Chattisgarh High Court

Pramod Kumar Kurmi vs State Of Chhattisgarh on 24 June, 2022

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                                                                             NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR
                   Writ Petition (Service) No. 4219 of 2022
     •    Pramod Kumar Kurmi S/o Dadu Lal Aged About 43 Years
          Working As Guest Faculty (Mathematics) At Govt. Naveen
          College, Saragaon, District Janjgir-Champa (C.G.)
                                                                   ---- Petitioner
                                       Versus
     1. State Of Chhattisgarh Through The Secretary, Department Of
        Higher Education, Mantralaya, Mahanadi Bhawan, Atal Nagar
        Naya Raipur District Raipur (C.G.)
     2. Additional Director Directorate Of Higher Education Department,
        Atal Nagar, Naya Raipur, District Raipur (C.G.)
     3. Principal Govt. Naveen College, Saragaon, District Janjgir-
        Champa (C.G.)
                                                                ---- Respondent

For Petitioner : Mr. Govind Prasad Dewangan, Advocate.

For State : Mr. Kunal Das, Panel Lawyer.

S.B.:-Hon'ble Shri Justice Rajendra Chandra Singh Samant

Order On Board

24/06/2022

1. Heard on default.

2. The default pointed out by the Registry in is ignored.

3. Also heard on petition.

4. This petition has been filed praying for relief to allow the petitioner to

perform the duty as Guest Lecturer in an educational institution until

the selection of regular lecturer/teacher.

5. It is submitted by the learned counsel appearing on behalf of the

petitioner, that the petitioner has given services as Guest Faculty

Lecturer in various places, since past years. Before his appointment

as Guest Faculty Lecturer, the petitioner had cleared the selection

process for such appointment. It is submitted that term of the

appointment of the petitioner as Guest Lecturer has expired in April,

2022 and the petitioner has apprehension that the respondent

authorities shall initiate process for appointment of fresh Guest

Lecturers in place of the petitioner. It is submitted that in case of

Meeta Dewangan Vs. State of C.G. & Ors, in W.P.(S) No. 1764

of 2022, decided on 15.03.2022, the similar question was involved,

which has been decided in favour of the petitioner. Further the

Supreme Court has held in case of State of Haryana Vs. Piara

Singh and Ors., reported in (1992) 4 SCC 118, that an adhoc or

temporary employee should not be replaced by another adhoc or

temporary employee, he must be replaced only by a regularly

selected employee. The case of the petitioner is same. Hence, it is

prayed that appropriate direction be issued to the respondent

authorities to accommodate the petitioner as Guest Lecturer in the

educational institutions, until the regular appointment is made.

6. Learned State counsel appearing on behalf of the respondents

opposes the petition and the submissions made in this respect. It is

submitted that the petitioner has filed this petition only on the basis

of apprehension that he may be replaced by another newly

appointed Guest Lecturer, therefore, no cause of action has arisen

till date. The petition filed is premature and is fit to be rejected.

Relying on the order of the Coordinate Bench of this Court in W.P.

(S) No. 6144 of 2021 between Roopa Devi Kurrey & Ors. Vs.

State of C.G. & Anr. decided on 12.11.2021, it is submitted that

the learned Single Judge has very clearly held that in the similar

case, that no cause of action has arisen for filing the petition and

further the learned Single Bench has referred the matter to be

placed before larger Bench by framing question, as to whether in

absence of cause of action, the petition as framed and instituted

seeking the relief in the nature of issuance of writ of mandamus

under Article 226 of the Constitution of India could be held to be

sustainable? It is submitted that until this question is decided by the

larger Bench, the present petition is not fit to be considered. Hence,

this petition may be dismissed.

7. In reply, it is submitted by the learned counsel for the petitioner that

in similar cases, several orders have been passed by the

Coordinate Bench by this Court, subsequent to the passing of the

order dated 12.11.2021 in W.P.(S) No. 6144 of 2021. Reference is

made to the order passed in W.P.(S) No. 2710 of 2022 and bunch of

other cases, on 21.04.2022, in W.P.(S) No. 3390 of 2022, passed

on 10.05.2022 and in W.P.(S) No.3442 of 2022, passed on

11.05.2022. It is submitted that similar objection was raised by the

respondents side, before the Coordinate Bench of this Court despite

that these orders have been passed and appropriate directions

have been issued.

8. It is further submitted that in recent development the State

Government has issued an order dated 12.10.2021, directing the

Commissioner, Directorate of Higher Education, that Guest Lecturer

regarding whom there is direction of the High Court, the same

should be followed and as there is direction with respect to the

Guest Lecturers, which are being followed and complied with by the

State. Similar direction is required for present petitioner also.

Hence, it is submitted that present petition may also be disposed off

in the same line.

9. I have heard the learned counsel for the parties and perused the

documents placed on record.

