Allahabad High Court
Lokendra Kumar Tiwari vs Union Of India And 4 Others on 12 February, 2019
Equivalent citations: AIRONLINE 2019 ALL 2659
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 58 Case :- WRIT - A No. - 7099 of 2018 Petitioner :- Lokendra Kumar Tiwari Respondent :- Union Of India And 4 Others Counsel for Petitioner :- R.P. Tiwari Counsel for Respondent :- A.S.G.I.,Rohan Gupta,Smt. Chandra Kala Chaturvedi Hon'ble Ashwani Kumar Mishra,J.
1. Indian Institute of Information Technology, Deoghat Jhalwa, Allahabad (hereinafter referred to as 'the Institute') is an institution of higher learning established under the aegis of Ministry of Human Resource Development, Department of Education, Government of India. A society known as 'Indian Institute of Information Technology Allahabad Society' (hereinafter referred to as 'the Society') was got registered under the provisions of the Societies Registration Act, 1860 for the purposes of establishing this Institute. The memorandum of association of the Society contained the rules to regulate it. The Management of the Society, as per Clause 5, was entrusted to a Board of Management. The Board of Management had an independent status with autonomy to perform its academic and administrative obligations. Clause 5.02(ii) conferred power upon the Board to create teaching and academic post, determine the number of cadres and qualifications, as approved by the University Grants Commission. Emoluments for such posts were to be fixed in consultation with the Finance Committee. Clause 5.02(iii) empowered the Board to appoint Professors, Assistant Professors and other Academic Staff, as may be necessary, on the recommendation of the selection committee.
2. Since the Society had already been formed and the status of Deemed University to the Institute was awaited, from the Government of India, a decision was taken by the Central Government to sanction 06 teaching posts in the institution vide order dated 17.5.2000. This was followed by creation of 09 additional teaching and 14 non-teaching posts vide letter dated 22nd March, 2001. The institution was also accorded status of a Deemed University in the year 2000 under the provisions of the University Grants Commission Act, 1956.
3. For the purposes of recruitment and regulating conditions of service of teaching and non-teaching posts, rules were framed by the Board of Governors of the institution, known as 'Recruitment and Service Rules' (hereinafter referred to as 'the Rules'). These rules are applicable in the present case and determine the controversy that requires adjudication.
4. On 25.2.2013, an advertisement was issued by the Institute, inviting applications for different faculty positions, vide Advertisement No.1 of 2013. The advertised positions included faculty position in information, security laws and practices, and information and network security etc. Petitioner being eligible applied for appointment to the post of Assistant Professor in one of the advertised streams. An interview letter was issued to him on 18th March, 2013. Petitioner was interviewed by a selection committee consisting of 08 members on 6.4.2013 and an appointment letter was issued to him, on the same day. The appointment letter is on record as per which petitioner was offered contractual appointment on the post of Assistant Professor on a consolidated sum of Rs.40,000/- per month, for a period of one year. The conditions attached to petitioner's contractual appointment were clearly specified in the appointment order.
5. Alongwith the writ petition, petitioner has brought on record the recommendation of the selection committee, which consisted of 08 persons with the Director as its Chairman. The recommendation of the selection committee is extracted hereinafter:-
"Dr. Lokendra Kumar Tiwari On contract for one year at present with Rs.40,000/- fixed (P.M.)"
6. It is alleged that while other candidates interviewed pursuant to same selection proceedings were appointed on regular basis, yet, petitioner was discriminated, inasmuch as he alone was issued a contractual appointment.
7. Petitioner, nevertheless, joined pursuant to the order of appointment. It is, however, alleged in para 8 of the writ petition that petitioner had made an oral protest before the joining and he was assured by the then Director that after appraisal of performance the petitioner would be regularized. The fact that petitioner accepted his contractual appointment and continued to work while receiving monthly emolument @ Rs.40,000/- per month is admitted on record.
8. All such appointments made pursuant to advertisement no.1 of 2013 were later cancelled on 26th March, 2014 by the Board of Governors of the Institute, including that of the petitioner. Individual communications were sent to all selected candidates, including the petitioner, intimating that Board vide its Agenda Item No.16 has resolved to cancel all selections/appointments made on 6.4.2013. The resolution of the Board, on Item No.16, is on record of the writ petition as Annexure-6.
