Prithvi Nath Pandey vs Moti Lal Nehru College & Ors.
2017 Latest Caselaw 5243 Del

             IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Order reserved on: September 15, 2017
                                        Order delivered on: September 20, 2017

+     W.P.(C) 1164/2014

      PRITHVI NATH PANDEY                                               ..... Petitioner
                    Through:           In person

                    versus

      MOTI LAL NEHRU COLLEGE & ORS.                        ..... Respondents
                   Through: Mr. A.P.S. Ahluwalia, Sr. Adv. with Mr. S.S.
                            Ahluwalia & Mr. Jatin Teotia, Advs. for R-1 & 2.
                            Mr. Santos Kumar, Adv. with Mr. Abhinav
                            Sharma & Mr. Shikhar Saha, Advs. for R-3

CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO
                                       ORDER

V. KAMESWAR RAO, J

CM No. 20317/2015

1. This is an application filed by the petitioner for restoration of the petition, which

was withdrawn by the counsel for the petitioner on August 7, 2015.

2. This court while issuing notice on this application on March 31, 2016 noted the

contents of the application and observed that the petitioner apart from seeking recall of

order dated August 7, 2015 is praying that the writ petition be heard on merit to serve

the ends of justice. It is the case of the petitioner / applicant in the application that

before withdrawing the writ petition, his counsel Mr. Uday Gupta had not taken/sought

his instructions/permission to withdraw the same. Mr. Uday Gupta, earlier counsel of

the petitioner has filed an affidavit stating the writ petition was withdrawn with the

instructions of the petitioner as per the record maintained by his office. In other words,

he denied, the writ petition was withdrawn by him without the instructions. In the

response filed by the petitioner to the affidavit of Mr. Uday Gupta, Adv. he controverts

the stand taken by Mr. Uday Gupta. Suffice to state even the respondent nos.1 and 2

have in their reply contested the maintainability of the application stating that the

application in substance being for review needs to be rejected, as there is no apparent

error on the face of the record.

3. Without going into the issue, whether the writ petition was rightly withdrawn on

August 7, 2015 by Mr. Uday Gupta, under instructions from the petitioner or not, I have

heard in detail the petitioner who appears in person and Mr. A.P.S. Ahluwalia, learned

Sr. Counsel for the respondent nos. 1 and 2 on the writ petition.

4. It is noted from the writ petition, the petitioner is M.Sc (Physics) and Ph.D

(Physics) and had joined the Daulat Ram College in the Department of Physics in

January, 2000. In August, 2000, he joined the Deshbandhu College, Kalkaji as a Guest

Lecturer where he continued to work till March, 2001. From December 1, 2000 to

March 30, 2001, he was a part time Lecturer in the Department of Physics in Sri

Venkateswara College. Similarly, between December 12, 2001 to March, 2007 he

joined the Atma Ram Sanatan Dharam College, Delhi as a Guest Lecturer. He joined

respondent no. 1 / College on August 18, 2007 as Lecturer on ad hoc basis in the

Department of Physics. It is his case that on December 27, 2007, guidelines were issued

by the University for making ad hoc appointment of Lecturers in Colleges /

Departments of the University. Petitioner Dr. Prithvi Nath Pandey, has drawn my

attention to the various communications written by the Dean of Colleges, University of

Delhi; Deputy Registrar (Colleges), University of Delhi to different colleges including

respondent no.1 / Moti Lal Nehru College that the guidelines dated December 27, 2007

are to be applied prospectively and the petitioner is not covered by the guidelines and he

may be considered at par with other teachers working in the College. He would further

state that he continued to work as Lecturer (Ad hoc) in the respondent no.1/College till

June 7, 2011, which date coincides with the last date of the academic session. Dr.

Pandey would submit that the new session had started in July, 2011. The respondent

no.1 / College did not permit him to join as Lecturer on ad hoc basis on the ground that

the petitioner's case was covered by the guidelines dated December 27, 2007 and also

that he had not been selected. He would refer to the communication dated July 20, 2011

of the Deputy Registrar (Colleges), University of Delhi issuing clarification to the

colleges that the guidelines dated December 27, 2007 were meant to be implemented

prospectively. On July 29, 2011, the Deputy Registrar (Colleges) wrote to the Principal

of the respondent no.1 / College stating that the College had not acted in terms of the

clarifications dated July 15, 2010 and July 20, 2011 vis-à-vis the petitioner. The

College was directed to act in accordance with the clarifications issued by the

University. Dr. Pandey has laid stress on a communication dated August 4, 2011 of the

Deputy Registrar (Colleges) to the Principal of respondent no.1 / College stating that the

College has appointed three teachers in Physics, who had worked during the last

academic year except Dr. P.N. Pandey, which negates the claim of the College that a

decision was taken to have a fresh panel in Physics for appointment of teachers on ad

hoc basis. According to Dr. Pandey there was no requirement for the College to

constitute a Selection Committee for continuance of his services as Lecturer on ad hoc

basis at the starting of the fresh academic year. In other words, his engagement should

have been continued automatically. Dr. Pandey would also submit that despite a

directive from the Chairman of the Governing Body, he was not appointed. He states

that a representation and a legal notice got issued on his behalf. He received a vague

reply of the college through its Counsel on the legal notice.

