Orissa High Court
Abhishek Kumar Rai vs Indian Institute Of Technology on 2 May, 2018
Author: S.N. Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.21593 of 2016
In the matter of an application under Article 226 and 227 of the Constitution of India.
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Abhishek Kumar Rai ...... Petitioner
- Versus-
Indian Institute of Technology,
Bhubaneswar, Khurda,
represented through its Director and others ...... Opposite Parties
For Petitioner : M/s. Prafulla Kumar Rath, R.N. Parija,
A.K. Rout, S.K. Pattnaik & A. Behera
Mr. R.K. Rath, Senior Counsel.
For Opp. Parties : Mr. Milan Kanungo, Senior Counsel.
M/s. Sidhartha Das, S.K. Mishra, S.R. Mohanty,
B.N. Ratha & A.K. Mohanty
Mr. Anup Kumar Bose, ASGI.
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PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing : 17.04.2018 :: Date of judgment : 02.05.2018
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S. N. Prasad, J. This writ petition has been filed under Article 226 and 227 of
the Constitution of India wherein direction has been sought for upon the
opposite parties to strike down the word „visiting‟ from the appointment
order under Annexure-1 or in alternative to direct the opposite parties to
select the petitioner and issue engagement order pursuant to the
selection process under Annexure-10.
2
2. The brief facts of the case of the petitioner is that he, being
eligible to hold the post of Assistant Professor, has made an application
in terms of the advertisement published by the Indian Institute of
Technology, Bhubaneswar in which he had participated for regular
appointment, but he has been appointed as „Visiting‟ at the level of
Assistant Professor in the School of Earth, Ocean & Climate Science of
the Indian Institute of Technology Bhubaneswar and as such, according
to the petitioner, the authorities have committed illegality in appointing
him as Visiting Faculty in place of regular incumbent as Assistant
Professor.
According to the petitioner, he has filled up his application
form in pursuant to the advertisement under Annexure-4 which has been
issued for filling up the regular vacancies and as such, no stretch of
imagination he can be appointed as Visiting Faculty.
The contention raised by the learned counsel for the
petitioner in assailing the terms of appointment on various grounds i.e.
according to him, terms and conditions of the advertisement has been
changed which cannot be allowed to be done once the selection process
has been started.
Learned counsel for the petitioner has argued out the case by
submitting that even though he has accepted the terms of appointment
that will not cease him to assail the said order because of the settled
position of law there cannot be estoppel against the law and here in the
instant case, the appointment is to be made strictly in terms of the
3
recruitment rule wherein the provision has been made under the Indian
Institute of Technology Act, 1961 and statute governing the field
wherein under the Statute no.12 the process of appointment has been
given whereby and whereunder the selection committee is supposed to
make appointment on regular basis which is to be filled up by virtue of
issuance of an advertisement and the appointment on contract basis is
altogether a separate process as provided under the Statute No.17.
According to the petitioner, since open advertisement has
been published, it will be an appointment under the provision of the
Statute No.12 and hence, if any decision has been taken by the authority
in course of selection process after issuance the advertisement for filling
up the post on regular basis and it cannot be deviated and if deviated, it
will be said to be contrary to the statutory provision and in that pretext,
the aggrieved party cannot be precluded from challenging the action of
the authority.
To substantiate his argument, learned counsel for the
petitioner has relied upon the judgments rendered by the Supreme Court
in the cases of Central Inland Water Transport Corporation Limited
and Another v. Brojo Nath Ganguly and Another, reported in (1986)
3 SCC 156; Raj Kumar and Others v. Shakti Raj and Others,
reported in (1997) 9 SCC 527, Chhaganlal Keshavlal Mehta v. Patel
Narandas Haribhai, (1982) 1 SCC 223; Rajesh Kumar Gupta and
Others v. State of U.P. and Others, reported in (2005) 5 SCC 172.
4
The other ground has been taken by the learned counsel for
the petitioner that the petitioner, having no option at the time of
selection, has accepted the offer of appointment and subsequent thereto
he has challenged the same on the ground of arbitrariness of the
opposite parties since they have acted contrary to the settled position of
law by changing the terms and conditions of the advertisement which
they cannot do.
In view of the principle laid down that once the process of
selection begins, the rules of terms cannot be allowed to be changed. In
this regard, he has relied upon the judgment rendered by Hon‟ble the
Supreme Court in the case of K. Manjusree v. State of Andhra
Pradesh and Another, reported in (2008) 3 SCC 512.
The ground has been taken that the opposite parties have
come out with the plea in the counter affidavit that the petitioner has not
been found suitable and competent for the said position as per the
opinion of the Selection Committee and as such, he has not been taken
into regular engagement, but however, considering the urgency, he has
been appointed purely on contract basis for a period of one year which
they cannot do, but the authority, without any jurisdiction, has
compelled the petitioner to discharge his duty as a Visiting Faculty which
is against the terms of advertisement as also the statutory rule.
Learned counsel petitioner has tried to impress upon the
Court that there is discrepancy made in the para-10 of the counter
affidavit and para-4 of the affidavit filed by the opposite parties by way of
5
an objection to the miscellaneous application, since at para-10 of the
counter affidavit, it has been stated that the petitioner has been found
to unsuitable and as such, his name does not find place in the
recommendation paper submitted by the Selection Committee for the
post of Assistant Professor, but thereafter on the same day, the Selection
Committee unanimously decided to have a second sitting and select few
candidates on purely temporary basis to meet the demand of teaching
while at paragraph-4 of the affidavit filed by the opposite parties by way
of an objection to the miscellaneous application wherein it has been
stated by opposite parties that amongst the candidates appeared for the
interview, the petitioner was not found suitable for the position by the
selection committee. However, IITs across the country can appoint
Faculty at any given time on purely temporary basis to meet the
demands of Teaching on specialized subjects. Thus, in such a category,
the petitioner was offered Visiting Faculty (on contract) position on
temporary basis for one year. The petitioner joined the Institute on
12.3.2014 accepting the offer of temporary position for one year.
