Punjab-Haryana High Court
Geeta Sharma vs Dav College Managing Committee And ... on 16 July, 2013
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
CWP No. 2609 of 2013 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 2609 of 2013
Date of Decision: July 16, 2013
Geeta Sharma
.....Petitioner
Vs.
DAV College Managing Committee and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr. D.S. Patwalia, Advocate
for the petitioner.
Mr.R.S. Cheema, Advocate
for respondents No.1 and 2.
Ms. Ramandeep Kaur, Advocate for
Mr.A.S. Virk, Advocate for respondent No.3.
Mr.R.K. Bhatia, Advocate
for respondent No.4.
-.-
M.M.S. BEDI, J. (ORAL)
Petitioner working as a Lecturer in the respondent No.1 College in the subject of English, having been appointed on 1.7.2003 pursuant to an advertisement published in newspaper and interviewed by duly constituted Selection Committee, has preferred the present writ petition Gupta Sanjay 2013.09.06 12:48 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 2609 of 2013 [2] under Article 226/227 of the Constitution of India for issuance of writ or direction in the nature of certiorari for quashing the advertisement No. CAP/August/2012/07 (Annexure P-7), whereby, one post of Assistant Professor in English is sought to be filled in the respondent College claiming that the petitioner has got a priority right of consideration and appointment, on the basis of her working experience in the last 10 years.
The petitioner's claim is that the Selection Committee had interviewed the petitioner and appointed her under the General category but said selection was made against an unaided post sanctioned by the Management, as at the relevant time no sanctioned aided post was available. But the petitioner is being granted benefits of an appointee on a sanctioned aided post and is being given the revision of pay scales, increments, deductions of provident fund etc. The petitioner claims that her appointment was a regular appointment for all intents and purposes, but on account of non-availability of any "sanctioned aided post" in the Department of English at that time she was appointed against the Management post (unaided). There has been no break in service of the petitioner and that she has been working to the best of her abilities to the satisfaction of here employer. The appointment of the petitioner was approved by the University vide letter-dated 28th January, 2012 w.e.f. her initial date of appointment i.e. 1.7.2003 vide Annexure P-3. The relevant portion of the letter sent by the University to the Principal of DAV College reads as follows:-
Gupta Sanjay 2013.09.06 12:48 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 2609 of 2013 [3]
"I am desired to inform you that appointment of Mrs.Geeta Rani as Lecturer/ Assistant Professor in English against unaided post sanctioned by Management itself to teach upto degree classes on probation w.e.f. 1.7.2003 has been approved. This approval is only for academic purposes. For financial and administrative purposes, the instructions issued by the Director General, Higher Education, Haryana, Panchkula may be followed."
In the year 2011, regular post of Lecturer in English was sought to be filled up by Guru Nanak College, Shantipura, Yamuna Nagar. The petitioner being eligible and desirable for the said post applied for the same and got an interview call vide letter-dated 8.12.2011 vide Annexure P-5. But the petitioner was not provided "no objection" by respondent No.1 vide letter dated 19.12.2011 (Annexure P-6).
The petitioner was informed that she, having an excellent service record to her credit would be given appointment on the sanctioned aided post, as and when the vacancy is available in the College.
A sanctioned post of Lecturer in English in General category became vacant on retirement of an incumbent in July, 2005, but contrary to the legitimate expectations of the petitioners, the respondent No.1 issued the advertisement vide Advertisement No. CAP/August/2012/07, seeking to fill the various posts of Assistant Professors in various Colleges run by it in the Gupta Sanjay 2013.09.06 12:48 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 2609 of 2013 [4] State of Haryana including the post of Assistant Professor in English in General category in the respondent College, on which post, the petitioner was assured an appointment. Copy of the advertisement has been appended with the petition as Annexure P-7.
The petitioner being eligible and qualified, applied for the post of Assistant Professor in English in the respondent College pursuant to the advertisement Annexure P-7. She was called for the interview vide Annexure P-8, but respondent No.4 was selected to be appointed on the said post, whereas, the petitioner was kept at Serial No.2.
