Andhra HC (Pre-Telangana)
Badavath Suresh And 49 Others vs The State Of Telangana, Higher ... on 29 December, 2015
HONBLE SRI JUSTICE R.KANTHA RAO
Writ Petition No.21956 of 2015
29-12-2015
Badavath Suresh and 49 others Petitioners
The State of Telangana, Higher Education Dept., Secretariat, Hyderabad, Rep.
by its Prl. Secretary; and another Respondents
Counsel for the Petitioners: Sri A.Satya Prasad,
Senior Counsel,
Rep. Sri Prakash Buddarapu
Counsel for Respondent No.1: Government Pleader for
Higher Education for the
State of Telangana
Counsel for Respondent No.2: Sri A.Abhishek Reddy,
Standing Counsel
<Gist:
>Head Note:
? Case referred:
1. (1998) 3 SCC 88
2. (2009) 6 SCC 611
3. (2006) 4 SCC 1
4. (2014) 5 SCC 774
HONBLE SRI JUSTICE R.KANTHA RAO
Writ Petition No.21956 of 2015
Order:
The petitioners, according to them, are working as
Ad hoc Lecturers in various departments of the
2nd respondent-Jawaharlal Nehru Technological
University (JNTU), Hyderabad. They filed the writ
petition to declare the proceedings dated 03-7-2015
issued by the 2nd respondent-University as illegal,
arbitrary and hit by Articles 14, 16(1) and 21 of the
Constitution of India, to direct the respondents to absorb
them as Assistant Professors, to declare that continuing
them on ad hoc basis for years together as
unconstitutional and violative of their Fundamental
Rights guaranteed under the Constitution of India and to
direct the 2nd respondent-University to pay salaries to
them on par with the regularly appointed Assistant
Professors.
2. In the Affidavit filed in support of the writ
petition, the petitioners submitted as follows:
(a) The petitioners are presently working as Ad hoc
Lecturers in the 2nd respondent-University in various
departments such as Computer Science and Engineering,
Electrical and Electronics Engineering, Electronics and
Communication Engineering, Mechanical Engineering,
Chemistry and Mathematics Departments and they have
been working in the respective departments ranging from
1 to 13 years in the 2nd respondent-University and every
year, with the commencement of academic year, the
2nd respondent-University conducts written test and
interviews and in pursuance thereof, ad hoc
appointments will be given on tenure basis. Last year,
the 2nd respondent-University issued Advertisement
dated 09-6-2014 calling upon applications for
appointment of Lecturers (Ad hoc) in the prescribed
format on various subjects to be appointed on
consolidated pay for a period of one academic year as
was issued during the years prior to 2014. As usual, the
petitioners, as was done every year, appeared for the
written examination and after evaluating the papers of
their written test, a short list was notified for the purpose
of conducting interviews. Accordingly, interviews were
conducted for various branches from 25-6-2014.
On completing the interview process, the 2nd respondent-
University communicated the appointment in favour of
the respective petitioners and on receiving the
communication, all the petitioners joined the respective
departments and they have been discharging the
functions as ad hoc lecturers.
(b) The petitioners are being paid consolidated pay
depending upon the qualifications they possess i.e.
Rs.18,000/- for B.Tech/MCA, Rs.22,000/- for M.Tech.
and Rs.25,000/- for Ph.D. They submit that every year,
such process of appointment has been taking place and
appointments in favour of the petitioners are being
issued. According to them, the said process was adopted
by the 2nd respondent-University only to delay regular
appointment and to pay consolidated pay though they
are discharging the functions similar to Assistant
Professors working on regular basis. Therefore, they
submit that the exercise is wholly arbitrary,
discriminatory and violative of Articles 14, 16(1) and 21
of the Constitution of India.
(c) The petitioners have been constantly requesting
the 2nd respondent-University to regularize their services
as they are fully qualified and having requisite
qualifications and also requested to pay salary on par
with the regular Assistant Professors as they have been
discharging the functions on par with them. But, the
2nd respondent-University did not take any steps in spite
of availability of vacancies in various departments.