According to the petitioner, in paragraph-10 of the counter
affidavit, the statement has been made to the effect that the petitioner
has not been found to be suitable, but the said stipulation has not been
made at paragraph-4 of the affidavit filed by the opposite parties by way
of an objection to the miscellaneous application and as such, there is no
contradiction which is nothing but a false affidavit to mislead this Court
and on this ground alone, the writ petition is fit to be allowed.
6
He has also submitted that the petitioner might take the plea
of alternative remedy, since under the statue there is arbitration clause
under the provision of Section-30 of the Notification dated 29th June,
2012 issued by the Ministry of Human Resource Development
(Department of Higher Education), Government of India, but on the
ground of availability of alternative remedy, this Court is not precluded
from exercising the power conferred under Article 226 of the Constitution
of India in exercise of its power of judicial review and to support his
contention, he has relied upon a judgment rendered by Hon‟ble the
Supreme Court in the case of Union of India and others v. Tantia
Construction Private Limited, reported in (2011) 5 SCC 697.
3. Opposite parties have appeared and filed detailed counter
affidavit inter alia it has been stated therein that the selection process
has been initiated in terms of the Statute No.12 of the Indian Institutes of
Technology, Kharagpur which confers power of appointment by
constituting a Selection Committee for filling up post under the Institute
by advertisement or by way of promotion from amongst the members of
the staff of the institute.
In the case of post of Assistant Professor, the Selection
Committee shall consist of the Director being the Chairman and the two
nominees of the Board, one being an expert but other than a member of
the Board, one expert nominated by the Senate and head of the
department, if the post for which selection is being made is lower in
status than that occupied by the Head of Department.
7
In view thereof, advertisement under Annexure-4 to the writ
petition inviting applications for filling up of the different posts. One of
the posts is the Assistant Professor, for which, at least 3 years
teaching/research/professional experience excluding, however, the
experience gained while pursuing Ph.D. Candidates should have
demonstrated research capabilities in terms of publications in reputed
journals and conference proceedings. Eligible candidates with less than
3 years experience, as mentioned above, may be considered for Assistant
Professor Position on contract. Such candidates may apply to the
position of Assistant Professor in the online portal.
The petitioner, who at the time of making application was in
Norway and as such, as instructed in the advertisement, has submitted
application through online i.e. through Skype. He was called upon to
participate in the selection process which was conducted on 30th
November, 2013 through video conference (skype). The petitioner was
found not suitable/competent for the said position and was accordingly
rejected by the Selection Committee. Hence, the name of the petitioner
was not recommended by the Selection Committee for the position of
Assistant Professor, since there was extreme urgency of the faculty
member in the subject in question, on the very same day, the Selection
Committee unanimously decided to have a second sitting and select few
candidates on purely temporary basis to meet the demands of teaching.
Accordingly, two candidates including the petitioner who appeared
through Skype interview were recommended by the Selection Committee
8
to be appointed as Visiting Faculty (on contract) in the School of Earth,
Ocean and Climate Sciences (SEOCS) and as per the norms of IIT, the
name of the petitioner was forwarded for approval to the Board of
Governors, Indian Institute of Technology, Bhubaneswar and
consequently, his name was approved by the Board of Governors for the
position of Visiting Faculty on contract basis for a period of one year.
4. Mr. Millan Kanungo, learned Senior Counsel appearing for
the opposite party-Indian Institute of Technology, Bhubaneswar submits
that the offer of appointment contains the condition that the
appointment will be effective from the date of the joining, communicate
the acceptance to the undersigned within 15 days from the date of issue
of the letter and join the Institute on or before 28th February, 2014. The
offer is for a period of one year. The terms and conditions governing the
appointment have been given in Annexure-I to the said letter which
contains the condition of duration of appointment which is for a period of
one year. The appointment may be terminated any time by one month‟s
notice on either side.
The petitioner has accepted the offer of appointment by
showing his willingness to report duty on 12.03.2014. Accordingly, he
has reported on 12.3.2014 and his joining was accepted, as would be
evident from Annexure-A/2 to the counter affidavit. The petitioner
started discharging his duty and he has been given extension twice, but
third time it was refused reason being that the contract period is not to
be extended more than for a period of three years as per the Office Order
9
No.130/2016 dated 31st August, 2016 under Annexure-A/3 to the
counter affidavit. The petitioner thereafter invoked the jurisdiction of
this Court by making prayer to strike down the words „visiting faculty‟
from the appointment letter dated 8.1.2014.
Mr. Kanungo, further submits that the petitioner has entered
into a contract by accepting the terms and conditions of the said contract
which was issued in the shape of offer of appointment dated 8.1.2014
and once it has been accepted, the same cannot be rewritten by the court
of law by striking it down after accepting it for substantial period.
To support his contention, he has relied upon the judgment
rendered by Hon‟ble the Supreme Court in the case of Life Insurance
Corporation of India and Anr. v. Smt. S. Sindhu, reported in (2006)
5 SCC 258.
His further contention is that the petitioner once accepted
the offer of appointment, he will be ceased to challenge the same since he
was knowing about the facts, condition mentioned in the offer of
appointment and shown his willingness and accepted the same. Hence,
once accepted, he is ceased to challenge the terms of appointment.