In the above said backdrop, the petitioner has challenged the appointment of respondent No.4 pursuant to an advertisement Annexure P-7 claiming that she has got preferential right on the basis of her length of service and on the basis of the assurance given by the respondents to adjust her against the aided post of Assistant Professor in English.
The claim of the petitioner has been contested by the respondent by filing written statement. The respondent No.1 and 2 have claimed that the petitioner having participated in the selection process for the selection of Assistant Professor in English and having not been selected on merit has got no locus standi to impugn the selection on the ground that the selection had been unfair.
In this context, reliance has been placed by the respondents on Madan Lal and others Vs. State of J&K and others, (1995) 3 SCC 486 and Dhananjay Malik and others Vs. State of Uttaranchal and others, Gupta Sanjay 2013.09.06 12:48 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 2609 of 2013 [5] (2008) 4 SCC 171 observing that if a candidate takes calculated chance and appears at the interview then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or selection committee was not properly constituted.
Mr.D.S. Patwalia, counsel for the petitioner has contended that in the present case the petitioner will not be prejudiced for having participated in the selection process as her claim is not founded on the allegation of unfairness of Selection Committee or regarding criteria adopted for selection of Lecturer in English, but the petitioner has set her claim against the "sanctioned aided post" on the ground that she had worked against the "unaided management post" not sanctioned by the University for a period of 10 years. Mr. Patwalia has relied upon the judgment of a Division Bench of this Court in CWP No. 17260 of 2007- Smt. Shashi Tejpal Vs. State of Haryana and others, dated March 11, 2008 in which petitioner having worked against unsanctioned post was denied the right of conversion of post to sanctioned one despite the fact that she had been appointed by following due procedure under the Haryana Affiliated Colleges (Security of Service) Act, 1979. In the said case taking into consideration the 14 years experience of the petitioner, a direction was given to the respondent Management and the University to treat the post occupied by the petitioner as post against which grant-in-aid is payable. The relevant observations of the Division Bench is as follows:- Gupta Sanjay 2013.09.06 12:48 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 2609 of 2013 [6]
"In our view, a lecturer, who is working for the last more than 14 years on an unaided post, is entitled to seek approval from the State Government so as to receive grants-in-aid for such post. It will be wholly unreasonable if a person, even after more than 14 years of continuous service against the unsanctioned post, is not granted grants-in-aid to the post occupied by her, though the fresh appointment is permitted against the sanctioned post in the same College and by following the same procedure. Therefore, as against the petitioner, the respondent can appoint another person against the sanctioned post, but the petitioner, who has already rendered 14 years of satisfactory service, is not considered fit for approval for granting grants-in-aid by the State Government. The effect of the grants-in-aid is that the petitioner would be entitled to pensionary benefits in terms of the scheme framed by the State Government. No reason has been explained as to why the post occupied by the petitioner, cannot be treated as a sanctioned post either in communication Annexure P-10 or in the written statement.
Therefore, we are of the opinion that once the procedure for appointment as contemplated under the Gupta Sanjay 2013.09.06 12:48 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 2609 of 2013 [7] Statute has been followed, it is only an administrative decision to grant sanction to the post occupied by the petitioner, for the purposes of grants-in-aid. Such interpretation alone would be fair and reasonable keeping in view the that the petitioner has worked for more than 14 years against an unsanctioned post.
Consequently, the present writ petition is allowed. The impugned order Annexure P-10 is quashed. The respondents are directed to treat the post occupied by the petitioner as the post against which the grants-in-aid is payable."
I have heard Mr. Patwalia, learned counsel for the petitioner as well as Mr. R.S. Cheema, advocate for respondents No.1 and 2 and counsel for private respondent No.4 and considered the following issues raised for determination:-
i) Maintainability of the writ petition by a candidate after having participated in the process of selection;
ii) Right of the petitioner to be appointed against the sanctioned aided post of Lecturer in English on the basis of her 11 years experience against the unaided post.