9. Aggrieved by the resolution of the Board of Directors as well as consequential order of termination passed against the petitioner on 26th March, 2014, the petitioner preferred Writ Petition No.37213 of 2014. A prayer was also made to direct the respondents to regularize the services of petitioner. The writ petition of the present petitioner, alongwith 06 other writ petitions filed by other aggrieved persons, with the leading Writ Petition No.22558 of 2014, came to be decided by a Division Bench of this Court on 11th December, 2015. The Division Bench found that Board had not correctly examined the impact of Deemed University Regulations of 2010, as also its applicability upon the Institute, at the relevant time, before proceeding to rely upon it for cancelling the appointments already made. The observations of the Division Bench, in that regard, are reproduced:-
".....
In such a situation the Board was under an obligation to examine the impact of these judgments vis-a-vis the Deemed University Regulation, 2010 before asserting that the said regulations would apply. The Board did not examine as to whether as per the communications which are on record in relation to the amendments in the Memorandum of Association and the Rules and Regulations of the Society, they have been adopted or not.
Then comes the Minimum Qualification Regulations of 2010. It is here that the exercise by the Board had to assess the situation in relation to all such appointments that were being made and had been actually been made after the promulgation of the 2010 Minimum Qualification Regulations if it had the authority to do so. It is not a selective examination of only the appointments of the petitioners that can be dealt with separately by the Board, inasmuch as the Institute in the case of Pritish Kumar Varadwaj (supra) which was decided as late as in July 2013 was still continuing with its stand that the 2010 Minimum Qualification Regulations are not to be applied for appointments which have to be made only in accordance with IIIT norms as the Institute was a centrally funded institute and not funded by the University Grant Commission. The Board, therefore, could have reviewed its action in relation to all appointments which had been made after the Minimum Qualification Regulations of 2010 were brought in force in order to avoid any discrimination to the petitioner as against all such appointments that have been made after 2010 in accordance with the IIIT norms only. This was necessary in order to establish the bonafides of the Institute about the applicability of the Minimum Qualification Regulations, 2010. Such institutes had been continuously asserting their autonomy independent of the UGC Regulations and have ultimately succeeded with a legislation protecting their autonomy which has been brought into force in December 2014 as noted hereinabove. The Institute appears to have not subjected itself in its matter of selection and appointment to the Minimum Qualification Regulations of 2010 during the period when this dispute had arisen and before it. The withdrawal of the special leave petition by the Institute per se would not defeat the rights of the petitioners to contest the aforesaid position. The Board will, therefore, have to take a decision about its own authority and competence to revisit and thereafter the applicability of the said regulations in the light of all the aforesaid developments as it cannot afford to take different stands in different cases. The uniformity of the application of the rules in matters of selection and appointment cannot be deviated unless there is any justification for the same. This justification has to come through a valid sustainable decision by the Board itself. The power to relax qualifications as asserted by the petitioners will also then follow suit after individually assessing as to whether the power was actually exercised or ought to have been exercised if permissible.
For all the aforesaid reasons recorded hereinabove the entire decision making process is clearly vitiated and the unclarity on the issue of the authority of the respondents to undertake this exercise as also the correct application of rules and the law in this regard therefore persuade us to strike down the action taken against the petitioners.
Consequently, the impugned cancellation orders on the basis of the impugned resolution of the 8th Board Meeting cannot be sustained and the same are hereby quashed. The writ petitions are accordingly allowed and the impugned cancellation orders in these petitions as well as the 16th Resolution of the 8th Board Meeting are hereby quashed. The resolutions passed in the 7th Board Meeting and 8th Board Meeting only in so far as they are adverse to the petitioners shall be open to consideration in the light of the observations made hereinabove.
In view of the findings recorded by us hereinabove, we leave it open to the Board to take a fresh decision as may be permissible in the light of the observations made hereinabove within three months after opportunity to the petitioners."
10. The judgment of the Division Bench dated 11th December, 2015 was assailed by the Institute by preferring appeal before the Apex Court, in S.L.P. (CC) No.8153-8159 of 2016. An order of status quo was initially passed in the matter.
11. While the S.L.P. was pending adjudication before the Apex Court, the present petitioner filed Civil Misc. Application No.184554 of 2016, on 29.5.2016, seeking modification of the judgment dated 11th December, 2015 on the ground that petitioner's plea for modifying the recommendation of selection committee dated 6.4.2013, by altering petitioner's appointment from contractual to regular, has not been examined. Appropriate modification in the matter was accordingly sought. This application, however, was consigned to records by the Division Bench vide following orders passed on 15th July, 2016:-
"(C.M.A. 184554 of 2016) This is a modification/clarification of our judgment dated 11.12.2015.
