Bombay High Court
Gargi Shaw And Anr vs The University Of Mumbai And ... on 19 December, 2017
Bench: B.R. Gavai
WP. 1647-17, 1034-17, WPL. 2442-17, CONP. 46-17.doc
VPH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION No. 1647 OF 2017
WITH
NOTICE OF MOTION (L) No. 375 OF 2017
WITH
CONTEMPT PETITION No. 46 OF 2017
Dr. Hemalatha Muthulingom, )
of Mumbai, Indian Inhabitant, )
Residing at F-1, Academic Staff )
Quarters, University of Mumbai )
Kalina, Santacruz (East), )
Mumbai 400 098 ... Petitioner /
(Applicant in NMWL. 375/2017)
Vs.
1. The University of Mumbai and )
Department of Atomic Energy )
Centre for Excellence in Basic )
Sciences, University of Mumbai, )
Kalina Campus, Santacruz (East) )
Mumbai 400 098. )
2. Union of India, )
Through the Secretary, )
Department of Atomic Energy, )
Anushakti Bhavan, C. S. M. Marg, )
Mumbai 400 001 )
3. Vice Chancellor, )
University of Mumbai, )
Fort, M. G. Road, Mumbai 400 032 )
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4. Dr. R. V. Hosur,
Director, the University of Mumbai )
and Department of Atomic Energy )
Centre for Excellence in Basic )
Sciences, University of Mumbai, )
Kalina Campus, Santacruz (East) )
Mumbai 400 098. ... Respondents
WITH
WRIT PETITION No. 1034 OF 2017
WITH
NOTICE OF MOTION (L) No. 667 OF 2017
Dr. Gargi Shaw, )
of Mumbai, Indian Inhabitant, )
Residing at 904, Bhaskara, TFIR )
Housing Complex, Homi Bhabha )
Road, Mumbai 400 005 )
AND
Departmen of Physics, UM-DAE )
Centre For Excellence in Basic )
Sciences, University of Mumbai, )
Kalina Campus, Santacruz (East), )
Mumbai 400 098 ... Petitioner
Vs.
1. The University of Mumbai and )
Department of Atomic Energy )
Centre for Excellence in Basic )
Sciences, University of Mumbai, )
Kalina Campus, Santacruz (East) )
Mumbai 400 098. )
2. Union of India, )
Through the Secretary, )
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Department of Atomic Energy, )
Anushakti Bhavan, C. S. M. Marg, )
Mumbai 400 001 )
3. Vice Chancellor, )
University of Mumbai, )
Fort, M. G. Road, Mumbai 400 032 )
4. Dr. R. V. Hosur,
Director, the University of Mumbai )
and Department of Atomic Energy )
Centre for Excellence in Basic )
Sciences, University of Mumbai, )
Kalina Campus, Santacruz (East) )
Mumbai 400 098. )
5. Prof. S. M. Chitre, )
Senior Faculty, )
The University of Mumbai and )
Department of Atomic energy Centre )
for Excellence in Basic Sciences, )
University of Mumbai )
Kalina Campus, Santacruz (East), )
Mumbai 400 098. ... Respondents
And
1. University of Mumbai & Department )
of Atomic Energy Centre for )
Excellence in basic Sciences, )
University of Mumbai, Kalina )
Campus, Santacruz (East), )
Mumbai 400 098. )
2. Dr. R. V. Hosur, Director, )
University of Mumbai & Department )
of Atomic Energy Centre for )
Excellence in basic Sciences, )
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University of Mumbai, Kalina )
Campus, Santacruz (East), )
Mumbai 400 098. ... Applicants
(in WPL. No. 667/2017)
WITH
WRIT PETITION (L) No. 2442 OF 2017
1. Dr. Gargi Shaw, )
of Mumbai, Indian Inhabitant, )
Residing at 904, Bhaskara, TFIR )
Housing Complex, Homi Bhabha )
Road, Mumbai 400 005 )
2. Dr. Hemalatha Muthulingom, )
of Mumbai, Indian Inhabitant, )
Residing at F-1, Academic Staff )
Quarters, University of Mumbai )
Kalina, Santacruz (East), )
Mumbai 400 098 ... Petitioners
Vs.
1. The University of Mumbai and )
Department of Atomic Energy )
Centre for Excellence in Basic )
Sciences, University of Mumbai, )
Kalina Campus, Santacruz (East) )
Mumbai 400 098. )
2. Union of India, )
Through the Secretary, )
Department of Atomic Energy, )
Anushakti Bhavan, C. S. M. Marg, )
Mumbai 400 001 )
3. Vice Chancellor, )
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University of Mumbai, )
Fort, M. G. Road, Mumbai 400 032 )
4. Dr. R. V. Hosur,
Director, the University of Mumbai )
and Department of Atomic Energy )
Centre for Excellence in Basic )
Sciences, University of Mumbai, )
Kalina Campus, Santacruz (East) )
Mumbai 400 098. )
5. Prof. S. M. Chitre, )
Senior Faculty, )
The University of Mumbai and )
Department of Atomic energy Centre )
for Excellence in Basic Sciences, )
University of Mumbai )
Kalina Campus, Santacruz (East), )
Mumbai 400 098. ... Respondents
***
Mr. Mihir Desai, Sr. Counsel a/w C. K. Thomas i/b M/s. C. K. Thomas
& Associates, for the Petitioners in all writ petitions.
