Dr. Sarah Asheer, aged about 37 years, w/o Imran Arif, r/o Asheer, Near Joda v. 1. The Union of India through the Ministry of Education and Industry, Government of
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) L.P.A No. 369 of 2023 Dr. Sarah Asheer, aged about 37 years, w/o Imran Arif, r/o Asheer, Near Joda Talab, PO & PS-Bariatu, District-Ranchi ...…… Petitioner/Appellant Versus 1. The Union of India through the Ministry of Education and Industry, Government of India having its registered office at Shastri Bhawan, Dr. Rajendra Prasad Road, Near Central Secretariat, New Delhi, PO & PS- Tuglak Road, District-New Delhi 2. National Institute of Advanced Manufacturing Technology (Formerly National Institute of Foundry and Forge Technology) through its Registrar having its registered office at Hatia, PO & PS-Jagannathpur, District-Ranchi …. ... Respondents CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Appellant For the Resp. No.2 For the UOI
Legal Reasoning
: Mr. Amit Kumar Sinha, Advocate : Mr. Rajiv Ranjan, Sr. Advocate Mr. Ram Lakhan Yadav, Advocate Mr. Piyush Chitresh, Advocate : Mrs. Nitu Sinha, CGC 10th January 2024 --------- Per, Shree Chandrashekhar, A.C.J. The appellant who is an aspirant for appointment on the post of Asisstant Professor has challenged the writ Court’s order dated 19th May 2023 on the ground that in the midst of the selection process educational qualification was changed to her disadvantage. 2. For the sake of clarity, we intend to extract the prayers made in W.P(S) No.1362 of 2023 which are as under: “(A) For issuance of appropriate writ(s), direction(s) and/or order(s) upon the concerned respondents for quashing up of the advertisement no.R/03/2022 dated 07.01.2023 published by respondent no.2 by which post of Assistant Professor has been advertised along with its corrigendum of revised information bearing memo no.604 dated 09.01.2023 by which modifications have been made in the advertisement dated 07.01.2023, (as contained this writ application). (B) For issuance of appropriate writ(s), direction(s) and/or order(s) upon the the concerned respondents for quashing up of advertisement no.C/01/2023 dated 01.03.2023 published by respondent no.2 for walk-in-interview for recruitment of Assistant Professor on contractual basis as the present petitioner is working in Annexure-5 and 6 respectively to 2 L.P.A No.369 of 2023 on the same post of contractual basis, (as contained in Annexure-7 to this writ application). (C) For issuance of appropriate writ(s), direction(s) and/or order(s) upon the concerned respondents to permit the petitioner to continue on the post of Assistant Professor in the Department of Electronic and Computer Engineering. (D) For stay of the further proceedings in connection with the advertisement no.R/03/2022 dated 07.01.2023 along with its corrigendum of revised information bearing memo no.604 dated 09.01.2023 and the advertisement no.C/01/2023 dated 01.03.2023 during pendency of the present application. (E) For any other appropriate relief (s) to which the petitioner may be found entitled in law and equity.” 3. The writ Court did not accept the contention put forth on behalf of the appellant and held that a contractual employee has no right to seek renewal/extension of the contract and, that, the requirement as to educational qualification to a post has to be decided by the employer and not a candidate who seeks appointment. 4. While dismissing W.P(S) No.1362 of 2023, the writ Court observed as under: “10. Be that as it may, having gone through the rival submissions of the parties and on perusal of the records, it appears that the submissions and reasonings enunciated by the learned counsel for the petitioner for quashing the regular Advertisement No.R/03/2022 dated 07.01.2023 followed by Corrigendum is not acceptable to this Court on the ground that the petitioner has mentioned in para 40 to the writ petition that he has already appeared in the appointment process (regular) under protest and once he appeared for selection process though with protest, he is stopped from challenging the same. The terms and conditions of the appointment process cannot be challenged after appearing in the same. Time and again, it has been observed by this Court that ad hoc appointment should be stopped and regular appointment should be made as several Educational Institutions are running on the basis of ad hoc arrangement and in the present case, it has been found that the Institute has already published advertisement regular appointment, and as such, advertisement for regular post cannot be quashed and set aside only on the ground that petitioner is working on contractual basis and her service should be extendable when she has already completed