Rajasthan High Court - Jaipur
Dr Hemendra Garg vs State Of Raj And Ors on 3 April, 2019
Author: Alok Sharma
Bench: Alok Sharma
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
ORDER
1. (S.B. Civil Writ Petition No.23488/2017)
Dr. Hemendra Garg S/o Girraj Prasad Garg, Aged about 32 years, R/o Sarmathura Wale,
Kayastha Pada, Dholpur, Raj.
- - -Petitioner
Versus
1. State of Rajasthan through Principal Secretary Department of Higher Education,
Government Secretariat, Jaipur.
2. Commissioner, College Education, Shiksha Sankul, JLN Marg, Jaipur.
3. Principal, Seth Ranglal Kothari Govt. PG Collage, Rajasmand, Raj.
- - -Respondents
2. (S.B. CIVIL WRIT PETITION NO. 23489/2017)
1. Richa Bhardwaj D/o Shri Brijmohan Sharma, Aged about 42 years, R/o 67, Road J,
Bhopalpur, Udaipur.
2. Atma Prakash Tiwari S/o Ambika Prasad Tiwari, aged about 31 Years, R/o 986, Sukhwant,
Cinema Road, Purani Abadi, Sriganganagar, Raj.
- - -Petitioners
Versus
1. State of Rajasthan Through Principal Secretary Department of Higher Education,
Government Secretariat, Jaipur.
2. Commissioner, College Education, Shiksha Sankul, JLN Marg, Jaipur.
3. Principal Govt. College, Dungarpur, Raj.
4. Principal Govindguru Govt. College, Banswara, Raj.
- - -Respondents
3. (S.B. CIVIL WRIT PETITION NO. 23563/2017)
1. Kedar Prasad Meena S/o Shri Heera Lal, aged about 43 years, R/o Village Kanloda, Post
Kalyanpura, Teshil Lalsot, District Dausa.
2. Sushila Godara D/o Shri Moti Ram Godara aged about 33 years, R/o House NO. 164,
Sector No. 6, Hanumangarh.
- - -Petitioners
Versus
1. State of Rajasthan Through Principal Secretary Department of Higher Education,
Government Secretariat, Jaipur.
2. Commissioner, College Education, Shiksha Sankul, JLN Marg, Jaipur.
3. Principal Govt. College Baran, District Baran, Raj.
4. Principal B.R.A. Government College, Sri Ganganagar, Raj.
- - -Respondents
(D.B. SAW/395/2018 and 4 more have been filed in this matter. Please refer the same for further orders)
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4. (S.B. CIVIL WRIT PETITION NO. 23567/2017)
1. Asgar Ali Usta S/o Late Shri Allaha Buksh Usta, aged about 44 years, R/o Rahaman Manzli,
Usta Ka Mohalla, Near Water Stand, Bikaner.
- - -Petitioner
Versus
1. State of Rajasthan Through Principal Secretary Department of Higher Education,
Government Secretariat, Jaipur.
2. Commissioner, College Education, Shiksha Sankul, JLN Marg, Jaipur.
3. Principal SPC Government College, Ajmer.
- - -Respondents
5. (S.B. CIVIL WRIT PETITION NO. 323/2018)
Sunil Kumar S/o Shri Tara Chand aged about 33 years, R/o of 68, Bherunghat Bhalawato Ka
Bas, Mazzid Ki Gali, Pali.
- - -Petitioner
Versus
1. State of Rajasthan Through Principal Secretary Department of Higher Education,
Government Secretariat, Jaipur.
2. Commissioner, College Education, Shiksha Sankul, JLN Marg, Jaipur.
3. Principal, Seth Mangal Chand Choudhary Government College, Abu Road.
- - -Respondents
Date of Order: April 3rd, 2019.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. Sunil Kumar Jain] for the petitioners.
Mr. Gaurav Sharma ]
Mr. Prakhar Gupta on behalf of
Mr. VB Sharma, AAG for the State.
BY THE COURT:
As the bunch of writ petitions agitate the same issue, arguments common as they are have been heard and all the petitions are being decided by this common order.
Writ petition No.23488/2017 titled Dr. Hemendra Garg vs. State (D.B. SAW/395/2018 and 4 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 27/06/2019 at 10:21:25 PM) 3 of Rajasthan & Others, is taken as the lead case.
The petitioner, appointed on 15-7-2008 as College Lecturer (Economics) with the MSJ Post Graduate College, Bharatpur on contract basis till 28-2-2009 or till the availability of regularly selected candidates, whichever was earlier, is aggrieved of his termination on 6-12-2017. Hence this petition.
Counsel for the petitioner submitted that since the petitioner had regularly worked for about nine years, following his appointment albeit contractual on 15-7-2008, under clause 4 of the UGC Regulations. He cannot be terminated till availability of any vacancy on the post of Lecturer (Economics) in Government colleges in the State of Rajasthan. Hence even though selections have been made by RPSC for the post held by the petitioner, his contractual appointment cannot be terminated. The termination order of the petitioner hence be quashed and set aside and it be directed that he be continued on the post of College Lecturer (Economics) on contract basis till all vacancies on the post of Lecturer (Economics) in Government Colleges in Rajasthan state obtain.