Mr. S. S. Pakale a/w Saurabha Pakale i/b S. M. Katkar, for Respondent
No. 1 in all writ petitions.
Mr. P. M. Palshikar, for Respondent No. 2 in all writ petitions.
Mr. Rui Rodrigues, for Respondent No. 3 in all writ petitions.
***
CORAM : B. R. GAVAI, &
MANISH PITALE, JJ.
RESERVED ON : DECEMBER 8, 2017
PRONOUNCED ON : DECEMBER 19, 2017
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JUDGMENT : [PER : MANISH PITALE, J.]
1. Heard. Rule (in all petitions). Rule (in all petitions) is
made returnable forthwith. The learned counsel Mr. S. S. Pakale,
waives service of notice for Respondent No. 1 and 4; the learned
counsel Mr. P. M. Palshikar waives service of notice for Respondent
No. 2; the learned counsel Mr. Rui Rodrigues waives service of notice
for Respondent No.3, in all the writ petitions. By consent of parties,
all the petitions are taken up for final hearing.
2. The question that arises for consideration in these
petitions is, as to whether the Petitioners are entitled to be continued in
their respective posts with Respondent No. 1 till their superannuation,
having been in service since 22.1.2009, in the case of Dr. Hemalatha
Muthulingom (Petitioner in Writ Petition No. 1647 of 2017) and
1.1.2010 in the case of Dr. Gargi Shaw (Petitioner in Writ Petition No.
1034 of 2017). The main grievance of the Petitioners is that having
put in long years of service and being part of the Centre for
Excellence, which helped development of Respondent No. 1 Centre in
all these years, could the Petitioners be told that their services would
no longer continue and that they should now apply for appointment in
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the Respondent No. 1 Centre in pursuance of advertisement, inviting
applications for all the posts in the faculty of Respondent No. 1. In
other words, whether the Petitioners are entitled to the posts held by
them in the Respondent No. 1 Centre, and whether they were entitled
to continue as if they were permanent employees with Respondent
No. 1 Centre.
3. Respondent No. 1 i.e. Centre for Excellence in Basic
Sciences was established by the Department of Atomic Energy,
Government of India and the University of Mumbai for which a
Memorandum of Understanding dated 27.3.2007 was executed. A
Memorandum of Association was also executed between the said two
parties with the objective of establishing a brand institution in the field
of Basic Sciences, in which high quality undergraduate training
embodied in a Post Graduate Research environment would be created,
with strong linkages to existing National Research Institutes like
BARC, TIFR, IIT and other institutes for providing an innovative and
flexible five years integrated course after Higher Secondary
Certificate or equivalent examination.
4. A student entering such a course with Respondent No. 1
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Centre would be awarded a Masters Degree (M. Sc.) at the end of the
5th year and in addition, the Centre would provide avenues for doctoral
degrees for carrying out advanced research in Science and
Technology. The Centre was initially set up for a period of five years
and depending upon its further development and funding, it was to be
set up as a permanent Centre. The Respondent No. 2, Union of India
through Department of Atomic Energy has financed the said
Respondent No. 1 Centre while infrastructure and other facilities have
been provided by Respondent No. 3 - University of Mumbai, as per
the aforesaid Memorandum of Understanding.
5. There are three writ petitions and one contempt petition
and two notices of motion that are being disposed by this common
judgment.
. The facts pertaining to the case of two Petitioners are as
follows:
6. The Petitioner in Writ Petition No. 1647 of 2017 ( Dr.
Hemalatha Muthulingom) holds a Ph.D. in Physics and she claims to
have applied to the Respondent No. 1 Centre in pursuance of an
advertisement on the website of Respondent No. 1. There are two
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advertisements placed on record, claimed to have been available on
the website of Respondent No. 1, in the year 2008-2009. One of the
advertisements shows availability of the posts of Assistant Professor
and Research Associate and other posts, prescribing required
qualifications while the other shows the said posts in the Respondent
No. 1 Centre available for the specific periods of five years and three
years. The said Petitioner claims to have applied for appointment in
Respondent No. 1 - Centre in pursuance of the first advertisement
wherein specific tenure for the posts was not provided. The said
Petitioner claims that upon her application, she was interviewed by the
Selection Committee comprising of the then Director and Chairman of
the academic Board of Respondent No. 1 and that upon successively
qualifying the interview, by letter dated 22.1.2009 she was invited to
join Respondent No. 1 Centre as Research Associate for a period of
two years in the first instance. Thereafter, on 3.5.2010 her designation
was changed to that of a lecturer on the same terms and conditions,
and further, by a letter dated 22.6.2010, she was given designation of
Assistant Professor with the terms and conditions remaining
unchanged. It is further placed on record by the said Petitioner that by
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letters dated 11.1.2011 her appointment was extended upto 31.3.2012
and thereafter on 23.3.2012 it was extended for one more year till
31.3.2013. Such extensions were regularly granted to the said
Petitioner for a period of one year till 31.12.2015.
