Patna High Court
Nitesh Kumar & Ors vs The Union Of India & Ors on 6 December, 2017
Author: Anil Kumar Upadhyay
Bench: Anil Kumar Upadhyay
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7873 of 2017
===========================================================
1. Nitesh Kumar, S/o Dhruv Narayan Prasad, R/o Mohalla-Sri Krishna Nagar,P.S.-
Motihari Town, District-East Champaran.
2. Vijendra Kumar, S/o Vinod Kumar Singh, R/o Village-Math Lohiyar, P.S.-
Harshidhi, District-East Champaran
3. Abhinay Verma, S/o Sri Shambhu Prasad Verma, R/o At J.N. Roy Road,
Sahibganj, P.S.-Sahibganj, District-Sahebganj, State of Jharkhand.
4. Lalan Kumar, S/o Nagendra Sah All Resident of Village-Chhota Auraya, P.O. +
P.S.-Adapur, Districct-East Champaran.
5. Mukul Kumar, S/o Late Birendra Singh R/o Vilalge-Madhubani, P.S.-
Sangrampur, District-East Champaran.
6. Anshuman, S/o Late Sri Krishna Sharma. R/o Mohalla-Belwanawa, Near BSNL
Office, Station Road, P.S.-Motihari Town, District Road, P.S.-Motihari Town,
District-East Champaran.
7. Sonal Kumar, S/o Arvind Kumar, R/o Vilalge-Mahuari Zinedpur, Sikndarpur,
P.S.--Begusarai Town, District-Begusarai.
8. Suresh Das, S/o Jailal Das, R/o Village-Sherpar Bahori, P.S.-Mahua, District-
Vaishali.
9. Raj Shekhar, S/o Prashant Kumar Singh, C/o V.N. Singh R/o At + P.O.-Pakri
Ashok, P.S.-Pipra, District-East Champaran.
10. Kusum Kumari, D/o Vinod Sharma R/o Mohalla-Agarwa, P.S.-Town Motihari,
District-East Champaran.
11. Anshlika, D/o Shailendra Shukla R/o Mohalla-Balua Tal (Infornt of Uga m
Pandey College) P.S.-Motihari Town, District-East Champaran
12. Rajeshwar Pandey, S/o Late Suryadeo Pandey R/o Village-Sorpania, P.S.-
Dhaka, District-East Champaran.
13. Sidharth Kumar, S/o Dhruva Nath Prasad R/o Mohalla-Main Road, Motihar i
(Infront of Shalimar Sweets) P.S.-Motihari Town, District-East Champaran
14. Rajnish Kumar, S/o Sushil Kumar, R/o Mohalla-Balua Tal P.S. -Town
Motihari, District-East Champaran
15. Mahesh Mishra, S/o Uday Chandra Mishra, R/o Mohalla- Azad Nagar, P.S.-
Town Motihar.
16. Shree Nath Thakur, S/o Late Rambilash Thakur, R/o Village- Khajuria, P.S.-
Govindganj, District-East Champaran.
.... .... Petitioner/s
Versus
1. The Union of India through the Secretary Ministry of Science and Technology,
New Delhi.
2. The State of Bihar, through the Principal Secretary, Science and Technology,
Department, Government of Bihar, Patna.
3. The Principal, Motihari College of Engineering, Motihari.
4. The Special College Work Officer, Motihari College of Engineering, Motihari.
5. The Chairman, All India Council for Technical Education, New Delhi.
.... .... Respondent/s
===========================================================
Appearance :
For the Petitioner/s : Mr. Siyaram Shahi, Advocte
Mr. Karandeep Kumar, Advocate
For the Respondent/s : Mr. AJAY- GA5
Patna High Court CWJC No.7873 of 2017 dt.06-12-2017
2/5
===========================================================
CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
ORAL JUDGMENT
Date: 06-12-2017 Heard Mr. Siyaram Shahi, learned counsel for the petitioner and Mr. Ajay, learned Government Advocate No.5 on behalf of the State.
2. The petitioners are aggrieved by the action of the respondent in appointing Guest Assistant Professor instead of appointing regular Assistant Professor to replace the petitioners, who are working as Guest Lecturers.