her tenure and no extension was granted. the submissions regarding qualifications have been Further, changed for regular appointment is concerned, the same is totally misconceived on the ground that the relevancy of specialization and /or fields of study are /is decided on the basis of the requirement of the Institute and not by a candidate and also she appeared in regular appointment process. Further, B.Tech in Computer Engineering was started from the Academic Session 2022-223 and B.Tech in Electronics Engineering has been kept on hold for the time being till required infrastructure is established and as such, specialization in Electronics has not been included in the Regular Advertisement No.R/03/2023 and Temporary Faculty for Advertisement No.C/01/2023. Current advertisement recruitment of Faculty for Computer Engineering and is fully in for is 3 L.P.A No.369 of 2023 into in furtherance with contractual appointment accordance with the Rule and requirement of the Institute. From the records, it appears that there are several institutions like IIT Madras, NIT Trichy and other, who admit B.Tech, in Electronics the M.Tech Computer Science Engineering students Engineering Programme. The Advertisement dated 07.01.2023 followed by Corrigendum clearly describes the number of vacant post as 23 for Assistant Professor. 11.Further, i.e. Advertisement No.C//01/2023 dated 01.03.2023, the argument of the learned counsel for the petitioner that one set of contractual employee cannot be replaced by another set of contractual employee and reliance in this regard in Piyara Singh (supra)case is concerned, the same is not acceptable to this Court as in the present case the facts are different and are being distinguished on the ground that in that case, the petitioners are working since long and their contract was not come to an end, but in the instant case, the contract of the petitioner has come to an end on 10.04.2023 and her contract was never extended, no right has accrued to the petitioner to get her contract extended. It is the absolute discretion of the employer to give extension or not to give extension. It is settled position of law that the Contractual employee has no any vested right to continue nor normally it is open for the Court to give any mandate to an employer to continue the contract or to change the status of the contractual employment in any manner. Once the same having been accepted by consent of both the sides without any demur. The issue fell for consideration before the Hon’ble Apex Court in case of Yogesh Mahajan Vs. Professor R.C. Deka, Director, All India Institute of Medical Sciences, reported in (2018) 3 SCC 218, wherein it has held that “It is settled law that no contract employee has a right to have his or her contract renewed from time to time. That being so, we are in agreement with the Central Administrative Tribunal and the High Court that the petitioner was unable to show any statutory or other right to have his contract extended beyond 30thJune, 2010. Further, temporary /contractual appointment has been issued, just to fill the post for one semester only, though the same can be extendable, by way of stop gap arrangement on temporary basis, it is only for the period, till regular appointments are made since the regular appointment process is going on and same will be concluded till July-August, 2023. The appointment of the petitioner was for a fixed tenure and it cannot be said that earlier the same was extended and on that basis, her extension should be continued and post cannot be filled up, by another contractual employee. The respondents have not extended any contract of any employee. Further, the respondents have published the Advertisement for Regular Appointment and since the same will take time and most probably by July-August, 2023 same will be completed, therefore, an advertisement dated 01.03.2023 was floated to fill up the post as a time gap arrangement, this is also temporary in nature and as such, there is no requirement of extension of contract period for another one year i.e. beyond recruitment of regular faculty, exceeding the sanctioned strength of 48. 12. Further, it appears that her contract came to an end on 10.04.2023, rightly she has been asked for to vacate the accommodation as upon termination of contract, there is no illegality or infirmity in issuance of Letter dated 31.03.2023. 13. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, no interference is warranted in the instant case. Resultantly, writ petition stands dismissed.” 