Manish Mithileshkumar Singh vs Union Of India
2021 Latest Caselaw 9809 Guj

     C/SCA/9228/2021                             JUDGMENT DATED: 29/07/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9228 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                       MANISH MITHILESHKUMAR SINGH
                                  Versus
                              UNION OF INDIA
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Appearance:
Appearance:
MR ASIM PANDYA, SENIOR ADVOCATE WITH MR AADITYA D
BHATT(8580) for the Petitioner(s) No. 1
CHANDNI S JOSHI(9490) for the Petitioner(s) No. 1
MR DEVANG VYAS(2794) for the Respondent(s) No. 1
MR MITUL SHELAT WITH MS DISHA N NANAVATY(2957)
for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No.
3
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 29/07/2021

                             ORAL JUDGMENT

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1. Heard learned Senior Advocate Mr. Asim Pandya assisted by learned advocate Mr. Aaditya Bhatt for the petitioner, and learned advocate Mr. Mitul Shelat with learned advocate Ms. Disha Nanavati for respondent No.2 through video conference.

2. Rule returnable forthwith. The Learned advocate Ms. Disha Nanavati waives notice of rule. Service of notice of Rule is dispensed with qua respondent nos. 1 and 3, and as the controversy involved in this petition is in narrow compass with the consent of the Learned advocates of both the sides, the petition is taken up for final hearing.

3. By this petitioner under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :

"A. Be pleased to declare that the constitution of the selection committee was not accordance with the applicable law and hence, the decision dated 30-5- 2019, of the selection committee is void ab initio.

B. Be pleased to direct the Respondents to constitute an unbiased selection committee in accordance with law, and to carry out the selection process for the post of Associate Professor afresh;

C. Be pleased to declare that the

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decision is dated. 30/05/2019 and subsequent actions lastly culminating into the latter dated. 09/06/2021 of the respondents not to continue the petitioner even as Assistant Professor after 31st July, 2021 is actuated by mala fide, victimization, and unconstitutional violating Article 14,16,19,21 of the Constitution of India and be pleased to direct the Respondent No.2 to regularize the services of the Petitioner to the post of Assistant Professor.

D. Be pleased to declare that the non extension/ termination of the Service of the Petitioner is punitive in the garb of the termination simpliciter.

E. Pending admission, hearing and final disposal the respondent be directed to continue the petitioner as Assistant Professor on same terms with all eligible future entitlements.

F. Pending admission, hearing and final disposal Your Lordships be pleased to suspend further implementation and operation of the order dated 07/01/2021, in continuance to the order passed on 30/05/2019, r/w 09/06/2021 passed by the Respondent No.2, whereby the services of the petitioner are likely to end on 31/07/2021 and direct the Respondent No.2 to maintain a status quo with regard to the services of the petitioner.

G. Be pleased to pass such other and further reliefs in favor of the petitioner in the interest of Justice."

4. Brief facts of the case are that the

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petitioner was appointed as Assistant Professor Grade-I by the respondent no. 2 - Indian Institute of Technology, Gandhinagar (For short "IITGN") as Assistant Professor in Earth Science as per terms and conditions attached with appointment letter dated 22.05.2017 on contract basis for two years.

4.1) It is the case of the petitioner that the petitioner is a world class highly trained skilled and well-decorated researcher and a teacher with international repute and he has established an entire Water Environment Technology and Geochemistry Lab at IITGN. The petitioner has also published various research papers and is recognised faculty in the field of Earth Science.

4.2) The petitioner is also having the Ph.D Degree from the University of Tokyo at Japan. It is the case of the petitioner that the advertisement issued by respondent no.2 which is a running advertisement on the web site did not state that the appointment would be on contract basis. The petitioner, however accepted the appointment on the contract of two years with the hope that his service would be regularized by the respondent no.2 by giving up his permanent

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service in Tezpur National University where he served from November 2010 to July 2017 and also paid Rs. 7,00,000/- in order to be released from the bond to allow him to join IITGN. On completion of the two years contract with the respondent no.2 IITGN, the same was extended on 6.2.2019 for further two years.

4.3) According to the petitioner, prior to the extension of the contract for a further period of two years, two show cause notices were issued to the petitioner, one on 2.1.2019 issued by respondent no.3 Director(Annexure-R at page no. 161) with regard to the conduct of the petitioner in course of team selection for cricket matches during the Inter-IIT Staff Sports meet at Guwahati and second show cause notice dated 8.1.2019 issued by the Professor G.K. Sharma, Professor-in-charge, Faculty Affairs, IIT, Gandhingar with regard to the conduct of the petitioner for his communication and exchanges with one Dr. Bhaskar Kundu relating to his candidature by sharing relevant information of the institute. The petitioner gave replies to both the notices by tendering explanation denying the allegations.

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4.4) The petitioner was also called for interview for the selection for the post of Associate Professor which is higher post than the post of Assistant Professor in the department of Earth Science by the respondent no. 2 in the month of January,2019 by short listing the name of the petitioner among 400 candidates. It is therefore, the case of the petitioner that the petitioner was hopeful to be selected for the post of the Associate professor and hence he accepted the extension of contract period for further two years.