Heard learned counsel for the applicant.
Learned counsel for the applicant has invited the attention of the Court to paragraph 12 of the decision in the case of Central Bank of India vs. Vrij Lal Kapoor Chand Gandhi , decded on 16.7.2003, reported in AIR 2003 SCW, 3485.
The issue of correction or review of our judgment in the background of the case does not arise inasmuch as what we find is that no Special Leave Petition had been earlier filed against our judgment and the respondent (The Indian Institute of Information Technology, Deoghat Jhalwa, Allahabad) hereinafter referred to as "the IIIT' proceeded to undertake steps for taking a decision as per the directions of this Court.
The show cause notices which were issued pursuant to the aforesaid directions by the IIIT came to be challenged by the petitioners before this Court before a Division Bench in Writ Petition No. C-14486 of 2016 and other connected petitions, wherein an interim order was passed.
Questioning the said interim order the IIIT approached the Apex Court in Special Leave Petition No. 83519 of 2016 and the Supreme Court vide order dated 2nd May, 2016 directed the parties to maintain status quo. The appeal is still pending.
The Special Leave Petition simultaneously also assails our judgment dated 11.12.2015 on merits as well . In such a situation there is no occasion to entertain this application without prejudice to the rights of the appellant to raise all issues before the Apex Court as permissible under law. This application is neither entertainable nor maintainable after the disposal of the writ petition.
The application is consigned to records."
12. The subsequent order dated 15th July, 2016 was also assailed before the Apex Court, and after hearing the parties the Apex Court proceeded to issue notices in petitioner's special leave petition while tagging the matter with other pending special leave petitions on 30.1.2017. All matters have ultimately been decided by the Apex Court vide judgment dated 24.3.2017. Para 6 to 9 of the Apex Court judgment dated 24.3.2017, passed in Civil Appeal Nos.4406-4418 of 2017, is reproduced hereinafter:-
"6. Having extensively heard Shri Sunil Gupta, learned Senior Counsel for the appellant and Shri Rakesh Dwivedi and Shri V. Giri, learned Senior Counsel appearing for the affected teachers, other learned Counsel appearing for teachers and Dr. Ashutosh Kumar Singh, respondent-in-person, we are of the view that the whole ill-advised exercise undertaken by the appellant-Institute only led to unnecessary litigation. In the judgment dated 11.12.2015, the High Court has set aside Resolution at Item No.16 of the Eighth Board Meeting. It is seen from the discussion that the decision to cancel the appointments was based on a Status Report which was not furnished to the affected teachers. The High Court hence found that the decision taken by the appellant-Institute is in violation of the principles of natural justice. That is the quintessence of the judgment. And thereafter, the High Court gave liberty to the appellant to take a fresh decision in accordance with law, that is to say, after affording an opportunity of hearing to the affected teachers.
7. All that the appellants should have done is to make available a copy of the Status Report discussed in the Eighth Board Meeting which led to cancellation of their appointments and afford an opportunity of making a representation and hearing. Short of that, the appellant-Institute has taken several other steps. Maybe they have intended well but worked out poorly. The teachers could not have been issued the show-cause notices based on any decision taken subsequent to the judgment.
8. Since we intend to remit the matters to the Institute with a direction to start the process from the stage of the judgment of the High Court dated 11.12.2015, we do not propose to make any further observations in this regard. Accordingly, these appeals are disposed of as follows:
A. The appellant-Institute shall serve a copy of the Status Report discussed in the Eighth Board Meeting to the affected teachers forthwith and also provide a further period of two weeks for making a fresh representation. On receipt of the representations, the affected teachers shall be given an opportunity of hearing on all the aspects referred to in the Status Report and on the reasons for termination as referred to in the Eighth Board Meeting. Thereafter, the Board shall take a fresh decision in the case of each individual in accordance with law. We make it clear that the only notice which the teachers could have been issued is on the basis of the consideration in the Eighth Board Meeting and not thereafter. The Status Report considered by the Eighth Board Meeting and the decision taken by the Eighth Board Meeting shall be treated as show-cause notice by the affected teachers.
B. The decisions in the Fourteenth and Fifteenth Board Meetings, as far as the further course of action for implementation of the judgment dated 11.12.2015 is concerned, are wholly unwarranted and are set aside.
