Himachal Pradesh High Court
Dr. Vikram Verma vs Union Of India And Others on 22 February, 2021
Bench: Sureshwar Thakur, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
C.W.P No.5317 of 2020 a/w
CWP Nos. 5225, 5226, 5227,
5230, 5234, 5253, 5254, 5255
5314, 5315 and 5316 of 2020.
.
Reserved on 07.01.2021
Decided on: 22.02.2021
1. CWP No. 5317 of 2020
Dr. Vikram Verma ....Petitioner.
Versus
Union of India and others ... Respondents.
................................................................................................
2. CWP No. 5225 of 2020
Dr. Chandrasekaran S. ....Petitioner.
Versus
Union of India and others ... Respondents.
................................................................................................
3. CWP No. 5226 of 2020
Dr. Anuradha ....Petitioner.
Versus
Union of India and others ... Respondents.
................................................................................................
4. CWP No. 5227 of 2020
Dr. Abhishek Singh ....Petitioner.
Versus
Union of India and others ... Respondents.
................................................................................................
5. CWP No. 5230 of 2020
Dr. Anuradha ....Petitioner.
Versus
Union of India and others ... Respondents.
..................................................................... ...........................
6. CWP No. 5234 of 2020
Dr. Talari Ganesh ....Petitioner.
Versus
Union of India and others .... Respondents.
................................................................................................
7. CWP No. 5253 of 2020
Dr. Abhishek Singh ....Petitioner.
Versus
Union of India and others ... Respondents.
................................................................................................
8. CWP No. 5254 of 2020
Dr. Talari Ganesh ....Petitioner.
Versus
Union of India and others .... Respondents.
................................................................................................
...2...
9. CWP No. 5255 of 2020
Dr. Chandrasekaran S. ....Petitioner.
.
Versus
Union of India and others ... Respondents.
................................................................................................
10. CWP No. 5314 of 2020
Dr. Santosh B. Bopche ....Petitioner.
Versus
Union of India and others ... Respondents.
................................................................................................
11. CWP No. 5315 of 2020
Dr. Leela Manohar Aeshala ....Petitioner.
Versus
Union of India and others ... Respondents.
................................................................................................
12. CWP No. 5316 of 2020
Dr. Lokesh Chouhan ....Petitioner.
Versus
Union of India and others ... Respondents.
................................................................................................
Coram
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting? Yes
For the petitioner(s): M/s Dr. A.E. Chelliah and Sanjeev
Bhushan, Sr. Advocates with Mr.
Devender K. Sharma, Advocate in all
the petitions.
For the respondents. Mr. Rajesh Kumar Sharma, Assistant
Solicitor General of India for Union of India
in all the cases.
Mr. K.D. Shreedhar, Sr. Advocate with Ms.
Shreya Chauhan, Advocate for respondents
No. 2 to 4 in all the cases.
(Through Video Conferencing)
Sureshwar Thakur, (J.)
Since all these writ petitions contain similar controversies,
and, also common questions of law, thereupon, all these writ petitions
are amenable for a common verdict, becoming recorded thereon. Since,
as aforestated, there occur(s) the afore commonalities, in all the writ
...3...
petitions, thereupon the factual matrix prevailing, in, CWP No. 5317 of
.
2020, shall alone become alluded to, for, thereons an adjudication
becoming meted.
2. In CWP No. 5317 of 2020, the writ petitioner claims the
making of the hereinafter 'mandamus', upon, the respondents:
"1. Issue a writ, order or direction in nature of Certiorari
quashing the impugned Advertisement no. 03/2020
dated 08.10.2020 issued by the Registrar, National
Institute of Technology, Hamirpur (H.P.) respondent No.4.
2. Issue a writ, order or direction in nature of Mandamus
commanding the respondents concerned to initiate the
process of selection through direct recruitment holding
interview of the petitioner for the post of Assistant
Professor Grade-I under new Nomenclature (earlier PB-3,
AGP 8000) from their present working as Assistant
professor Grade-II {(earlier PB-3, AGP 6000 (on
contract)} having become eligible for the same fulfilling
the required essential qualification of having teaching
experience of three years after Ph.D. as per the newly
adopted Amended Recruitment and Promotion Rules
(R.R.) 2017; through its Gazette notification dated
21.7.2017 and its incorporation in the First Statue 2009
through coming of Amended First Statue known as "First
Statutes of the National Institutes of Technology
(Amendment) Statutes, 2017" and after having dropped
the 5 year contractual period criteria under the new
Recruitment Rules (RR-2017).
3. Issue an writ, order or direction in the nature of
Mandamus commanding the respondents concerned to
further initiate the process of selection through direct
recruitment holding interview of petitioner for the post
of Assistant Professor Grade-I under new Nomenclature
...4...
