Himachal Pradesh High Court
Dr. Manpreet Arora And Others vs Central University Of H.P on 3 August, 2018
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 1409 of 2017
.
Date of decision: 3rd August, 2018
Dr. Manpreet Arora and others ..Petitioners
Versus
Central University of H.P. ..Respondent
________________________________________________________
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting1 :
For the Petitioners : Mr. Sanjeev Bhushan, Senior Advocate,
with Ms. Abhilasha Kaundal, Advocate
For Respondent :
Mr. Vikas Rathore, Central Government
Counsel.
________________________________________________________
Ajay Mohan Goel, J. (oral)
By way of this petition, petitioners have prayed for the following reliefs :-
"(i) That the respondents may very kindly be directed to count the contract service as rendered by the petitioners w.e.f.
October, 2010 for all intents and purposes such as seniority, increment and promotion with all consequential benefits of pay, arrear etc., alongwith an interest at the rate of 9% in the interest of law and justice.
1Whether Reporters of local newspaper are permitted to see the judgment ?
::: Downloaded on - 08/08/2018 22:58:57 :::HCHP 2(ii) That the respondents may very kindly be directed to count the contract service of the petitioners for the purposes of .
promotion under Career Advancement Scheme and directions may very kindly be further given to the respondents to grant the benefit of promotion to the petitioners under Career Advancement Scheme from the due date i.e. after completion of 4 years with all consequential benefits of pay, arrear and seniority etc., and further directions may very kindly be given to the respondents not to insist for completion of orientation programme and refresher course for which otherwise University has failed to send the petitioners for the same and be directed to grant promotion under Career Advancement Scheme from the due date in the interest of law and justice.
(iii) That the respondents may very kindly be directed to count the contract period service for the purposes of direct recruitment to the post of Associate Professor for which the respondents have otherwise denied in the case of petitioners earlier.
(iv) That directions may kindly be issued to respondent University to strictly adhere to clause 13.0 & 13.1 of the University Grants Commission Regulations-2010 (Annexure P-
9) and to pay salary to the petitioners at par with the salary of regularly appointed teachers for the period October, 2010 to November, 2012 i.e. when the petitioners worked on contract basis, alongwith interest @ 9% per annum on the arrears payable to the petitioners."
::: Downloaded on - 08/08/2018 22:58:57 :::HCHP 32. The case of the petitioners is that in a process of .
recruitment, initiated by the respondent-University on all India basis, vide employment notice No. 002/2010, petitioners were appointed as Assistant Professors on short term contractual basis in their respective disciplines. The initial appointment was offered to them vide appointment letter, dated 6th October, 2010. Petitioner No. 1 was appointed as Assistant Professor in the department of Management, petitioner No. 2 as Assistant Professor in the department of English, petitioner No. 3 as Assistant Professor in the department of Management, petitioner No. 4 as Assistant Professor in the department of Social Work and petitioner No. 5 was appointed as Assistant Professor in the department Library Sciences.
3. It is the common case of the petitioners that though their initial appointment was for a period of six months at a consolidated salary of Rs. 25,000/-, but they continued to serve as such till they were appointed on regular basis in furtherance of employment Notice No. 003/2010 as also corrigendums issued thereafter. Petitioners have placed on record one such appointment letter, dated 6 th November, 2012, pertaining to petitioner Ashish Nag.
::: Downloaded on - 08/08/2018 22:58:57 :::HCHP 44. The contention of the petitioners is that their .
appointment on contract basis was made by following the same procedure, as was in vogue for making regular appointments.
According to them, even for contractual appointment all India employment communication was issued inviting applications, which applications were scrutinized by a scrutiny committee, as is done in the case of regular appointment and thereafter a selection committee was constituted which interviewed the candidates for appointment on contractual basis. This selection committee, according to the petitioners, was akin to the one later on constituted by the respondent-
University for making regular appointment.
5. In this background, the petitioners have prayed that respondent-University be directed to count the contract service rendered by them from the date of their initial appointment for the purposes of seniority, increment as also promotion with all consequential benefits of pay, arrear etc. Petitioners have also prayed that the service rendered by them on contract basis be also taken into consideration for the purposes of conferring benefit of Career Advancement Scheme. Petitioners have also prayed that respondent-
University be directed to adhere to clause 13.0 and 13.1 of the ::: Downloaded on - 08/08/2018 22:58:57 :::HCHP 5 University Grant Commission and to pay to the petitioners salary at .
par with regularly appointed teachers from October, 2010 to November, 2012.
