Bhavya Mehta vs University Of Delhi, College Of ...
2006 Latest Caselaw 1922 Del

JUDGMENT

J.M. Malik, J.

1. The following two important questions fall for the consideration of the Court, (i) whether a post graduate in Computer Science is entitled to regularisation without clearing National Eligibility Test(to be referred as NET henceforth) or without obtaining Ph.D. Degree and (ii) whether the service of a temporary teacher/lecturer can be terminated without the prior approval of Vice Chancellor.

2. The petitioner is a post graduate in Computer Science. She has also completed her studies of Ph.D. and she has submitted her Doctorate thesis with the Department of Computer Science, University of Delhi in December, 2005. She is likely to be awarded Doctorate in Computer Science very soon. In November, 2001, the College of Vocational Studies, respondent No. 2 advertised two posts of Lecturers, Computer Science. The advertisement mentioned that this was temporary post but likely to continue. The petitioner applied for the said post, she was interviewed and was appointed vide letter dated 18.03.2002. The appointment letter mentioned that the above said appointment was purely on temporary basis and terminable at any time without assigning any reason and without any notice. She has been given annual increments from time to time in March, 2003, 2004 and 2005 and her record has been without blemish. Dr. Inderjeet, a new Principal joined the college on 19.12.2005. Dr. Inderjeet issued memos against the petitioner, warned her, but replies and representations sent by her did not ring the bell. The petitioner has herself quoted five/six instances. He became more inimical towards her. It is alleged that conspiracy was hatched to ease out the petitioner and the spade work was done. In October, 2005 there was an advertisement for four posts including the petitioner's post but she was allowed to continue on ad-hoc basis for 89 days till the completion of Selection process and University was requested to exempt her from NET. Interviews were to be held on 09.05.2006. Under these circumstances, the instant writ petition was filed on 02.05.2006, with the prayer to quash the action of the respondent in filling up the four posts of Lecturers (Computer Science) in respondent No. 2 and the respondents be restrained from filling up more than three posts of Lecturers and allow the petitioner to continue on the post of Lecturer as a regularly appointed candidate and not to terminate her services except in accordance with law.

3. According to the respondents, at the time of appointment of petitioner, her National Eligibility Test (NET) result was being awaited. Vide communication dated 18.09.2001, the UGC directed the college not to appoint any Lecturer, who has not qualified the NET. In accordance with the said directions of UGC, services of one Dhani Ram working in the Department of Commerce, were terminated. The Governing Body in its meeting held on 07.07.2005, resolved that since Ms. Bhvya Mehta had not produced the proof of having passed the NET, she be asked to furnish particulars in this regard. Accordingly, one communication dated 08.07.2005 was sent to the petitioner and she was asked to state whether she had qualified NET or any other equivalent test. In her reply dated 12.07.2005, the petitioner made two submissions. Firstly, that at the time of her appointment, NET was not an eligibility condition and in the alternative in various other colleges, candidates, who, had not cleared the test of NET had been confirmed/regularized. The Governing Body in its meeting dated 27.07.2005 considered her reply and decided that since the petitioner had not qualified the NET, therefore, the post be advertised and a suitable candidate should replace her. In advertisement dated 08.11.2005, it was clearly and specifically required that the aspirants must have cleared NET or similar test accredited by the UGC or should have submitted their Ph.D. Thesis or cleared M. Phil Degree by 31st December, 1993. Pursuant to the above said advertisement, the Selection Committee in its meeting held on 04.05.2006 recommended Mrs. Parul Chachra for appointment to the temporary post of Lecturer in Computer Science. Mrs. Parul Chachra joined on 01.06.2006. As per decision of the Governing Body dated 27.07.2005, the services of the petitioner were terminated vide communication dated 16.06.2006. It is alleged that the petitioner has neither imp leaded Mrs. Parul Chachra as a party to this case or has not challenged her appointment and as such she has accepted the decision of the University. Again the petitioner has also not challenged the appointment of Mr. Rishi Rajan Sahai, who was appointed to the post of Lecturer Mathematics/Operational Research in the Department of Computer Science. This Court had ordered on 16.06.2006, "till the next date of hearing, the termination of the services of the petitioner shall not be given effect."

4. The learned Counsel for the petitioner argued with vehemence that the appointment of the petitioner is permanent in nature because she is working on uninterruptedly for the last four years and has earned increments. He submitted that the counsel for the respondent has wrongly argued that, Ordinance XII applicable to college appointed teachers, is applicable to the case of the petitioner because the petitioner did not join to a post sanctioned for a specified period or in the leave vacancy of another teacher. Clause 3(2) reads:

(2) a temporary appointment of a teacher may be made against a post sanctioned for a specified period or in the leave vacancy of another teacher, the said appointment may be terminated after the expiry of that period or on such teacher resuming duty after the expiry of his leave, as the case may be. Each temporary appointment shall be reported to the University as soon as it is made.

