Dr. Mohd. Munis v. Union of India

Mr. R.K. Chugh, Advocate for respondent Nos.1 to 3. None for respondent Nos.4 to 6. CORAM:HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the judgment ? Yes

2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? Yes K. KANNAN J.(ORAL) -.-

1. The petitioner challenges the selection of respondent Nos.4 to 6 as Resource Persons (Urdu) to the exclusion of the petitioner, who was already in employment with the University on a contract, which was due to expire in June, 2009. An advertisement had been issued for appointment of Resource Person (Academic) for the academic session 2009-2010 and the relevant clause insofar as it is material for us in this case, is the mode of appointment which through its advertisement provides as follows: “Honorarium to be paid Rs.700/- for Ph.D. Candidates, C.W.P. No.9319 of 2009 -2- Rs.600/- for M.Phil candidates and Rs.500/- for M.A. Candidates per day on each working day.” In other words, the contractual appointees were sought to be substituted through a fresh batch of contractual appointees. Their policy, to say the least, is questionable. A Division Bench of this Hon'ble Court has castigated the method of recruitment engaged by public bodies where employees are ever held in tenter-hooks to keep them perennially under contract and the contract period is made to expire only to recruit fresh persons again on contract. In Hitesh Thakur Vs. The Chairman, Managing Committee, National Horticulture Board, Gurgaon and others 2006(1) RSJ 438, the Hon'ble Division Bench was considering a case of appointment to the post of Technical Assistant when the petitioner who had been engaged on contract basis complained that the employer was going for fresh appointment through contract. Referring to its own earlier rulings, the Bench held that such a practice would mean unfair practice and followed the decision of the Hon'ble Supreme Court in Director, Institute of Management Development Vs. Smt. Pushpa Srivastava AIR 1992 SC 2070 when it observed that: “in support of the submission that since the petitioner was a purely contract appointee, he would have no right to seek the relief of continuation on the post. We are of the opinion that the aforesaid judgment is not applicable to the facts and circumstances of the present case. Therein, the Supreme Court was C.W.P. No.9319 of 2009 -3- considering the question as to whether an appointment which is purely on ad hoc basis, can entitle the appointee to regularisation on the basis that the employee has completed more than one year in service. In the present case, the petitioner is not seeking regularisation. He is merely seeking that the respondents be not permitted to indulge in unfair practices in dispensing with the services of the contract employees to be replaced by other contract employees. In view of the above, we allow the writ petition and direct the respondents to permit the petitioner to continue on the post he was holding till appointments are made on regular basis.”

2. The Hon'ble Supreme Court has held in another case in Commissioner, Kendriya Vidyalaya Sangathan and others Vs. Anil Kumar Singh and others (2003) 10 SCC 284 that contractual employees should be permitted to continue in employment till a process of regular appointment and it was upholding a direction given by the High Court where a continuation of such contractual employment even beyond the period of contract as done by the Court would be perfectly legitimate, so long as a regular appointment process was not put in motion.

3. Even apart from the method of recruitment that the University has followed as regards the actual appointment granted to respondent Nos.4 to 6, the petitioner points out that the 6th respondent has been shown in the document filed along with C.W.P. No.9319 of 2009 -4- written statement by the University as a person 36 years of age, while the advertisement prescribed the maximum age limit to be 35 years. Making the selection of such person was illegal, especially when I have not been shown through any power of relaxation of age or any provision relating to such relaxation in the advertisement itself. Respondent No.5 has been shown in the Sr. No.7, while the petitioner himself has been shown in Sr. No.5 in the short listed candidates of Resource Person in Urdu. The appointment of the 7th defendant in preference to the petitioner is therefore inexplicable.

4. The entire selection process is not set aside. On the other hand, the petitioner will have the relief sought for to the extent that he shall be deemed to have been appointed on the day when the appointment was granted to respondent Nos.4 to 6 with respondent No.3. 6th respondent, who is ineligible and who is over- aged has been served with notice through this Court but he has not put in appearance. The appointment of the 6th respondent is set aside and the petitioner shall be appointed in his place at Patiala. Of the period that the petitioner has not served, he will not be entitled to any wages.

5. The 3rd respondent shall have a proper policy evolved for the method of recruitment and not engage in questionable practices of periodically extending contractual employment and terminating the service of persons only to be replaced by a fresh batch of contractual appointees. The petitioner or such like persons shall retain the post so long as such posts are available and C.W.P. No.9319 of 2009 -5- they shall not be replaced yet again by contractual employment.

6. The writ petition is allowed with costs assessed at Rs.5,000/- against the respondent No.3-University. March 19, 2010 Pankaj* (K. KANNAN) JUDGE