4 L.P.A No.369 of 2023 5. The appellant has pleaded that she was appointed on contractual basis on the post of Assistant Professor in the Department of Electronics and Computer Engineering, pursuant to Advertisement No.2 of 2021. According to the appellant, the period of contractual appointment was extendable up to three years but the National Institute of Advanced Manufacturing Technology (in short, “NIAMT”) issued advertisement dated 1st March 2023 for appointment on the post of Assistant Professor in the same department on contractual basis. The appellant has set up a plea that the NIAMT could not have issued advertisement dated 1st March 2023 for replacing the appellant by another contractual employee. In the meantime, Advertisement No. R/03/2022 dated 7th January 2023 was issued for regular appointment to the post of Assistant Professor in the Department of Electronics and Computer Engineering. The advertisement dated 7th January 2023 prescribed the educational qualification of B.E/B.Tech./B.S. in Electronics and Computer Engineering but this qualification was changed through Corrigendum dated 9th January 2023 whereunder it was provided that for Electronics and Computer Engineering the applicant must possess a qualification of M.E/M.Tech/M.S in Computer Science and Engineering/Information Technology/Software Engineering. 6. Before the writ Court, the NIAMT took a stand that appointment to the post of Electronics and Communication Engineering was added through Corrigendum dated 9th January 2023. However, for the lack of sufficient infrastructure for running a course in Electronics and Computer Engineering the appointment of Assistant Professor having the qualification of Electronics and Communication Engineering has been postponed for a while. 7. In paragraph no.20 of the counter-affidavit, the NIAMT took the following stands before the writ Court: “20. That the department of Electronics and Computer Engineering was setup with the plan that the department will run two B. Tech. courses - one in Electronics and one in Computer Engineering. Accordingly, Faculty from both specializations were recruited on contract basis to start the initial set up. Therefore, in course of creation of additional infrastructure necessary to run the above two courses, it is found that immediate availability of infrastructure, mainly civil infrastructure are not adequate to start/run both the B. Tech. Courses at the same time. 5 L.P.A No.369 of 2023 Accordingly, B. Tech. in Computer Engineering was started from the Academic Session 2022-23 and B. Tech. in Electronics Engineering has been kept on hold for the time being till required infrastructure is found in place. Accordingly, specialization in Electronics has not been included in the Regular Faculty advertisement vide No R/03/2023 and Temporary Faculty advertisement Vide No- C/01/2023.” 8. This is by now a well accepted proposition that the employer is most suited to decide the qualification for a post because the employer alone would be in a position to make a proper assessment as to its requirement. This is also too well-settled that the writ Court cannot prescribe qualification for a post or hold that a particular qualification is necessary or not necessary for appointment on a particular post. In “Maharashtra Public Service Commission v. Sandeep Shriram Warade” (2019) 6 SCC 362 the Hon’ble Supreme Court observed as under: “9. The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being on a par with the essential eligibility by an interpretive the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.” re-writing of 9. In our opinion, the writ Court rightly held that it is for the employer and not the candidate to decide the minimum educational qualification required for appointment to the post of Assistant Professor. The stand taken by the appellant that she could not have been removed from the post of Assistant Professor by issuing another advertisement for appointment on the same post on contractual basis is also not sustainable. The NIAMT has taken a specific stand that the appointment pursuant to the advertisement dated 1st March 2023 is a stop-gap arrangement and only for a period of six months or till the regular appointments are made. The process for regular appointment was already initiated by that time through 6 L.P.A No.369 of 2023 Advertisement No. R/03/23 issued on 7th January 2023 and while so, we do not find any illegality in issuing an advertisement for appointment on the post of Assistant Professor as stop-gap arrangement. The appointment of the appellant pursuant to the Advertisement No.2 of 2021 was for a period of one year and on expiry of that period the appellant cannot claim a vested right for extension of the contractual period. 10. For the foregoing reasons, we find no merit in this Letters Patent Appeal and, accordingly, L.P.A No.369 of 2023 is dismissed. (Shree Chandrashekhar, A.C.J.) (Anubha Rawat Choudhary, J.) sudhir /NAFR