MAINTAINABILITY OF THE WRIT PETITION:
Gupta Sanjay 2013.09.06 12:48 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 2609 of 2013 [8]
The petitioner after having been selected by a duly constituted Selection Committee against an unaided post sanctioned by the Management for a period of 11 years, had a legitimate expectation that she would be appointed against the aided post in the Department of English but respondent No.1 Management had opted to advertise the post of Assistant Professor in English with an objective to search best talent. The petitioner had participated in the process of selection to the post of Assistant Professor in English pursuant to the advertisement. She had been called for the interview. Mere participation in the selection process and the act of appearance before the Interview Committee will not be treated as estopple to challenge the selection. There is no dispute regarding proposition of law settled in the Madan Lal's case (supra) and Dhananjay Malik's case (supra) observing that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. But the said principle has not to be applied in facts and circumstances of each case. The said judgments are based upon the rule of estoppel as enshrined in Section 115 of the Evidence Act. The principle of estoppel prevents a person to deny the truth of a thing especially when he by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. In case of Anil Kumar Vs. District and Sessions Judge, Rohtak, 2010 (2) SCT 435, Gupta Sanjay 2013.09.06 12:48 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 2609 of 2013 [9] short-listing of candidates for selection being arbitrary and without any criteria was challenged in writ petition, however, the plea of estopple was taken up by the respondents. The said plea was rejected by this Court in following terms:-
"It has been contended on behalf of the respondents that the petitioner having participated in the selection is not entitled to maintain this writ petition and is estopped from challenging the selection. This contention may hold good where the criteria for selection was appropriately and properly notified and would be known to the participants, but will not be of any help in the present case where the criteria was not only kept back, but per se is illegal, invalid and demonstrates even lack of basic knowledge of the selectors. Rule of "estoppel" is not a device to unsuit a litigant merely on technicalities. The rule of "estoppel" is intended to be applied to unscrupulous litigants who attempt to take benefit in all situations, firstly by participating without any reservation and then after having failed, make a challenge. In the present case, it was only by participating in the selection that a candidate would know the method adopted for selection and not by keeping himself away from the process of selection. The Gupta Sanjay 2013.09.06 12:48 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 2609 of 2013 [10] petitioner could not have known the method of selection, unless he would have participated and actually observed the means adopted for making selection. I, therefore, reject the ground urged by the respondents to non-suite the petitioner for having participated in the selection, in view of the peculiar facts of this case. A similar question came up for consideration before Hon'ble Supreme Court in the case of Rajesh Kumar Gupta and others vs. State of U.P. And others, (2005) 5 SCC 172. In the aforesaid case, the State Government initially notified a criteria for making the selection district-wise which criteria was later changed for making selection state-wise and after applications were received, the criteria was again changed for making selection district-wise. The right/locus of the unsuccessful candidates who challenged the selection was objected to on the ground of their participation by invoking rule of estoppel. Considering this aspect, Hon'ble Supreme Court noticed as under:-
"13. The Division Bench also found that at the time of making the application the scheme notified by the State Government was that the preparation of the merit list would be at the State level and not Gupta Sanjay 2013.09.06 12:48 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 2609 of 2013 [11] at the district level. The criterion for merit list was subsequently changed only on 31.10.2001 i.e. after the applications had been made by the candidates. Consequently, no candidate had any occasion to protest, since the criterion was abruptly changed by the State Government. Thus, the Division Bench overruled the objection to the maintainability of the writ petitions by taking the view that there was no question of estoppel and the candidates, who had applied and were not selected could not be said to be estopped from challenging the process of selection. Nor could there be any plea of promissory estoppel invoked by the writ petitioners, as nothing was established to show that they had altered their position to their detriment by applying pursuant to the advertisement. In our view, the finding of the Division Bench on this point is justified."
In view of the above observations, the rule of "estoppel" is intended to be applied to unscrupulous litigants who attempt to take benefit in all situations i.e. firstly by participating without any reservation and then after having failed, make a challenge. In some cases without participation in the selection process it is impossible for a candidate to know the illegality Gupta Sanjay 2013.09.06 12:48 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 2609 of 2013 [12] or irregularity, biased or arbitrariness committed during the process of selection. If in every case, the principle of estoppel is applied, no candidate will be able to challenge the selection despite the fact that there are established violations of Articles 14 and 16 of the Constitution of India. In case a person opts to stay away from the selection process and challenge the selection on the ground of Article 14 of the Constitution, he would loose half the battle merely on the ground that he opted to stay away from the selection. In that situation, the principle of estoppel will not operate against him, in case he challenges the selection process or the selections being arbitrary. It is not an absolute rule of law that in all cases where the candidate had participated in the selection process, he would be debarred to challenge the selection. The facts and circumstances of each case are to be seen while applying the ratio of the judgments in Madan Lal's case (supra) and Dhanajay Malik's case (supra).