Again, the petitioner like others was also working on temporary basis. The candidates against the advertisement were to be appointed in the same capacity i.e. On purely temporary basis like Mrs. Parul Chachra, who was also appointed on purely temporary basis. There was no use to replace temporary employee by another temporary employee.

5. It was argued that, in the year 2002 when the petitioner was appointed, the UGC had given liberal exemption to Delhi University for candidates, who had not passed NET examination and did not possess Ph.D. or M.Phil. qualification. It was incumbent upon the college to apply the exemption at that point of time but they did not do so. The other colleges who applied for exemption, received/got it. It is explained that the instance of Dhani Ram is not relevant to the present case because the petitioner was appointed much after the said communication dated 18.02.2001. On the date of her selection in March, 2002, she was the only candidate selected and no other candidate who had qualified NET was available. Regulations of the UGC are statutory in character, regarding requirement of NET qualification or regarding relaxation in regard thereto. The subsequent regulation dated 04.04.2000 replaces the earlier regulation of 1991. The relevant extract of Regulation dated 04.04.2000 runs as follows:

The provision contained in the UGC Notification of 24th December, 1998 mentioning that it would be optional for the university to exempt Ph.D. Degree holders from NET or to require NET in their case as a desirable on essential qualification for appointment as lecturer has been withdrawn. NET shall remain the compulsory requirement for appointment as Lecturer even for candidates having Ph.D. Degree. However, the candidates who have completed M.Phil. degree or have submitted Ph.D. thesis in the concerned subject up to 31st December, 1993, are exempted from appearing in NET examination.

The proviso in the Regulation, 1991 which reads as follows:

Provided that any relaxation in the prescribed qualification can only be made by a University in regard to the posts under it or any of the institutions including constituent or affiliated colleges recognized under Clause (f) of Section 2 of the aforesaid Act or by an institution deemed to be a university under Section 3 of the said Act with the prior approval of the University Grants Commission. has been dropped and is replaced by the following proviso:

Provided that any relaxation in the prescribed qualification can only be made by a University in a particular subject in which NET is not being conducted or enough number of candidates are not available with NET qualifications for a specified period only. (This relaxation, if allowed, would be given based on sound justification and would apply to affected Universities for that particular subject for the specified period. No individual applications would be entertained.)

The Regulations issued by the UGC are mandatory in nature and all the universities are advised to strictly comply with them. It shall be necessary for the universities and the management of colleges to make the necessary changes in their statutes, ordinances, rules, regulations, etc. to incorporate these Regulations.

6. It is pointed out that on the one hand the Governing Body approaches the UGC for grant of relaxation even for Ad-hoc appointment but on the other hand it did not approach the UGC for relaxation and exemption from NET in respect of her appointment in March, 2002. The Principal should have informed the Governing Body that there was a provision for applying for relaxation in the regulation of 2000 at the time of her appointment but the needful was not done. The attention of the Court was drawn towards the facts that in the cases of Ms. Bhavna Bansal, Ms. Rachna Sharma, Ms. Anjani Gupta, Ms. Roli Bansal in Keshav Mahavidalaya, Keshav Puram, Delhi, relaxation in qualification for the appointment as lecturers was received and they were appointed lecturers without clearing NET. Their colleges, too, are under the University of Delhi.

7. Learned Counsel for the petitioner has cited an authority reported in Ramji Missar v. State of Bihar , wherein it was held that the work may connote merely an enabling or permissive powering the sense of usual phrase, "it shall be lawful, it is also capable of being construed as referring as compellable duty, particularly when it refers to a power conferred on a court or other judicial authority." Again, the Supreme Court also quoted the following extract from Maxwell on Statute:

Statutes which authorise persons to do acts for the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they 'may' or 'shall', if they think fit, or, shall have power,' or that 'it shall be lawful' for them to do such acts, a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases such expressions may have- to say the least- a compulsory force.

It is pointed out that the word 'may' in regulation used for applying for relaxation from requirement of NET has to be held as 'shall' or a duty because it was supposed to be a benefit for the employee concerned as well as for the students who are being taught when no candidate was available as NET qualified in March, 2002. In authority reported in 2002 (2) SCC 578 'may' has been sought to be construed as 'usual'.

8. Learned Counsel for the petitioner vehemently argued that the stipulation that petitioner was appointed on purely temporary basis and terminable at any time without assigning any reason or without any notice, is illegal as per the cases of Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr. and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors. .