To substantiate his contention, he has relied upon the
judgments rendered by Hon‟ble the Supreme Court in the cases of Bank
of India and Ors. v. O.P. Swaranakar etc., reported in (2003) 2 SCC
721; and Punjab and Sind Bank and Anr. v. S. Ranveer Singh Bewa
and Anr., reported in (2004) 4 SCC 484. .
10
Further ground has been taken by him that the petitioner
was declared to be unsuccessful on the day of the interview for regular
appointment which he has not challenged rather when he was offered the
assignment of Visiting Faculty, he has accepted the same and as such,
once he has not challenged the selection process in which he was
declared to be incompetent and unsuitable, he will be ceased to question
the decision of the selection committee by making a prayer to strike down
the words „visiting faculty‟ from the offer of appointment and if it will be
allowed to the petitioner which amounts ultimately to interfering with the
decision of the selection committee which should not be done by the
court of law for the reason that the decision taken by the expert
committee should not be interfered with by the court of law to strengthen
his argument, he has relied upon judgment rendered by Hon‟ble the
Supreme Court in the case of Dr. Basuvaiah v. Dr. H.L. Ramesh and
Ors., reported in (2010) 8 SCC 372.
So far as the contention raised by the petitioner that there is
discrepancy in between the statement made by the opposite parties at
paragraph-10 to the counter affidavit vis-à-vis paragraph-4 of the
affidavit filed by the opposite parties by way of an objection to the
miscellaneous application.
It has been submitted by Mr. Kanungo that the objection of
the miscellaneous application cannot be said to be the counter affidavit
rather it is only by way of controverting statement made in the
miscellaneous application and as such, the concise statement has been
11
given, it does not mean that whatever has been stated by the opposite
parties at paragraph-10 of the counter affidavit will be of no
value rather it is the specific case of the opposite parties that the
petitioner was unsuccessful in the selection process and that is the
reason he has been inducted as a Visiting Faculty otherwise he would
have challenge the same at the threshold, but instead of doing so, he has
accepted the offer of appointment of Visiting Faculty.
He has also taken the ground of availability of alternative
remedy of the clause of arbitration and as such, he has submits that this
writ petition is not maintainable.
5. Heard the learned counsel for the parties, appreciated their
arguments, gone through the relevant documents as has been brought
on record by the learned counsel for the parties and from its perusal, it is
evident that the IIT, Bhubaneswar is the creation of the statute which
was created by the Notification issued on 29th June, 2012 in exercise of
the powers conferred by sub-section (2) of Section-1 of the Institutes of
Technology (Amendment) Act, 2012. The Central Government has
established the Indian Institute of Technology at Bhubaneswar.
6. The object of the institute to provide expertees in the
technical education across the country and for that purpose various
Indian Institute of Technology has been created from time to time and
under that series, the Indian Institute of Technology, Bhubaneswar has
also been established by virtue of the Institute of Technology
(Amendment) Act, 2012.
12
The institute in question is governed by the Institute of
Technology Act, 1961 which also contains the provision of appointment
under Statute No.12 as contained under the Indian Institute of
Technology, Kharagpur effective from 6th November, 1962 for the opposite
party-Institute herein also. The appointment is to be made by virtue of
an advertisement. For better appreciation, the Statute No.12 is being
referred herein below:-
"12. Appointments
(1) All posts at the Institute shall normally be filled by
advertisement, but the Board shall have the power to
decide, on the recommendations of the Director that a
particular post be filled by invitation or by promotion
from amongst the members of the staff of the Institute.
(2) While making appointments, the Institute shall make
necessary provision for the reservation of posts in
favour of the scheduled castes and scheduled tribes
in accordance with the decisions of the Board.
(3) Selection Committees for filling posts under the
Institute (other than the posts on contract basis) by
advertisement or by promotion from amongst the
members of staff of the Institute shall be constituted
in the manner laid down below namely:
(a) In the case of posts of Deputy Director and
Professor, the Selection Committee shall
consist of:
(i) Director Chairman
(ii) One nominee of the Visitor Member
(iii) Two nominees of the Board, Members
one being an expert but
other than a member of the
Board
(iv) One expert nominated by the Member
Senate other than a member
of the Senate
(b) In the case of posts of Assistant Professor,
Senior Scientific Officer and Lecturer, the
Selection Committee shall consist of:
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(i) Director Chairman
(ii) Two nominees of the Board, Members
one being an expert but
other than a member of the
Board
(iii) One expert nominated by the Member
Senate and
(iv) Head of the Department Member
concerned, if the post for
which selection is being
made is lower in status than
that occupied by the Head of
the Department.
(4) In the absence of Director, any member of the staff of
the Institute who is appointed to perform the current
duties of the Director shall be the Chairman of the
Selection Committees in the place of the Director.
(5) In the absence of the Deputy Director, the Director
may nominate any member of the staff of the Institute
to work on the Selection Committee in his place.
(6) Where a post is to be filled on contract basis or by
invitation, the Chairman may, at his discretion,
constitute such adhoc Selection Committees, as
circumstances of each case may require.
(7) Where a post is to be filled by promotion from amongst
the members of the Institute or temporarily for a
period not exceeding twelve months, the Board shall
lay down the procedure to be followed.
(8) Notwithstanding anything contained in these
Statutes, the Board shall have the power to make
appointments of persons trained under „approved‟
programmes in such manner as it may deem
appropriate. The Board will maintain a schedule of
such „approved‟ programmes.