4.5) It appears that after the extension of the contract period for further two years in the month of February 2019, by letter dated 30.5.2019, Professor-in-charge, Faculty Affairs Mr. G.K. Sharma informed the petitioner that as per the report of the Standing Committee on Faculty Affairs, the Selection Committee for the Discipline of Earth Science has not recommended the case of the petitioner for regular position of Assistant Professor Grade-I based on his performance in the interview and the Standing Committee has also decided that the contract of the petitioner as Assistant Professor will not be extended on completion of the contract period .

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4.6) Though the petitioner has not referred to or stated in the petition that on 28.12.2020 he applied for extension of the contract period as to get employment was difficult due to Covid pandemic, the same is placed on record along with the affidavit filed on behalf of respondent no.2. Accordingly, the service contract of the petitioner was further extended for a period of six months by the respondent No.2 by letter dated 07.01.2021 and the contract period of the petitioner was extended up to 30.07.2021 considering the pandemic situation.

4.7) The petitioner thereafter preferred detailed representation on 17.06.2021 before the respondent no.3 and as the same was not considered, the petitioner has filed this petition on 24.06.2021 with the aforesaid prayers.

5. This Court [Coram : A.Y.Kogje J] passed the following order on 07.07.2021 :

"Issue notice returnable on 26.07.2021.

Learned senior advocate appearing for the petitioner submits that the decision impugned dated 30.05.2019 is based on some report which is not provided to the

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petitioner and therefore, entire process was behind the back of the petitioner despite the content of the impugned communication being stigmatic. The petitioner apprehends that though the petitioner had applied and interviewed for the post of Associate Professor, his term as an Assistant Professor, Grade-I which is to end by 30.07.2021 will not be extended any further. This action is based on some finding which the respondents have treated to a stigmatic and adverse to the petitioner and hence, there is clear violation of principles of natural justice. Learned advocate has also made allegations of malafide with respect to respondent No.3.

Before the returnable date, the respondents shall file their reply with the Registry on 22.07.2021 with an advanced copy to the petitioner. Direct service is permitted."

6. Learned Senior Advocate Mr. Pandya assisted by learned advocate Mr. Aaditya Bhatt submitted that the petitioner is subjected to unjust, unfair manner of working by the respondent No.3-Director of IITGN. It was submitted that respondent No.3 has acted mala fide so as to see that service contract of the petitioner is not extended by the respondent No.2-IITGN.

6.1) In support of the above submissions learned Senior Advocate Mr. Pandya referred to the letter dated 30.05.2019 at page no.

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43 to the petition wherein reference is made to show cause notice dated 08.01.2019 [page no.44] as well as show cause notice dated 2.01.2019 [page no. 161 ] to submit that all these three letters were written at the instance of the respondent No.3 so as to see that the service contract of the petitioner is not extended after completion of two years in the year 2021.

6.2) Learned Senior Advocate Mr. Pandya submitted that the petitioner did not pursue the matter of challenging the show cause notice or the letter dated 30.05.2019 in lieu of the hope given to him that the petitioner would be selected for the post of Associate Professor by the respondent No.2 IITGN and an assurance was given to the petitioner for continuing him as Assistant Professor if not selected for the post of Associate Professor by regularizing his service.

6.3) It was further submitted that though the petitioner applied for regular sanctioned post of Assistant Professor Grade-I by giving up his regular service at Tezpur University, the petitioner was shocked when he received the appointment letter stating that the petitioner was given appointment for two

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years on contract basis.

6.4) It was submitted that the petitioner accepted the appointment with respondent No.2 IITGN with the hope that on completion of two years of contract service, the services of the petitioner would be regularized. It was also pointed out that the petitioner was also hopeful that he would be appointed as Associate Professor and hence accepted the further extension of the contract for two years in the year 2019.

6.5) It was pointed out by learned Senior Advocate Mr. Pandya that there is no grievance against the petitioner with regard to the performance of duties as an Assistant Professor and for that purpose he invited the attention of the Court to document at Annexure-F to the petition wherein expectations from Faculty of the institute and response of the petitioner is mentioned. It was submitted that in each of the aspect of research, teaching, service, personal and inter-personal skill, the petitioner has performed par excellence and there is no reason for the respondent no.2 for not to extend the service of the petitioner.

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6.6) The learned Senior Advocate Mr. Pandya submitted that it is only because of the mala fide intention of the respondent No.3 that the service of the petitioner is not extended by the respondent No.2-IITGN. He referred to the averments made in the petition to point out that the respondent no.3 has acted mala fide. Reference was made to the averments on page no. 3 wherein it is stated that "further employment is disciplinary and stigmatic in nature and is passed not on administrative exigencies or meritorious basis but solely on whims and caprices of the respondent No.2 institute at the instance of respondent No.3; who has acted in biased and vindictive manner with the present petitioner." Thereafter, reference was made to the averments made on page no. 4 of the petition wherein it is stated that "the non extension of the term of the petitioner as even an Assistant Professor though seemingly innocuous, it is evidently actuated by mala fide intentions of the respondent No.3." Attention was also invited to page no. 16 of the petition to point out following averments:

"The Petitioner having left with no other alternative was constrained to file this petition as a last resort

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against its own institution since Respondent No. 3 has acted in a vindictive manner against the Petitioner and decided to terminate the services of the Petitioner by passing a seemingly innocous order of not extending the term. At the same time in the said

got inserted the reference of a letter proposing to take action against the Petitioner for some concocted incidents. This was done deliberately so that the petitioner is confronted with the reference letter wherever he applies for future employment."