(d) It is submitted that after the end of the academic
year 2014-15, they expected that the 2nd respondent-
University will issue an Advertisement requiring the
petitioners to take written test and interview for their
reappointment as ad hoc lecturers. But, strangely the
2nd respondent-University issued the impugned
proceedings dated 03-7-2015, which apparently for the
purpose of eliminating many of the lecturers (ad hoc)
under the guise of guidelines prescribed in the
Notification dated 03-7-2015. A fair look of these
guidelines itself demonstrates that they are highly
arbitrary, whimsical, discriminatory and unbecoming to
a statutory institute like the 2nd respondent-University
and violative of Fundamental Rights guaranteed under
the Constitution of India.
(e) Nextly, it is submitted that the Notification dated
03-7-2015 prescribes certain guidelines for renewal of
academic Assistants/Ad hoc Lecturers. In the
Notification, 100 points have been prescribed and the
petitioners, who are working as ad hoc lecturers, are
expected to secure 50 points for renewal of their services
for the academic year 2015-16. It is submitted that out
of 100 points, only to the extent of 40 points,
a transparent procedure has been adopted i.e. the past
experience/service of the candidate in the constituent
units/colleges of JNTUH only will be considered as per
years of service with 4 points for every year of service up
to a maximum of 20 points, the qualifications are
evaluated for maximum of 20 points i.e. BE/B.Tech/
M.Com/M.Sc/M.A.(English) 5 points, above plus
M.E/M.Tech/M.Phil/MBA 10 points, Ph.D 20 points and
40 points will be awarded by a Committee consisting of
Principal, Vice-Principal and Head of the respective
department based on the performance of the individual
on the following aspects.
i)
No. of subjects taught and
No. of classes taken
0/1/2
ii)
Willingness to accept conditional
responsibility
0/1/2
iii)
Assistant to administration
0/1/2
iv)
Punctuality and regularity
0/1/2
v)
Speed of work efficiency in the work
0/1/2
vi)
Attitude with superiors
0/1/2
vii)
Attitude with colleagues
0/1/2
viii)
Attitude with students
0/1/2
ix)
Teaching ability
0/1/2
x)
Class control/Management
0/1/2
xi)
Subject knowledge
0/1/2
xii)
Evaluation of exams
0/1/2
xiii)
Invigilation/other duties
0/1/2
xiv)
Participation in academic issues
0/1/2
xv)
Contribution to academic development
0/1/2
xvi)
Syllabus completion
0/1/2
The remaining 20 points are meant for performance
in a demo of lecture in the presence of the Selection
Committee which is confidential in nature to be
evaluated by the external expert and panel members.
It is the version of the petitioners that in the
aforementioned method, enormous element of discretion
was placed in the hands of the Committee consisting of
Principal, Vice-Principal and Head of the Department and
therefore, the same has to be declared null and void and
unconstitutional. It is submitted that the
2nd respondent-University is a statutory body under the
State under Article 12 of the Constitution of India and its
action should be always in accordance with the
constitutional mandate and statutory environment.
Out of 100 points, only 40 points to some extent are said
to be transparent and the remaining 60 points are
confidential in nature and constitute majority of the
marks where the petitioners are expected to achieve
50 points. According to the petitioners, no selection
process is permissible in such a manner concentrating
majority of the points in the name of confidential reports.
It is settled principle of law that not more than 15 to 20
points can be placed in the hands of the individual
members concerned, who are conducting interviews or
selections and majority of the points, such as at least
80 points should be awarded in a transparent manner.
It is stated that for ad hoc lecturers possessing service
ranging from 1 to 13 years conducting examinations
every year without keeping their experience in mind is
running contrary to fair play and subjecting them to
examination and interview process is unwise and
untenable. Now, the 2nd respondent-University invented
a new method through the impugned proceedings dated
03-7-2015 which is unknown to law and highly arbitrary
and whimsical. It is done with an intention to eliminate
the persons in whom the University is not interested or to
send fear psychosis among the intending candidates so
that they always act at the whims and fancies of the
2nd respondent-University or its officials. Therefore,
according to the petitioners, they are entitled to continue
as ad hoc lecturers without any break and are also
entitled for payment of salary on par with the regular
Assistant Professors.