6. In its reply, respondent-University has submitted that it commenced its academic programme after receipt of approval from the University Grants Commission and faculty position was also created, as approved by the University Grants Commission. As per the respondent, since filling up of faculty position on regular basis was not immediately possible, the University advertised posts of Professors, Associate Professors and Assistant Professors vide advertisement No. 002/2010 to be filled on contract, purely on temporary basis for a period of six months or attaining the age of 65 years or till regular appointments were made, whichever was earlier.
7. As per the respondent-University, for the purposes of selection of faculty, it constituted a local selection committee which selected 18 Assistant Professors, including the petitioners, on short term contract, purely on temporary basis. Further, as per the respondent, selected candidates were informed vide appointment letter they they were not entitled for any other service benefits.
Respondent-University has denied that petitioners were selected on ::: Downloaded on - 08/08/2018 22:58:57 :::HCHP 6 contract basis by a selection committee akin to one which makes .
regular appointments. According to the University, petitioners in fact were selected by a local selection committee, prescribed under Statute 18(6) (Annexure R-5). The said selection committee, so constituted by the Vice Chancellor, comprised of (i) Vice Chancellor, (ii) OSD (Administration) as Dean nominated, (iii) OSD (Academic) as Dean nominated and (iv) Two subject experts.
8. It has further been stated by the University that regular appointments of teachers are made in the University as per University Grant Commission Regulations on minimum qualifications for appointment of teachers and other Academic staff in the Universities and Colleges and Measures for the Maintenance of standards in Higher Education, issued vide No. F.3-1/2009, dated 30 th June, 2010.
The provisions of selection committees and detailed procedure for appointment of teachers is contained under clause 5 of the University Regulations, 2010. University Grants Commission provides for composition of the Selection committee for appointment of Assistant Professors under Clause 5.1.1 of the UGC Regulations, 2010, which is as under:-
::: Downloaded on - 08/08/2018 22:58:57 :::HCHP 7"1. The Vice-Chancellor shall be the Chairperson of the selection committee.
.
2. Three experts in the concerned subject nominated by the Vice-Chancellor out of the panel of names approved by the relevant statutory body of the University concerned.
3. Dean of the concerned Faculty, wherever applicable.
4. Head/Chairperson of the Department/School.
5. An academician nominated by the Visitors/Chancellor, wherever applicable.
6. An academician representing SC/ST/OBC/Minority/Women/Differently-abled categories to be nominated by the Vice-Chancellor or Acting Vice- Chancellor, if any, of the candidates representing these categories is the applicant and if any of the above members of the selection committee do not belong to that category. At least four members, including two outside subject experts shall constitute the quorum."
9. On these basis, it has been contended by the University that as the petitioners were not appointed on contract basis by the selection committee, which is so envisaged in the UGC Regulations, for making regular appointment, therefore, there is no merit in the contention of the petitioners. Thus, as per the respondent-University, petitioners are not entitled for the reliefs prayed for in the writ petition.
::: Downloaded on - 08/08/2018 22:58:57 :::HCHP 810. I have heard learned counsel for the parties and have also .
gone through the records of the case.
11. Employment Notice 002/2010, vide which applications were invited by the respondent-University for faculty composition on contract, is appended with the reply as Annexure R-3. A perusal of the same demonstrates that vide such notice, applications were invited by the respondent-University on prescribed application forms, inter alia, for the posts of Assistant Professors on a consolidated per month salary of Rs. 25,000/- in the disciplines, mentioned in the employment notice. It was mentioned in the notice that the faculty position on contract was purely on temporary basis for a period of six months or attaining the age of 65 years or till regular appointments were made, whichever was earlier. The last date to apply was 20 th September, 2010. General instructions and essential information, which were part of the employment notice, inter alia, provided that the selected candidates would be paid consolidated salary and will have no claim either for regular appointment or other service benefits.
It was also mentioned in the general instructions that appointment to the posts would be made on the basis of performance of candidate in the interview, to be conducted by a committee, formed for the ::: Downloaded on - 08/08/2018 22:58:57 :::HCHP 9 purpose and the selected candidates shall be appointed under the .
written contract.
12. It is not in dispute that the offer of appointment vide employment Notice 002/2010 was "on contract, purely on temporary basis for a period of six months or attaining the age of 65 years or till the regular appointments are made, whichever is earlier." In the letter of appointment, vide which the petitioners were initially appointed on short term contractual basis, dated 6 th October, 2010, it was clearly and categorically mentioned that (a) the petitioners were to be paid consolidated salary of Rs. 25,000/- per month and no other service benefits, whatsoever were admissible and (b) offer of appointment on short term contractual basis will not entitle the petitioners to be eligible for appointment on regular basis.