7. After the said extension, Respondent Nos. 1 and 4
conducted a evaluation / review of the services of all the teaching staff
of the Centre, including the Petitioner. But, pursuant to the said
exercise of evaluation, the services of all the teaching staff other than
the said Petitioner and the Petitioner in Writ Petition No. 1034 of 2017
- Dr. Gargi Shaw, were extended for three years, while the services of
the said Petitioners were extended only for one year w.e.f 1.1.2016. It
is the case of the said Petitioners that other members of the teaching
staff were junior to them and they were granted extensions for three
years while depriving the Petitioners of the said benefit.
8. The said Petitioner further contends that during the period
of her service, she had helped to develop Respondent No. 1 Centre
into an Institute of Excellence by teaching students and undertaking
research activities, apart from the administrative duties including that
of being warden of the hostel. The said Petitioner claims that having
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put in about 8 years of service in developing Respondent No. 1 as a
Centre of Excellence, it was most unfair and arbitrary on the part of
Respondent Nos. 1 and 4 to have extended her service only for a
period of one year and that she deserved to be continued in service as
a permanent employee. The Respondent No. 1 was getting rid of the
Petitioner after having utilised her services for all these years and that
the said action of Respondent Nos. 1 and 4 was wholly unsustainable.
9. The Petitioner Dr. Hemalatha Muthulingom had earlier
filed Writ Petition No. 13699 of 2016, against the communication
dated 19.10.2016, whereby Respondent No. 4 informed her that her
tenure would expire on 31.12.2016. The said writ petition was
disposed by this Court on 20.12.2016 with liberty to the said Petitioner
to approach the Grievance Committee constituted under Clause 9 of
the Regulations of the Respondent No. 1 Centre. The Grievance
Committee was directed to give opportunity of hearing to the
Petitioner and to decide her representation on or before 30.12.2016.
On 29.12.2016, Respondent No. 4 informed the Petitioner that the
Grievance Committee found her grievance to be misconceived as the
review process was elaborate and objective and that there was no
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evidence of any bias. It is thereafter that the said Petitioner has filed
aforesaid Writ Petition No. 1647 of 2017, not only against the findings
of the Grievance Committee, but also seeking relief of continuity in
service with Respondent No. 1 till her superannuation.
10. During pendency of the writ petition, filed by the
Petitioner claiming relief of direction to the Respondents to continue
her in service till superannuation, Respondent No. 1 issued an
advertisement for making appointment on the posts of teaching staff,
including the post held by the Petitioner. This action of Respondent
No. 1 was also challenged by the Petitioner as being an afterthought,
only with a view to deny her claim of continuation in service till her
superannuation.
11. The facts pertaining to the case of - Dr. Gargi Shaw (Writ
Petition No. 1034 2017) are also similar to those stated by the
Petitioner Dr. Hemalatha Muthulingom. It is the case of the Petitioner
Dr. Gargi Shaw that she was appointed by Respondent No. 1 Centre,
initially, as an Assistant Professor for two years and thereafter as
Reader. She was continued on the said post with extensions every year
and she was also granted extension only for one year w.e.f. 1.1.2016,
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while her juniors were granted extension of three years in service. She
has also claimed the relief of direction to the Respondent No. 1 to
continue her in service till her superannuation.
12. Writ Petition (L) No. 2442 of 2017 has been filed
together by both the Petitioners viz. Dr. Hemalatha Muthulingom and
Dr. Gargi Shaw to challenge advertisement dated 26.8.2017 that was
published by Respondent No. 1 during pendency of the earlier writ
petitions, inviting applications for appointments in the posts of
teaching staff, including the posts held by the Petitioners. This Court
had passed an order dated 14.6.2017 in Writ Petition No. 1034 of
2017, directing the Respondents not to take any further steps for
filling the posts, which were occupied by the Petitioners until further
orders. On 22.9.2017 this Court continued the said interim order in
writ petition filed by the Petitioners challenging the said
advertisement. Despite the said interim order, the Respondents issued
advertisement for filling the posts, that were occupied by the
Petitioners and by order dated 4.10.2017 passed in Writ Petition (L)
No. 2442 of 2017, this Court was constrained to observe that such
advertisement was in breach of the said interim order of this Court
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further directing that no steps should be taken by Respondent No. 1
for filling the posts occupied by the Petitioners. Thereafter, on
12.10.2017 the counsel appearing for the Respondents stated that
Respondent No. 1 would not take any steps in furtherance of the
advertisement for filling of the posts, which were occupied by the
Petitioners, and therefore, even today the said posts are lying vacant.