(f) Nextly, it is submitted that the 2nd respondent-
University is neither issuing any appointment orders nor
terminating orders to the petitioners but giving break to
their service on completion of academic year. Therefore,
the petitioners and similarly placed ad hoc lecturers
represented to the State Government for their
regularisation and in response to their representation,
the 1st respondent asked the 2nd respondent-University to
furnish the details of the respective candidates, who are
working in the 2nd respondent-University as ad hoc
lecturers by letter dated 09-4-2015. In reply, the
2nd respondent-University through letter dated 29-4-2015
requested the Principals of constituent colleges/Directors
of various units of JNTUH to send the details of the
ad hoc lecturers working on contract basis in their
colleges/units in the prescribed pro forma along with
their curriculum vitae. The petitioners submit that from
the above correspondence, it is clear that the
Government is considering to regularize the services of
the petitioners and others and at this stage, the
2nd respondent-University issued the impugned
proceedings dated 03-7-2015 which works adverse to the
interest of the petitioners. Therefore, the petitioners are
constrained to approach this Court by filing the present
writ petition praying for the above mentioned reliefs.
3. Initially, this Court passed an interim order on
15-7-2015 to the effect that the 2nd respondent-
University can receive the applications and however,
there shall be stay in regard to the evaluation of the
candidates for a period of two weeks and the same was
extended. On 16-9-2015, this Court heard both sides
and reserved the orders and the interim order granted by
this Court was extended till passing of the orders in the
writ petition.
4. The 2nd respondent-University filed vacate stay
petition along with the counter affidavit contending as
follows:
(a) The petitioners, who are working as ad hoc
lecturers in the 2nd respondent-University do not have
any vested right to be continued as their appointments
were purely temporary and are governed by the terms
and conditions stipulated in the contract entered by them
with the University. The petitioners were appointed
purely on temporary basis for a period of 11 months and
as per the terms and conditions of the contract, they are
automatically terminated on expiry of the said contract
period. It is well settled law that persons appointed to
ad hoc or temporary posts cannot claim as a matter of
right their continuation in post beyond the contract
period and their services will be subject to the terms and
conditions of the contract. The petitioners have ceased to
exist on the rolls of the University when the contract
period came to an end on 31-5-2015 and some of the
petitioners who are taking classes for the first year
courses were terminated on 04-7-2015 and therefore, the
question of petitioners continuing in the said posts does
not arise.
(b) The 2nd respondent-University issued the
impugned proceedings basing on the recommendations of
the Committee constituted for the purpose of improving
the standards and quality of education in the university.
The Committee constituted for the said purpose has
considered various Government Orders, Circulars issued
by the State Government and the guidelines issued by
the University Grants Commission (UGC) in respect of
the renewal of ad hoc lecturers and recommended the
changes to be made to the procedure for appointment of
lecturers and the University has suitably adopted the
recommendations and modified the selection procedure.
(c) Nextly, it is submitted that none of the
petitioners were working in the University or its
constituent colleges as on the date of filing of the writ
petition and they were automatically terminated from the
service of the University on 31-5-2015 and some of the
petitioners who were taking classes for the first year
courses were terminated on 04-7-2015 when their
contract period came to an end. Most of the petitioners
have been working for only 2 or 3 years and not 13 years
as contended by them. The petitioners being contract
lecturers have no right to seek extension of their services
beyond the contract period. The petitioners are well
aware of the fact that their appointment is purely
temporary for a period of one academic year as
mentioned in the contract and it will come to an end
automatically at the end of the contract period.
The petitioners have to necessarily go through the
procedure notified by the University and if they are
selected, they will have to enter into a fresh contract for
that academic year. The petitioners who entered into
contract having full knowledge of the terms and
conditions of their appointment and having entered into
contract with the University, cannot now complain that
the terms and conditions mentioned in the contract are
either onerous or illegal.