C. Since the cancellation of appointment and consequential termination have been set aside by the High Court in the judgment dated 11.12.2015, the teachers concerned are to deemed to be in service under law until a fresh decision is taken as per the judgment. In this context, we may also extract a submission made by the Counsel for the appellant-Institute in the High Court in Contempt Application No. 645 of 2016, which reads as follows:
"Shri Navin Sinha, learned Senior Advocate assisted by Shri Rohan Gupta, for the opposite party, however, submits that in view of the inquiry being undertaken by the opposite party regarding irregularities in the appointment of the applicants and other appointees, they are not allowed to work against their post. However, he submits that as per his instructions, the applicants/appointees would be paid their salary even for the period of non working i.e. from the date of order dated 11.12.2015 passed by the Writ Court till a decision is taken by the Board. This period would not be treated as the period of non working of the applicants/appointees."
However, we make it clear that in case any of the teachers has been working elsewhere or has been working in a different capacity in the Institute, such teachers shall not be entitled to the benefit of the above declaration. Their further fate will depend on the fresh decision to be taken by the appellant.
D. The appellant-Institute shall take a fresh decision within a period of two months from the date of receipt of the representations from the affected teachers.
E. Since we have set aside the decisions in the Fourteenth and Fifteenth Board Meetings, the contempt petitions and writ petitions do not survive. Accordingly, those contempt petitions and writ petitions are struck off from the file of the High Court of Judicature at Allahabad.
9. There shall be no order as to costs."
13. In compliance of the aforesaid directions a communication has been sent by the Institute to the petitioner, annexing the copy of the status report so as to enable him to make a representation in terms of the liberty granted by the Apex Court. Petitioner did make a representation as per the liberty granted by the Apex Court, which was followed by subsequent representations. A sub-committee appears to have been constituted to examine such representations filed by the aggrieved persons. An opportunity of hearing has also been given by the sub-committee to the present petitioner. The Board, has, ultimately resolved to maintain the decision taken by the selection committee to appoint petitioner on contract, for one year, on fixed honorarium of Rs.40,000/- per month. The decision of the Board has been communicated to the petitioner vide order dated 19th June, 2017, which is one of the orders impugned in the present writ petition. The proceedings of the Board dated 6.6.2017, on the basis of which the order dated 19th June, 2017 was passed is also assailed. It appears that petitioner did not join as Assistant Professor on contract basis in furtherance of the Board resolution dated 6th June, 2017, consequently, a fresh communication was sent to him on 27th June, 2017 requiring him to join within 21 days. This communication is also challenged. A subsequent representation made by the petitioner has also been rejected by the Board of Governors on 8th December, 2017 and communicated vide order dated 1.1.2018. This order is also assailed. While assailing these orders the petitioner has also prayed for a writ of mandamus requiring the Institute to regularize his services.
14. The contention advanced on behalf of petitioner, in essence, is that the Institute had advertised the post of Assistant Professor for regular recruitment and the petitioner, having been selected therein, could not have been offered contractual appointment on fixed emoluments for a period of one year. According to petitioner, this was wholly discriminatory in view of the fact that other similarly placed persons were appointed on regular basis and no justification existed for offering a different treatment to the petitioner. Argument is that petitioner be granted benefit of regular appointment, as was offered to other selected candidates, pursuant to the same advertisement, and that the orders of the Institute declining petitioner's such plea be set aside.
15. A counter affidavit has been filed on behalf of the Institute stating that the advertisement did not contain any stipulation about the nature of appointment to be offered to the selected candidates. It is stated that the petitioner was offered contractual appointment by the selection committee, on the basis of his academic credentials, which was not found entirely satisfactory. It is submitted that petitioner's engagement was necessitated due to exigency of immediate recruitment. According to respondents one other person was also offered contractual appointment, and that the statement that petitioner alone has been discriminated is factually not correct. It is also stated that petitioner has joined pursuant to contractual appointment offered to him, without any demur, and it is only when all selections were cancelled by the Board and the writ petitions filed against it were decided finally by the High Court that the petitioner, as a result of afterthought, has questioned the nature of appointment offered to him. Submission is that the plea so taken is not open to petitioner, once he accepted the appointment offered by the institution, on contractual basis, for one year. It is also contended on behalf of the Institute that the recruitment process itself was not transparent and having accepted contractual appointment, the petitioner cannot now seek change in the recommendation of selection committee. Reliance is placed upon a Division Bench judgment of this Court in Munish Malik Vs. Union of India and others, passed in Writ Petition No.9967 of 2018, dated 16.4.2018, to submit that once the petitioner accepted the letter of appointment issued to him, he cannot challenge it in peace meal, inasmuch as questioning the nature of appointment would not be open while joining pursuant to it.