(10) The Selection Committee shall examine the credentials
of all persons who have applied and may also
consider other suitable names suggested, if any, by a
member of the Selection Committee or brought
otherwise to the notice of the Committee. The
Selection Committee may interview any of the
candidates as it thinks fit and shall at the discretion
of its Chairman cause a written test or tests to be held
among all or some of the candidates as the Chairman
may think fit, and shall make its recommendations to
the Board or the Director as the case may be, the
names of the selected candidates being arranged in
order of merit.
(14) Candidates selected for interview for a post under the
Institute may be paid such traveling allowances as
may be determined by the Board from time to time in
this behalf.
(15) All appointments made at the Institute shall be
reported to the Board at its next meeting."
7. It is evident from the provision as quoted hereinabove that
the post is to be filled up by way of Selection Committee, since we are
14
concerned herein with the post of Assistant Professor and as such, this
Court is dealing with the Selection Committee which is to be constituted
for selecting the Assistant Professor which consist of a committee known
as Selection Committee presided over by the Chairman and the two
nominees of the Board, one being an expert but other than a member of
the Board, one expert nominated by the Senate and head of the
department, if the post for which selection is being made is lower in
status than that occupied by the Head of Department.
In terms of the said provision, an advertisement was
published by the opposite party-Institute inviting applications for Faculty
Position which includes the Faculty of Assistant Professor. The
advertisement has been made as rolling advertisement.
The petitioner, in terms of the said advertisement, has
submitted his application through online and after scrutiny of his
candidature, he was asked to participate in the Interview Board through
video conference (Skype) on 30.11.2013, but he has not been found
suitable/competent for the said post. Accordingly, rejected by the
Selection Committee and as such, his name was not recommended by
the committee for the position of Assistant Professor.
It is to note here that to this effect, specific statement has
been made at paragraph-10 to the counter affidavit that the petitioner
while filing response by giving specific reference to the statement made at
paragraph-10 has not controverted regarding contention raised by the
15
opposite parties that the petitioner has found to be not
suitable/competent for the said position.
Further statement has been made at paragraph-10 of the
counter affidavit that on the same date, the selection committee
unanimously decided to have a second sitting and select few candidates
on purely temporary basis to meet the demand of teaching. This part of
the statement made therein has not been controverted in the rejoinder
affidavit, as would be evident from the parawise reply filed by the
petitioner in the rejoinder affidavit.
The Selection Committee on the basis of their subsequent
decision which they have taken on 30.11.2013 for selecting the petitioner
as a Visiting Faculty for a period of one year on contract basis and as
such, the offer was made to the petitioner by issuing the offer of
appointment dated 8.1.2014 under Annexure-1 to the writ petition which
the petitioner has accepted by giving his joining on 12.3.2014, as would
be evident from A/2 to the counter affidavit filed on behalf of the opposite
parties.
It is evident from the offer of appointment that the
communication has been made to the petitioner regarding the decision
taken by the Chairman, Board of Governors of the Institute, who have
approved his appointment to the post of Visiting Faculty at the level of
Assistant Professor in the School of Earth, Ocean & Climate Science of
the Indian Institute of Technology Bhubaneswar. The offer is for a period
of one year. The terms and conditions governing the appointment have
16
been stipulated in Annexure-1 which contains the condition of duration
of appointment which is for a period of one year. The appointment
may be terminated any time by one month‟s notice on either side. The
petitioner, after accepting it, has started discharging his duty and also
submitted application for extension of the contract period and it was
extended twice i.e. one on 8.1.2015 and another on 8.1.2016.
It is evident from the Office Order No.130/2016 dated 31st
August, 2016 under Annexure-A/3 to the counter affidavit that the
tenure of the Visiting Faculty will be for a period up to a maximum of
three years with annual review. Accordingly, the competent authority,
was having no option, to extend the period of contract beyond the period
of two years. However, the petitioner has made an application for its
extension vide his application dated 1.3.2016 which has annexed under
Annexure-8 to the additional affidavit filed on behalf of the opposite
parties.
Thus, it is evident that the petitioner has fully agreed with
the terms and conditions of the appointment and in pursuant thereto, he
has also sought for extension which was granted up to a maximum
period of three years and lastly he has sought for the extension, but the
same was refused and thereafter, he has approached this Court by filing
the instant writ petition praying therein to strike down the words „visiting
faculty‟ from the offer of appointment dated 8.1.2014.
8. The following issues are before this Court for determination:-
17
(i) Whether on the ground of alternative
remedy the writ petition is
maintainable?
(ii) Whether the terms and conditions of the
appointment once accepted by the
petitioner can he be allowed to be
challenged?
(iii) Whether the High Court sitting under
Article 226 of the Constitution of India or
any constitutional court can rewrite the
terms of contract?
(iv) Whether once the petitioner has been
declared to be incompetent/ unsuccessful
being not suitable for the selection can he
be allowed to be continued by taking him
in the regular establishment and to select
the petitioner on contract can be said to
be without jurisdiction?
(v) Whether once the selection process
begins, the rules of selection can be
changed?
9. This Court, after appreciating the submissions advanced on
behalf of the parties, based upon the authoritative pronouncements of
Hon‟ble the Apex Court, is answering the issues formulated as
hereinabove.