(d) It is further submitted that the University
appoints the ad hoc lecturers basing on the academic
needs of the University and the contention of the
petitioners that only to delay the process of regular
appointment of lecturers, the University is resorting to
such kind of temporary appointments is not correct and
far from truth. As a matter of fact, the University cannot
on its own appoint the lecturers to regular posts as it has
to obtain necessary permission from the State
Government and approval of the roaster from the
concerned departments of the State Government, issued
Notification for filling up 186 vacant posts through
regular selection process and interviews were also
conducted, but the same could not be completed due to
pendency of cases in this Court. It is further submitted
that as on date, there are no schemes or Government
Orders issued by the State Government for regularisation
of ad hoc lecturers and therefore, the University cannot
on its own regularise the services of the ad hoc lecturers
and they have to go through the regular process and
procedure notified for appointment of regular lecturers.
As per the UGC guidelines, the University had to
formulate the new guidelines for renewal of the ad hoc
lecturers without written test and interview which was
followed earlier. As a matter of fact, some of the ad hoc
lecturers themselves have requested the University to
dispense with the written test and interview and
formulate a new scheme. The present guidelines which
are issued are only to improve the standard of education
and excellence in teaching and they have been issued
only to evaluate the performance of the ad hoc lecturers,
but they are not arbitrary, illegal or unreasonable.
The guidelines have been issued after the University
constituted a Committee and the Committee made its
recommendations and there is no violation of any
procedure or guidelines issued by the University.
The impugned guidelines will only help in evaluating the
performance of the lecturers and is objective and more
transparent.
(e) It is further submitted that the University is
strictly following the guidelines issued by the UGC which
is the apex body for prescribing the standards as well as
procedures for excellence in education. The procedure
adopted by the University is more transparent and
comprehensive than the earlier system of selection and
the petitioners cannot contend that the procedure
adopted by the University under the impugned
Notification is not transparent. The performance
evaluation of the candidates is done through a duly
constituted Committee and the procedure adopted is not
only fully objective but also more transparent than the
previous method of selection. The evaluation of the
candidates will be done by a Committee consisting of
3 experts independently for 20 points each and the
points awarded by the 3 experts will be taken into
account without giving any scope for doubt or
favouritism. The Selection Committee consists of one
external subject expert, Chairman of Board of Studies
and the Principal and each of them will independently
evaluate the candidates and award points and the
average points of the said 3 persons will be taken into
consideration and therefore, the procedure adopted by
the University cannot be said to be arbitrary and illegal.
It is submitted that the petitioners cannot force the
University to adopt a particular method of selection to
suit their convenience and they have failed to
substantiate as to how the procedure adopted by the
University is bad or against law. The petitioners are well
aware of the fact that they were appointed for
a particular academic year purely on ad hoc basis as per
the terms and conditions of the contract which they have
entered into with the University, they have no vested
right to continue in the service beyond the stipulated
period and all the petitioners were automatically
terminated on 31-5-2015 and some of the petitioners
who were taking classes of first year were terminated on
04-7-2015, the respective dates on which the contract
period came to an end. The fact that the petitioners
pending representation made by them to the Government
for regularisation of their services and the remarks
sought by the Government and in response to which, the
Government called for remarks from the 2nd respondent-
University does not imply that the Government is
contemplating to regularise the services of the
petitioners.
(f) Thus, according to the respondents, the writ
petition is devoid of any merit and is liable to be
dismissed.
5. Sri A.Satya Prasad, learned Senior Counsel,
representing Sri Prakash Buddarapu, learned counsel
appearing for the petitioner submits that as the
petitioners have been working as ad hoc lecturers since
a long time in the colleges/departments of the University
with a break in every academic year, the University is
under an obligation to regularise their services and more
particularly, in view of the fact that the issue of
regularisation of the services of the petitioners is pending
with the State Government which called for the details of
the petitioners and other similarly situated employees
from the University, the impugned Notification dated
03-7-2015 prescribing the method and guidelines for
reappointing the petitioners and others as ad hoc
lecturers is illegal and unconstitutional. The learned
Senior Counsel, therefore, urges the Court to set aside
the said Notification.