3. Mr. Shahi, counsel appearing on behalf of the petitioners submits that the petitioners were appointed as Guest Lecturers on the condition that they may continue till the regular appointment of Teachers are made. Unfortunately, instead of making regular appointment, the respondents are contemplating replacing the petitioners by another set of Guest Lecturer by only changing the nomenclature Guest Lecturer to Guest Assistant Professor. He submits that the petitioners have no objection, if the respondents recruit regular Assistant Professor and replace them by regularly recruited Assistant Professor, but the manner in which they are making appointment of another set of Guest Teacher to replace the existing Guest Teacher is colorable exercise of power.
4. Mr. Ajay appearing on behalf of the State submits Patna High Court CWJC No.7873 of 2017 dt.06-12-2017 3/5 that in view of the Division Bench judgment in the case of The State of Bihar through Principal Secretary, Department of Labour Resources & Ors. Vs. Bimlesh Kumar Pandey & Ors., reported in 2016 (3) PLJR 188, a contractual appointees can be replaced by another set of contractual appointees, he refers to para 16 of the said division bench judgment, which is quoted herein below:
"16. In the present case, admittedly as on the date of advertisement, i.e., on 19.09.2013, the respondents herein were not in contractual appointment, which had come to end six months back in the month of March, 2013, itself. Secondly, through the said Advertisement, dated 19.09.2013, the appellants decided to introduce a more rigorous method of selection through the Board with the avowed object of selecting better candidates for enhancing standard teaching of English in ITIs. The reason for not taking the services of the petitioners, who were working on contractual basis till March, 2013, and instead going for fresh selection for appointment, though on contractual basis, cannot, in the present case, be said to be wholly unjustified, mala fide and/or so arbitrary as to warrant interference by this Court in exercise of its power under Article 226 of the Constitution of India. We hasten to add that it is well accepted principle that where the appointment is contractual in nature and it comes to an end by efflux of time, no right remains in such appointees to continue in the post. In such circumstances, no writ in the nature of mandamus, could have been issued requiring the appellants to allow the respondents to continue on contractual basis."
5. The reasoning for permitting replacement of Patna High Court CWJC No.7873 of 2017 dt.06-12-2017 4/5 contractual appointees by another set of contractual appointees in the aforesaid Division Bench judgment has no application, so far as the present petitioners in the instant writ application is concerned. In the case considered by the Division Bench, the contractual appointment came to an end and thereafter stringent condition was incorporated for the purpose of selection of another set of contractual appointment.
6. Mr. Shahi has drawn the attention of the Court to Annexure-C Appendix-2 to indicate that the qualification and eligibility contained in Annexure-2 is based on AICTE norms and the petitioners are eligible in terms of Appendix-2 to Annexure-C and in addition thereto the petitioners are still continuing and in terms of the advertisement of their appointment they can only be replaced by regular appointees. The aforesaid two circumstances distinguishes the case of these petitioners to the case considered by the Division Bench in the case of The State of Bihar through Principal Secretary, Department of Labour Resources & Ors. (supra)
7. Faced with the aforesaid circumstance, Mr. Ajay fairly submitted that till the regular appointment, if not made, the department would allow those Guest Teachers, who answer the eligibility criteria prescribed by the State Government. In case, any Guest Lecturers, who lacks the eligibility or qualification, prescribed for appointment, as regular Teacher, namely, regular Assistant Patna High Court CWJC No.7873 of 2017 dt.06-12-2017 5/5 Professor, the Department will not retain them and the department may replace them by other set of Guest Assistant Professor. Mr. Shahi submits that the petitioners answers the eligibility and in case the department proposes to replace those, who do not answer the eligibility prescribed by the State Government, the department is free to replace them by those qualified in terms of the existing norms.
8. In view of the above, the writ application is disposed of with liberty to the department to replace those Guest Teachers, who does not answer the eligibility prescribed by the State of Bihar as indicated in Appendix-2 to Annexure-C to the counter affidavit and will not disturb those Guest Lecturers, who qualify the eligibility criteria contained in Appendix-2 to Annexure-C, till the regular appointment is made.
9. With the aforesaid, the writ application stands disposed of.
10. The respondents are directed to take such decision within a period of one month from the date of receipt/production of a copy of this order.
(Anil Kumar Upadhyay, J) Uday/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 21.12.2017 Transmission NA Date