Himachal Pradesh High Court
Dhaneshwari Verma & Ors vs State Of H.P. And Ors on 11 January, 2023
Bench: Tarlok Singh Chauhan, Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No. 5262/2022
Decided on : 11.1.2023
Dhaneshwari Verma & ors. .....Petitioners
.
Versus
State of H.P. and ors. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1No
For the Petitioners: Mr. Mohit Thakur, Advocate.
For the Respondents: Mr. Anup Rattan, A.G. with
Mr. Y. W. Chauhan, Sr. Addl. A.G.,
r Mr. Y. P. S. Dhaulta, Addl. A.G.,
Mr. J. S. Guleria, Dy.A.G. &
Mr. Rajat Chauhan, Law Officer for
respondent No.1.
Mr. Rajnish Maniktala, Sr. Advocate
with Mr. Naresh Verma, Advocate,
for respondents No. 2 & 3.
_____________________________________________________________________
Justice Tarlok Singh Chauhan, Judge (oral)
The instant petition has been filed for grant of the following substantive reliefs:
(a) To issue Writ in the nature of Certiorari to set aside and quash Annexure P-1 dated 7th June 2022 wherein fresh advertisement has been issued by Respondent No. 3 college for recruitment Lecturers/Assistant Professors History, English and Sanskrit on Part time basis on the posts on which the Petitioners No.1, 2 and 3 had been working for 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.::: Downloaded on - 13/01/2023 20:31:16 :::CIS 2
the last number of years since the years 2015, 2013 and 2012 respectively.
.
(b) That the Respondents especially Respondents No 2 and 3 may be directed that the services of the Petitioners on Part time Basis/ Contractual Basis may not be replaced by fresh set of employees on Part time basis/contractual basis by virtue of Annexure P-1. The Petitioners may be allowed to continue.
(c) That the Respondents may be directed to regularize the services of the Petitioners on the respective posts keeping in view the fact that they have been serving the institution for sufficient long years at par with Regular counterparts and for all these years they have performed their duties diligently and efficiently and they have never ever gave any occasion for complaint whatsoever.
(d) That the Respondents may also be directed to pay to the Petitioners respectable salaries on account of being Grant in Aid College and even otherwise being the prestigious DAV Institution. The salaries so payable must strictly commensurate with the nature of duties as performed by the Petitioners as Lecturers at par with Regular counterparts in Government colleges and in no case the Petitioners may be subjected to any financial exploitation. In no case the Petitioners may be allowed to be subjected to interview every year. The fictional breaks may be allowed to be condoned and all this period may be treated as duty being in service.
(e) That Respondent No.1 state may be directed that the Petitioners while working in the College are not treated ::: Downloaded on - 13/01/2023 20:31:16 :::CIS 3 unfairly by Respondent No. 3 College and their service conditions are duly protected."
.
2 Respondent No.3-College is an 95% aided College, where the petitioners having been working as Assistant Professors on part time basis since 2012-2015 respectively. The respondent-College is regulated by grant-in-aid Rules 2008 and in terms thereof, the grand-in-aid is admissible for meeting a part of the salary expenses r in respect of the approved staff (Teaching and Non-teaching).
3 As regards the College, it has 16 approved posts in different subjects in teaching staff and 11 sanctioned posts of ministerial staff. The posts of Assistant Professor in Sanskrit, Hindi, English, Commerce, Physical Education, Mali and Sweeper are lying vacant in the college.
4 The educational qualifications of the petitioners are as under:-
Dhaneshwari Verma M.S. History with less than 52% marks.
No NET/SET/SLET No Ph.D. Varonica Kanwar M.A. English with less than 55% marks.
No NET/SET/SLET No Ph.D. ::: Downloaded on - 13/01/2023 20:31:16 :::CIS 4 Raksha Devi M.A. Sanskrit with more than 55% marks.
.
M.Phil Sanskrit, No NET/SET/SLET No Ph.D.
5 Evidently, the petitioners do not possess the requisite qualifications for being appointed as Assistant Professors in terms of regulation 4 of the University Grant Commission Regulations, 2018, but nonetheless the petitioners have been working as Assistant Professors in Sanskrit, History and English only because no qualified person(a) appeared in the selection process that was conducted by the respondent-College every year after due advertisement.
6 The reason for qualified Assistant Professors not joining the college is because of low salaries on account of non-
release of grant-in-aid. It is now in pursuance to the advertisement that six duly eligible candidates have applied for the posts of Assistant Professors in History, English and Sanskrit. However, before they could be appointed, the petitioner approached this Court and obtained the stay orders.
7 It would be noticed that the College is in receipt of 95% grant-in-aid since 1.4.1995. Later, the State government ::: Downloaded on - 13/01/2023 20:31:16 :::CIS 5 vide its letter dated 20.6.2018 proposed to open a new college in Kotkhai and constituted a committee to take over the .
respondent-college, however management of the college did not permit the same and the decision was accordingly conveyed to the government. Thereafter, the State government vide its letter dated 20.12.2018 directed to stop the grant-in-aid to the respondent-college and the matter is now sub judice before this Court in CWP No. 230/2019.
8 Now, the moot question is whether the petitioners can claim a right to continue in service only on the ground that their contractual employment cannot be replaced by other contractual employees.