9. Instead of touching the heart of the problem the learned Counsel for the petitioner has just skirted it. For the reasons listed below, it stands established that she is not entitled to be regularised without clearing NET or having Ph.D. Degree. It is clear that the petitioner was appointed on purely temporary basis. Her appointment letter is reproduced as under:

With reference to your application dated 5.12.2001, you have been appointed as Lecturer in Computer Science on temporary basis in the pay scale of Rs. 8000-13500 from 18.3.2002.

Please note that the appointment is purely on temporary basis and is terminable at any time without assigning any reason or giving notice. You shall do teaching and such other work as may be assigned to you.

10. The petitioner cannot go beyond her appointment and acceptance letter. The Apex Court in the case of State of M.P. v. Dharambir was pleased to hold:

26. Whether a person holds a particular post in a substantive capacity or is only temporary or ad hoc is a question which directly relates to his status . It all depends upon the terms of appointment. It is not open to any Government employee to claim automatic alteration of status unless that result is specifically envisaged by some provision in the statutory rules. Unless, therefore, there is a provision in the statutory rules for alteration of status in a particular situation, it is not open to any Government employee to claim a status different than that which was conferred upon him at the initial or any subsequent stage of service.

It was further held:

It is next contended by the learned Counsel for the respondent that although the respondent does not possess a Degree or Diploma in Engineering, he has been working on the post of principal for a long time and since he has acquired sufficient experience on the post, he need not, in the circumstances, be disturbed by reverting him as Vice Principal. This plea is also without merits.

11. It is crystal clear that the petitioner was appointed in the year 2002. Till now she has got ten opportunities to appear in NET examination. She appeared only once and could not qualify. Thereafter, she has not attempted to appear in NET examination. According to her pleadings, she has submitted Ph.D. thesis in November, 2005 but she has not obtained the degree till October, 2006. The Apex Court in authority reported as Union of India v. A.R. Shinde and Ors. , was pleased to observe:

In any case failure to consider his name in anticipation that he would have qualified by the date on which the initial appointment came to an end does not constitute any illegality which vitiates the appointment.

12. Again, the mere fact that some other colleges have applied for relaxation does not ipso facto entitle the petitioner to get the same relief from her own college. The stand taken by her college is that they would not appoint any candidate, who is not qualified the National Eligibility Test. There lies no legal impediment. This is a matter of policy not of force by hook or by crook. The Apex Court in the case reported in Union of India v. Joginder Sharma held:

If in a given case, the department of the government concerned declines, as a matter of policy, not to deviate from the mandate of the provisions underlying the Scheme and refuses to relax the stipulation in respect of ceiling fixed therein, the courts cannot compel the authorities to exercise its jurisdiction in a particular way and that too by relaxing the essential conditions, when no grievance of violation of substantial rights of parties could be held to have been proved, otherwise.

13. Again, it must be borne in mind that every initial posting is temporary whether it pertains to the petitioner or to Mrs. Parul Chachra. Secondly, it is not incumbent upon the respondent No. 2 to follow the relaxation principle adopted by other colleges. The counsel for the respondent has also cited an authority reported in Chandigarh Administration and Anr. v. Jagjit Singh and Anr. in support of their case.

14. The allegation of Principal's bias or animosity is without merit. Mr. Inderjeet took over as Principal of the college on 19.12.2005. However, prior to his appointment, resolution dated 07.08.2005 was passed and letter dated 08.07.2005 was sent to the petitioner. The Governing Body also decided to advertise the post on 27.07.2005 prior to his appointment as Principal. He appears to be guileless.

15. Now I advert to the second question whether the services of the petitioner were validly terminated? The learned Counsel for the petitioner drew the attention of the Court towards the following provisions of law.

Clause 7 of Annexure to Ordinance XII is reproduced as under:

The question of termination of the services of the Principal/Teacher or his suspension, shall not be decided by the College/Institution without the prior approval of the Vice-Chancellor.

The learned Counsel for the petitioner submitted that approval of Vice Chancellor is essential and the instant case comes within the framework of the above said provision.

16. The appointment letter dated 18.03.2002 reveals that the appointment of petitioner was terminable at any time "WITHOUT ASSIGNING ANY REASON OR GIVING NOTICE". It clears the air of all the doubts. It speaks well for its nature and scope. The petitioner must have signed it with open eyes after considering the pros and cons of above said assignment. A Judge must not alter the material of which an argument is woven. It is not Court's duty to write definitions on invisible blackboards with non existent chalk. It is clear that Clause 7 of Annexure to Ordinance XII has no application to this case. That is meant for permanent teacher. This is ordinance XII (3)(2) which directly applies to the instant case. The post of the petitioner was sanctioned for a specified period that is till she qualifies NET. UGC itself gave the direction, "NET shall remain the compulsory requirement for appointment ...." The petitioner was required to clear the NET her failure to do so despite warning brought about the undesired result.

17. The case of the petitioner is without merit. The writ petition is dismissed. No costs.