5. On the other hand, Mr. A.P.S. Ahluwalia, learned Sr. Counsel appearing for the

respondent nos. 1 and 2 would concede to the period of working of the petitioner in the

respondent no.1 / College. According to him, petitioner continued to work in the

College on ad hoc basis till June 7, 2011. He stated, for further continuance as ad hoc

Lecturer, a Committee was constituted which comprised of the Principal, Incharge of

the Department and senior most Member of the Department by rotation for selecting

best suitable candidates to act as ad hoc Lecturers in various subjects. In July, 2011,

many candidates including the petitioner were invited for interview in the Department

of Physics. The Selection Committee had placed the petitioner at serial No.8 and as

such could not be appointed. He stated, there were numerous complaints against the

petitioner from the students and his colleagues for his acts of misconduct and omission

on account of which it had become very difficult to continue with the ad hoc services of

the petitioner. The Selection Committee did not agree to the name of the petitioner and

therefore the services of the petitioner could not be continued. He states, even if the

guidelines were not applicable to the case of the petitioner, yet it was the prerogative of

the Selection Committee to select suitable candidates for the benefit of the students and

for the cohesive and harmonious atmosphere in the College. He stated, the College

authorities had been warning the petitioner in the past to mend his ways and not to

create problems by misguiding the students or provoking them. He stated there were

complaints by the students against the petitioner that he does not hold the classes, yet

the respondent no.1 / College continued to give him chances in the hope that the

petitioner would mend his ways. He stated the decision of the Selection Committee in

this back ground cannot be faulted. He also stated, petitioner's engagement was

discontinued in the month of July, 2011 whereas a petition has been filed by the

petitioner in February, 2014 which shows that the petitioner chose to remain silent and

quiet and did not approach the Court for redressal of his grievances. On the

applicability of the guidelines dated December 27, 2007, it is his case that the petitioner

was covered by the same and was required to appear before the panel / Selection

Committee duly constituted by the College for the purpose of the selection. He would

rely upon the following three judgments in support his contentions, that the petitioner

having appeared in the selection, cannot challenge the same on the ground, the same

was contrary to the guidelines.

1. State of U.P. and Ors. v. Rekha Rani III (2011) SLT 105

2. Madras Institute of Development Studies and Anr. v. K.

Sivasubramaniyan and Ors. (2016) 1 SCC 454

3. NTPC Kahalagaon and Ors. v. Nakul Das and Ors. VIII (2014) SLT 54

6. Having heard the petitioner and Mr. A.P.S. Ahluwalia, there is no dispute to the

fact that the petitioner joined the respondent no.1 / College as ad hoc Lecturer in

Physics on August 18, 2007 and continued to work on the said post till June 7, 2011.

The question which falls for consideration is whether respondent no.1 / College had

rightly not engaged the petitioner as Lecturer (ad hoc) w.e.f July, 2011.

7. The plea of the petitioner is primarily by relying on the guidelines dated

December 27, 2007 and the same relates to issue of making ad hoc appointment of

Lecturers in Colleges / Departments. The guidelines contemplate that the appointment

of ad hoc Lecturers shall be made from a panel drawn by the respective Departments

after inviting applications twice a year. The panel shall be drawn by a committee

consisting of Head of the respective Department and four teachers of the Department

keeping in mind the principle of seniority on rotation of two years. The ad hoc panel

prepared by the Department shall be displayed on the website. The guidelines

contemplate, the College concerned may interview the candidates listed in the panel

sent by the University through a duly constituted Selection Committee. It also

contemplates that the ad hoc appointments need to be made in case there is sudden

unexpected short vacancy arising out of the sudden sickness or death, abrupt leave or

any other situation that may disrupt the normal process of teaching / learning. It also

contemplates that ad hoc appointments should be made where the vacancy arises for a

period of less than 1 month. The ad hoc appointment shall also be made for a period of

more than one month and up to four months and a vacancy which arises for the duration

of more than 4 months shall be filled up on temporary basis. The submission of Dr.

Pandey that it is the consistent stand of the University through its Dean and Deputy

Registrar (Colleges) that the said guidelines were not applicable to the case of the

petitioner as he was an ad hoc appointee of August, 2007, i.e., prior to the issuance of

the guidelines and the services of the petitioner as ad hoc Lecturer should have

continued automatically in the fresh academic session and could not have been assessed

by a Selection Committee as has been done in his case, is appealing on a first blush, but

on a consideration of the submissions made by Mr. Ahluwalia and the judgments relied

upon by him that the petitioner having appeared before the Selection Committee for

being assessed and having failed to get himself selected by the Selection Committee and

as such precluded from challenging his discontinuance is justified. In other words, the

petitioner having appeared before the Selection Committee cannot challenge the very

same process to which he has submitted himself. Mr. Ahluwalia is also justified in

relying upon the judgments referred to above in the cases of Rekha Rani (supra),

Madras Institute of Development Studies and Anr. (supra) and NTPC Kahalagaon

and Ors. (supra) wherein the Supreme Court has consistently held that the persons who

have duly participated in the selection process but could not make their mark and failed

to get selected have no right to raise any grievance with regard to the very same process

to which they have agreed to. I further note, not only the petitioner there are other

candidates who were called for the interview, who fared better and were appointed as

Lecturers on ad hoc basis. The action of the respondent Nos. 1 and 2 in not re-engaging

the petitioner in the new academic session cannot be faulted. That apart, the respondents

have highlighted the conduct and the complaints made by the students and also the

colleagues of the petitioner which possibly had caused the Selection Committee to place

him at serial no.8 of the panel appears to be justified.

In view of above, I must hold the writ petition filed by the petitioner was without

merit.

In view of my above conclusion, the application being C.M. No. 20317/2015 for

recalling of order dated August 7, 2015 filed by the petitioner does not survive for

consideration.

V. KAMESWAR RAO, J SEPTEMBER 20, 2017/jg