(earlier PB-3, AGP 8000) from their present working as
Assistant Professor Grade-II {(earlier PB-3, AGP 7000 (on
.
contract )} having fulfilled the requirement of essential
qualification of having teaching experience of three
years after Ph.D. after coming of new R.R. 2017 and its
adoption in the Statutes 2009, after having dropped the
5 year contractual period criteria under the new
Recruitment Rules (RR-2017).
4. Issue a writ, order or direction in the nature of
Mandamus commanding the respondents concerned not
to dispense with the services of the petitioners (after
dropping of 5 year contract period criteria under new
RR-2017) now working under newly assigned
nomenclature as Assistant Professor Grade-II (pay Level-
10) as per the notification dated 30.11.2018 w.e.f
27.10.2017 till the petitioners are moved through the
next grade pay as Assistant Professor (AGP 8000)."
3. For testing the validity of afore espousal made before this
Court, it becomes imperative to allude to Annexure P-2, apposite clause-
3 whereof becomes extracted hereinafter:
"3. Your contract shall be for a maximum period of
5 years with renewal after every one year subject
to satisfactory performance. Your contract shall be
liable to be terminated prematurely in case of
dereliction of duties or unsatisfactory performance
or any misconduct."
4. The contractual engagement of the writ petitioners against
the advertised posts of Assistant Professors, has thereins been stipulated
to extend upto a period of five years, however, renewal thereof is to be
made after every one year and subject to satisfactory performance.
However, the respondents concerned, do not contest, the efficiency or
...5...
satisfactory performance of the writ petitioners, in theirs, discharging the
.
functions appertaining to their contractual assignments, as, Assistant
Professors, nor, the respondents, contest the factum, of the writ
petitioners, during the tenure of their services, in the afore capacity
under them, each of them not-derelicting in the discharge of their duties
or theirs not-misconducting themselves.
5. The respondents concerned proceeded to issue, the,
impugned advertisement notice, wherethrough, invitations became
invited from the eligible aspirants concerned vis-à-vis the post(s) of
Assistant Professors, and whereagainst, the writ petitioners became,
earlier appointed, for theirs being filled up, and also therethrough, there
is a purported shortening or curtailing of the period of five years, vis-à-
vis, the contractual assignment(s), as Assistant Professors, of, the
petitioners, and, as became bestowed upon each of them in pursuance
to Annexure P-2.
6. The writ petitioners contend, that the afore purported
shortening or curtailment of a period of five years of their contractual
assignments, as Assistant Professors, despite theirs, uncontrovertedly
satisfactorily discharging the duties, appertaining to their contractual
assignments, and despite theirs not misconducting themselves, infringes
the mandate of clause 3 of Annexure P-2, and also, (i) thereupon the
mandate of Annexure P-3, hence making contemplations, for their
upward movement to the higher pay band(s), contemplation whereof is
in tandem with clause-2 of Annexure P-2, wherein(s), on completion of
three years, in a contractual capacity, by the petitioners, as, Assistant
...6...
Professors, it becomes enshrined qua theirs becoming entitled to shift or
.
migrate, to a higher pay band, than the one where to which, before
expiry of three years, they were initially entitled/placed. However, the
other migration, as spelt, in Annexure-3 is not automatic, but is subject
to each of the aspirants concerned, after issuance of the apposite
advertisement notice, and, theirs making applications theiragainst,
rather theirs successfully facing the validly constituted selection
committee.
7.
Be that as it may, the respondents through issuing the
impugned advertisement notice No. 03/2020, as, made on 8.10.2020,
strive to negate the afore entitlements of the writ petitioners, and, the
afore negations of the afore entitlements, vis-à-vis the writ petitioners,
become(s) anchored, upon the coming into force, and, adoptions of
Annexure P-8, hence made on 29.5.2017, (i) whereins, the afore five
years' tenure of contractual assignments, as Assistant Professors, as,
underlined in the afore extracted specific clause No. 3, of, Annexure P-2
became dispensed with, (ii) and the afore exclusion of clause No. 3, in,
Annexure P-8, as occurred on 29.5.2017, becomes purportedly
leveraged, hence, by the respondents, to apart from terminating the
contract of employment, as Assistant Professors, hence of the writ
petitioners, there is also as aforestated, a, striving of the respondents
concerned, to deprive each of them, of their(s) afore articulated
entitlement(s), qua theirs moving upwards or migrating to the higher pay
band, than the pay band, where to which, they were entitled to prior to
...7...
theirs completing three years, of the apposite contractual assignment(s)
.
under, the respondents.