Issue No.(i)
The question of alternative remedy has been raised by the
learned counsel for the opposite parties by referring to the provision of
Section 30 of the Institutes of Technology Act, 1961 while reverting the
said ground, the learned counsel for the petitioner submits that even in
18
case of availability of alternative remedy, the writ court can interfere by
exercising extraordinary jurisdiction conferred Article 226 of the
Constitution of India and moreover, the petitioner has raised the
question of jurisdiction and as such, the writ petition is maintainable.
This Court, after appreciating the arguments advanced on
behalf of the parties in this regard, is of the view that the power conferred
to this Court under Article 226 of the Constitution of India is the basic
structure of the Constitution and the power of judicial review is a basic
and essential future of the Constitution and it cannot be abrogated
without affecting the basic structure of the Constitution of India, but if
any constitutional amendment made by Parliament takes away from the
High Court the power of judicial review in any particular area and vests it
in any other institutional mechanism or authority, it would not be
violative of the basic structure of doctrine, so long as the essential
condition is fulfilled, namely, that the alternative institutional
mechanism or authority set up by the parliamentary amendment is no
less effective than the High Court.
This view has been taken by Hon‟ble the Supreme Court in
the case of S.P. Sampath Kumar v. Union of India and Others,
reported in (1987) 1 SCC 124, but this issue has been consider again
by the 7 Judges Bench in the case of L. Chanra Kumar v. Union of
India, reported in (1997) 3 SCC 261 by taking contrary view from the
ratio laid down in the case of S. Sampath Kumar, it has been held on the
issue whether the power of judicial review vested in the High Court and
19
Supreme Court under Article 226 and 227 and 32 is part of the basic
structure of the Constitution and it has been held therein that the
jurisdiction conferred upon the High Courts under Article 226/227 and
upon the Supreme Court under Article 32 of the Constitution is a part of
the inviolable basic structure of our constitution. While this jurisdiction
cannot be ousted, other courts and tribunals may perform a
supplemental role in discharging the power conferred by Articles
226/227 and 32 of the Constitution.
Thus, it is evident that on the ground of alternative remedy,
the power of judicial review cannot be said to be not exercised by the
High Court.
It is also legal proposition that the High Court sitting under
Article 226 of the Constitution of India is having its discretionary power
and if the issue regarding jurisdiction or violation of statutory rule or
fundamental right is being invoked the writ court even though the
alternative remedy is available can exercise its jurisdiction.
Reference may be made in this regard to the judgment in the
case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai
and Others, reported in (1998) 8 SCC 1.
In the instant case, since the petitioner has raised an issue
of jurisdiction of the Selection Committee and as such, without
entertaining the writ petition, this issue cannot be answered. Hence,
relying upon the aforesaid position of law, the instant writ petition is held
to be maintainable.
20
Since according to the petitioner, the Selection Committee
has invited applications for regular appointment, but
contrary to the advertisement issued has gone for contractual
engagement. Thus, it is contrary to the provision as contained in Statue
No.12 of the Indian Institute of Technology, Kharagpur.
This Court, after appreciating the argument of the learned
counsel for the petitioner and in order to adjudicate this issue as to
whether the action of the Selection Committee is without jurisdiction or
not, thinks it proper to held herein that the writ petition is maintainable
and accordingly the plea taken by the opposite parties that on the ground
of availability of forum of arbitration under Section-30 of the Notification
dated 29th June, 2012 issued by the Ministry of Human Resource
Development (Department of Higher Education), Government of India, the
writ will not lie and is hereby rejected.
In view thereof, the Issue No.(i) is answered in favour of the
petitioner.
Issue No.(ii)
Whether the terms and conditions of the appointment once
accepted by the petitioner can he be allowed to be challenged?
Rival submissions have been made on behalf of the parties
by relying upon the relevant judgments.
This Court, after appreciating their rival submission and the
judgments relied upon by them, is of the view that the judgments relied
upon by the petitioner in this respect is the judgment rendered by
21
Hon‟ble the Supreme Court in the case of Central Inland Water Transport
Corporation Limited (supra).
The said judgment is in the light of the bargaining power of
workmen and Hon‟ble the Supreme Court, dealing with such situation,
has laid down the proposition at paragraph-100, has taken into
consideration the public interest at large and if any terms of the contract
in between the corporation and its officers which affects large number of
persons, then in that respect, Hon‟ble the Supreme Court has observed
that if any terms of contract is opposed to public policy, it is void under
Section-30 of the Indian Contract Act.
The judgment rendered in the case of Raj Kumar (supra) has
been pronounced in a given fact of the said case that the examinations
were conducted under the 1955 Rules and after the results were
announced, it exercised the power under the proviso to para-6 of 1970
Notification and the posts were taken out from the purview thereof.
Thereafter the Selection Committee was constituted for selection of the
candidates. The entire procedure is also obviously illegal.
The Hon‟ble Apex Court by taking the factual aspect of the
said case has been pleased to hold that the question of estoppel will not
be applicable, if there is glaring illegalities in the procedure to get the
candidates for examination under the 1955 Rules, so also in the method
of selection and exercise of the power in taking out from the purview of
the Board and also conduct of the selection in accordance with the Rules.
22
Therefore, the principle of estoppel by conduct or acquiescence has no
application to the facts in this case.
The judgment rendered in the case of Chhaganlal Keshavlal
Mehta (supra) wherein the ratio has been laid down at paragraph-22 that
estoppel deals with questions of facts and not of rights. A man is not
estopped from asserting a right which he had said that he will not assert.
It is also a well-known principle that there can be no estoppel against a
statute.