6.7) Learned Senior Advocate Mr. Pandya thereafter referred to Para no.3.29 on the page no. 20 of the petition to submit that the respondent No.3 has falsely alleged against the petitioner with regard to his action in the inter-IIT staff sports meet cricket match at Guwahati which was also at the instance of the respondent no.3 for which respondent no.3 has issued show cause notice on 2.01.2019 [page no.161]. It was therefore submitted that though the respondent No.3 is served with the notice issued by this Court, he has chosen not to appear before this Court and as such the allegations made against respondent no.3 are deemed to be proved resulting into mala fide action on part of the respondent No.3. Reliance was placed on the decision of the Apex Court in case of

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British India Corporation Ltd and others v. The Industrial Tribunal, Punjab and another reported in AIR 1957 SC 354 to submit that in view of the fact that there was allegation of mala fide made by the petitioner against respondent no.3, it is the duty of the High Court to accord hearing to the parties after issuing notice to the respondents and record his decision after considering all the circumstances of the case which would have thus been brought to its notice. Learned Senior Advocate Mr. Pandya therefore, submitted that as respondent no.3 has chosen not to appear before the Court, the allegations of mala fide made by the petitioner are required to be considered on face value and adverse inference be drawn accordingly.

6.8) Thereafter learned Senior Advocate Mr. Pandya referred to the provisions of the Institute of Technology Act, 1961 and

which provides for the term of office of, vacancies among and allowances payable to, members of the Board and to Section 13 which refers to the functions of the Board to point out that the appointing authority in the respondent No.2-institution is the Board of

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Governors.

6.9) Reference was also made to section 25 of the Act which refers to Appointment to point out that all appointments of the staff of the institute, except that of Director, shall be made in accordance with the procedure laid down in the Statutes by the Board. Thereafter, reference was made to the Statutes which is notified by the Central Government on 31.07.2017. Reference was made to the definition of "Faculty" as per clause

(l) of section 2 of the Statute which reads as under :

" (l) 'Faculty means Professor, Associate Professor and Assistant Professor (Regular and Contract)."

6.10) Thereafter reference was made to Section 4 which provides for authentication of the orders and decisions of the Board to the effect that all orders and decisions of the Board shall be authenticated by the signature of the Registrar. It was pointed out that Section 9 of the Statutes provides for Officers of the Institute which includes the Director, the Deputy Director, the Deans, the Head of the Department and the Registrar. Reference was made to clause (c) of sub- section (1) of Section 10 which provides for

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the powers and duties of Chairman with regard to execution of contract of service between the Institute and the Director subject to the condition that the Chairman shall not be personally liable in respect of anything under such contract. Mr. Pandya also referred to clause (xii) of sub-section (2) of section 12 of the Statutes which provides for Director and its powers and functions with regard to contracts for and on behalf of the institute. Reference was made to clause (xv) to point out that when the office of Chairman of Board of Governors is vacant, then the Director is authorized to act as the Chairman. Reference was also made to sections 15 to 17 which provides for Registrar, Classification of Members of Staff and Appointments and Procedures for an appointment. Attention was invited to the Selection Committee to be constituted for recommendation of the appointment for Associate Professor, Assistant Professor equivalent position to the Board which includes the Director, members-three from the panel of Experts approved by the Board and member- Head of the department

6.11) Referring to the above provisions of the Act and the statute, it was pointed out

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that the impugned letter dated 30.05.2019 by which the decision was taken not to extend the service of the petitioner beyond the contract period, is neither issued by the Board or by the Selection Committee and therefore, it was submitted that such letter is issued without jurisdiction and hence, not tenable in law.

6.12) It was also submitted by the learned Senior Advocate Mr. Pandya that discontinuation of the service is not approved by the Board of the Governors and therefore, there is no cessation of contract as it is not decided by the Board of the Governors not to extend the contract period. It was also pointed out that respondent No.2 has also not placed on record any decision of the Board of Governors ratifying the decision of the Director or the Selection Committee not to extend the contract period of the petitioner and the reasons for not extending such contract of the petitioner.

6.13) The learned senior advocate Mr. Pandya relied upon the decision of the Apex Court in case of Dr. Mrs. Sumati P. Shere v. Union of India and others reported in AIR 1989 Supreme Court 1431 to submit that the

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respondents have never disclosed any deficiency in service of the petitioner so as to not to extend the contract period. Reliance was placed on Para Nos. 4 to 7 of the said decision which reads as under:

"4 In this appeal, counsel for the appellant raised several contentions. We do not consider it necessary to advert to all those contentions except the one which according to us is sufficient to allow this appeal. It is not disputed that the appellant upon interview was appointed on ad hoc basis against a substantive vacancy. From time to time, the orders were made by continuing her services. She has also earned increments in the pay scale admissible to the post. It is not the case of the respondents that a regular candidate selected by the Public Service Commission has been posted in her place. Therefore, in the normal course she would have continued till a select candidate replaced her. The respondents, however, have taken the stand that they were not satisfied with the performance of the appellant. But it appears that at no time she was informed about her deficiencies. The order of termination came like a thunderbolt from the blue.