13. Mr. Mihir Desai, learned senior counsel appearing on
behalf of the Petitioners has contended that since the Petitioners were
appointed in 2007 and 2010 in pursuance of advertisements and
interviews, and when they had been continued in service with
Respondent No. 1 Centre for long years upto 2016, it was evident that
their status was that of permanent employees and that they deserve to
continue in service with Respondent No. 1 till their superannuation. It
was contended on behalf of the Petitioners that they had put in vital
years of service, helping to build the reputation of the Respondent
No. 1 Centre for Excellence and that they could not be suddenly told
after long years of service that they would not be continued further
and that they would now have to participate in a new selection process
for being appointed as regular employees. It was contended that the
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Petitioners, being highly qualified in their respective fields, did not
deserve such treatment at the hands of Respondent No. 1 and that they
were entitled to be treated as permanent employees.
14. It was further submitted on behalf of the Petitioners that
the appointment in Respondent No. 1 Centre was of permanent nature
and that in some communications it was stated that the Petitioners
were regular employees. It was further submitted that the reports of
Referees in evaluation / review, conducted in the year 2015, were
biased and that the Evaluation / Review Committee could not have
been constituted, as Regulation 15 was misconstrued by the
Respondents. In the case of Petitioner Dr. Hemalatha Muthulingom, it
was additionally submitted that she had been selected as UGC faculty
under the Faculty Recharge Programme, as communicated to her on
6.3.2016 and that she could be absorbed and continued in Respondent
No. 1 Centre since the UGC would bear the financial burden of her
emoluments till her superannuation. In support of the said
submissions, the learned senior counsel relied on the following
judgments:
(i) Sachin Ambadas Dawale & Ors, Petitioners Vs. The
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State of Maharashtra & Anr.1;
(ii) Nihal Singh & Ors., Appellants Vs. State of Punjab &
Ors., Respondents2.
15. On the other hand, Mr. S. S. Pakale, learned counsel
appearing for Respondent No. 1 and 4 submitted that Respondent No.
1 Centre for Excellence was itself established initially for a period of
five years and that its continuation as a regular institution with
funding was to be crystalised with passage of time. Since the institute
itself was yet to be established as a permanent entity, the appointment
of the Petitioners could never have been on permanent posts. It was
further contended that the initial appointment of the Petitioners and
subsequent extensions were all for specific periods of time, which
demonstrated that such appointments were contractual and that they
were not permanent in nature. It was specifically contended that the
Petitioners were never appointed by any process of regular selection
and that the claim of the Petitioners that they were interviewed, was
not correct. It was contended that initial appointments of the
Petitioners were on the basis of recommendations from experts in the
1 2014 (2) Mh. L. J. 36.
2 (2013) 14 SCC 65.
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respective fields and that there were no applications invited from
competing claimants when the Petitioners were appointed. It was
claimed that when the appointments were not regular in nature, the
Petitioners were not justified in claiming relief of permanency in
service. In support of the said contentions, reliance was placed on the
judgment in the case of Secretary, State of Karnataka & Ors.,
Appellants Vs. Umadevi (3) & Ors., Respondents3.
16. It was further submitted on behalf of Respondent No. 1
that in the representation filed by Dr. Hemalatha Muthulingom, the
prayer was for grant of extension of three years on par with others or
till regular appointments were made, upon finalisation of Rules. Thus,
according to the counsel for Respondent No. 1, the Petitioners
themselves were aware that their employment was contractual in
nature and that regular appointments would be made in future. It was
submitted that the word "regular" used in the context of service of the
Petitioners in some communications, was used in contradistinction to
visiting faculty. It was further submitted that approval for registration
of Respondent No. 1 Centre as a Society was granted by the
3 (2006) 4 Supreme Court Cases 1
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Management Council of Respondent No. 3 University in the year
2013, so as to give legal status to the Centre to receive money from
the department of Atomic Energy in perpetuity. It was only in
December, 2015 that the Union Cabinet granted approval to the same,
further granting approval in principle to 13 posts i.e. one Director and
12 teaching faculty. Eventually, on 31.5.2017 Respondent No. 1
Centre was registered as a Society under the Societies Registration
Act, 1860. It was further contended that only thereafter Respondent
No. 1 Centre issued advertisement in August, 2017 for filling of the
aforesaid posts, approved by the Union Cabinet.
17. On this basis, it was submitted that the appointment of
the Petitioners and other teaching staff in Respondent No. 1 Centre
was contractual in nature. In respect of allegations of the Petitioners
that the reports of the Referees were biased, it was submitted on behalf
of Respondent No. 1 that as per law laid down by the Hon'ble
Supreme Court, the Court cannot enter in the arena of experts and that
only the process of decision making could be judicially reviewed. The
learned counsel has relied upon following judgments, in support of his
contentions:
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(i) Director, Panchayat Raj, U P Vs. Babu Singh Gaur4;
(ii) Director, Institute of Management Development, U.P.