The other judgment rendered in the case of Rajesh Kumar
Gupta (supra) wherein it has been laid down by Hon‟ble the Supreme
Court regarding the principle of estoppel, but on the fact that the
candidates had no occasion to protest against the criterion adopted by
the State Government and in that situation it was held that the plea of
promissory estoppel will not be applicable.
The opposite parties has relied upon the judgment in this
respect in the case of Punjab and Sind Bank (supra) wherein it has been
laid down that once the employees accepted the conditions under the
scheme cannot approbate and reprobate nor can they be permitted to
withdraw.
The judgment rendered in the case of Bank of India (supra)
wherein it has been laid down at paragraph-117 that one who knowingly
accepts the benefits of a contract or conveyance is estopped to deny the
validity or binding effect on him of such contract or conveyance.
23
In a case which fall in consideration before Hon‟ble the
Supreme Court in the case of State of Punjab and others v.
Krishan Niwas, reported in AIR 1997 SC 2349 at paragraph-4
wherein the incumbent, after accepting the order of punishment, has
joined the post and thereafter he has challenged the order of
punishment. Hon‟ble the Supreme Court has been pleased to hold that
by his conduct he has accepted the correctness of the order and then
acted upon it. Under these circumstances, the Civil Court would not
have gone into the merits and decided the matter against the appellants.
It is also need to refer herein the ratio of Hon‟ble the
Supreme Court in the case Municipal Council, Samrala v.
Sukhwinder Kaur, reported in (2006) 6 SCC 516 wherein Hon‟ble the
Supreme Court has been pleased to hold that the appointments were
temporary ones. She was aware that her services could be terminated
without notice. She accepted the terms and conditions of the said offers
of appointments without any demur. Although there was no fixed period
of contract of employment between the employer and the workman
concerned and thus, no question of its renewal on its expiry, but there
existed a stipulation in the contract that the Executive Officer has the
power to dismiss her without issuing any notice and since she has
accepted, the same which the incumbent cannot challenge.
After going through the judgments relied upon on behalf of
the leaned counsel appearing for the parties and coming across with the
factual aspect, in my considered view, the petitioner was knowing very
24
well with the terms and conditions of the appointment which was for a
period of one year on contract basis and as such, he once accepted
the terms and conditions cannot come forward to challenge after
substantial period and as such, the judgment relied upon by the learned
counsel for the petitioner in this regard is not applicable in the facts and
circumstances of the case, rather in my considered view, the factual
aspect involved in this case is governed with the judgments relied upon
by the learned counsel for the opposite parties.
In view thereof, the argument advanced on behalf of the
petitioner with respect to this issue is not sustainable in the eye of law.
Accordingly, the Issue No.(ii) is answered against the
petitioner.
Issue No.(iii)
The issue is that as to whether the High Court sitting under
Article 226 of the Constitution of India can rewrite the terms of contract?
It is settled that the contract is in between the parties with
their mutual settlement. It is upto the party to accept it or not to accept
it. In case of acceptance, it is binding upon both the parties and in case
of disagreement, it will not be given effect to and once the party is
accepted it, he cannot come forward to challenge it, since his demand is
not being meted out and as such, he cannot invoke the jurisdiction of the
court of law under Article 226 of the Constitution of India by seeking a
direction to rewrite the terms of contract.
25
In this regard, the reliance which has been placed by the
learned counsel for the parties in the case of Life Insurance Corporation
of India (supra) is governed the field wherein at paragraph-8, it has been
laid down that the courts and Tribunals cannot rewrite contracts and
direct payment contrary to the terms of the contract, that too to the
defaulting party.
This Court, after appreciating the arguments advanced on
behalf of the parties and after going through the judgments relied upon
them, is of the view that the petitioner, when found to be unsuccessful to
the selection process, has accepted the offer of appointment as Visiting
Faculty and to that effect he has been given the offer of appointment
along with the terms and conditions apprising him specifically that the
appointment is contractual. He, after accepting it consciously, has
discharged his duty. Hence, the terms and conditions given in the offer
of appointment is binding upon the parties, since it is the settled position
of law that when the appointment is on contract, the service rule
applicable for the employees working under the establishment on regular
basis will not be applicable rather the same will be governed on the basis
of the terms and conditions mentioned in the offer of appointment and
once the terms and conditions made in the offer of appointment has been
accepted it binds the parties and as such, seeking a direction from this
Court to delete the words "visiting faculty" from the offer of appointment
amounts to rewriting the contract by seeking the extraordinary
jurisdiction of this Court under Article 226 of the Constitution of India,
26
but according to my considered view, after going through the judgments
relied upon by the parties, I am of the view that the judgment relied
upon by the learned counsel for the petitioner is not applicable in the
facts and circumstances of the case rather it is judgment rendered by
Hon‟ble the Supreme Court in the case of Life Insurance Corporation of
India (supra) wherein at paragraph-8, it has been laid down that the
courts and Tribunals cannot rewrite contracts and direct payment
contrary to the terms of the contract, that too to the defaulting party.
However, the factual aspect of this case is different to that of
the factual aspect governing the field in the case of Life Insurance
Corporation of India (supra), but the facts remains that the petitioner had
entered into a contract by accepting the offer of appointment and after
accepting and getting the extension twice, last one on his request, he
cannot seek a direction from this Court invoking the extraordinary
jurisdiction conferred to this Court under Article 226 of the Constitution
of India to delete the word „visiting‟ from the offer of appointment.
According to my considered view, the provision as contained
in Article 226 of the Constitution of India pertains to exercising the
power, if there is any legal vested right and if the same has been
infringed. But getting the contract as per the offer of appointment as
Visiting Faculty, now praying to strike down the word „visiting‟ from the
offer of appointment cannot be said to be the legal vested right of the
petitioner.