5. We must emphasize that in the relationship of master and servant there is a moral obligation to act fairly. An informal, if not formal, give-and-take, on the assessment of work of the employee should be there. The employee should be made aware of the defect in his work and deficiency in his performance. Defects or deficiencies;

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indifference or indiscretion may be with the employee by inadvertence and not by incapacity to work. Timely communication of the assessment of work in such cases may put the employee on the right track. Without any such communication, in our opinion, it would be arbitrary to give a movement order to the employee on the ground of unsuitability.

6. The counsel for the respondents argued that the appellant being temporary servant no enquiry need be held for her removal if her services are not up to the mark. He placed reliance on the decisions of this Court in :

(i) Champaklal Chimanlal Shah v. The Union of India and (ii) Oil & Natural Gas Commission v. Dr. M.D.S. Iskender Ali . Both the cases pertain to the termination of a temporary government servant who was on probation. The termination was on the ground that his work had never been satisfactory and he was not found suitable for being retained in the service. This Court held that the termination of service in such cases on the ground of unsuitability for the post not attract Article 311(2) of the Constitution.

7 There cannot be any dispute about this proposition. We are not laying down the rule that there should be a regular enquiry in this case All that we wish to state is that if she is to be discontinued it is proper and necessary that she should be told in advance that her work and performance are not up to the mark."

6.14) Referring to the above decision, it was submitted the services of the petitioner

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during the past four years was appreciated by the respondent no.2 and that in absence of any communication of the deficiency or otherwise in the service of the petitioner, there is no reason not to extend the service of the petitioner and therefore, the petitioner ought to have been continued in the service with respondent no.2.

6.15) Reliance was also placed upon the decision of the Supreme Court in case of Balmer Lawrie & Company Limited and others v. Partha Sarathi Sen Roy and others reported in (2013) 8 Supreme Court Cases 345 to point out that respondent No.2 is a State within Article 12 of the Constitution Of India and as such the service of the petitioner could not have been abruptly ended by not extending the contract without assigning any reason.

6.16) Reference was also made to the decision of Apex Court in case of Rattan Lal and others v. State of Haryana and others reported in (1985) 4 Supreme Court Cases 43 to submit that the petitioner could not have been subjected to unreasonable and arbitrary hire and fire policy which would result in violation of Articles 14 and 16 of the Constitution of India.

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6.17) Reference was also made by the learned Senior Advocate Mr. Pandya to the following decisions in support of the submissions:

1) Decision in case of Dipti Prakash Banerjee. v. Satyendra Nath Bose reported in (1999) 3 SCC 60

2) Decision in case of Gujarat Steel Tube Vs Gujarat Steel Tubes Mazdoor Sangh reported in (1908) 2 SCC 593

3. Decision in case of Madan Gopal v. State of Punjab reported in AIR 1963 SC 531

4. Decision in case of Anoop Jaiswal v. Government of India reported in 1984 (2) SCC

5. Decision in case of Mathew P. Thomas v. Kerala State Civil Supply Corporation Ltd and others reported in (2003) 3 SCC 263

6. Decision in case of State of Punjab and ors v. Sukh Raj Bahadur reported in (1968) 3 SCR 234

7. Decision in case of Dr. Anisur Raheman Khan v. Indian Institute of Technology reported in (1992) 2 CALLT 200 HC

8. Decision in case of Shamsher Singh and Ors v. Satyendra State of Punjab reported in (1974) 2 SCC 831

9. Decision in case of Delhi Transport Corporation v. D. T. C. Mazdoor Congress reported in (1991 ) Supp (1) SCC 600

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7. On the other hand learned advocate Mr. Mitul Shelat appearing for respondent no.2 submitted that the petitioner is not entitled to any relief as prayed for by him in the petition as the petitioner was appointed on contract period of two years which was accepted by the petitioner in the year 2017 and second time the petitioner accepted the extension of the contract period in the year 2019 for further two years.

7.1) Learned advocate Mr. Shelat further submitted that the petition is also liable to be dismissed as the petitioner has not placed on record the letter dated 28.12.2020 nor it is referred to in the petition wherein the petitioner has made a prayer for extending contract perod for further six months due to Covid- pandemic. Reference was made to the page No. 197 (Annexure R 1/2) to point out that the petitioner was aware about the completion of the contract period from 04.02.2021 and as such prayer was made for extension of the contract. It was further pointed out that when the petitioner was informed about the extension of contract, the petitioner accepted the same by E-mail dated 01.02.2021 [page no. 202]. It was therefore submitted that the petitioner was in complete

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knowledge about non-extension of the contract period by the respondent no.2 any further.

   7.2)             It was submitted that the petitioner
   is        not        entitled         to         the       relief              of
   regularization            of      his        service           when          the

petitioner was appointed on contractual basis and on completion of the contract period, service of the petitioner would come to an end automatically.

7.3) Learned advocate Mr. Shelat relied upon the following averments made in the affidavit in rely which reads as under:

"5.1 The petitioner applied for the position of Associate Professor in the discipline of Earth Science/ Civil Engineering.

