Orissa High Court
Sushant Kumar And vs Central University Of Odisha on 2 May, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.4610 of 2023 & W.P.(C) Nos.11725, 11593
& 13022 of 2019 & W.P.(C) Nos.24456, 24544, 23982,
23980, 24474 & 24458 of 2024
In the matter of an application under Articles 226 and
227 of the Constitution of India.
..................
W.P.(C) No.4610 of 2023
Sushant Kumar and .... Petitioners
Others
-versus-
Central University of Odisha,
Koraput & Others .... Opposite Parties
For Petitioners : Mr. C.K. Agrawal, Advocate
For Opp. Parties : Mr. B. Routray, Sr. Adv.
with Mr. S. Behera, Advocate
for O.P. Nos.1 and 2
Mr. T.K. Satapathy, Adv. for O.P.
No.3
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 19.02.2025 and Date of Judgment:02.05.2025
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Biraja Prasanna Satapathy, J.
1. Since the issue in the present batch of Writ
Petitions revolves around continuance and/or
// 2 //
regularization of the services of the petitioners, all
the matters were heard analogously and disposed of
by the present common order. However, taking into
account the fact that all the relevant pleadings are
available in W.P.(C) No.4610 of 2023, the same was
taken as the lead case for adjudication of the dispute
involved.
2. It is the case of the petitioners in the present
batch of Writ Petitions that pursuant to the
advertisement issued at different point of time by the
authorities of Central University of Odisha (In short
"University"), petitioners were all engaged as Guest
Faculty/Junior Consultant/Lecturer (on contract)
vide different orders issued by the University under
Annexure-1 series.
2.1. It is contended that petitioners were so engaged
basing on the notice/advertisement issued by the
University vide Annexure-E Series to the counter
affidavit so filed by the Opp. Party-University. It is
contended that on being so engaged as against the
// 3 //
post of Guest Faculty/Lecturer on contract vide order
issued under Annexure-1 series pursuant to the
notice/ advertisement issued under Annexure-E
series to the counter affidavit on consolidated
remuneration basis vide subsequent orders issued
under Annexure-2 series, engagement of the
petitioners were extended by treating them as
contractual appointees.
2.2. It is also contended that taking into account
such continuance as Lecturer on contract,
petitioners were allowed and taken as members in
different committees constituted by the University
vide different office orders/notifications issued by the
University under Annexure-3 series. Not only that
vide order issued on 30.10.2017 under Annexure-4,
consolidated remuneration of such Lecturers on
contract was revised to Rs.30,000/- per month w.e.f.
01.11.2017 and all Lecturers engaged on contract
were designated as "Lecturer on Contract". Vide the
said order, it was also indicated that after
implementation of the 7th CPC Pay Scale in Central
// 4 //
University of Odisha, remuneration of such lecturers
on contract will be enhanced to Rs.35,000/- per
month.
2.3. It is contended that while so continuing with
due extension of the engagement vide different orders
issued by the University, when vide office order dated
01.07.2019 under Annexure-8, petitioners were
relieved from their services w.e.f. 30.06.2019 and the
University issued a fresh advertisement on
01.07.2019 under Annexure-9 for empanelment of
Guest Faculty in different discipline so occupied by
the petitioners, challenging such relieve order issued
on 01.07.2019 under Annexure-8 and the walk-in-
interview fixed in terms of the advertisement issued
on 01.07.2019 under Annexure-9, petitioners
approached this Court by filing W.P.(C) No.11725 of
2019, W.P.(C) No.11593 of 2019 and W.P.(C)
No.13022 of 2019.
2.4. This Court vide order dated 22.07.2019 and
06.08.2019 under Annexure-10 series, directed for
// 5 //
maintenance of status-quo with regard to the posts
held by the petitioners. This Court vide another order
issued under Annexure-10 series also held that
selection process pursuant to the advertisement
dated 01.07.2019 under Annexure-9 may continue
but no final decision shall be taken without leave of
the Court.
2.5. It is also contended that subsequent to order
dated 01.07.2019 under Annexure-8, when vide
notification dated 17.07.2019, a direction was issued
to the petitioners not to occupy any space or position
in the academic departments, this Court vide order
dated 22.07.2019 in W.P.(C) No.11593 of 2019,
passed a further order by directing the University to
allow the petitioners to continue in the Department
as before as they were continuing prior to
30.06.2019.