27
Hence, this Court refrains itself from exercising its
jurisdiction to extend the relief to the petitioner by striking
down the word „visiting‟ from the offer of appointment.
Accordingly, Issue No.(iii) is answered against the petitioner.
Issue No.(iv)
The petitioner has been found to be unsuccessful and to that
effect the specific stand has been taken by the opposite parties at para-
10 of the counter affidavit. For ready reference, the said paragraph is
being referred herein below:-
"That in reply to para-1 of the Writ Application it is most
respectfully submitted that allegation made by the petitioner is
false and baseless. The petitioner appeared for an interview
on 30th November, 2013 through video conference (skype) for
the selection of Assistant Professor Position along with other
candidates. Amongst the candidates who appeared for the
interview the petitioner was found not suitable/competent for
the said position and was accordingly rejected by the selection
committee, the name of the petitioner does not find place in the
recommendation paper submitted by the selection committee
for the position of Assistant Professor. Thereafter on the very
same day the selection committee unanimously decided to
have a second sitting and select few candidates on purely
temporary basics to meet the demands of teaching.
Accordingly, two candidates including the petitioner who
appeared through Skype interview were recommended by the
selection committee to be appointed as visiting faculty (on
contract) in the School of Earth, Ocean and Climate Sciences
(SEOCS) and as per the norms of IIT the name of the petitioner
was forwarded for approval to the Board of Governors, Indian
Institute of Technology, Bhubaneswar (Opposite party no.2)
and consequently, his name was approved by the Board of
Governors for the position of visiting faculty on contract basics
for a period of one year. The above action of the institution
cannot be termed as illegal and arbitrary. The documents
pertaining to selection and recommendation are confidential
documents, and the answering Opp. Parties craves leave of
this Hon‟ble Court to provide the same at the time of hearing."
The response has been filed to the rejoinder affidavit filed by
the petitioner, but no rebuttal reply has been given to that effect.
28
It is evident from the statement made at para-10 of the
counter affidavit that the petitioner was declared to be
unsuccessful in course of scrutiny of his candidature by the Selection
Committee which was constituted in terms of the Statute No.12. The
petitioner has been apprised with respect to the result, but in the second
half he was offered with the offer of appointment of Visiting Faculty and
thereafter, due communication was made seeking his willingness which
he has accepted ad thereafter, he has given his joining to render his
service as a Visiting Faculty.
Learned counsel for the opposite parties, in course of
argument, has produced the original record pertaining to the selection
process containing the Interview Performance Evaluation and this Court,
after going through it, has found that the petitioner has secured 85
marks out of 100 and two selected candidates, namely, Dr. Dibakar
Ghosal and Dr. Indra Sekhar Sen have got 90 and 95 marks respectively.
The Selection Committee has assessed the performance of all the
candidates consist of five members.
This Court for ready reference is reflecting the marks
obtained by the petitioner along with other candidates herein below:-
Name Marks (Out of 100)
Absent
Dr. Kavita Tripathy
90
Dr. Dibakar Ghosal
45
Dr. Saroj Kumar Mondal
40
Dr. Himanshu Mittal
29
95
Dr. Indra Sekhar Sen
Absent
Dr. Nishi Rani
Absent
Dr. Shailesh Agarwal
40
Dr. Ankur Roy
85
Dr. Abhishek Kumar Rai
85
Dr. Sanghamitra Ghosh
The petitioner as well as one Dr. Sanghamitra Ghosh who
has got 85 has not found to be meritorious and suitable in comparison to
that of candidates of Dr. Dibakar Ghosal and Dr. Indra Sekhar Sen and
accordingly they have been declared to be unsuccessful in the selection
process.
The petitioner has raised the question that he cannot be held
to be an unsuccessful candidate.
It is not in dispute, so far as legal position is concerned, the
jurisdiction of the court of law as has been held by Hon‟ble the Supreme
Court in the cases of UPSC v. K. Rajaiah and Others, reported in
(2005) 10 SCC 15; Union of India and Another v. A.K. Narula,
reported in (2007) 11 SCC 10; M.V. Thimmaiah and Others v. Union
Public Service Commission and Others, reported in (2008) 2 SCC
119; and Union Public Service Commission v. M. Sathiya Priya and
others passed in Civil Appeal No.10854 of 2014 wherein it has
repeatedly observed and concluded that the recommendations of the
Selection Committee cannot be challenged except on the ground of mala
fides or serious violation of the statutory rules. The courts cannot sit as
30
an appellate authority or an umpire to examine the recommendations of
the Selection Committee like a Court of Appeal. This discretion
has been given to the Selection Committee only, and the courts rarely
sits as a Court of Appeal to examine the selection of a candidate; nor is it
the business of the Court to examine each candidate and record its
opinion. Since the Selection Committee is manned by experts in the
field, the court to trust their assessment unless it is actuated with malice
or bristles with mala fides or arbitrariness.
In view of the settled position of law, this Court is of the view
that the Selection Committee has assessed the candidature of one or
other candidates including the petitioner. They, while assessing the
inquiry report, has found that the petitioner along with one Dr.
Sanghamitra Ghosh have obtained 85 marks each while selected
candidates have got 90 and 95 respectively and accordingly, both of them
have been selected.
Hence, this Court cannot sit over the assessment made by
the Selection Committee as an Appellate Authority. Furthermore, the
candidates cannot take a calculate chance and appear at the interview,
then only after the result of the interview not selected. He cannot turn
round and subsequently contend that the process of interview was unfair
or Selection Committee was not properly constituted.
