Abhinav Chaudhary & Ors. vs Delhi Technological University & ...
2015 Latest Caselaw 529 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) Nos.3512 /2014 & 3834/2014

%                                                     20th January, 2015

1.    W.P.(C) No.3512/2014

ABHINAV CHAUDHARY & ORS.                                      ......Petitioners
                Through:                 Ms. Rashmi Chopra, Advocate.

                           VERSUS

DELHI TECHNOLOGICAL UNIVERSITY & ANR.              ......
Respondents

Through: Ms. Latika Chaudhary, Advocate.

2.    W.P.(C) No.3834/2014

MEHA JOSHI                                               ......Petitioner
                           Through:      Mr. G. Joshi, Advocate.

                           VERSUS

DELHI TECHNOLOGICAL UNIVERSITY & ANR. ...... Respondents Through: Ms. Latika Chaudhary, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?         Yes


VALMIKI J. MEHTA, J (ORAL)

W.P.(C) No.3512/2014

1. Five petitioners have filed this writ petition under Article 226

of the Constitution of India impugning the action of the respondent

no.1/employer/Delhi Technological University of refusing to extend the

contractual appointments of the petitioners and issuing a fresh advertisement

for fresh appointment for contractual period for the posts in question.

Petitioners are working at the posts of Assistant Professors with the

respondent no.1 since the year 2011 in terms of contractual appointment

letters one of which is at page 66 of the writ petition paper book. Other

petitioners have similar letters of appointment. Petitioners are working in

the pay band of Rs.15,600-39,000 i.e Rs.15,600 + annual grade pay of

Rs.6,000 + Dearness Allowance (DA) as applicable. Petitioners are not

entitled to and do not claim any other monetary emoluments except the

aforesaid pay band + DA as provided in the contractual appointment letters.

Petitioners also do not claim regularization and they also do not claim any

equality with any other permanent employee of the respondent no.1.

2. The only grievance of the petitioners is that a contractual

appointee cannot be replaced by any other contractual appointee. Petitioners

claim that no doubt petitioners cannot seek regularization, however, it is

argued that one contractual employee cannot be replaced by another

contractual employee on more or less the same terms. Reliance is placed

upon the judgment of the Supreme Court in the case of State of Haryana

and Ors. etc. etc. Vs. Piara Singh and Ors. etc. etc. (1992) 4 SCC 118

which holds that one work charged/casual employee/daily worker cannot be

replaced by any worker of same category. It is argued that the ratio of the

judgment of the Supreme Court in the case of Piara Singh and Ors. (supra)

has been approved by the Supreme Court in the Constitution Bench

judgment of the Supreme Court in the case of Secretary, State of Karnataka

Vs. Umadevi & Ors. (2006) 4 SCC 1. The judgment in the case of Piara

Singh and Ors. (supra) is referred to in paras 23 to 25 of the judgment in

the case of Umadevi (supra). In para 26, the Constitution Bench in the case

of Umadevi (supra) only disagreed with that direction of Piara Singh and

Ors.'s case (supra) which requires regularization of ad hoc or temporary or

casual employee. In para 25 of the judgment in the case of Umadevi (supra)

para 46 of the Piara Singh and Ors.'s case (supra) is referred to and which

para 46 states that an ad hoc or temporary employee should not be replaced

by any other ad hoc or temporary employee and such an employee can only

be replaced by a regularly selected employee and which is to avoid any

arbitrary action on the part of the appointing authority.