Vs. Pushpa Srivastava5;
(iii) Shobha M. Bhave (Dr.) & Ors., Petitioners Vs. State of
Maharashtra & Anr., Respondents6
(iv) Basavaiah (Dr.), Appellant Vs. Dr. H. L. Ramesh &
Ors., Respondents7
18. We have heard the learned counsel appearing for the
respective parties, and having perused the pleadings and documents on
record, we find that the issues that need to be decided in the present
petitions are as to what was the nature of appointment of the
Petitioners, and whether the Petitioners were justified in claiming
permanency in service, further being entitled to be continued in
service with Respondent No. 1 till their superannuation.
19. In order to decide the said issues, it would be necessary to
refer to the law laid down by the Hon'ble Supreme Court in respect of
the nature of employment that could qualify for holding that the
employees were entitled for status of permanent employees with
4 1972(1) SCC 227
5 1992 (4) SCC 33
6 2004 (1)Mh.L.J. 97
7 (2010) 8 SCC 372
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consequential benefits. In the context of large number of temporary
appointments being made in Government Departments and
instrumentalities of the State, and the question of the status of such
employees, the Hon'ble Supreme Court has held in the case of
Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors. (supra) as
follows:
"43. Thus, it is clear that adherence to the rule of equality
in public employment is a basic feature of our Constitution
and since the rule of law is the core of our Constitution, a
Court would certainly be disabled from passing an order
upholding a violation of Article 14 or in ordering the
overlooking of the need to comply with the requirements of
Article 14 read with Article 16 of the Constitution.
Therefore, consistent with the scheme for public
employment, this Court while laying down the law, has
necessarily to hold that unless the appointment is in terms of
the relevant rules and after a proper competition among
qualified persons, the same would not confer any right on
the appointee. If it is a contractual appointment, the
appointment comes to an end at the end of the contract, if it
were an engagement or appointment on daily wages or
casual basis, the same would come to an end when it is
discontinued. Similarly, a temporary employee could not
claim to be made permanent on the expiry of his term of
appointment. It has also to be clarified that 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
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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. The High Courts acting under Article 226 of the
Constitution, should not ordinarily issue directions for
absorption, regularization, or permanent continuance unless
the recruitment itself was made regularly and in terms of the
constitutional scheme. Merely because, an employee had
continued under cover of an order of the Court, which we
have described as 'litigious employment' in the earlier part of
the judgment, he would not be entitled to any right to be
absorbed or made permanent in the service. In fact, in such
cases, the High Court may not be justified in issuing interim
directions, since, after all, if ultimately the employee
approaching it is found entitled to relief, it may be possible
for it to mould the relief in such a manner that ultimately no
prejudice will be caused to him, whereas an interim direction
to continue his employment would hold up the regular
procedure for selection or impose on the State the burden of
paying an employee who is really not required. The courts
must be careful in ensuring that they do not interfere unduly
with the economic arrangement of its affairs by the State or
its instrumentalities or lend themselves the instruments to
facilitate the bypassing of the constitutional and statutory
mandates.
20. It has been further held by the Hon'ble Supreme Court in
the context of contractual appointments in the case of GRIDCO
Limited & Anr., Appellants Vs. Sadananda Doloi & Ors., Respondents 8
as follows:
8 (2011) 15 SCC 16
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"13. Having said that, let us now see the background in
which the appointment was made in the present case. As seen
above, the selection process culminating in the appointment
of the respondent started with the publication of an
advertisement to fill up two vacancies of human resource
professionals at senior management level. The
advertisement, it is common ground, did not indicate the
nature of appointment (whether regular or contractual) that
may be offered to the selected candidates. The absence of
any such indication in the advertisement notice did not, in
our opinion, make any material difference having regard to
the fact that the offer of appointment made to respondent
No.1 in terms of appellant-Corporation's letter dated 8th
January, 1997, specifically described the appointment to be a
tenure appointment."
...
"39. A writ court is entitled to judicially review the action
and determine whether there was any illegality, perversity,
unreasonableness, unfairness or irrationality that would
vitiate the action, no matter the action is in the realm of
contract. Having said that we must add that judicial review
cannot extend to the Court acting as an appellate authority
sitting in judgment over the decision. The Court cannot sit in
the arm chair of the Administrator to decide whether a more
reasonable decision or course of action could have been
taken in the circumstances. So long as the action taken by the
authority is not shown to be vitiated by the infirmities
referred to above and so long as the action is not
demonstrably in outrageous defiance of logic, the writ Court
would do well to respect the decision under challenge.
40. Applying the above principles to the case at hand, we
have no hesitation in saying that there is no material to show
that there is any unreasonableness, unfairness, perversity or
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irrationality in the action taken by the Corporation. The
Regulations governing the service conditions of the
employees of the Corporation, make it clear that officers in
the category above E-9 had to be appointed only on
contractual basis.