16. On behalf of the petitioner reliance is placed upon a judgment of the Apex Court in Arjun Singh and others Vs. State of Himachal Pradesh and others, Laws (SC)-2015-1-104; Division Bench judgments of this Court in Ranjana Saxena Vs. Vice Chancellor, Rohilkhand University, 1979(5) All LR 277 and Km. Madhu Jain Vs. Chancellor, Ruhilkhand University and others, 1980 UPLBEC 330, as also the judgment of learned Single Judge in Sanjeev Kumar and others Vs. State of U.P. and another, 1999 (1) AWC 853.
17. I have heard Sri W.H. Khan, learned Senior Counsel assisted by Sri R.P. Tiwari for the petitioner and Sri Rohan Gupta for the Institute, and have perused the materials brought on record.
18. From the submissions advanced on behalf of the parties, in the context of facts noticed above, following questions arise for determination in the matter:-
(i) Whether the selection committee could have offered contractual appointment to petitioner, pursuant to advertisement no.1 of 2013, or it acted arbitrarily in singling out the petitioner while granting regular appointments to other selected candidates?
(ii) Whether petitioner is estopped from questioning his contractual appointment, based on the recommendation of selection committee, after having joined pursuant to it?
19. The advertisement no.1 of 2013 is on record of the writ petition as Annexure-1. The advertisement specifies the faculty positions, as also the minimum qualifications for appointment to the post of Assistant Professor. A Ph.D. with first class or equivalent qualification with a good academic record throughout is required in addition to three year's teaching/ research/industrial experience for the position. The advertisement, however, does not specify the nature of appointment to be offered i.e. whether the appointment would be regular/temporary/ contractual etc. The recruitment otherwise was to be regulated by the recruitment and service rules approved by the Board on 18th November, 1999. In order to appreciate the contentions advanced by the parties in that regard, it would be appropriate to refer to the relevant provisions of the Rules that regulate the selection and recruitment in the Institute.
20. Clause 8 of the Rules provides for appointment. As per Clause 8.01 of the Rules all posts at the Institute shall ordinarily be filled by open advertisement; provided that Board shall have the power to decide recommendations of the Director regarding a particular post to be filled by invitation or by promotion or on deputation. Clause 8.06 permits appointment to be offered on contract for a period not exceeding 05 years. Clause 9 of the Rules specifies constitution of selection committees for filling up of posts in the Institute, except the posts on contract basis. Clause 9.01 and 9.03 alone are relevant for the present purposes and are thus reproduced hereinafter:-
"9.01 Selection Committee for appointments for filling up of posts under the Institute (other than the posts on contract basis) by direct recruitment or by promotion from amongst the members of staff of the Institute shall be constituted in the manner laid down below, namely:
X X X X X 9.03 For the posts of Assistant Professor, Lecturer, Scientific Officer, Medical Officer, Programmer etc. the Selection Committee shall consist of:
i) Director
- Chairman
ii) Two nominees of the Board one being an expert but other than a member of the Board, provided that the expert member must be present.
- Member Iii) One expert nominee of the Senate of the Institute. - Member iv) Head of the Department/Centre/Division - Member"
21. Clause 9-A provides for ad hoc and contract appointments on regular posts and is extracted hereinafter:-
"9-A Ad-hoc and Contract Appointments on Regular Posts Where a post is to be filled on ad-hoc or contract basis or by invitation, the Chairman may, at his discretion, constitute such ad-hoc Selection Committee, as circumstances of each case may require and the terms and conditions shall be as stipulated in the appointment letter."
22. The provisions contained in the service rules, noticed above, clearly shows that appointments are permissible in the Institute, both, on regular basis and/or on contract basis. Appointments, irrespective of its nature has to be ordinarily made, after the post is advertised. Such appointments have to be based on the recommendation of a selection committee. In respect of regular selection the constitution of selection committee is specified, while for contractual appointment, it is the discretion of the Chairman to constitute such ad hoc selection committees, as may be required, and that terms and conditions of such contractual engagement would have to be specified in the appointment letter itself.
