Delhi High Court
Dr. Rajiv Kumar vs Shivaji College Through Its ... on 21 March, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 743/2009
% 21st March, 2013
DR. RAJIV KUMAR ......Petitioner.
Through: Ms. Jyoti Singh, Sr. Adv. with Mr.
S.S.Nehra, Advocate & Ms. Tinu Bajwa,
Advocate.
VERSUS
SHIVAJI COLLEGE THROUGH ITS PRINCIPAL & ORS.
...... Respondents
Through: Mr. Anurag Mathur, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. This writ petition is filed by the petitioner-Dr. Rajiv Kumar seeking
appropriate writ/directions for quashing of the order dated 28.1.2009 passed by the
respondent no.2/governing body of the College terminating the services of the
petitioner as a Lecturer (Chemistry) from the College. The College is respondent
no.1 and the governing body is sued as respondent no.2.
2. It is undisputed that petitioner applied for the post of Lecturer with the
respondent no.1 pursuant to the advertisement dated 13.5.2008. As per the
W.P.(C) No.743/2009 Page 1 of 5
advertisement, so far as the posts for the Lecturer in Chemistry is concerned, they
were said to be three in number, one each in General Category, Scheduled Caste
Category and Other Backward Class Category. In the advertisement, however
there was a note which reads as under:-
"4. The College reserves its right to change the number and/or
nature of the posts and/or not to fill any or all posts advertised without
assigning any reason."
3. The respondent no.1-College conducted the necessary interviews with
respect to the post of Lecturer in Chemistry and prepared a panel. Petitioner was at
No.2 in the panel. The first person in the panel namely Ms. Vandana Katoch was
appointed. Since however the respondent no.1-College required appointment of
one more lecturer, it exercised the option in terms of the note 4 in the
advertisement dated 13.5.2008 and appointed the petitioner.
4. Respondent no.3-University, and to which, the respondent no.1-
College is affiliated, raised objections to the appointment of the petitioner.
Objection was raised on the ground of Rule 3(1) of Order XII of the Calendar (The
Act, Statutes & Ordinances) of the University, and which Calendar contains the
necessary rules applicable to the University and the affiliated colleges of the
University. This Rule 3(1) reads as under:-
" 3.(1) All vacancies of teachers shall be filled after advertisement and
by open recruitment, save in the cases of vacancies, appointment to
W.P.(C) No.743/2009 Page 2 of 5
which may be required to be made urgently in the interest of
organisation of teaching in the college concerned for a period not
exceeding four months or beyond the term in which it is made
whichever is earlier."
5. The limited issue for consideration in this writ petition is that whether
the appointment of the petitioner was made in violation of the aforesaid Rule 3(1)
of the Order XII. A reading of the aforesaid Rule shows that the only requirement
is that vacancies of teachers cannot be filled in, except after advertisement and by
open recruitments. On behalf of the petitioner, what is argued, and in my opinion
rightly, that actually vacancies of the Lecturers in Chemistry of the respondent
no.1-college were in fact filled in by open recruitment and through advertisement,
and advertisement in question is the advertisement dated 13.5.2008. I agree that
once the appointment is through regular recruitment where candidates are given
equal chance and there is proper competition amongst all the candidates who
apply, the requirement of Rule 3(1) is duly satisfied inasmuch as it cannot be said
that anyone who may not have wanted to apply pursuant to the advertisement
would be taken by surprise. I cannot agree with the contention of the respondents
that the petitioner was not appointed pursuant to an advertisement and that Order
XII Rule 3(1) of Calendar of University is violated. In fact, any doubt with respect
to entitlement to appoint more than one Lecturer in the general category is
removed from fourth note of the advertisement and there cannot be ambiguity
W.P.(C) No.743/2009 Page 3 of 5
therefore in this regard of entitlement of the college to appoint more than one
Lecturer for the post of Chemistry in the General Category, provided such posts
are available and there are vacancies in such posts.
6. Learned senior counsel for the petitioner places reliance upon the
judgment of the Supreme Court in the case of Suvidya Yadav & Ors. Vs. State of
Haryana & Ors. (2002) 10 SCC 269 to argue the proposition that an employer was
allowed to increase the posts from 18 to 30 once in the advertisement it was
specially mentioned that the number of posts can vary. Learned senior counsel for
the petitioner also has placed reliance upon a Division Bench judgment of the
Allahabad High Court in the case of Rakesh Kumar Trivedi Vs. High Court of
Judicature and Anr. MANU/UP/0546/1994 wherein the Division Bench of the
High Court in similar circumstances has interpreted the expression "Vary" as was
found in the advertisement, and it was held that the appointing authority had a
power to increase the number of appointments by varying the posts to which
selection could be held.
7. In my opinion, though some of the observations in the aforesaid two
judgments relied upon by the petitioner may merit acceptance, however, in the
present case, I am concerned with a specific provision namely Rule 3(1), and the
interpretation of Rule 3(1), in my opinion, cannot be made in the manner as is
W.P.(C) No.743/2009 Page 4 of 5
being argued on behalf of respondents that there cannot be any advertisement
which provides that the number of vacancies can also vary if circumstances so
require.
8. In view of the above, the writ petition is allowed. The impugned
order dated 28.1.2009 is quashed. Respondents are restrained from terminating the
services of the petitioner. Parties are left to bear their own costs.
MARCH 21, 2013 VALMIKI J. MEHTA, J.
ib