9 Strong reliance has been placed by learned counsel for the petitioners upon the judgment rendered by the Hon'ble Supreme Court in in State of Haryana and others etc. versus Piara Singh and others etc., AIR 1992 SC 2130, more particularly, following observations as contained in para 25 thereof:
"25. Before parting with this case, we think it appropriate to say a few words concerning the issue of regularization of ad hoc/temporary employees in government service.::: Downloaded on - 13/01/2023 20:31:16 :::CIS 6
Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must .
be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority."
10 The aforesaid ratio is clearly not applicable to the fact situation obtaining in the instant case as it cannot be disputed that the petitioners herein were selected and thereafter appointed pursuant to ran advertisement, which never envisaged appointment on permanent basis and was only on contractual basis. It was out of compulsion that the petitioners came to be appointed, even though they were not even eligible.
11 Now, as per the averments made in the reply filed by respondent-College, all the candidates, who have appeared in the fresh selection process, possess the requisite qualification and, therefore, the petitioners now have to make way for these qualified candidates.
12 Even otherwise, once the appointments were purely contractual, then by efflux of time, as envisaged in the contract itself, the same came to an end and the persons holding such posts cannot have any right to continue or renewal of contract of service as a matter of right. In such circumstances, the case ::: Downloaded on - 13/01/2023 20:31:16 :::CIS 7 relied upon by the petitioner is clearly distinguishable from repeated and ad hoc appointments, which was adopted as a .
matter of practice by the State Government in case of Piara Singh's case (supra).
13 The difference in the fact situation obtaining in the instant case vis-à-vis Piara Singh's case (supra) is stark and clear. The petitioners herein are not even qualified and being in the rank of Assistant Professors, they cannot claim right of continuity in service.
14 In Director, Institute of Management Development, U.P. vs. Pushpa Srivastava, 1992 (3) SCR 712, the Hon'ble Supreme Court held that since the appointment was purely on contractual and ad hoc basis on consolidated pay for a fixed period and terminable without notice, when the appointment came to an end by efflux of time, the appointee had no right to continue in the post and to claim regularization in service in the absence of any rule providing for regularization after the period of service.
15 One cannot lose sight of the concept of circumstantial flexibility, one additional or different fact may make a world of ::: Downloaded on - 13/01/2023 20:31:16 :::CIS 8 difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is improper.
.
16 The following words of Lord Denning in the matter of applying precedents have become quite authoritative over the years:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. ????. Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it".
17 Hence, there cannot be any absolute rule or principle that one ad hoc or temporary appointee can never be replaced by another ad hoc or temporary appointee.
18 There is a clear distinction between public employment governed by the statutory rules and private employment governed purely by contract. No doubt, with the ::: Downloaded on - 13/01/2023 20:31:16 :::CIS 9 development of law, there has been a paradigm shift with regard to judicial review of administrative action, whereby the writ court .
can examine the validity of termination order passed by the public authority and it is no longer open to the authority passing the order to argue that the action in the realm of contract is not open to judicial review. The scope of interference of judicial review is however confined and limited in its scope. The writ court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of contract.
19 However, judicial review cannot extend to the Court acting as an appellate authority sitting in judgment over the decision. The Court cannot sit in the armchair of the administrator to decide whether more reasonable decision or course of action could have been taken in the circumstances.
(Refer Gridco Ltd. & Another vs. Sadananda Doloi & Ors, AIR 2012 SC 729).
20 The petitioners have failed to place before this Court any material to show that the action of the respondent-College is either unreasonable or unfair or perverse or irrational.
::: Downloaded on - 13/01/2023 20:31:16 :::CIS 1021 That apart, the institution like the respondent-College is required to employee persons in the posts, which may be .
temporary or on contract basis for want of availability of eligible persons and in case it is so done, then the persons holding the posts like the petitioners in the instant case cannot turn around and claim a right of continuity in service.
22 It is also well settled that regularization, absorption or permanent continuance of an employee cannot be directed by a Court, unless the employees have been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process against sanctioned vacant posts. In taking this view, we are supported by the judgment of the Hon'ble Supreme Court in State of Rajasthan & Ors. versus Daya Lal & Ors. (2011) 2 SCC 429. It is apt to reproduce here relevant observations as contained in para of the judgment, which read as under:-
"12. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:
(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of ::: Downloaded on - 13/01/2023 20:31:16 :::CIS 11 a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant .
posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized."
23 Similar issue has already been considered by learned Division Bench of this Court in its judgment, authored by one of us (Justice Tarlok Singh Chauhan), in Dr. Rajesh Kumar Sharma vs. Union of India, 2020 (Suppl.) Him. L.R. (DB) 2510, 24 The petitioners at the time of entering into the contractual employment were fully aware of the appointments being contractual and, therefore, cannot even invoke the theory of legitimate expectation for being continued in the posts in question. The petitioners being appointed on contractual basis can have no right to claim higher right than what is envisaged in the contract of appointment and the same would come to an end ::: Downloaded on - 13/01/2023 20:31:16 :::CIS 12 by efflux of time as entered in the contract, more particularly, when the petitioners are not eligible to be appointed and the .
persons now sought to be selected are duly qualified for the posts in question.
25 One could well understand the compulsions of the petitioners in accepting the appointment on very very meager salary, yet such appointments have been accepted by them with eyes wide open, therefore, the petitioners cannot turn around by claiming higher rights ignoring the conditions subject to which the appointments had been accepted.
26 In view of aforesaid discussions and reasons, we find no merit in the instant petition and the same is accordingly dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan) Judge (Virender Singh) 11.1.2023 Judge (pankaj) ::: Downloaded on - 13/01/2023 20:31:16 :::CIS