Prithvi Nath Pandey vs Moti Lal Nehru College & Ors
2018 Latest Caselaw 7075 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of decision: 30th November, 2018
+    W.P.(C) 1164/2014

     PRITHVI NATH PANDEY                                         ..... Petitioner
                   Through:                Mr. A.P. Mohanty, Adv. with
                                           petitioner in person.
                    versus

     MOTI LAL NEHRU COLLEGE & ORS              ..... Respondents
                  Through: Mr. A.P.S. Ahluwalia, Sr. Adv. with
                           Mr. S.S. Ahluwalia, Adv. for R-1
                           & R-2.
                           Mr. Santosh Kumar and
                           Mr. Ram Gupta, Advs. for R-3

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

    V. KAMESWAR RAO, J. (ORAL)

Rev. Pet. 57/2018

1. This Review Petition has been filed seeking review of order

dated September 20, 2017 passed in the aforesaid writ petition

whereby this Court had dismissed the writ petition being without

any merit. The petitioner challenged the said order before the

Supreme Court in SLP(Civil) 1196/2018 wherein, the Supreme

Court on January 22, 2018 had passed the following order:-

Learned counsel for the petitioner seeks leave to withdraw the special leave petition. He says that he will

file a review petition before the High Court. The special leave petition is dismissed as withdrawn. If the review petition is filed within two weeks, the question of delay will not be taken into consideration by the High Court."

2. The case as argued by Mr. Mohanty on the first date of

hearing of the Review Petition, is the following:-

"The present review petition has been filed by the petitioner seeking review of order dated September 20, 2017. Suffice to state, the petitioner had filed an SLP against the said order before the Supreme Court, which SLP was considered by the Supreme Court on January 22, 2018 wherein the Supreme Court has recorded the submission made by the learned counsel for the petitioner to withdraw the SLP and file a review petition before this Court.

It is the submission of the learned counsel for the petitioner that the finding of this Court based on a representation made by the learned counsel for the respondent Nos.1 and 2 that the petitioner had appeared before the Selection Committee for being assessed for appointment as an ad-hoc Lecturer (Physics) and which had not selected him, is factually incorrect, inasmuch as the petitioner had not appeared before the Selection Committee, which is clear from the note of the Chairman, Governing Body, Moti Lal Nehru College dated August

21, 2012 wherein in paragraph 14 it is stated "Dr. P.N. Pandey did not attend this interview". According to the learned counsel for the petitioner, if the petitioner had not attended the interview there is no question of his being not selected by the Selection Committee and the effect thereof would have been, the petitioner would have continued as an ad-hoc Lecturer (Physics) even for the period thereafter.

Issue notice for service on the respondents 1 and 2 and their counsel, returnable on 13th April, 2018."

3. When the matter was finally heard, Mr. Mohanty did not

dispute the factum that the petitioner did appear before the Selection

Committee in the month of July 2011. Rather his case was, the

respondent asking the petitioner to appear in the interview before

the Selection Committee was in clear violation of the clarifications

issued by the University and the Governing Body, as according to

him, those Lecturers who were working earlier, were not required to

face the selection process as, it is not a fresh ad-hoc appointment,

but a continuance of earlier appointment. In other words, the

petitioner could not have been denied reappointment to the post of

Lecturer in Physics on ad-hoc basis, as the same was in continuity.

4. Mr. Mohanty had stated that whether the guidelines were

retrospective or prospective in their operation, has not been

considered / analyzed by this Court. According to him, the

discontinuance of the appointment of the petitioner on the post of

Lecturer, Physics, is non-est and the petitioner must be treated as

continuing in his ad-hoc service as Lecturer, Physics, in the College.