2.6. It is also contended that while so continuing in
terms of the interim order passed under Annexure-10
series, petitioners herein claiming equal pay for equal
// 6 //
work, approached this Court by filing W.P.(C)
No.4052 of 2022. This Court vide order dated
28.11.2022 under Annexure-11, disposed of the Writ
Petition with the following direction, so contained in
Para-8 of the said order:-
"8. In such view of the matter, since the
petitioners are continuing in the very same post and
are discharging their responsibilities, they are
entitled for 'equal pay for equal work' at par with
their counterparts, as has been indicated above, and
as such, the relief sought by the petitioners is
admissible. Accordingly, this writ petition stands
disposed of directing the opposite parties to pay the
'equal pay for equal work' to the petitioners at par
with similarly situated persons, as mentioned above
in terms of the 6th Pay Commission and the dues
admissible to the petitioners shall be paid, as
expeditiously as possible, preferably within a period
of three months from the date of production of
certified copy of this order."
2.7. It is contended that while the matter stood thus
and petitioners basing on the order of engagement
issued under Annexure-1 series and subsequent
orders issued under Annexure-2 series and further
orders issued under Annexures-3 & 4, were
continuing in their respective posts, the impugned
advertisement was issued on 23.01.2023 under
Annexure-12, inviting applications to fill up the post
of Asst. Professor on regular basis in different
departments of the University, which includes the
// 7 //
departments where the present petitioners are
continuing.
2.8. Challenging such advertisement issued on
23.01.2023 under Annexure-12, W.P.(C) No.4610 of
2023 was filed and with a further prayer to direct the
University to absorb petitioners against the post in
which they are continuing, without insisting them to
undergo rigors of the selection process.
2.9. It is contended that this Court while issuing
notice of the matter vide order dated 16.02.2023
passed an interim order to the following effect:-
"In the interim, it is observed that without
prejudice to the claim as made in the Writ Petition,
the petitioners may make their applications
pursuant to the notification issued by the
University on 23.01.2023 under Annexure-12. The
University is free to proceed with the selection
process pursuant to Annexure-12 but no final
decision shall be taken without leave of this Court
till the next date."
2.10. It is contended that pursuant to the interim
order passed by this Court on 16.02.2023, all the
petitioners made their applications pursuant to the
notification issued by the University on 23.01.2023
under Annexure-12 and participated in the selection
// 8 //
process. However, when only one of the petitioner i.e.
Petitioner No.6 in W.P.(C) No.4610 of 2023, was
found eligible and his name was recommended for
his appointment in the department of Mathematics,
this Court considering the application filed by the
University in I.A. No.15713 of 2023, modified the
interim order dated 16.02.2023 to the following effect
"While modifying the order, this Court permits
Opp. Party-University to fill up the post of
Assistant Professor in different discipline from
amongst the recommended candidates including
Petitioner No.6 in W.P.(C) No.4610 of 2023, who
was so recommended save and except filling up
required number of posts so held by the other
petitioners".
2.11. It is contended that in terms of the interim
order passed by this Court in W.P.(C) No.11725 of
2019, W.P.(C) No.11593 of 2019 and W.P.(C)
No.13022 of 2019 and the interim order passed in
the present case on 16.02.2023 so modified vide
order dated 23.11.2023, all the petitioners are
continuing as Lecturer on Contract as on date.
2.12. Learned counsel for the petitioners however
contended that since the petitioners were all engaged
// 9 //
by facing due selection process pursuant to the
advertisement/notification issued by the University
at different point of time vide Annexure-E series to
the counter affidavit and all the petitioners were so
engaged against sanctioned regular post and
petitioners also possess the required qualification to
teach in Under Graduate and Post Graduate level,
they are eligible and entitled to be absorbed as
against the post in which they were initially engaged
vide orders issued under Annexure-1 series, save and
except Petitioner No.6, who in the meantime has
already been appointed as against the regular post of
Assistant Professor in the department of
Mathematics, pursuant to Annexure-12.
2.13. It is contended that in the counter affidavit so
filed by the Opp. Party-University, O.P. Nos.1 & 2
have clearly admitted that petitioners were appointed
as Lecturer on Contract against sanctioned regular
post. It is also admitted in the counter affidavit that
petitioners possess required qualification to teach in
Under Graduate and Post Graduate Level and
// 10 //
accordingly they were selected as Lecturer on
Contract vide their initial orders of appointment.
Stand taken in Para-25 of the counter affidavit reads
as follows:-
"25. That, in response to para-16 the Opp.
Parties humbly submitted that in this
application, as follows:-
a) Direct Recruitment for regular posts are
not filled by Walk-in-interviews.
b) Petitioners were appointed as Lecturer-
on-Contract against sanctioned regular posts,
so that, their salaries may be paid out of
allocation under the Salary Budget head.
c) The petitioners posses required
qualification to teach at under graduate and
post graduate level hence, were selected as
Lecturer-on-Contract in their initial appointment.
d) The petitioners have opportunity for
regular appointment by competing with other
eligible candidates by advertisement
no.03/2023. They have not been debarred from
applying or competing."