41. It is also evident that the renewal of the contract of
employment depended upon the perception of the
management as to the usefulness of the respondent and the
need for an incumbent in the position held by him. Both
these aspects rested entirely in the discretion of the
Corporation. The respondent was in the service of another
employer before he chose to accept a contractual
employment offered to him by the Corporation which was
limited in tenure and terminable by three months' notice on
either side. In that view, therefore, there was no element of
any unfair treatment or unequal bargaining power between
the appellant and the respondent to call for an over-
sympathetic or protective approach towards the latter.
42. We need to remind ourselves that in the modern
commercial world, executives are engaged on account of
their expertise in a particular field and those who are so
employed are free to leave or be asked to leave by the
employer. Contractual appointments work only if the same
are mutually beneficial to both the contracting parties and
not otherwise."
21. Thus, it is evident that the law laid down by the Hon'ble
Supreme Court clearly states that unless an appointment is made after
proper competition among qualified persons, the same would not
confer any right on the appointee as a permanent employee and further
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that if it is a contractual appointment, the appointment comes to an
end at the end of the contract. Only because such contractual
appointment is continued for further fixed period on same terms and
conditions, it does not result in such appointment becoming a regular
appointment on permanent vacancy.
22. The facts of the present case and the documents on record
do not show that the initial appointments of the Petitioners were made
upon proper competition amongst qualified persons. The
advertisement relied upon by the Petitioners is said to have been a
rolling advertisement on the website of Respondent No. 1. One of
such advertisements shows the faculty positions without specific
tenure and other advertisement shows the same faculty positions with
specific tenure of appointments. Both these advertisements do not
carry any date and they are said to have been available on the website
of Respondent No. 1 Centre in the year 2008-2009. There is no
material to show as to whether any advertisements with wide publicity
were issued during this period by Respondent No. 1 Centre, and
whether persons qualified, like the Petitioners, were put to notice
regarding availability of such faculty posts. There is no material on
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record to show that there were other applicants for the posts, on which
the Petitioners were appointed and that there had been any selection
committee, which conducted interviews so as to evaluate the inter se
merit of applicants to the said posts. There are no proceedings
regarding any selection process leading to the appointment of the
Petitioners.
23. Apart from this, the initial appointment orders of the
Petitioners are specifically for a period of two years. The subsequent
extensions granted to the Petitioners are also for specific periods. The
evaluation / review conducted in the years 2013 and 2015 were also
for the purpose of ascertaining as to which of the teaching staff could
be granted further extensions and for what period. It is on record that
two members of the teaching staff were not even offered extensions
pursuant to such evaluation / review conducted in the year 2015. The
Petitioners were granted extensions for periods of one year, while the
other teaching staff were granted extensions for a period of only three
years.
24. Thus, the initial appointment order as well as subsequent
extensions were for specific periods and the Petitioners as well as all
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other teaching staff were clearly aware that such appointments would
continue only for a specified periods. In the communications on
record issued by Respondent No. 4, it has been stated that Respondent
No. 1 Centre itself was initially established on an experimental basis
for a period of five years and it was on a project mode, and that it
would continue, subject to the Department of Atomic Energy and
University of Mumbai continuing with the Memorandum of
Understanding and the Memorandum of Association executed for
establishment of the Respondent No. 1 Centre. It was only when the
Management Council of the Respondent - University of Mumbai
accorded approval in the year 2013 for Respondent No. 1 Centre to be
registered as a Society and the Union Cabinet granted approval for the
same in December, 2015, that the status of the Respondent No. 1
Centre moved towards being enhanced as a permanent centre of
learning. Respondent No. 1 Centre was eventually registered as a
Society under the Societies Registration Act, 1860 on 31.5.2017 and
approval was granted for 13 posts i.e. one Director and 12 teaching
staff. Thus, it is clear that all appointments made prior to such
enhancement of status of Respondent No. 1, were contractual in
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nature. All the teaching staff, including the Petitioners, were
appointed on contractual basis for specific periods and not a single
person was appointed on permanent vacancy, since no such permanent
vacancy existed. It is brought on record on behalf of Respondent Nos.
1 and 4 that even the Director of Respondent No. 1 - Centre was on
deputation.
25. It is evident from the record that the initial grievance of
the Petitioners was that they were granted extensions only for a period
of one year w.e.f. 1.1.2016, while other teaching staff were granted
extensions of three years, although they were appointed after the
Petitioners and that they were junior in service. In fact, the grievance
raised by the Petitioner Dr. Hemalatha Muthulingom before the
Grievance Committee was for grant of extension for a period of three
years, instead of one year or till regular appointments were made upon
finalisation of Service Rules. Thus, the Petitioners were also clearly
aware that their appointments and continuation for specific periods
with Respondent No. 1 Centre were contractual in nature.