5.2 I state that the faculty recruitment process of the Institute has provision to hire faculty on contract on the recommendations of the Standing Committee. Subsequently the contractual faculty is placed before the 'Selection Committee' which is constituted as per the provisions of the Statutes of the Institute for selection on regular basis.

5.3 The Standing Committee on Faculty Affairs considered candidature of the Petitioner and offered appointment as Assistant Professor on contractual basis.

The Petitioner was issued the offer letter dated 15/05/2017 in terms of the

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recommendation of the Standing Committee A copy of the communication dated 22/05/2017 is annexed herewith and marked as Annexure R-1/5.

5.4 The Petitioner accepted the offer by his communication dated 30/05/2017 and joined the answering Respondent on 31/07/2017. A copy of the communication dated 30/05/2017 is annexed herewith and marked as Annexure R-1/6.

5.5 The Petitioner applied for a regular faculty position. His candidature was considered by the Screening Committee and thereafter the Selection Committee. The Petitioner was not found suitable for regular faculty position by the Selection Committee. The Selection Committee, however, recommended that his contractual appointment be extended for two years. The Petitioner was accordingly issued an extension letter dated 06/02/2019, extending his contractual appointment for two years with effect from 04/02/2019.A copy of the extension letter dated 06/02/2019 is annexed herewith and marked as Annexure R-1/7.

5.6 The Petitioner accepted the extension letter and continued in employment in terms of the said letter. The Petitioner was informed by communication dated 30/05/2019 that his contract would not be extended beyond 03/02/2021 and he was advised to utilize the time available for employment opportunities elsewhere. A copy of the communication dated 30/05/2019 is annexed herewith and marked as Annexure R-1/8.

5.7 The Petitioner made a request by Email dated 28/08/2020 for upgradation of pay. The Petitioner's request was

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considered by the Standing Committee in its meeting held on 08/09/2020 and it was decided that the same could not be acceded to. The Petitioner was informed by Email dated 12/09/2020 addressed by the professor in-charge FA that as he was not found suitable for regular faculty position, his request for upgradation of pay level could not be accepted. A copy of the communication dated 28/08/2020 addressed by the Petitioner is annexed herewith and marked Annexure R-1/9. Copy of the Communication dated 12/09/2020 addressed by the Professor in-charge FA to the Petitioner is annexed herewith and marked as Annexure R-1/10.

5.8 The Petitioner thereafter addressed Emails to the Institute Authorities requesting for extension of contractual position. In the Email dated 18.12.2020, the Petitioner expressly asserted that "I am seeking a six month extension owing to Covid-19 to find a respectable place for myself", A copy of the Email dated 18.12.2020 is already annexed hereinabove at Annexure R-1/1.

5.9 The Petitioner's representation for extension was placed before the Standing Committee in its meeting held on 01.01.2021. Considering the representation, the Standing Committee extended the contract till 30.07.2021 to enable the Petitioner to seek employment opportunities elsewhere. The decision was communicated to the Petitioner by Communication dated 07.01.2021. A copy of the said communication is already annexed hereinabove at Annexure R-1/2.

5.10 The Petitioner, by his communication dated 01.02.2021, expressly acknowledged and accepted the extension in terms of the

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above communication dated 07.01.2021. A copy of the said communication dated 07.01.2021 is already annexed hereinabove at Annexure R-1/3.

5.11 The Petitioner, after having accepted the extension as stated hereinabove, submitted representation vide Email dated 24.04.2021, 28.04.2021,03.05.2021 and 16.05.2021, and sought continuation of his employment. The Standing Committee, in its meeting held on 20.05.2021, considered the said representations and did not accede to the request for further extension of contract. The decision of the Standing Committee was communicated to the Petitioner by communication dated 09.06.2021. A copy of the communication dated 09.06.2021 is annexed herewith and marked as Annexure R- 1/11.

5.12 The Petitioner thereafter addressed another Email dated 17.06.2021 requesting for reconsideration of his employment. The Petitioner was informed by communication dated 24.06.2021 that his contract cannot be extended any further. A copy of the Email dated 17.06.2021 addressed by the petitioner is annexed herewith and marked as Annexure R-1/12. A copy of the communication dated 24.06.2021 by the Professor in-charge FA is annexed herewith and marked as Annexure R-1/13.

5.13 It is, therefore, most respectfully submitted that the Petitioner has no right much less any fundamental or legal right to seek continuation of employment. The cessation of the employment is in terms of the contract and it is always open for the Petitioner to apply for fresh consideration for faculty positions in the Institution. The present petition is devoid of any

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merit and may kindly be rejected as such."

7.4) It was therefore, submitted that in view of the above facts which are not in dispute, there is delay and latches on the part of the petitioner as the petitioner did not take any action till the extended contract period is to come to an end. It was also submitted that the cessation of employment of the petitioner cannot be said to be based on stigmatic order as it is sought to be canvassed on behalf of the petitioner. It was submitted that not extending the contract of the petitioner is also not based on any bias towards the petitioner. The Learned advocate Mr. Shelat submitted that in fact, the contract of the petitioner has come to an end on 03.02.2021 and thereafter the same was extended by respondent No.2-IITGN on humanitarian ground in view of Covid-pandemic situation on a request made by the petitioner vide letter dated 28.12.2020 to extend the contract period. Learned advocate Mr. Shelat relied upon the decision of this Court in case of Kiranbhai Amritlal Desai v. Indian Institute of Management rendered in Special Civil Application No.1024/2021 on 23.04.2021 in support of his submission.