13. It is also not in dispute that all the petitioners participated in the process, so initiated vide employment notice 002/2010 (Annexure R-3) without any protest and they also accepted offer of appointment made to them vide communication dated 6th October, 2010 without any protest. In other words, the petitioners being fully aware that the process stood initiated by the respondent-University vide Annexure R-3 to fill up the faculty position on contract, purely ::: Downloaded on - 08/08/2018 22:58:57 :::HCHP 10 on temporary basis, participated in the same fully conscious of the .
terms and conditions on which the said appointments were being offered. Not only this, after their selection, they accepted their appointments, fully aware of the terms and conditions on which the said appointments were being offered without any protest.
14. It is a matter of record that services of the petitioners were not regularized in due course, but they participated in the process initiated by the respondent-University for regular appointment and as they were successful in the same, they were offered appointment on regular basis. It is in this background that this Court has to now examine as to whether the petitioners are entitled for the reliefs, as prayed for by them or not.
15. Whereas contention of the petitioners is that the recruitment process, through which they were appointed on contract basis, was same and similar to the one adopted by the respondent-
University for appointing them on regular basis, this fact has been denied by the respondent-University. As per the University, the selection of petitioners on contract basis was done through a selection committee, as is envisaged in Statute 18(6) of the respondent-
University (appended with the petition as Annexure R-5), whereas ::: Downloaded on - 08/08/2018 22:58:57 :::HCHP 11 their regular appointment, pursuant to employment Notice 003/2010 .
(Annexure R-6) and Notice 003/2011, dated 13th June, 2011 was done by a selection committee, which was constituted by the respondent-
University as per UGC Regulations of 2010.
16. Now incidentally, no rejoinder has been filed by the petitioners to rebut the said stand taken by the respondent-University.
Be that as it may, this Court shall now examine as to whether there was any similarity in the in the selection committee envisaged in Statute 18.6 supra and Clause 5.1.1 of the UGC Regulations, appended with the petition as Annexure R-7.
17. Clause 18.6 of the statute of the University provides that appointment to temporary posts shall, inter alia, be made on the recommendations of local selection committee of Dean of the school concerned, Head of Department and a nominee of the Vice Chancellor. On the other hand, Clause 5.1.1 of the UGC Regulations governing appointment of Assistant Professors in the University envisages that selection committee for the post of Assistant Professor in the University shall comprise of the following: -
::: Downloaded on - 08/08/2018 22:58:57 :::HCHP 12(a) The selection Committee for the post of Assistant Professor in the University shall have the following .
composition.
(i)The Vice Chancellor or Acting Vice Chancellor to be the Chairperson of the Selection Committee.
(ii) Three experts in the concerned subject, nominated by the Vice Chancellor or Acting Vice Chancellor out of the panel of names approved by the relevant statutory body of the University concerned.
(iii) Dean of the concerned Faculty, wherever applicable.
(iv) Head/Chairperson of the Department/School.
(v) An academician nominated by the Visitors/Chancellor, wherever applicable.
(vi) An academician representing SC/ST/OBC/Minority/Women/Differently-abled categories to be nominated by the Vice Chancellor or Acting Vice Chancellor, if any of the candidates representing these categories is the applicant and if any of the above members of the selection committee do not belong to that category.
(b) At least four members, including two outside subject experts shall constitute the quorum."
18. It is also pertinent to mention that Clause 18.2 of the Statute of the University provides that selection committee for appointments to the post of Professors, Associate Professors, Assistant Professors etc. shall be constituted as per UGC Regulations.
::: Downloaded on - 08/08/2018 22:58:57 :::HCHP 13Thus, it is evident that as per Statute 18.2 supra, whereas selection .
committee, inter alia, for appointment to the post of Assistant Professor shall be constituted as per UGC Regulations, Statute 18.6 only talks about a selection committee which can be constituted by the Vice Chancellor in a given situation for making appointment on purely temporary basis.
19. The composition of selection committee as is envisaged in UGC Regulations and as envisaged in Statute 18.6 has already been dealt with by me in the above paragraphs of the judgment.
20. By no stretch of imagination, it can be said that composition of the committees for regular appointments and for temporary appointments is the same. Therefore, the contention of the petitioners that their appointments on contract basis were made by selection committee, constitution of which was akin to the one which recruited them on regular basis, is incorrect.