26. As regards allegations of the Petitioners that reports of
the Referees in the evaluation / review conducted in the year 2015
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were biased, we had requested the counsel for Respondent No. 1 to
make available the original record in respect of proceedings of the
evaluation / review committee, not only for the year 2015, but also for
the year 2013. We found that the procedure adopted by the evaluation /
review committee could not be faulted. We could not have gone into
merits of the findings of the evaluation / review committee as the
same is in the arena of experts, which cannot be judicially reviewed.
In this regard, the learned counsel for Respondent No. 1 is correct in
relying upon the judgment of the Hon'ble Supreme Court in the case
of Basavaiah (Dr.), Appellant Vs. Dr. H. L. Ramesh & Ors.,
Respondents (supra) wherein it has been reiterated that in academic
matters, in the decisions of committee of experts, it is not the function
of the Court to hear appeals over their decisions or to scrutinise
relative merits of candidates. Therefore, the contentions raised on
behalf of the Petitioners regarding defects, errors and bias in the
reports of the Referees are unsustainable.
27. Even otherwise, the members of the teaching staff, who
have been granted extension of three years, are also required to face
the process of regular selection pursuant to advertisements issued by
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Respondent No. 1 Centre in August, 2017 for appointment in various
posts. It is not as if the members granted a better rating by the
evaluation / review committee, have been exempted from the process
of regular selection or that they have been continued as regular
employees. The only difference between the Petitioners and the other
teaching staff is that the Petitioners were lastly granted contractual
extension in their posts for one year, while the others were granted
such contractual extensions for a period of three years. The nature of
appointment of all employees with the Respondent No. 1 Centre was
clearly contractual in nature and they would all cease to hold their
respective posts on expiry of such periods of contractual employment.
28. Therefore, it would be evident that the reliance placed by
the learned senior counsel appearing for the Petitioners on
aforementioned judgments does not take the case of the Petitioners
any further. The reliance placed on the judgment of a Division Bench
of this Court in the case of Sachin Ambadas Dawale Vs. The State of
Maharashtra & Anr. (supra) is misplaced because in that case
appointments were made in the posts of lecturer in Government
Polytechnics pursuant to proper selection process by interviews
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conducted by the Selection Committee, consisting of five members
including subject experts, on the basis of applications invited by
notification. It was found in that case by the Court that the
appointments were made on permanent and full time posts, which
were sanctioned posts. It was also found that advertisement had been
issued whereby all interested candidates had proper opportunity to
apply and take part in the selection process. In the facts of that case, it
was held by the Division Bench of this Court that the Petitioners
deserved relief.
29. In the instant case, as we have noted above, there is no
material on record to show that the posts on which the Petitioners
were appointed were widely advertised giving opportunity to qualified
persons to apply and to compete for selection. There is nothing to
show that selection committee conducted interviews to select the
Petitioners on merits. It is also evident that the posts on which the
Petitioners were appointed could not be categorised as sanctioned
posts that could be said to be permanent or full time posts. When
Respondent No. 1 Centre itself at the relevant time had been set up on
an experimental basis in a project mode, subject to extension as would
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be agreed between the Department of Atomic Energy and the
Respondent - University of Mumbai, it could not be said that the posts
on which the Petitioners were appointed were permanent or sanctioned
in nature.
30. The process of Respondent No. 1 Centre attaining legal
status for receiving finance from the Department of Atomic Energy in
perpetuity took shape in the year 2013 and December 2015, as also
May 2017 when the Centre was registered as a Society, and the Union
Cabinet granted approval to 13 posts, including that of the Director. It
is only after such legal status has been achieved by Respondent No. 1
Centre that the question of appointment on regular sanctioned posts
has arisen. The process has been undertaken by Respondent No. 1
Centre by issuing advertisements in August, 2017 inviting applications
for appointment in 13 sanctioned posts. Since all the members of the
teaching staff, who hitherto were working with Respondent No. 1
Centre, are required to apply for regular appointment to the sanctioned
posts, it cannot be said that the Petitioners have been discriminated
against or that their claim for being continued in service with
Respondent No. 1 till their superannuation is justified.
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31. The learned senior counsel appearing for the Petitioners
has also relied upon judgment of the Hon'ble Supreme Court in the
case of Nihal Singh & Ors. Vs. State of Punjab & Ors. (supra) to
claim that it was for the Respondents to create sanctioned posts and to
absorb the Petitioners therein, having taken work from them for a long
period of time. But it is clearly stated in para 24 of the said judgment
that the initial appointments of the appellants therein could never be
categorised as irregular appointments and that such appointments were
made in accordance with the statutory procedure, contemplated under
the relevant statute. This is a distinguishing feature in the said case
because in the instant case, the initial appointments of the Petitioners
and extensions given thereafter cannot be said to be regular and such
appointments and extensions were contractual appointments for
specified periods, on terms and conditions stated in such orders of
appointments and extension. Thus, the ratio of the said judgment does
not enure to the benefit to the Petitioners herein.