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7.5) It was further submitted that the allegations made by the petitioner against respondent no.3 are also not tenable in absence of any specific allegations being made by the petitioner. Learned advocate Mr. Shelat pointed out that since 2020 the charge of the Chairman of the Board of the Governors is with the chairman of the IIT, Kharagpur and therefore, the averments and allegations made by the petitioner that respondent no.3 performed the dual function of Director as well as Chairman when the decision was taken for not to extend the service contract of the petitioner, is also not true and correct.

7.6) It was submitted that in the year 2017, the petitioner was appointed on recommendation of the Standing Committee which was ratified by the Board of Governors and also the decision not to extend the contract is taken by the Standing Committee which was ratified by the Board of Governors. It was also pointed out that to grant extension of time of six months to the petitioner is also ratified by the Board of Governors which is not headed by respondent no.3. In such circumstances, it was submitted that as held by the Supreme Court in case of Yogesh Mahajan v. Professor R.C. Deka,

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Director, All India Institute of Medical Sciences reported in (2018) 3 Supreme Court Cases 218, the services of the petitioner cannot be continued due to non-renewal of the contract as no right has accrued in favour of the petitioner who was a contractual employee.

7.7) Reference was also placed on the decision of Supreme Court in case of Rajasthan State Roadways Transport Corporation v. Paramjeet Singh reported in (2019) 6 Supreme Court Cases 250 to submit that the petitioner was contractually appointed for a period of two years which was extended for further two years has come to an end in February, 2021. Therefore non extension of the contract by the respondent No.2 cannot be faulted with. The Learned advocate Mr. Shelat has also relied upon the following decisions in support of his submissions :

1.Decision in case of Amar Singh vs Union of India & Ors reported in (2011) 7 SCC

69.

2.Decision in case of Public Services Tribunal Bar Association vs State of UP reported in (2003) 4 SCC 104.

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3.Decision in case of Navodaya Vidyalaya Samiti vs Afshan Khan reported in (2019) 11 SCC 546.

4.Decision in case of Secretary, UPSC & Anr. Vs S. Krishna Chaitanya. Reported in (2011) 14 SCC 22.

8. Having heard the learned advocates for the respective parties and having gone through the materials on record, it is not in dispute that petitioner was appointed on contract basis for two years in the year 2017 which was extended for further period of 2 years in the year 2019. It is also not in dispute that the petitioner accepted the appointment on contract basis as well as extension of such contract in the year 2017 and 2019 respectively.

9. It appears that though the petitioner was discharging the duties sincerely, honestly and with integrity in the respondent no.2 - institution, it was decided by the respondent no.2-IITGN as per the decision of the Standing Committee which is ratified by the Board of Governors for not to extend the service contract of the petitioner.

10. As the service contract of the petitioner was not to be extended, it was

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communicated to the petitioner that his contract would not be extended, the petitioner prayed for extension of the contract for further six months by letter dated 28.12.2020, due to pandemic situation so as to enable the petitioner to complete his project M-Tech, Ph.D Students responsibilities at IITGN. It was also pointed out by the petitioner in the letter dated 28.12.2020 that he had applied for several positions elsewhere as per Annexure-1 annexed to the said letter for employment and due to pandemic situation, he was unable to participate in the recruitment process in India and abroad. It was therefore, prayed by the petitioner for extension of contract for 6 to 12 months.

11. Considering the request made by the petitioner, the respondent no.2 - IITGN extended the contract of the petitioner for further six months vide letter dated January, 7, 2021 upto July 30, 2021 on same terms and conditions, in view of the pandemic situation so as to enable the petitioner to seek to avail employment opportunity elsewhere. The petitioner also accepted the extension of the contract vide E-mail dated 01.02.2021.

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12. It appears that thereafter the petitioner made a detailed representation dated 17.06.2021 i.e. almost after five months raising various contentions against respondent No.3- the Director of the respondent No.2-IITGN with reference to the show cause notices which were issued in the month of January, 2019 and the letter dated 30.05.2019 which was within the knowledge of the petitioner since last about more than two years. It appears that with a view to form a base to prefer this petition, such representation was made making various allegations against respondent No.3 so as to continue on the post of Assistant Professor with respondent No.2-IITGN.

13. The petitioner is a well qualified person having international repute and therefore, the contention raised on behalf of the petitioner that he would not get any suitable job anywhere elsewhere in India or abroad cannot be accepted as considering the experience as well as the academic excellence of the petitioner, if the respondent No.2 is not desirous to avail the services of the petitioner beyond the period of contract, by making allegations against respondent No.3, the petitioner cannot continue to remain in

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service with respondent No.2 institution on completion of the contract period.