Counsel for respondents opposing the petition submitted that although the petitioner has worked for more than 9 years on contract basis, during which period his employment was also (D.B. SAW/395/2018 and 4 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 27/06/2019 at 10:21:25 PM) 4 litigious, he has no right to continue as candidates regularly selected by RPSC are now available. The petitioner has no right to continue either in law or in terms of his appointment order itself. Besides, and more importantly, in any event even the initial contractual appointment of the petitioner for one year was contrary to the mandate of clause 13.1 of the UGC qualification for appointment of teacher and other academic staff in Universities and Colleges and necessary for the maintenance of standards in Higher Education Regulations 2010 (hereafter `Regulations of 2010'). The petitioner was appointed on contract basis till 28-2-2009 at the local level and not by resort to selection procedure, as for those regularly appointed and without the minimum qualification for the appointment as prescribed even for contractual appointment under Regulations of 2010 being ascertained. He was appointed only on basis of availability of post and nothing more, because of great paucity of Lecturer (Economics) at the college in issue at the relevant time. Such appointment cannot be allowed to continue beyond the period set out in the appointment order after the Regulations of 2010 coming into force. Reliance has been placed on the judgment of the Apex Court in the case of Committee of Management, Vasanta College for Women v. Tribhuwan Nath Tripathi [(1997)2 SCC 560] and M.P. State Cooperative Bank Ltd. Vs. Nanuram Yadav [(2007)8 SCC 264]. Reliance has also been placed on the judgment of the Apex Court in (D.B. SAW/395/2018 and 4 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 27/06/2019 at 10:21:25 PM) 5 the case of State of Karnataka Vs. Uma Devi [(2006)4 SCC 1] which states that appointments in violation of rules are per se illegal and such appointment can neither be continued nor regularised. Counsel for the respondents submitted that an employee continued in service under the interim orders of a court/ tribunal cannot also otherwise be held to have any vested right based on long duration of service. The interim order of this Court protecting the petitioner from termination has since been vacated. It has been submitted that Sympathy per se without any legal right whatever cannot be at the foundation for grant of relief by the courts. More so in academic matters where it is incumbent on the appointing authority and the courts to ensure that those appointed to teach young impressionable students are duly qualified and have been selected as per statutorily prescribed procedure. Reliance has been placed on a quote in Latham Vs. Richard Johnson & Nephew Ltd. [(1913) 1 KB 398] to submit that "Sentiment is a dangerous will of wisp to take as a guide in the search for legal principles." Reliance has also been placed on the judgment of the Apex Court in the case of Director, Institute of Management Development UP Vs. Pushpa Srivastava [AIR 1992 SC 2070] and Management of Kalpataru Vidya Samasthe Vs. S.B. Gupta [(2005)7 SCC 524] wherein it has been held that where a contractual appointment comes to an end on efflux of time, the appointee would have no legal right to continue on the post. (D.B. SAW/395/2018 and 4 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 27/06/2019 at 10:21:25 PM) 6 With regard to the alleged existence of vacancies on the post of College Lecturer (Economics), elsewhere in different state colleges in Rajasthan, it has been submitted that even as per the information received by the petitioner under Right to Information Act, 2005 only two vacancies of Lecturers in Economics across the State colleges have been shown. Those vacancies cannot be reckoned for the benefit of petitioner relate as do not to the post of Lecturer (Economics) held by the petitioner at the college to which he was first appointed. The petitioner's contractual term of appointment has expired and he has not been/ will not be replaced by a contractual appointee, but by one regularly selected by the RPSC. Similarly the progress report on which the petitioner places reliance relates to 2016-17. Thereafter regular selection process was initiated and selections have been made by RPSC. As such neither the information received by the petitioner under the Act of 2005 nor the progress report of 2016-17 is of any avail. Further vacancies on account of non joining of selected candidates can not be of any help to the petitioner in view of the judgment in the case of Ruchi Kulshreshtha Vs. State, SBCWP No.5141/2018 and Dr. Chanchal Goyal Vs. State of Rajasthan [(2003)3 SCC 485] wherein it has been held that even if a selected person does not join for some reasons after the Commission has drawn up a list of selected candidates, because another selected (D.B. SAW/395/2018 and 4 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 27/06/2019 at 10:21:25 PM) 7 person or that in the waiting/ reserve list can be appointed on the said resulting vacancy. It has been submitted that keeping posts vacant and filling them only through regular recruitment is also the current policy decision of the respondents, aside of being otherwise required by law.
Heard. Considered.
Clause 13.1 of the Regulations of 2010 categorically provides that a contractual appointment should not be made initially for more than one academic session, and the performance of any such an appointee should be reviewed for academic performance before his reappointment for another session. It also states that the qualification and procedure for such appointment when necessitated by the urgency of the situation should be the same as for regular appointee. In the instant case admittedly the petitioner's initial appointment on contract basis was only till 28-2-2009 or till the availability of regularly selected candidates, whichever was earlier. But importantly it has never been as per the procedure mandated under clause 13.1 aforesaid but at the local level, the post was not advertised, applications from all qualified not invited and the petitioner's minimum qualifications at the relevant time and now as per the Regulations of 2010 were not and have not been ascertained. The tenure of the appointment was one academic year or till selection of (D.B. SAW/395/2018 and 4 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 27/06/2019 at 10:21:25 PM) 8 regularly selected candidates. The petitioner cannot set up a case contrary to his letter of appointment dated 15-7-2008. Thereunder he has no right after the end of the one academic session. Further candidates for the post of Lecturer (Economics) regularly selected by RPSC inter alia for the post held by the petitioner are also available. The petitioner yet thereafter continued in service under interim order/s of the court initially 22-5-2009 and on 1-7-2009. As such the petitioner's employment was thereafter quite clearly litigious. The petitioner was appointed on contract basis on a specific post and not in a "cadre". He has no right to be adjusted on another vacant post, even if any, such vacancy obtains on the cadre of Assistant Professor (Economics) in another state college.
For the reasons aforementioned, I find no force in the petition. The same is dismissed. So are connected matters admittedly agitating an identical issue in the background of similar facts.
A copy of this order be placed in each case.
(Alok Sharma), J.
arn/ (D.B. SAW/395/2018 and 4 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 27/06/2019 at 10:21:25 PM) Powered by TCPDF (www.tcpdf.org)