32. Mr. Pakale, the learned counsel appearing for Respondent
No. 1 and 4 has relied on various judgments, mentioned hereinabove,
in support of his contention that the posts on which the Petitioners
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were appointed were not permanent posts and that initial appointments
and subsequent extensions were not through open competition. As we
have already concluded in favour of the Respondents in this regard,
we do not think that it is necessary to discuss the said judgments in
detail.
33. The aforesaid discussion leads to a clear conclusion that
the appointments and subsequent extensions granted to the Petitioners
were purely contractual in nature. They were not appointed against
any regular, permanent or sanctioned posts, because till December
2015, the very status of Respondent No. 1 Centre was not established
as a permanent institution. It is only after Respondent No. 1 Centre
has been registered as a Society in May, 2017 that steps for making
regular appointments on the 13 posts have been undertaken by
Respondent No. 1. All the members of the teaching staff appointed
before this exercise of issuance of advertisements in August, 2017,
including the Petitioners, were appointed only on contractual basis.
The appointments were made on recommendations and not through a
proper process of widely published advertisements, followed by
interview, by a properly constituted selection committee. All the
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members of the teaching staff are now required to apply and face
open competition alongwith other applicants, who have responded
pursuant to advertisements published in August, 2017. We find that
the Petitioners have not been able to make out a case of any vested
right in the posts that were held by them and alongwith other members
of the teaching staff, they could also take part in the regular selection
process initiated by Respondent No. 1 in pursuance of aforesaid
advertisements issued in August, 2017. We do not find that the
Petitioners are entitled to the reliefs claimed in Writ Petition Nos.
1647 of 2017 and 1034 of 2017.
34. We had enquired with the counsel for Respondent No. 1
that if the Petitioners wish to apply in pursuance of the advertisements
issued in August, 2017, whether Respondent No. 1 would extend the
period for submission of applications. The counsel for Respondent No.
1 and 4 stated that the period could be extended for the Petitioners to
submit their applications and to participate in the regular selection
process, but the learned senior counsel appearing on behalf of the
Petitioners, on instructions from the Petitioners present in the Court,
stated that the Petitioners are not interested in applying in pursuance to
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the said advertisements for posts in Respondent No. 1 Centre.
35. As regards the submissions made on behalf of the
Petitioner Dr. Hemalatha Muthulingom regarding selection as UGC
faculty under the Faculty Recharge Programme, to claim continuity in
service with Respondent No. 1 Centre, we find that upon being
selected under the said Programme, the said Petitioner can be
appointed in any one of the seven universities, which she has indicated
in her preference list under the Programme. The said Petitioner has
given her first preference as University of Mumbai and thereafter
listed other universities. But only on the basis of selection under the
said Programme, the said Petitioner cannot claim any vested right for
continuity in service with Respondent No. 1 Centre. She could
participate in the process of regular selection initiated by Respondent
No. 1 Centre even in future.
36. As far as Writ Petition (L) No. 2442 of 2017 is
concerned, the subject matter of challenge are the aforesaid
advertisements. Since we are not inclined to hold in favour of the
Petitioners on their main prayer of continuation of service with
Respondent No. 1 till their superannuation, we do not find any
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substance in the challenge raised against the said advertisements.
Accordingly, Writ Petition (L) No. 2442 of 2017 deserves to be
dismissed.
37. The Petitioner Dr. Hemalatha Muthulingom had filed
Contempt Petition No. 46 of 2017 against the Respondents on the
ground that of tampering and fabrication in the copies of Review
Committee reports placed on record by Respondent No. 1 and its
failure to produce original reports. We find that the Respondents had
submitted copies of the Review Committee reports and they had
submitted unsigned copies of the same to maintain confidentiality
regarding names of the members of the Committee. In any case, the
Respondents produced the entire original records of the Review
Committee reports and the reports of the Referees for the perusal of
this Court. Therefore, we do not find any reason to entertain the
contempt petition as the entire record and full information was placed
before this Court during the course of hearing. Accordingly, we do not
find any substance in the said contempt petition.
38. In the light of the above, since we have held that the
Petitioners have failed to make out their case on merits in Writ
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Petition Nos. 1647 of 2017 and 1034 of 2017, the said petitions are
dismissed. We also do not find any substance in the challenge to the
aforesaid advertisements raised by the Petitioners in Writ Petition (L)
No. 2442 of 2017, and accordingly it is dismissed. The Contempt
Petition No. 46 of 2017 also stands dismissed. Needless to state that
the interim order, granting protection to the Petitioners by an order
dated 4.10.2017, shall stand vacated. Rule is discharged in all the
petitions, with no order as to costs.
39. In view of disposal of Writ Petition Nos. 1647 of 2017
and 1034 of 2017, Notice of Motion (L) Nos. 375 of 2017 and 667 of
2017 filed in the respective petitions do not survive, and are
accordingly disposed of.
Sd/- Sd/-
[MANISH PITALE, J.] [B. R. GAVAI, J.]
Vinayak Halemath
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