10. In case of Roopa Devi Kurre (Supra), the learned Single Bench

has although held that no cause of action was present in that case

on the basis of the facts present in that case, however, the question

has been framed by the Single Bench that as to whether the

petitioner under Article 226 can be entertained despite absence of

cause of action or not.

11. In case of Aadi Saiva Sivachariyargal Nala Sangam & Ors. Vs.

State of Tamil Naidu, reported in AIR 2016 209, it was held by

the Supreme Court in para-10, which is as follows :-

"10. It is difficult for us to accept the contentions advanced on behalf of the respondents with regard to the maintainability of writ petition on two counts. Firstly, it is difficult to appreciate as to why the petitioner should be non-suited at the threshold merely because the G.O. dated 23.05.2006 has not been given effect to by actual orders of the State Government. The institution of a writ proceeding need not await actual prejudice and adverse effect and

consequence. An apprehension of such harm, if the same is well founded, can furnish a cause of action for moving the Court. The argument that the present writ petition is founded on a cause relating to appointment in a public office and hence not entertainable as a public interest litigation would be too simplistic a solution to adopt to answer the issues that have been highlighted which concerns the religious faith and practice of a large number of citizens of the country and raises claims of century old traditions and usage having the force of law. The above is the second ground, namely, the gravity of the issues that arise, that impel us to make an attempt to answer the issues raised and arising in the writ petition for determination on the merits thereof."

12. In view of the observations of Supreme Court in case of Adi Saiva

Sivachariyargal Nala Sangam (Supra), this Court is of the view

that such technical objection should not come on the way when

there is question of right involved to be considered upon.

13. In W.P.(S) No. 2710 of 2022, W.P.(S) No. 3442 of 2022, W.P.(S) No.

3390 of 2022, the Coordinate Bench has placed reliance on the

judgment of this Court in case of Manju Gupta & Ors. Vs. State

of C.G. W.P.(S) No. 4406 of 2016, decided on 27.02.2017. In

paragraph 8 to 11 of the judgment of Manju Gupta's case, it has

been held as under :-

"8.True it is, that the petitioner' status is that of a Guest Lecturer but that does not mean that they do not have any right. There is always a legitimate expectation of the petitioner that since the filling up of the posts has not been initiated by way of a regular

appointment or by contractual appointments, the petitioner would be permitted to continue.

9. The undisputed fact is that the petitioner were given appointment only on undertaking given by them pursuant to an advertisement by the Respondents. In the undertaking which was made to be furnished by the petitioner, they were made to undertake that their appointment would be till the posts are filled up by regular/contractual appointment. This by itself clearly gives an indication that unless the Respondents fill up the sanctioned vacant posts by either regular recruitment or by way of contractual appointment, the petitioner would continue as Guest Lecturers. On the practical aspect also the fact that the petitioner are discharging the duties of Guest Lecturers for last more than 1-2 years, itself is a good ground for permitting the petitioner to continue on the said posts as Guest Lecturers, simply for the reason of their experience on the said post, as fresh recruitment would mean that persons with no or less experience would be participating in the recruitment process, which also would not be in the interest of the students who are undertaking training in the respective institutions.

10. Taking into consideration the decision of the Supreme Court in the case of Piara Singh (supra) and which has been further reiterated in the case of Dr. Chanchal Goyal (supra), this Court has no hesitation in reaching to the conclusion that the advertisement (Annexure P-1) so issued by the Respondents is definitely not in the interest of the students undertaking training at Industrial Training Institute, Ambikapur, and the same would amount to

violation of Article 21 of the Constitution of India and the same therefore deserves to be and is accordingly quashed. The advertisement would be deemed to be quashed only to the extent of the recruitment against the posts at which the petitioner are discharging. That is to say, the Respondents would be entitled to fill up the posts which are lying vacant by way of Guest Lecturers where there are no Guest Lecturers available.

11. It is directed that the Respondents would not be entitled for filling up the posts of Guest Lecturer by replacing the petitioner unless the Respondents come up with a stand that the services of the petitioner were dissatisfactory. The qaushment of the advertisement issued by the Respondents would also not come in the way of the Respondents for filling up of the sanctioned vacant posts by regular recruitment or by way of contractual appointment for which the Respondents shall be free."

14. The judgment in case of State of Haryana & Ors. (Supra) and the

judgment in case of Dr. Chanchal Goyal Vs. State of Rajasthan,

reported in (2003) 3 SCC 485 have been referred in the Manju

Gupta judgment.

15. In another judgment of Supreme Court in case of Hargurpratap

Singh Vs. State of Punjab, reported in (2007) 13 SCC 292, it

has been again held that one set of adhoc appointees should not be

replaced by another set of adhoc appointees and the direction is

given that adhoc appointees be continued in service until the

regular appointments are made.

16. In view of these judicial pronouncement, the case of the petitioner is

also fit to be considered on the same line. Hence, this petition is