Mamta Sharma vs University Of Delhi
1999 Latest Caselaw 368 Del

ORDER

K. Ramamoorthy, J.

1. The facts necessary for the disposal of the writ petition could be narrated thus: The second respondent, college, issued an advertisement in 'The Hindustan Times' on the 27th of August, 1996 calling for applications for the posts mentioned in the advertisement, including Scientific Assistant. It is stated in the advertisement that the post of Scientific Assistant is permanent. The petitioner applied for being appointed as Scientific Assistant. On the 15th of February, 1997, the Selection Committee for the Post of Scientific Assistant recommended the following candidates:-

1. Mamta Sharma

2. Rajesh Sehrawat

3. Alka Arora

4. Sheetal Shammi

The petitioner in that list is at No.1.

2. By proceedings dated 17.2.1997, the Principal of the second respondent, college, appointed the petitioner on temporary basis. On the 17th of July, 1998, the petitioner made a representation to the Principal of the second respondent, college, for regularisation of her services on the footing that she was appointed to a permanent post, and she was given the assurance that she will be made permanent. She had also referred to her application dated 6.2.1998, wherein she requested for confirmation. On the 12th of August, 1998, the third respondent, college, issued another advertisement inviting applications for the same post.

3. On the 21st of August, 1998, the writ petitioner has filed the writ petition claiming the following reliefs:-

"It is, therefore, most respectfully prayed that this Hon'ble Court may be please to:

a) direct the respondents to appoint the petitioner on the post of Scientific Assistant in the respondent No.2 college on permanent basis with effect from 18.2.97;

b) hold that the temporary appointment of the petitioner on 17.2.97 was illegal and that the appointment should have been permanent in accordance with the advertisement and the Selection Committee recommendations;

c) quash the advertisement issued by the respondents for filling up the post of Scientific Assistant in the respondent No. 2 college.

d) quash the change of the nature of the post of Scientific Assistant in respondent No. 2 college from general to reserved for Scheduled Castes."

4. In the writ petition, she had mentioned all these facts and also referred to specific representation made in the advertisement dated 27.8.1996 that the nature of the post of Scientific Assistant was permanent.

5. In the counter-affidavit, respondents 2 & 3 would state that the appointment of the petitioner was made on temporary basis for a period of one year. The appointing authority is the Governing Body and it was for the Governing Body to decide the nature of appointment to be made. It is stated: "It is not denied that the post is a permanent one."

6. What is further stated in the counter-affidavit by respondents 2 & 3 is:

"It is the prerogative of the appointing authority to decide about the basis and the nature of appointment. It is incorrect that the appointment was illegal. It was entirely upto the petitioner to refuse or accept the appointment. Petitioner was at liberty to refuse the appointment offered to her on temporary basis. Petitioner after having made an election to accept the appointment on temporary basis is estopped in law to contend anything otherwise."

7. As per the counter of respondents 2 & 3, the Governing Body took a decision to the effect that the petitioner was appointed as Scientific Assistant on temporary basis for a period of one year. Meeting the point raised by the petitioner that respondents 2 & 3 had attempted to favour one Ms. Alka Arora, it is stated in the ounter-affidavit, that was completely baseless and there was no such intention on the part of the respondents 2 & 3 to favour any candidate.

8. The petitioner filed her rejoinder referring to her representation dated 17.7.1998. On these facts, the learned counsel for the petitioner, Mr.Jayant Bhushan, submitted that once the college had come forward with the advertisement that the recruitment was made as against a permanent post and the Selection Committee had selected the candidates and they had given the merit list, there cannot be any reversion by the college and it would not be open to the college, in law, to go for advertisement again treating the appointment of the petitioner as temporary. According to Mr. Jayant Bhushan, the learned counsel for the petitioner, respondents 2 & 3 had acted illegally and unreasonably, and, therefore, the petitioner is entitled to the reliefs prayed for.

9. The Governing Body of the college, by its decision dated 21.6.1997, as now projected in the counter, cannot, without any reasons, come to a decision contrary to the representation made in the advertisement that the petitioner had been appointed on temporary basis.

10. Mr. S.K. Luthra, the learned counsel for the respondents 2 & 3, submitted that it would be open to the college, in particular, the Governing Body of the College, to change the nature of vacancy and the Governing Body had chosen to express its decision vide resolution dated 21.6.1997, and, therefore, the petitioner cannot claim to have been appointed to a permanent post.