In the present case, the petitioner has approached this Court on the ground that she has got a preferential right to be selected for the post of Assistant Professor/ Lecturer in English on the basis of her experience. The petitioner has placed strong reliance on the judgment in Shashi Tejpal's case (supra). Though this Court would in subsequent paragraphs consider the applicability of Shashi Tejpal's case (supra) but it is held that the petitioner is not debarred from challenging the procedure adopted by the respondents by virtue of which respondent No.4 has been selected. In Shashi Tejpal's case (supra), Shashi Tejpal who had rendered 14 years of Gupta Sanjay 2013.09.06 12:48 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 2609 of 2013 [13] satisfactory service was not considered fit for approval for granting grant- in-aid by the State Government holding that grant of sanction was merely an administrative decision. It was not a case where the merit of the petitioner was to be considered in comparison to any other candidate. It was specifically observed in Shashi Tejpal's case (supra) that the management could appoint another person against the sanctioned post but having not done so for 14 years after the appointment of petitioner in that case, it was directed that the petitioner was to be treated as holding a post against which the grant-in-aid was payable.
RIGHT OF THE PETITIONER TO BE APPOINTED AGIANST THE SANCTIONED POST:
Counsel for the petitioner has strongly relied upon the judgment in Shashi Tejpal's case (supra). In the said judgment, the petitioner had worked against unsanctioned post for 14 years and was denied the right of conversion of the post to sanctioned post though she had been appointed as per the procedure prescribed under law. The writ petition was allowed on the ground that the incumbent had 14 years experience and that no fresh appointment had been made against the sanctioned post in the College. It was observed that the Management could appoint another person against the unsanctioned post.
The facts of Shashi Tejpal's case (supra) are different and not applicable in the present case. The case of the petitioner herein is a case of determination of the merit of the petitioner against the other candidates who Gupta Sanjay 2013.09.06 12:48 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 2609 of 2013 [14] had competed with the petitioner and were found comparatively better candidates than the petitioner. It is the right of the Management to adopt any procedure to search for the best talent. In Shashi Tejpal's case (supra), the Management had not opted to search for better talent than the petitioner in that case for a period of more than 14 years but in the present case for selection of Assistant Professor/ Lecturer in English against aided post, a valid selection process has been adopted and respondent No.4 Natasha Bajaj has been selected against the aided post sanctioned by the Management and approved by the University. As respondent No.4 has been appointed on the basis of comparative merit, the petitioner is not entitled to claim preferential right to be appointed against the approved aided post of Lecturer/ Assistant Professor in English. The ratio of the judgment in Shashi Tejpal's case (supra) is not applicable as such the petition deserves to be dismissed.
It is not out of place to mention here that counsel for the Management on the instructions of the Management has stated that the College has got no intention to cease the arrangement of the petitioner continuing against the other unaided post of Lecturer in English. In this respect, instructions of the Management in writing have been placed on record. The relevant portion of the certificate of the Management reads as follows:-
"Ms.Geeta Sharma will not be terminated, on account of just filing of this Civil Writ Petition No. 2609 Gupta Sanjay 2013.09.06 12:48 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 2609 of 2013 [15] of 2013 Geeta Sharma Vs. DAG Managing Committee and others."
In view of the above circumstances, this Court is of the opinion that it is the right of the petitioner to stay against the unaided post of Lecturer in English which carries the same privileges except that the unaided post is not pensionable and accordingly it is ordered that the arrangement as existing today i.e. appointment of the petitioner against the unaided and unsanctioned post of Lecturer in English will remain intact, as undertaken by the Management.
This petition is disposed of without prejudice to the rights of the petitioner to be appointed against any other aided post arising subsequently.
July 16, 2013 (M.M.S.BEDI)
sanjay JUDGE
Gupta Sanjay
2013.09.06 12:48
I attest to the accuracy and
integrity of this document
High Court Chandigarh