Jharkhand High Court
Kr. Madhusudan Raja & Ors vs The State Of Jharkhand Through The ... on 9 February, 2018
Author: S.N. Pathak
Bench: S. N. Pathak
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 675 of 2018
Kr. Madhusudan Raja & Ors. ..... ... Petitioners
Versus
The State of Jharkhand through the Secretary Higher Technical and Skill
Development Department, Govt. of Jharkhand, Ranchi & Ors.
... ... ..... Respondents
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CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
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For Petitioners : Mr.Piyush Krishna Choudhary, Advocate
For Respondents : Dr. Ashok Kumar Singh, Advocate
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06/ 09.02.2018 The petitioners have approached this Court with a prayer for a direction upon the respondents for staying the operation of result published by Vice Chancellor/Registrar Vinoba Bhave University, Hazaribag, dated 27.01.2018 (Annexure-3), which has been published without creating the post of lecturer against that post on which these petitioners are working/teaching for last two years or three years.
The short facts lying in narrow compass is that the petitioners were appointed as guest teacher in different colleges of the State of Jharkhand on the sanctioned and vacant post under Vinoba Bhave University, Hazaribagh in view of the order dated 11.07.2015 vide Memo No. 2522 issued by the Vice Chancellor of the said University. It was also mentioned in the notification itself that they will be paid remuneration as noted against their names in anticipation of the approval of the Syndicate. It is further the case of the petitioners that though they were working on the said sanctioned and vacant posts in view of the appointment letter issued by the Vice Chancellor, Vinoba Bhave University himself and subsequently getting the salary also, the University has come out with a fresh advertisement for appointment of teachers on contract basis. It is specific case of the petitioners that University had no right in floating of the said advertisement as already these petitioners are working on the sanctioned and vacant posts though by way of contract basis. In view of the advertisement, interview was also taken and result was also published for appointment of the Assistant Professors on contract basis. The present petitioners are aggrieved by the result of the Assistant Professor on contractual basis, who are going to be appointed as per the result dated 27.01.2018. It is specifically mentioned in the said notification issued by the Vice Chancellor, Vinoba Bhave University under the signature of Registrar that the persons are provisionally appointed on contractual basis as Assistant Professors in different subjects. Admittedly, these persons are going to be appointed on contractual basis. Aggrieved by the said result, the petitioners have constrained to knock the door of 2 this Court.
Mr. Piyush Krishna Choudhary, learned counsel appearing on behalf of the petitioners, submits that it is settled principles of law that one contractual appointment cannot be replaced by another contractual appointment. Learned counsel further argues that in catena of decisions of this Hon'ble Court as well as Hon'ble Apex Court, law has been laid down that contractual appointment cannot be substituted by fresh contractual appointment and as such, though the University has come out with a fresh advertisement and also as results has been published for appointment of fresh Assistant Professors on contractual basis but it is illegal arbitrary and not tenable in the eyes of law, which can be comfortably said to be dehors the rules. Learned counsel for the petitioners further argues that a direction may be given to the respondents to stay the operation of the impugned order till regular appointments are made.
Per contra, no counter-affidavit has been filed. On the other hand, Dr. A.K. Singh, learned counsel appearing on behalf of the respondents-University vehemently opposes the contention of the learned counsel for the petitioners and submits that admittedly, petitioners are working in the different colleges of the University on contractual basis but at the time of fresh appointment, the petitioners were given ample opportunity to appear in the said selection process, which the petitioners did not avail and it is further argued that many of the petitioners have also appeared in the selection process and after appearance in the said selection process /interview, they have challenged the advertisement, which is not permissible in the eyes of law. Learned counsel for the respondents very fairly admitted that as per the law laid down by the Hon'ble Apex Court normally no contractual appointment can be substituted by the another contractual appointment but in the facts and circumstances of the prevailing situation, as several vacancies are still lying vacant and no regular appointments have been made since, 2008; therefore the University was rightly initiating the selection process. Learned counsel further argues that all the present petitioners have not yet been removed and as such, the writ petition itself is premature.
Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that no appointment can be given dehors the rules. It is settled principles of law that a set of contractual appointment cannot be replaced by another set of contractual appointment. In the present case, the petitioners are admittedly, working on vacant and sanctioned posts though on a contractual basis. It is always open for the University to take legal steps for appointment of Lecturer/Assistant Professors on regular basis. Such initiatives by 3 the University or the State are always to be appreciated but in the State of Jharkhand, it is apparent that in all the Institutions, contractual appointments are being made but no steps are taken for making regular appointments.
The Hon'ble Supreme Court in the case of State of Haryana & Ors. Vrs. Piara Singh & Ors., reported in AIR 1992 SC 2130, has held as under:-
"25. ............... Secondly, an adhoc or temporary employee should not be replaced by another adhoc or tempo- rary employee; he must be replaced only by a regularly se- lected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
Thirdly, even where an adhoc or temporary employ- ment is necessitated on account of the exigencies of adminis- tration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
The Hon'ble Apex Court in case of Hargurpratap Singh Vs. State of Punjab & Ors., reported in (2007) 13 SCC 292 has held as under:-
"3. We have carefully looked into the judgment of the High Court and other pleadings that have been put forth be- fore this Court. It is clear that though the appellants may not be entitled to regular appointment as such it cannot be said that they will not be entitled to the minimum of the pay-scale nor that they should not be continued till regular incumbents are appointed. The course adopted by the High Court is to displace one ad hoc arrangement by another ad hoc ar- rangement which is not at all appropriate for these persons who have gained experience which will be more beneficial and useful to the colleges concerned rather than to appoint persons afresh on ad hoc basis. Therefore, we set aside the orders made by the High Court to the extent the same deny the claim of the appellants of minimum pay scale and contin- uation in service till regular incumbents are appointed. We direct that they shall be continued in service till regular ap- points are made on minimum of the pay-scale. The appeals shall stand allowed in part accordingly."
From the averments made in the writ petition and after going through the relevant documents brought on record prima facie case is made out in favour of the petitioners. Admittedly, they have been appointed following the procedures of law and on sanctioned and vacant posts. The respondents want to terminate the 4 services of the petitioners but nothing has been brought on record and as such it is much clear from the notification/result that a fresh lot of Lecturers/Assistant Professors are going to be appointed in view of result dated 27.01.2018.
Since the respondents have not filed counter-affidavit, let the respondents-State as well as respondents-University file counter-affidavit within a period of four weeks.
In the meantime, the operation, implementation and execution of the order dated 27.01.2018 is hereby stayed. However, the respondents are free to take initiative for making regular appointments.
Put up this case after four weeks.
(Dr. S.N. Pathak, J.) punit/