14. It is true that the letter dated 30.05.2019 written by Mr. G.K.Sharma, Professor in-charge, Faculty Affairs is without any authority and jurisdiction wherein it is stated that the Standing Committee has decided not to extend the contract of the petitioner on completion of the contract period. Such letter written on behalf of the Standing Committee of faculty Affairs is without any force of law of the provisions of the Act or the Statute as standing committee is not authorized to decide the terms of appointment or whether to extend the contract period of the petitioner or not. Therefore, such letter is required to be declared as non-est and void ab initio so far as it refers to decision not to extend the contract period after the extended contract period is over.

15. The decision of the Standing Committee not to extend the contract of the petitioner is not disclosed either to the petitioner or before this Court. However, as stated at the Bar by the learned advocate Mr. Shelat the fact remains that such decision is ratified

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by the Board of Governors on 23rd April, 2021 which was headed by the Chairman IIT, Kharagpur as the Chairman of the Board of Governors of respondent No.2-IITGN.

16. With regard to the allegations made by the petitioner against respondent No.3 as pointed out in detail by learned Senior Advocate Mr. Pandya, it would be incumbent upon the petitioner to justify such allegations on its own merits, though respondent No.3 has chosen not to appear before this Court. Therefore, considering the various averments made in the petition, it appears that there is no direct reference of allegation of mala fide intention of the respondent No.3 as the petitioner has tried to made averments of mala fide against the respondent no.3 so as to continue in the service and therefore it cannot be said that the averments made in the petition as referred to by learned Senior Advocate Mr. Pandya can result into mala fide action on part of the respondent no.3 being the cause for not extending the service contract period of the petitioner.

17. This Court in case of Kiranbhai Amritlal Desai v. Indian Institute of Management

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(supra) in similar facts has held as under:

"21. Additionally, it clearly appears from the record that from the beginning, when the petitioner was appointed as Parttime Medical Officer throughout till the contract is continued to be extended by the authority, he has not raised any grievance of whatsoever nature and now, at the fagend on account of some change in the circumstance, has come out with a plea that he should be regularized and to be treated as if a permanent appointed employee and give all consequential benefits from date of joining, which are sought in the relief. To this submission, there is a clear answer from the decision delivered by Hon'ble the Apex Court in the case of State of Maharashtra and others Vs. Anita and Another reported in (2016) 8 SCC 293, wherein it was observed by the Apex Court that looking to the nature of appointment having duly accepted the terms of it, the petitioner is estopped from challenging the nature of appointment at the fagend of service. Few observations contained in para 15 of the said decision, since relevant, the Court deems it proper to reproduce hereunder:

15. The above terms of the agreement further reiterate the stand of the State that the appointments were purely contractual and that the respondents shall not be entitled to claim any right or interest of permanent service in the government. The appointments of respondents were made initially for eleven months but were renewed twice and after serving the maximum contractual period, the

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services of the respondents came to an end and the Government initiated a fresh process of selection. Conditions of respondents' engagement is governed by the terms of agreement. After having accepted contractual appointment, the respondents are estopped from challenging the terms of their appointment. Furthermore, respondents are not precluded from applying for the said posts afresh subject to the satisfaction of other eligibility criteria.

In addition to this, the Court is also of the opinion that had the petitioner been aggrieved by his nature of appointment as purely parttime Medical Officer on contractual basis, he could have raised his grievance well within the time when his contract was extended from time to time upon his own request and ought not to have waited till the end of the situation, where the contract is extended only for the last time. The Court found that there is a gross unexplained laches and inordinate delay in raising this grievance by the petitioner and seeking the relief now to be treated as permanent employee. Right from beginning, the position is well accepted by the petitioner with open eyes being a highly literate fellow and conveniently, has stepped out to claim the reliefs mentioned in the petition having realized that his contract is not to be extended. Additionally, the Court found that there must exist a power of regularization in the respondent which the petitioner has not remotely pointed out before the Court about such kind of existing of power. Neither any reference is projected before this Court nor any supportive material is addressed to the Court to justify the reliefs claimed in

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the petition and as such, the petitioner has miserably failed in making out the case of seeking the relief of this nature. For pretty long period, being a professional qualified person, the petitioner has satisfied himself with the status of his employment as parttime Medical Officer on contractual basis in the Institute and as such, has acquiesced his right of agitating such kind of grievance which is tried to be voiced out in the year 2021."

18. Decision relied on behalf of the petitioner in case of Dr. Mrs. Sumati P. Shere v. Union of India and others (supra) would not be applicable in the facts of the case as the Apex Court was considering the appointment on ad-hoc basis where as in facts of the case, the petitioner was appointed on contract basis for a period of two years which was extended for further two years.

18.1) Similarly, reliance placed on the decision of Supreme Court in case of Balmer Lawrie & Company Limited and others v. Partha Sarathi Sen Roy and others (supra) is also not applicable as there is a relationship of employer-employee on the basis of contract and as held by the Supreme Court in case of Yogesh Mahajan v. Professor R.C. Deka, Director, All India Institute of Medical Sciences (supra) relied upon on behalf of the

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respondent no.2, the service of the petitioner cannot be continued due to non renewal of the contract as no right has accrued in favour of the petitioner who was a contractual appointee. The Apex Court has held as under :

"6. It is settled law that no contract employee has a right to have his or her contract renewed from time to time. That being so, we are in agreement with the Central Administrative Tribunal and the High Court that the petitioner was unable to show any statutory or other right to have his contract extended beyond 30th June, 2010. At best, the petitioner could claim that the concerned authorities should consider extending his contract. We find that in fact due consideration was given to this and in spite of a favourable recommendation having been made, the All India Institute of Medical Sciences did not find it appropriate or necessary to continue with his services on a contractual basis. We do not find any arbitrariness in the view taken by the concerned authorities and therefore reject this contention of the petitioner.