3. The ratio and spirit of the judgments of the Supreme Court in

the cases of Piara Singh and Ors. (supra) and Umadevi (supra) has been

applied and reiterated by the Supreme Court in the judgment in the case of

Mohd. Abdul Kadir and Anr. Vs. Director General of Police, Assam and

Ors. (2009) 6 SCC 611 and which states that a person who is employed

under the scheme has to continue in the employment till the continuation of

the scheme and such a person's services cannot come to an end/ terminated

before the expiry of the scheme except of course on disciplinary grounds or

unsatisfactory services or medical grounds or attaining the normal age of

retirement. Paras 17 and 18 of the judgment in the case of Mohd. Abdul

Kadir and Anr. (supra) are relevant and the same read as under:-

"17. When the ad hoc appointment is under a scheme and is in accordance with the selection process prescribed by the scheme, there is no reason why those appointed under the scheme should not be continued as long as the scheme continues. Ad-hoc appointments under schemes are normally co-terminus with the scheme (subject of course to earlier termination either on medical or disciplinary grounds, or for unsatisfactory service or on attainment of normal age of retirement). Irrespective of the length of their ad hoc service or the scheme, they will not be entitled to regularization nor to the security of tenure and service benefits available to the regular employees. In this background, particularly in view of the continuing Scheme, the ex-serviceman employed after undergoing selection process, need not be subjected to the agony, anxiety, humiliation and vicissitudes of annual termination and re-engagement, merely because their appointment is termed as ad hoc appointments.

18. We are therefore of the view that the learned Single Judge was justified in observing that the process of termination and re- appointment every year should be avoided and the appellants should be continued as long as the Scheme continues, but purely on ad hoc

and temporary basis, co- terminus with the Scheme. The Circular dated 17-3-1995 directing artificial breaks by annual terminations followed by fresh appointment, being contrary to the PIF Additional Scheme and contrary to the principles of service jurisprudence, is liable to be is quashed."

(underlining added)

4(i) A reference to the new advertisement which has now been

issued by the respondent no.1 for appointment to the posts of Assistant

Professors for contractual period, shows that the persons to be appointed in

terms of the impugned advertisement are Assistant Professors and they are to

be employed on the same monetary emoluments on which the present

petitioners-Assistant Professors are working i.e there is no change in the

monetary emoluments with respect to new Assistant Professors who are

sought to be appointed on contractual terms by the respondent no.1. The

only difference is that the new appointments are for 11 months instead of 9

months and which difference according to counsel for respondent no.1 is a

new term and therefore it is argued that the present is not a case where one

contractual employee is sought to be replaced by another contractual

employee in view of the difference of the term of 9 months and 11 months.

(ii) In my opinion, the difference of two months i.e between 9

months and 11 months and salary with respect to the additional period of

two months in the new contractual post is not such a substantial difference

for the respondent no.1 to contend that one contractual employee can be

replaced by other contractual employee. For the sake of argument let us take

that the case was a case of replacing a contractual employee of 11 months

with a contractual employee for a substantially large period of lets say three

years or more, then, may be in such a case depending on facts of such a case,

the employer could contend that terms and conditions are substantially

different and consequently it would not be a case where a contractual

employee is sought to be replaced by a similar other contractual employee.

In my opinion, arguing that two months difference makes the petitioners'

employment different with the persons who have been selected pursuant to

the impugned advertisement dated 28.4.2014/1.5.2014, is an argument really

one of gross arbitrariness on the part of the employer/respondent no.1 and

which needs to be adversely commented upon by this Court.

5. In view of the above, the case of the petitioners clearly falls

within the ratios of the judgments of the Supreme Court in the cases of Piara

Singh and Ors., Umadevi and Ors. and Mohd. Abdul Kadir and Anr. (all

Supra) and since one contractual employee cannot be replaced by other

contractual employee, and which action will show gross arbitrariness on the

part of the respondent no.1, the present writ petition is allowed and

respondents are restrained from in any manner terminating the services of

the petitioners from the contractual posts of Assistant Professors at which

they are working with the respondent no.1/employer. Of course, this will

not disentitle the respondent no.1 to appoint any additional Assistant

Professors with the respondent no.1 in accordance with its applicable rules

or issue fresh advertisements having contractually substantially different

terms than what the petitioners are presently working at.

6. The writ petition is allowed and disposed of in terms of the

aforesaid observations, leaving the parties to bear their own costs.

W.P.(C) No.3834/2014

7. In view of the reasoning given while allowing W.P.(C)

No.3512/2014, this writ petition will also stand similarly allowed.

JANUARY 20, 2015                                     VALMIKI J. MEHTA, J
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