23. An examination of the applicable provisions of the Rules would clearly go to show that appointment procedure is substantially similar in case of regular/substantive appointment vis-a-vis contractual appointment, except the constitution of the selection committee. There is no prohibition in the Rule that a selection committee constituted for regular appointment cannot offer contractual appointment also. The mere fact that the Chairman, at his discretion, can constitute an ad hoc selection committee for grant of contractual appointment would not mean that the selection committee cannot be entrusted the task of selecting candidate for offering contractual appointment. The advertisement no.1 of 2013 otherwise did not specify the nature of appointment to be offered pursuant to it. It cannot be said that faculty positions offered in the Institute was necessarily to be on regular/substantive basis only. In such circumstances, it was permissible for the selection committee constituted pursuant to advertisement no.1 of 2013 to offer faculty positions, on contractual basis also, in addition to making of regular appointment. The requirement of Clause 9-A otherwise is met, inasmuch as the selection committee has clearly specified the appointment in petitioner's case to be offered on contractual basis and the remuneration is also specified as Rs.40,000/- per month. Such facts are also clearly recited in the appointment letter offered to the petitioner. The exercise of discretion by the selection committee, in offering contractual appointment to petitioner, therefore, cannot be said to be dehors its jurisdiction or contrary to the rules or the advertisement. It would be worthwhile to reiterate that there was no specific stipulation in the advertisement that faculty positions were being offered on substantive/regular basis only. In that view of the matter, I am inclined to accept Institute's contention that selection committee has not transgressed its limits, nor acted contrary to rules in offering contractual appointment to the petitioner, in the facts of the present case.
24. Law is otherwise settled that exercise of discretion by the selection committee, in the matter of recruitment, is not required to be interfered with by the Courts, unless it is found contrary to the rules or is otherwise arbitrary or suffers from mala fide. The Apex Court in Union Public Service Commission Vs. M. Sathiya Priya and others, AIR 2018 SC 2790, has been pleased to observe as under:-
"16. .....
This Court 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 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 constituted by the UPSC is manned by experts in the field, we have to trust their assessment unless it is actuated with malice or bristles with mala fides or arbitrariness."
25. In the facts of the present case, no allegation of malice against the selection committee is alleged, nor the action of selection committee is otherwise found to be contrary to the rules or the advertisement. The mere fact that some of those, who had been interviewed pursuant to same advertisement, were offered regular positions in the faculty would not ipso facto lead to an inference that the selection committee acted arbitrarily. Even otherwise, it was open for the selection committee to examine the respective academic credentials of candidates, and it was clearly open for it to offer contractual appointment to a candidate if it felt so, on the assessment of a candidate's merit. The decision of the selection committee was otherwise unanimous. No mala fide is alleged, either. In such view of the matter the first issue is answered against the petitioner by holding that the selection committee was well within its right to offer contractual appointment to petitioner, pursuant to advertisement no.1 of 2013, and that it did not act arbitrarily in doing so.
26. So far as the judgment of Apex Court in Arjun Singh (supra) is concerned, the facts of the said case are clearly distinguishable. The posts, which had to be filled in the aforesaid case, were required to be filled by regular appointment and the advertisement was also published by Public Service Commission. Para 12 of the Apex Court judgment is relevant in that regard and is reproduced hereinafter:-
"12. FROM the facts as noticed above, we find that the Electricity Board was in need of regular Assistant Account Officers Class I and their being 14 posts vacant, they made requisition to fill up all the 14 posts on regular basis. Respondents have failed to disclose the circumstances in which the advertisement was published by the Public Service Commission, the scale of pay was shown @ 50% of the regular pay and the nature of appointment on contract basis."
It was in that context that the Apex Court observed that appointment offered to such advertisement had to be regular in nature. Such are not the facts in this case.