Mr. Mohanty stressed on the fact that the Supreme Court has, in

catena of judgments held that the ad-hoc appointee cannot be

replaced by another ad-hoc appointee as, the persons already

working on ad-hoc basis have gained experience, which will be

more beneficial and useful to the College concerned, rather to

appoint persons afresh on ad-hoc basis. In fact, the Supreme Court

on that proposition has interdicted fresh appointments. Otherwise,

if such a process is allowed to continue then the same would lead to

arbitrariness. According to him, if a Government or a University,

which is a State within the meaning of Article 12 of the Constitution

of India, despite repeated observations of the superior Courts

continue to replace ad-hoc Teachers, such process must be

deprecated. In this regard, he had relied upon the following case

law:-

(i) Veer Kunwar Singh University Ad Hoc Teachers Association and Others v. Bihar State University (C.C.) Service Commission and Others (2009) 17 SCC 184;

(ii) State of Punjab and Others v. Supreet Rajpal and Another (2007) 13 SCC 290;

(iii) Secretary, State of Karnataka and Others v. Uma Devi (3) and Others (2006) 4 SCC 1;

(iv) Secretary, State of Karnataka and Others v. Uma Devi (2) and Others (2006) 4 SCC 44;

(v) Rattan Lal & Ors. v. State of Haryana (1985) Supp 2 S.C.R.;

(vi) Abhinav Chaudhary & Ors. v. Delhi Technological University & Anr. W.P.(C) Nos. 3512/2014 & 3834/2014 decided on January 20, 2015;

(vii) Anil Lamba & Ors. vs. Govt. of NCT & Ors. W.P.(C) No. 1958/2017 and connected writ petition decided on March 06, 2017;

(viii) Shri Krishan v. The Kurukshetra University, Kurukshetra AIR 1976 SC 376.

5. Mr. A.P.S. Ahluwalia, learned Senior Counsel for the

respondents justifies the order passed by this Court. According to

him, as a matter of fact, the petitioner was called for the interview

on July 20, 2011 and after interviewing him, the Committee has

placed him at Sl. No.8 in the panel of selected candidates. He

submitted, the plea of Mr. Mohanty, on the date when the Review

Petition was listed for the first time, that the petitioner did not

appear in the interview, is incorrect. It was his submission that the

writ petition is being reargued, which is impermissible in a review

jurisdiction. He further submitted that there is no apparent error on

the face of the record nor the Review Petition has been filed on the

grounds seeking review of the order. According to him, if the

petitioner's case is that the judgment of this Court is contrary to

law, the remedy for the petitioner is to approach a higher Court

against the same.

6. Having heard the learned counsel for the parties, it is clear

that the attempt of Mr. Mohanty, is to reargue the case on merit.

Mr. Mohanty does not deny the fact that the petitioner did appear

before the Selection Committee for interview on July 20, 2011,

which placed him at Sl. No.8 in the list of selected candidates. As

there were limited number of vacancies, the petitioner could not get

the appointment. This Court has clearly held that the effect of

appearing in the interview without demur, shall amount to

acquiescence and the principle of estoppel will come into play. This

Court had referred to the judgments in that regard.

7. The plea of Mr. Mohanty, now is that this Court has not

analyzed the effect of the clarifications issued by the University and

the Governing Body and in terms of the said clarifications, the

respondents could not have insisted on the appearance of the

petitioner before the Selection Committee and even if appeared and

not found fit, the same will not have any bearing on his appointment

as Lecturer, on ad-hoc basis. The said submission of Mr. Mohanty

is without any merit. If the petitioner was of the view that in terms

of the clarifications, he was not required to appear before the

Selection Committee, he should have abstained from appearing.

Having not done that and taken a chance before the Selection

Committee, he is estopped from challenging the outcome of the

proceedings of the Selection Committee, in view of the position of

law as noted in the order under review.

8. In view of the said conclusion, it was not necessary for this

Court to go into the issue whether the clarifications were

retrospective or prospective in nature.

9. The plea of Mr. Mohanty that the ignorance of the petitioner

with regard to the existence of the clarifications is not appealing.

The petitioner is expected to know the clarifications / instructions

issued from time to time, and their effect. The scope of review

being very limited and the attempt of Mr. Mohanty is to re-argue the

matter, which is impermissible. I do not see any reason to review

the order dated September 20, 2017. The Review Petition is

dismissed.

V. KAMESWAR RAO, J

NOVEMBER 30, 2018/ak