21. During the pendency of the writ petition, the petitioners had filed a miscellaneous application being CMP No. 2622 of 2018 in which it was averred that on one hand University was denying the reliefs, which the petitioners were praying for, but on the other hand, persons similarly situate as the petitioners, who had joined the ::: Downloaded on - 08/08/2018 22:58:57 :::HCHP 14 respondent-University from other institutions where they had .
rendered services on contract basis, had been given benefits by counting contract services rendered by them. Two persons, named in the application are Surender Verma and Daleep Singh.
22. In its reply, filed to the said application, respondent-
University has denied these allegations and they have stated that Surender Verma and Daleep Singh were earlier appointed in their respective services on the recommendations of H.P. Public Service Commission and they fulfilled the criteria for counting of past service for promotion under CAS as per Clause 10 of the UGC Regulations, 2010 and Ordinance 47 of th University. Relevant paragraph of the reply are extracted hereinbelow:-
"Sh. Surender Verma :- The incumbent was appointed as lecturer in Physics by the Governor, Himachal Pradesh on the recommendations of H.P. Public Service Commission vide Government of H.P. Department of Higher Education Notification No. EDN-A-B(1) 11/2009, dated 8.12.2009 (Annexure R-10) in the pay scale of Rs. 15600-39100 plus Rs. 6,000/- Grade Pay w.e.f. 16.12.2009, as such the incumbent fulfilled the criteria for counting of past service for promotion under CAS as per Clause 10 of the UGC Regulations, 2010 and Ordinance 47 of the University.::: Downloaded on - 08/08/2018 22:58:57 :::HCHP 15
Sh. Daleep Singh Verma :- The incumbent was appointed as lecturer in Physics by the Governor, Himachal Pradesh on .
the recommendations of H.P. Public Service Commission vide Government of H.P. Department of Higher Education Notification No. EDN-A-B(1) 11/2009, dated 8.12.2009 (Annexure R-11) in the pay scale of Rs. 15600-39100 plus Rs. 6,000/- Grade Pay w.e.f. 16.12.2009, as such the incumbent fulfilled the criteria for counting of past service for promotion under Career Advancement Scheme as per Clause 10 of the UGC regulations, 2010 and Ordinance 47 of the University."
23. This demonstrates that the contention made by the petitioners in the miscellaneous application filed by them is also incorrect as it is not as if a person recruited on contract basis, like petitioners, has been given benefit of contractual services rendered by him for seniority, pay fixation etc.
24. I have already mentioned above that it is not as if the advertisement on the basis of which petitioners participated in the selection process was ambiguous with regard to the terms on which the post was being offered. In fact, the same was unambiguous that the post was only being offered on contract and temporary basis, inter alia, for a period of six months. This was again reiterated in the appointment letters and the appointments were accepted by the petitioners without any demur. Therefore, in my considered view, ::: Downloaded on - 08/08/2018 22:58:57 :::HCHP 16 otherwise also, now petitioners are estopped by their own conduct by .
claiming that services rendered by them on contract basis should be counted for all intents and purposes as services rendered by them on regular basis for the purpose of seniority and other benefits.
25. Though this Court is not oblivious of the fact that appointment of the petitioners on contract basis was not a back door entry, but yet it remains a fact that the same was not done as per the procedure prescribed in UGC Regulations for making regular appointments. Therefore also, in my considered view, no mandamus can be issued by this Court, directing the respondent-University to treat the said service period as if the petitioners were on regular service of the respondent-University.
26. At this stage, it is relevant to mention that a grievance has been raised by the learned Senior Counsel for the petitioners that on account of pendency of this writ petition, the benefits to which the petitioners are otherwise entitled to even on the basis of their length of service on regular basis is being denied to them by the respondent-
University. Well, in my considered view, if the petitioners are entitled for any benefits, which stand accrued to them on account of length of their regular service, then the same cannot be denied to them simply ::: Downloaded on - 08/08/2018 22:58:58 :::HCHP 17 on the pretext of the pendency of the present writ petition and the .
respondent-University shall, forthwith, release such benefits to the petitioners, if any, as per rules.
27. In view of the findings returned hereinabove, I do not find any merit in the present writ petition nor the act of the respondent-University in not granting the relief, as prayed for by the petitioners, can be termed as arbitrary and discriminatory. The petition being without any merit is dismissed, so also pending applications, if any. No order as to costs.
3rd August, 2018(K) ( Ajay Mohan Goel ),
Judge
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