7. We are also in agreement with the view expressed by the Central Administrative Tribunal and the High Court that the petitioner is not entitled to the benefit of the decision of this Court in Uma Devi. There is nothing on record to indicate that the appointment of the petitioner on a contractual basis or on an ad hoc basis was made in accordance with any regular procedure or by following the necessary rules. That being so, no right accrues in favour of the petitioner for regularisation of his services.The decision in Uma Devi does not advance the case of the petitioner.

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8. Insofar as the final submission of the petitioner to the effect that some persons were appointed as Technical Assistant (ENT) in May 2016 is concerned, we are of the view that the events of 2016 cannot relate back to the events of 2010 when a decision was taken by the All India Institute of Medical Sciences not to extend the contract of the petitioner. The situation appears to have changed over the last six years and the petitioner cannot take any advantage of the changed situation. There is no material on record to indicate what caused the change in circumstances, and merely because there was a change in circumstances, does not mean that the petitioner is entitled to any benefit. On the other hand, it might have been more appropriate for the petitioner to have participated in the walk-in interview so that he could also be considered for appointment as Technical Assistant (ENT), but he chose not to do so."

18.2) Reliance placed on behalf of the petitioner in case of Rattan Lal and others v. State of Haryana and others (supra) is also not applicable in facts of the case as there is no unreasonable or arbitrary action taken by respondent no.2 resulting into hire and fire policy. The service of the petitioner has come to an end by expiry of contract period. The petitioner therefore, cannot submit that the respondents are bound to extend the contract period.

18.3) With regard to the decisions relied upon on behalf of the petitioners as summarised in paragraph no. 6.17 above are

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also not applicable as such decisions are in reference to the termination of service and on appointment on temporary basis or on probation and whereas in the facts of the case there is no termination of the petitioner by the respondent no.2 but the contract period of service is not extended and therefore, such decisions are not referred to in detail as the same would not be applicable in the facts of the case.

18.4) Reliance placed on decision of Calcutta High Court in case of Dr. Anisur Rahman Khan v. Indian Institute of Technology and others (supra) also pertains to the appointment of the petitioner before the Court on temporary basis whereas in facts of the case, the petitioner was appointed for a fixed term of two years of contract period which was extended for further period of two years and therefore, the benefit of Rule 3 of the Central Civil Service Rules 1965 which provides that a person should be deemed to be in quasi-permanent service, if he has been in continuous temporary service for more than three years cannot be pressed into service in the facts of the case.

19. In view of the foregoing reasons, the

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petition is partly allowed. So far as prayer (A) is concerned, the same is allowed by declaring that the decision of the Standing Committee of Faculty Affairs communicated to the petitioner on 30.05.2019 is void ab initio to the extent that such Standing Committee could not have decided that the contract of the petitioner as Assistant Teacher would not be extended on completion of the contract period.

20. It is also held that neither the letters dated 02.01.2019, 08.01.2019 or 30.05.2019 which are placed on record are to be treated as stigmatic in any manner whatsoever, as such letters are issued during the course of the employment of the petitioner on contract basis and such letter does not disclose any stigmatic action or attitude of the petitioner in any manner.

21. With regard to prayer(B) is concerned when the period of contract is over there is no question of constitution of Selection Committee again as Selection Committee is already formed as per the Statute.

22. With regard to prayer(C), it is held that there is no mala fide victimization of

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the petitioner in any manner either by respondent No.2 or respondent No.3 and the service of the petitioner has come to an end on completion of the contract period in normal circumstances and the grievances raised in the petition with regard to mala fide actions cannot be said to be prima facie proved by the petitioner merely on making averments in the petition without there being any direct allegation against the respondent No.3. Further when the service of the petitioner has come to an end on completion of the contract, respondent No.2 cannot be directed to regularize the service of the petitioner to the post of Assistant Professor and the petitioner is at liberty to participate in the recruitment process, if any, which may be initiated by the respondent No.2 in accordance with law.

23. With regard to prayer (D), it is held that non extension of the service contract cannot be termed as punitive in the garb of termination as there is no right vested in the petitioner to continue in the service of the respondent no.2 on completion of the contract period and as such the action of the respondent no.2 not to extend the contract period cannot be faulted.

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24. The Learned Senior Advocate Mr. Pandya also referred to section 30 of the Institute of Technology Act, 1961 which provides for Tribunal of Arbitration with regard to any dispute arising out of a contract between the institution and any of its employees. The petitioner is at liberty to avail such recourse, if the petitioner is advised accordingly.

25. In view of the above, the petition is accordingly disposed of. Rule is made absolute to the aforesaid extent only. No order as to cost.

(BHARGAV D. KARIA, J) JYOTI V. JANI