8. Mr. K.D. Shreedhar, the learned Senior Counsel, appearing
for the respondents concerned, has made a fervent attempt, to validate
the issuance of, the, impugned advertisement notice, and, also has made
a valiant effort to validate the afore concomitant effects, as ensue
therefrom. His afore efforts are made dependent, upon, a verdict made,
by a Coordinate Bench of this court in CWP No. 2369 of 2020, titled
Dr. Rajesh Kumar Sharma and Ors v. Union of India and Ors, on
18.9.2020, wherein vis-à-vis an alike hereat res-controversia, the reliefs
similar to the one as become canvassed in the extant petition, rather
became declined to the petitioners therein.
9. This Court, has had, an opportunity to incisively marshal the
judicial wisdom embodied therein, and, for the reasons to be assigned
hereinafter, this Court does not deem it fit and appropriate, to make any
reliance thereon, for making any alike therewith denial, of, the espoused
reliefs, to the petitioners herein, (i) the Coordinate Bench of this Court,
though aptly refrained, from interfering with the fixity of the tenure, of,
contractual assignments of the writ petitioners, as Assistant Professors,
and, the afore validation of limiting(s) or curtailing(s), of, the tenure of
the contractual assignments of the petitioners therein, who are alike the
petitioners herein, rather flowed from the coordinate Bench, in making
judgment (supra) relying upon the common to both the afore writ
petition, and, to the extant writ petitioners. (i) Hence the issuance of
fresh recruitment rules, in replacement to the earlier thereto Rules of
...8...
2015, (ii) wherein the earlier contemplations vis-à-vis the longevity of the
.
period, of, contractual assignments of Assistant Professors, rather upto a
period of five years became dispensed with, and, became substituted by
a tenure of three years, and, (iii) wherefrom, a conclusion became drawn,
that the afore replacement, as occurred in the year, 2017, bestowing the
completest empowerment upon the respondents concerned to limit or
curtail the period of their contractual assignment(s), (iv)and also, an
obvious and inevitable tacit/implied conclusion, became drawn, that the
purported upward migration, of the writ petitioners, to a higher pay
band, than the one, they were receiving prior to the completion of three
years, of, contractual assignment(s), as Assistant Professors, under the
respondents per-se hence, not carrying any enlivened legal force,
imperatively upon/after the coming into force of the new Recruitment
Rules of 2017. In the Coordinate Bench of this Court, making the afore
tacit conclusion, it appears to overlook the legal effects, of, clause 16 of
Annexure P-2, clause whereof stands extracted, legal ramifications
whereof, shall become alluded to hereinafter"
"16. You shall be governed under the NIT Act-
2007/Statues/Rules/Instructions of NIT
Hamirpur, framed from time to time relating
to Service conditions, Rules of Discipline and
any other matters/conditions not specified in
the appointment letter."
10. A reading of the afore extracted clause, as embodied
in Annexure P-2, does bring visible upsurgings, that the service
conditions, of the writ petitioners, became amenable for
governance(s) or regulation(s), through rules/instructions
...9...
appertaining to NIT, Hamirpur, H.P., as become framed from time
.
to time. The further striking legal effect thereof, is, that the
subsequent to 16.11.2015, any amendments, as made, in the
apposite R&P Rules, becoming thereins, hence, mandated to
govern the service conditions of the writ petitioners, (i) besides
the afore also, became contractually accepted, by the respondents
concerned, to hold legal clout and sway, specifically vis-à-vis the
writ petitioners, whereupons, the latter or subsequent to the year,
2015, brought into force, hence the apposite amendments vis-à-
vis the R&P rules, and, wherethrough, hence, substitution occurred
of the earlier tenure of five years of contractual assignment, to,
three years, does assume an aura of validity. However, it appears
that the respondents concerned, omitted to galvanize or omitted
to put into motion, the afore empowerment, as evident from
theirs, rather, permitting the writ petitioners to continue to serve
in the apposite contractual capacity, under them, hence even,
beyond the period of three years. Even though, the afore
constitute waivers of apposite powers vested in the respondents,
yet may not, subject to the hereinafter drawn inferences,
weaponise, any argument in the petitioners, to contend that
hence, the afore apposite substitution becomes nugatory, (ii) nor
can they, subject to the hereinafter drawn inferences, become
weaponised, to contend, that the respondents may hence, upon
expiry of the afore deemed extension, of their contractual
assignments, inasmuch as, even after, the, ending of five years,
...10...
since theirs becoming initially engaged, on a contractual basis, as
.
Assistant Professors, rather become disabled to terminate their
contractual assignments.