27. In Ranjana Saxena (supra) also a regular vacancy was advertised and the process for regular recruitment had been followed. The selection committee, however, proceeded to make recommendation for appointment on temporary basis. The Division Bench of this Court, in such circumstances, repelled the plea that petitioner could not claim substantive appointment. Once the statutory scheme contemplates making of regular appointment and the selection committee takes a different view, for which it is not authorized, this Court would be justified in correcting such error of jurisdiction. On facts, however, such an error of jurisdiction is not found to exist and therefore petitioner cannot claim any benefit from the ratio laid down in Ranjana Saxena's case. Similarly in Km. Madhu Jain the Division Bench of this Court observed as under in para 13:-
"13. Section 68 provides for a reference of a dispute to the chancellor in certain circumstances:-
"if any question arised whether any person has been duly elected or appointed, as or is entitled to be a member of any authority or other body of the university, or whether any decision of any authority or officer of the university including any question as to the validity of a statute, ordinance, regulation, not being a statute or ordinance, made or approved by the state government or by the chancellor is in conformity with this act or the statutes or ordinance made thereafter, the matter shall be referred to the chancellor and the decision of the vice-chancellor thereof shall be final:
Provided that no reference under this section shall be made:-
(a) More than three months after the date when the question could have been raised for the first time, provided further that the chancellor may be in exceptional circumstances:-
(b) Act suo moto or entertain a reference after the expirty of the period mentioned in the proceeding proviso"."
The controversy in Km. Madhu Jain is also clearly distinguishable.
28. In Sanjeev Kumar (supra), learned Single Judge of this Court relied upon the Division Bench judgment in Ranjana Saxena (supra) to hold that the impugned action violated principles of natural justice and were otherwise in violation of doctrine of legitimate expectation. These principles have no applicability on the facts of the present case.
29. Turning to the next issue, it would be worth noticing that petitioner has clearly accepted the contractual appointment, offered to him, on the terms specified in the appointment letter itself. No material has been brought on record, which may show that petitioner either joined under protest or had raised an issue regarding offering of contractual appointment to him. The only defence set up in that regard, by the petitioner, is contained in para 8 of the writ petition, which is reproduced hereinafter:-
"8. .......... upon receiving the appointment letter, had raised his grievances against the appointment being made on contract basis instead of permanent basis whereupon he was informed that after performance appraisal, the appointment would be regularized, hence, the petitioner joined as Assistant Professor. However, the other selectees, appointed in pursuance to the said Advertisement, were appointed on permanent basis, but the petitioner has been illegally singled out and offered contractual appointment which is in violation of the mandate of Article 14 and 16 of the Constitution of India."
30. The respondents have denied the contents of para 8 of the writ petition, and it is specifically asserted that no such assurance was extended to the petitioner. In matters where appointment is being offered in writing, making of oral protest would be a weak evidence, particularly when the petitioner by his specific conduct had acquiesced to it, by offering his joining. Even if the averments made in para 8 is taken on its face value, it would suffice that petitioner did accept the contractual appointment on an assurance that his services would be regularized after appraisal of his performance. Whether or not any such regularization of contractual appointment was permissible would be a matter to be determined by the rules and not by the oral assurance of the Director. No provision in rule has been shown, which may demonstrate that a contractual appointment, offered initially, could be regularized after assessment of performance. Such a right is not shown to flow from the rules. The law is otherwise settled that regularization can be made only by framing rules and not otherwise (see: Secretary, State of Karnataka Vs. Smt. Uma Devi, 2006(4) SCC 1).
31. The facts brought on record clearly shows that petitioner had accepted the contractual appointment offered to him without any demur or protest and voluntarily joined pursuant to it. He continued to work without any protest ever made in writing, till the Board decided to cancel all appointments made pursuant to the advertisement no.1 of 2013. It is at a late stage in the contest of matter before this Court that the petitioner has attempted to question the wisdom of selection committee in offering him contractual appointment. Such a plea would clearly be impermissible, inasmuch as the petitioner by his conduct has acquiesced to the contractual appointment offered to him. This Court in Writ Petition No.25093 of 2018 (Dr. Rachana Kaushal Vs. Union of India and others), decided on 21.1.2019, has been pleased to observed that challenge to appointment otherwise cannot be made in peace meal. The principle of acquiescence and estoppel, therefore, would clearly be attracted in the facts of the present case, and petitioner is held to be estopped by such principles from challenging the wisdom of the selection committee, after having joined pursuant to the contractual appointment.
32. In view of the discussions aforesaid, I am of the considered opinion that petitioner's claim is not liable to be accepted on both the issues, formulated for consideration in this petition. Writ petition, consequently, fails and is dismissed, accordingly.
33. Dismissal of this writ petition, however, shall not be an impediment in petitioner's joining in terms of the orders impugned, for the balance period of contractual appointment provided the petitioner joins within a week from today. No order is passed as to costs.
Order Date :- 12.2.2019 Anil (Ashwani Kumar Mishra, J.)