committee established. In the present case, no such eventuality exists and a Seven Member Committee of Experts, which constituted the Selection Committee having found the petitioners and others not suitable for appointment, this Court in its limited jurisdiction of judicial review cannot interfere with the recommendations of the Expert Committee. In this regard the law laid down by the Supreme Court in the case of Basavaiah (Dr) (supra) is very clear and this Court cannot over-ride the recommendations of the said Committee in the absence of any allegations of malafide being levelled against the Expert Committee.
8- In paragraph 21 of the aforesaid judgment, in the case of Basavaiah (Dr) (supra), Supreme Court has dealt with the matter in the following manner:
"21. It is the settled legal position that the courts have to show deference and consideration to the recommendations 6 of an Expert Committee consisting of distinguished experts in the field. In the instant case, the experts had evaluated the qualification, experience and published work of the appellants and thereafter recommendations for their appointments were made. The Division Bench of the High Court ought not to have sat as an appellate court on the recommendations made by the country's leading experts in the field of Sericulture."
9- In that view of the matter, this Court does not find any ground to hold that the petitioner was entitled to regular appointment inspite of the recommendations of the Committee. The Committee having found the petitioner dis-entitled for regular appointment, this Court cannot supercede the decision of the Committee. Thereafter, due to scarcity of staff, if the Chairman of the Board of Governors appointed the petitioner on contract basis, that action will not give any right to the petitioner to claim regularization on the ground that she has been appointed by the Chairman of the Board of Directors. The Chairman of the Board of Governors does not have any power to make appointment nor is any statutory rule or regulation brought to the notice of this Court by which the appointment on contract basis ordered by the Chairman can be said to be a regular appointment. The appointment of the petitioner on contract basis vide Annexures P/8 and P/9, is nothing but a contract appointment, which does not confer any legally enforceable right on the petitioner to seek regularization in service.
10- As already indicated hereinabove, the law on this question is very clear and this Court can issue a mandamus for regularization of the petitioner only if it is found that the initial appointment of the petitioner in the Department or the contract appointment made vide Annexures P/8 and P/9 was preceded by a regular process of appointment of selection meeting the requirement of Article 14 of the Constitution. In this case, the said contract appointment of the petitioner is dehors the rules and regularization governing appointment to a public 7 post and is hit by the provisions of Article 14 of the Constitution. In this regard, the observations made by the Supreme Court, in the case of Umadevi (supra), particularly the findings in paragraphs 44, 52 and 53, may be taken note of and if the appointment of the petitioner is evaluated in the back drop of these principles, it would be seen that the appointment of the petitioner falls in the category of an 'illegal' appointment and an 'illegal' appointment cannot be regularized by a writ of mandamus by this Court.
11- Even though during the course of hearing of this writ petition, Shri Sanjay K Agrawal tried to emphasize that in the CBI enquiry conducted, nothing wrong was found with the appointment of the petitioner, the CBI enquiry is limited to an enquiry with regard to any corrupt practice being followed in the matter of engagement of the petitioner. The said enquiry has nothing to do with assessing the procedure for appointment and to evaluate as to whether the appointment is in accordance to the requirement of law. Until and unless the appointment and engagement of the petitioner on contract basis is not found to be in accordance to the requirement of law or after following the due process contemplated for appointment to a public service, the same would be termed to be an 'illegal' appointment hit by Article 14 of the Constitution and this Court ignoring these aspects cannot direct for regularization of the petitioner.
12- Accordingly, finding the petitioner to be an adhoc appointee, appointed contrary to the recruitment rules and in derogation to the normal rules pertaining to appointment to a public post, this Court does not find any ground to interfere in the matter.
13- Accordingly, finding the action of the respondents to be in accordance with law and no case made out for interference on the grounds raised, this petition is dismissed.
( RAJENDRA MENON ) JUDGE Aks/-