11. Be that as it may, and de hors, the afore, yet since a
complete concurrence evidently upsurges inter-se the mandate borne in
the notification of 15.1.2015, and clause No.2 of Annexure P-2, as, made
on 23.8.2013, whereins, candid prescriptions are cast, rather bestowing
movements
r to
entitlement(s) upon them, to, after theirs completing three years, in the
afore capacity, hence theirs ably striving to seek migrations or upward
to a higher pay band than earlier thereto, they were
receiving, thereupon the afore apposite upward movements cannot
become rendered unvindicable, or unworkable, (i) rather the afore
entitlement(s), arising from three years of rendition of service, on a
contractual basis, by the writ petitioners, does obviously, foster an
inference, that for ensuring its efficacy, rather being not undone, upon,
expiry of three years' tenure, of, service, (ii) whereupon, after expiry, of,
tenure(s), of, three years' of contractual service, the respondents
concerned become disabled to terminate the contractual assignment(s)
of the petitioners, conspicuously, vis-a-vis, those contractual appointees,
who complete three years' of contractual service, (iii) as thereupon, the
afore apposite vindicable migrations would continue to hold force, or,
would continue to govern, and, regulate the service conditions of the writ
petitioners, (iv) besides, obviously, the afore entitlement becomes
unamenable to be put at naught or becoming stripped of vigor, (v)
unless as aforestated in the rules of 2017, the afore earlier
...11...
contemplated apposite upward movement or migrations became
.
evidently established, to, become deleted or struck off. Consequently,
the negations, vis-à-vis, the afore entitlements, to the writ petitioners,
by the respondents, through, the latter issuing the impugned
advertisement notice, does palpably, infringe clause 16 of Annexure P-2,
(vi) and, thereupon, a mandamus becomes enjoined to be pronounced,
upon them to, forthwith constitute a selection committee, and, to
nowat completed three years'
preceding therewith, hence, issue an advertisement notice, for ensuring
the participation(s) therein, of the writ petitioners, if each of them has
r of contractual service, rather for
determining the suitabilities of the writ petitioners, to seek, the benefits
of clause-16 of Annexure P-2, as, made on 23.8.2013, and, the
concurrent therewith, notification issued on 15.1.2014, whereto which,
Annexure P-3, is designated, unless as afore stated in the rules of 2017,
their replacement or deletion, has therein(s) been made.
12. Lastly, the learned Senior Counsel, appearing for the
respondents herein, has drawn the attention of this court to the verdict
of the Allahabad High Court, existing as Annexure P-5, and, submits that
since the afore verdict has attained finality, given the challenge as
became carried theiragainst before the Hon'ble Apex Court, rather
becoming, as unfolded by Annexure P-6, hence negated, and whereupon,
he contends that the afore conclusive and binding verdict, does also,
govern the lis at hand. However, the afore made submissions also cannot
come to be accepted by this Court, as a reading, of, the verdict of the
Allahabad High Court, as borne in Annexure P-5, does not, carry therein,
...12...
any commonality in facts or in reliefs with the lis at hand, (ii) especially,
.
when lis at hand is hinged, upon, the apt validity or survivability of the
afore clauses borne, in Annexure P-2, de hors, any apposite replacement
or substitutions thereto being made in the year, 2017, whereas, the
verdict of the Allahabad High Court embodied in Annexure P-5, is
singularly grooved, vis-à-vis, the validity of an advertisement notice
issued in the year, 2014, and, as became made in pursuance to the
recruitment Rules, 2013, rules whereof became pronounced therein, to
be kept in abeyance, till they do not become part of the statute.
However, since Mr. Shreedhar, has not made any address before this
court, that the alike therewith, R&P Rules of the year, 2013, in pursuance
whereof the writ petitioners became initially engaged, on a contractual
basis, rather against the advertised post(s) of Assistant Professors, being
not made a part of the statute, and, hence, theirs not acquiring any
colour of hue of validity. The sequel of the afore is that respondents
concerned are deemed to accept the validity of the Rules of 2013, in
pursuance whereof, the respondents concerned initially engaged the writ
petitioners, on a contractual basis, against the advertised posts of
Assistant Professors.
13. In summa, there is merit in the writ petitions and the
same are allowed in the following term:
i. A mandamus is pronounced upon the respondents to
forthwith constitute a selection committee, and,
preceding thereto to issue an advertisement notice,
for ensuring the participations therebefore of the writ
petitioners, if each of them has nowat completed
...13...
three years' of contractual service, for determining
.
theirs suitabilities to seek the benefits, of, clause-3 of
Annexure P-2. The entire exercise be completed
within a period of two weeks hereafter.
In the afore terms, the petitions stand disposed of, so also,
pending miscellaneous applications, if any.
( Sureshwar Thakur ),
r Judge
( Chander Bhusan Barowalia ),
Judge
22nd February,2021
(Guleria)