11. The advertisement issued on the 27th of August, 1996 has to be noticed to appreciate this point. The dvertisement dated 27.8.1996 reads as under:- SHIVAJI COLLEGE (UNIVERSITY OF DLEHI) RING ROAD, NEW DELHI-27 Applications (in prescribed forms) are invited for the following posts as under:

A) Lecturers:

Subject No.of Post Nature English 01 (one) Permanent Mathematics 01 (one) Temporary against leave vacancy Scale of pay: Rs.2200-75-2800-100-

4000 plus allowances permissible under Delhi University rules.

Qualifications:

Good academic record with at least 55% marks or an equivalent grade at Master's Degree level in a relevant subject from an Indian University or an equivalent degree from a Foreign University.

Candidates besides fulfillling the above qualifications should have cleared the eligibility test for Lecturers conducted by U.G.C. C.S.I.R. or similar test accredited by the U.G.C.

Note:

1. All those who have been exempted earlier under the U.G.C. guidelines, may also apply for the above posts.

2. The college reserves the right to change the number and nature of vacancies.

3. Delhi University rules apply with regard to the reservation of posts for SC/ST/Blind & Orthopedically handicapped candidates.

B) Non-Teaching

Name of Post No of Nature Scale of pay QualifiPosts cation Scientific 01 (one) Permanent Rs.1400-40- B.Sc Asstt. 1600-50-2300 High -60-2600 Second Class with Diploma in Computer Sc. or B.Sc.(Gen.) with Computer Sc.(three year course) Office 02 (two) Temporary Rs.750-12- 8th Class Attendant but 870-14-970 from a (Peon) likely recognised to continue school.

Chowkidar 02 (two) 1 Pemt. Rs.750-12- 8th Class 1 Temp 870-14-970 from a but recognised likely to school.

continue Safai 01 (one) Permanent Rs.750-12- 8th Class Karamchari -14-970 from a recognised school.

Note: There are no specific qualifications for the post of Chow kidar and Safai Karamchari but preference will be given to 8 Class Pass.

Application forms can be had from the college office on any working days upto 2.00 p.m. and should reach the undersigned within 15 days of the advertisement.

Sd/-

Principal

12. The advertisement was issued for filling up two categories of posts; one for Lecturers and another for on-Teaching staff. In the note relating to Lecturers, the respondent 2 College had reserved its right change the number and nature of vacancies. There is no such note with reference to non-teaching staff. The decision of the Governing Body, as projected by respondents 2 & 3, dated 21.6.1997 cannot be put against the petitioner when in the advertisement the College had come forward with the fact that the applications to be considered as against a permanent vacancy.

13. The learned counsel for respondents 2 & 3, Mr. S.K. Luthra, submitted that the petitioner was appointed on temporary basis and she cannot claim any right to the post. For this proposition, he relied upon the following judgments of the Supreme Court:-

1. "State of Punjab Vs. National Organic Chemical Industries Ltd.", 1996 (8) Supreme 83

2. "Hindustan Education Society & Another Vs. S.K. Kalem Sk.Gulam Nabi & Others", 1997 (3) Supreme 292.

14. Mr. S.K. Luthra, the learned counsel for respondents 2 & 3 also referred to the judgment of this Court in "Dr. Bal Kishan Dabas Vs. University of Delhi & Another" (CW.1323 of 1998 decided on 6.10.1998). The facts in that case are easily distinguishable and the ratio laid down in that case does not apply to the facts of the instant case.

15. In my view, the Selection Committee, which met on the 15th of February, 1997, recommended the candidates for permanent vacancy and the College cannot now turn round and say that the selection was for the purpose of appointing a candidate on temporary basis. The action of respondents 2 & 3 in issuing second advertisement on the 12th of ugust,1998 cannot be sustained and respondents 2 & 3 cannot, in law, treat the appointment of the petitioner as being on temporary basis. The petitioner is deemed to have been appointed as against a permanent vacancy. The advertisement issued on the 12th of August, 1998 is liable to be quashed. Accordingly, the writ petition is allowed.

16. The petitioner is declared to have been appointed as Scientific Assistant in a permanent post. The advertisement dated 12.8.1998 is quashed and respondents 2 & 3 are hereby restrained from seeking to appoint anybody in the place of the petitioner. It shall always be open to the respondents to have any additional post of the Scientific Assistant reserving the same for Scheduled Caste candidates.

17. There shall be no order as to costs.