6. On the other hand, Sri A.Abhishek Reddy,
learned Standing Counsel for JNTU-2nd respondent,
would submit that only for the purpose of improving the
standards in teaching and in compliance with the
directions issued by the UGC, which is the apex body,
the Notification was issued and the petitioners have no
vested right to continue in their respective posts after
their contract period came to an end and they also
cannot insist upon the University to follow a particular
method for reappointing them as ad hoc lecturers.
7. In support of his contention, the learned Senior
Counsel for the petitioners relied on the following
judgments:
(a) Dr. MEERA MASSEY v. Dr. S.R. MEHROTRA .
In the said case, the Supreme Court deprecated
ad hocism in all services, particularly in cases of
appointment of Professors, Readers and Teachers in the
Universities but specifically held that the regularisation
of the services of the University teachers must be only in
accordance with the procedure laid down under the
University laws and took the view that the regularisation
of the ad hoc appointments made de hors the rules is not
proper.
(b) MOHD. ABDUL KADIR v. DIRECTOR
GENERAL OF POLICE . In this case also, the Supreme
Court deprecated the practice of giving artificial breaks
from time to time and then re-appointing the same staff
and opined that such practice is contrary to the service
jurisprudence. However, the Supreme Court with regard
to the regularisation held as follows:
If temporary or ad hoc engagement or appointment is
in connection with a particular project or a specific
scheme, the ad hoc or temporary service of persons
employed under the project or scheme would come
an end, on completion/closure/cessation of the project
or scheme. The fact that the Scheme had been in
operation for some decades or that the employee
concerned has continued on ad hoc basis for one or
two decades would not entitle the employee to seek
permanency or regularisation. Even if any posts are
sanctioned with reference to the Scheme, such
sanction is of ad hoc or temporary posts coterminous
with the Scheme and not of permanent posts.
On completion of project or discontinuance of the
Scheme, those who were engaged with reference to, or
in connection with such project or scheme cannot
claim any right to continue in service, nor seek
regularisation in some other project or service.
8. On the other hand, the learned Standing
Counsel for the 2nd respondent-University relied on
SECY., STATE OF KARNATAKA v. UMADEVI (3) ,
wherein the Supreme Court held as follows:
Merely because a temporary employee or a casual
wage worker is continued for a time beyond the term of
his appointment, he would not be entitled to be
absorbed in regular service or made permanent,
merely on the strength of such continuance, if the
original appointment was not made by following a due
process of selection as envisaged by the relevant rules.
It is not open to the court to prevent regular
recruitment at the instance of temporary employees
whose period of employment has come to an end or of
ad hoc employees who by the very nature of their
appointment, do not acquire any right.
9. From the judgments relied on by the learned
counsel on either side, what all can be understood is that
though the Supreme Court deprecated the practice of
ad hocism, more particularly in the appointments of
teaching staff in the Universities, it has specifically ruled
that if an employee has not been appointed by following
the due procedure relating to the employment of
a regular employee, continuing in the post for long years
does not vest him with any right to claim regularisation
or to continue him beyond the contract period or for
re-engagement.
10. In the case on hand, admittedly, the petitioners
are ad hoc lecturers appointed for 11 months each time.
After completing 11 months, they are being terminated
and are being re-appointed by again subjecting them for
the written test and interview. Therefore, by virtue of
service in the University with breaks even for a longer
period does not vest them with any right to claim
regularisation or re-engagement.
11. The other question requires determination in
the present writ petition is whether the Notification
issued by the University dated 09-6-2014 prescribing the
procedure for appointing ad hoc lecturers which has been
mentioned in detail hereinabove is unconstitutional and
in violation of the Fundamental Rights of the petitioners.