Reference in this regard may be made to the judgment
rendered by Hon‟ble the Supreme Court in the cases of Om Prakash
Shukla v. Akhilesh Kumar Shukla and others, reported in AIR 1986
31
SC 1043; Madan Lal and others v. State of Jammu and Kashmir
and others, reported in AIR 1995 SC 1088; and Dr.
Basuvaiah (supra) .
The petitioner in the instant writ petition has sought for a
direction to strike down the word „Visiting‟ from the offer of appointment.
If this Court strike down the word „Visiting‟ from the offer of
appointment which would mean interfering with the decision of the
Selection Committee which, in view of the settled position of law as
discussed above, will not be proper to do by exercising the power of
appeal sitting under Article 226 of the Constitution of India otherwise the
same will amounts to interfering with the decision of the expert body.
In view of the discussion made above, the petitioner became
declared to be incompetent/unsuccessful cannot be allowed to be
continued in service as regular Faculty Member.
So far the issue of jurisdiction as has been raised, it cannot
be said that the appointing authority has exceeded its jurisdiction in
selecting the petitioner on contract although the petitioner had
participated in selection process for regular appointment, but became
unsuccessful thereafter he has not questioned it rather he has willingly
accepted the offer i.e. appointment on contract basis and continued in
service.
The decision of Selection Committee in declaring the
petitioner cannot be termed as without jurisdiction, but simultaneously
engaging the petitioner on contract basis can also not to be termed as the
32
action beyond jurisdiction reason being that when the authority has
called upon the candidates to participate in the selection and on merit
in comparison with the candidature of other candidates. When the
Selection Committee has thought it not proper to select the petitioner on
regular basis as per the advertisement, they could go for selection in view
of the provision of Statute No.17 of the Act, 1962 which contains
provision for contractual appointment but the authority had taken
decision to select from the same list of the candidates, who have declared
to be unsuccessful. It is for time saving and due to public interest, to
provide teaching staffs in the subject. Hence it cannot be said to be
without jurisdiction. Moreover, the petitioner, if aggrieved, ought to have
challenged the said action at appropriate time.
Accordingly, the Issue No.(iv) is answered against the
petitioner.
Issue No.(v)
Learned counsel for the petitioner has submitted that the
advertisement has been issued in terms of the provision of Statue No.12
of the Indian Institute of Technology, Kharagpur which provides for
appointment in the regular manner while Statute No.17 provides for
appointment on contract basis.
The advertisement has been issued under Annexure-1 to fill
up the regular post in which the petitioner had participated, but after
conclusion of the same, the petitioner has been appointed as the Visiting
33
Faculty, which according to him, is the change of selection process which
cannot be allowed to be done.
He has placed reliance upon the judgment rendered by
Hon‟ble the Supreme Court in the case of K. Manjusree (supra).
While, on the other hand, learned counsel appearing for the
opposite party-Institute submits that there is question of change any rule
of advertisement and in terms of Statute No.12, there is no deviation
from any terms and conditions of the advertisement. The petitioner had
participated in the selection process, but he has not been found to be
successful and he has become incompetent to get his engagement in the
regular capacity as per the guideline in the subject in question. Hence,
he has been offered with the appointment as Visiting Faculty which he
has accepted and not only accepted rather the contract was extended
twice, as would be evident from order dated 15.10.2014 (Annexure-6),
2.1.2015 (Annexure-7) and third time on the application of the petitioner
vide application dated 9.3.2016 (Annexure-8) which so fortify the fact
that during entire service terms, the petitioner was not at all aggrieved
with his engagement, rather he thereafter also submitted application
requesting the authority to extend the period further, but not agreed by
the authorities, as would be evident from the letter of the petitioner
under Annexure-8 annexed to the additional affidavit filed by the
opposite parties. This clearly suggests that when the contract period has
not been extended, the instant writ petition has been filed and as such,
in this pretext, it cannot be said that there is change of any rule.
34
This Court, after appreciating the arguments advanced on
behalf of the parties, is of the view that the admitted position in this
case is that the selection has been initiated for fulfilling the post of
Assistant Professor in the subject in question in which the petitioner
along with the others had participated, but by virtue of the decision of
the Selection Committee, he has been declared to be unsuccessful being
incompetent and as such, he has not been recommended.
The petitioner has not challenged his non-selection/non-
recommendation on any ground whatsoever rather when he has been
offered the assignment by way of Visiting Faculty, he has accepted the
terms and conditions mentioned in the offer of appointment and started
discharging his duty. He has got extension twice.
The question of change of terms of advertisement does not
arise here because none of the condition of the advertisement has been
changed rather it is a case where the petitioner has participated in terms
of the selection process issued by way of advertisement in Annexur-1 and
after scrutiny of his candidature, he has found to be not upto mark to be
selected on regular basis as Assistant Professor since he has been found
to be incompetent and not recommended and as such, it is a case of non-
selection.
Hence, it cannot be said that the rule of selection has been
changed as has been contented by the learned counsel for the petitioner.
As such, in my considered view, the contention and ground
raised by the petitioner in this regard is not fit to be accepted.
35
Accordingly, the Issue No.(v) is answered against the
petitioner.
10. In view of discussion made hereinabove, the writ petition
deserves to be dismissed and accordingly, it is dismissed.
Interim order dated 15.12.2016 stands vacated.
..........................
S.N. Prasad, J.
Orissa High Court, Cuttack, Dated the 2nd May, 2018/D. Aech