12. The contention of the petitioners is that the
University invented a method to eliminate the candidates
in whom it is not interested and the University ought to
have conducted the written test and oral interview as was
done in the previous years. As to this, it is the
contention of the University that as per the directive and
guidelines issued by the UGC, the new method has been
evolved to select the lecturers for appointment on ad hoc
basis and therefore, the same cannot be assailed by the
petitioners, who, according to the University, are no more
ad hoc lecturers in the University since their contract
period came to an end.
13. This Court has examined the scheme under the
Notification which has been detailed herein above.
The scheme does not appear to be arbitrary or vesting the
University with an enormous power to eliminate the
candidates of its choice. On this issue, the learned
Senior Counsel for the petitioners relied on BISHNU
BISWAS v. UNION OF INDIA , wherein the Supreme
Court held as follows:
16. The appropriate allocation of marks for interview,
where selection is to be made by written test as well as
by interview, would depend upon the nature of post
and no straitjacket formula can be laid down.
Further, there is a distinction while considering the
case of employment and of admission for an academic
course. The courts have repeatedly emphasised that
for the purpose of admission in an educational
institution, the allocation of interview marks would not
be very high but for the purpose of employment,
allocation of marks for interview would depend upon
the nature of post.
17.
18.
19. In the instant case, the rules of the game
had been changed after conducting the written test
and admittedly not at the stage of initiation of the
selection process. The marks allocated for the oral
interview had been the same as for written test i.e.
50% for each. The manner in which marks have been
awarded in the interview to the candidates indicated
lack of transparency. The candidate who secured
47 marks out of 50 in the written test had been given
only 20 marks in the interview while a large number of
candidates got equal marks in the interview as in the
written examination. Candidate who secured
34 marks in the written examination was given
45 marks in the interview. Similarly, another
candidate who secured 36 marks in the written
examination was awarded 45 marks in the interview.
The fact that today the so-called selected candidates
are not in employment, is also a relevant factor to
decide the case finally. If the whole selection is
scrapped most of the candidates would be ineligible at
least in respect of age as the advertisement was issued
more than six years ago.
14. The judgment relied on by the learned Senior
Counsel is not applicable to the facts of the present case.
It is already said, the Notification prescribing the mode or
selection which has been detailed herein above does not
appear to be arbitrary or unreasonable. The petitioners
admitted that there is transparency with regard to
40 marks, they only contend that there is no
transparency with regard to remaining 60 marks.
The important issue which has to be kept in mind is that
if a candidate gets 50 marks he will be re-engaged as an
ad hoc lecturer. Even for the remaining 60 marks also,
a detailed procedure has been adopted by the University
which has been extracted herein above while referring to
the averments of the counter filed by the 2nd respondent-
University. Merely because a new method has been
evolved by the University basing on the guidelines issued
by the UGC, it cannot be said that the method has been
evolved for the purpose of eliminating certain candidates.
The petitioners are not able to show as to how the
method evolved by the University is not scientific and in
what manner the method would vest the University with
enormous and absolute discretion to eliminate the
candidates. After going through the method under the
Notification, this Court is not convinced with the
contention raised by the petitioners that the method
invests the University with enormous and absolute power
to eliminate the candidates. The petitioners who worked
as ad hoc lecturers for some time cannot insist upon the
University to follow only the previous procedure for their
re-engagement. The University for that matter is bound
by the guidelines issued by the UGC and if the
petitioners are willing to be appointed as ad hoc
lecturers, they have to necessarily undergo the process
under the Notification dated 09-6-2014 issued by the
University. The University has made it clear in their
counter that for appointing the candidates on regular
basis, the State Government has to issue necessary
guidelines and basing on the said guidelines only,
the appointments can be made on regular basis.
The petitioners who are ad hoc lecturers, as already said,
have no vested right to claim absorption into the regular
posts of University Lecturers. They were appointed on
contract basis and not according to the process
prescribed for the recruitment of lecturers on regular
basis.
15. For the foregoing reasons, I absolutely see no
merit in the writ petition and accordingly dismiss the
same. The miscellaneous petitions, if any, pending in
this writ petition shall stand closed. No costs.
___________________
R.KANTHA RAO, J.
29th December, 2015.