2.14. It is contended that since the petitioners have
got the required qualification and they are all
appointed as Lecturer on Contract against
sanctioned regular post by facing due selection
process pursuant to the advertisement issued by the
University under Annexure-E series, in view of the
decisions of the Hon'ble Apex Court in the case of
Karnataka State Private College Stop-Gap
// 11 //
Lecturers Association, (1992) 2 SCC 29, Vinod
Kumar and Others Vs. Union of India, 2024 INSC
332, Somesh Thapliyal and Another Vrs. Vice
Chancellor, H.N.B. Garhwal University and
Another, (2021) 10 SCC 116 (Civil Appeal
No.8157 of 2024) Shripal and Another Vrs. Nagar
Nigam Ghajiabad decided on 31.01.2025 (SLP
(Civil) No.16944 of 2022 (Maitreyee Chakraborty
Vs. The Tripura University and Others, decided
on 22.08.2024. Hon'ble Apex Court in Para-1 and 7
of the judgment passed in the case of Karnataka
State Private College Stop-Gap Lecturers
Association has held as follows::-
"1.Teachers appointed temporarily for three
months or less, by privately managed degree colleges
receiving cent per cent grant-in-aid, controlled
administratively and financially by the Educational
Department of the State of Karnataka, seek
regularisation of their services by invoking principle
of equitable estoppel arising from implied assurance
due to their continuance, as such, for years with a
break of a day or two every three months. Another
basis for direction to regularise is founded on denial
of similar treatment by the State as has been
extended to contract teachers and local teachers
appointed in government or vocational colleges.
Payment of fixed salary instead of regular
emoluments for eight months in a year and that too
for number of years is yet another grievance.
xxx xxxx xxxx xxxx
// 12 //
7. So far these petitioners and teachers similarly
situated are concerned, it could not be disputed that
many of those teachers who appeared for selection in
pursuance of the High Court order secured
sufficiently high marks but they could not be
regularised because the vacancies are said to be
reserved. But what has been lost sight of is that
petitioners are seeking regularisation on posts on
which they have been working and not fresh
appointments, therefore, they could not be denied
benefit of the High Court's order specially when no
such difficulty was pointed out and it was on
agreement by the respondents that the order was
passed. No material has been brought on record to
show that any action was taken prior to decision by
the High Court against any institution for not
following the reservation policy. To deny therefore the
benefit of selection held on agreement by the
respondents is being unjust to such selectees.
Further the State of Karnataka appears to have been
regularising services of adhoc teachers. Till now it
has regularised services of contract lecturers, local
candidates, University lecturers, Engineering
colleges, lecturers etc. It may not furnish, any basis
for petitioners to claim that the State may be directed
to issue similar order regularsing services of teachers
of privately managed colleges. All the same such
policy decisions of government in favour of one or the
other set of employees of sister department are
bound to raise hopes and expectations in employees
of other departments. That is why it is incumbent on
governments to be more circumspect in taking such
decisions. The petitioners may not be able to build up
any challenge on discrimination as employees of
government colleges and private colleges may not
belong to the same class yet their claim cannot be
negatived on the respondents' stand in the counter
affidavit that the regularisation of temporary teachers
who have not faced selection shall impair educational
standard without explaining the effect of
regularisation of temporary teachers of University
and even technical colleges. Such being the
unfortunate state of affairs this Court is left with no
option but to issue following directions to respondents
for not honoring its commitments before the High
court and acting contrary to the spirit of the order,
and also due to failure of government in remaining
vigilant against private management of the college by
issuing timely directions and taking effective steps
for enforcing the rules:
(1) Services of such temporary teachers who
have worked as such for three years, including the
// 13 //
break till today shall not be terminated. They shall be
absorbed as and when regular vacancies arise.
(2) If regular selections have been made the
governemt shall create additional posts to
accommodate such selected candidates.
(3) The teachers who have undergone the
process of selection under the directions of the High
Court and have been appointed because of the
reservation policy of the Government be regularly
appointed by creating additional posts.
(4) From the date of judgment every temporary
teacher shall be paid salary as is admissible to
teachers appointed against permanent post.
(5) Such teachers shall be continued in service even
during vacations."
2.15. Hon'ble Apex Court in Para-5 to 8 of the
judgment passed in the case of Vinod Kumar as
cited (supra) has held as follows:-
"5. Having heard the arguments of both the sides, this
Court believes that the essence of employment and the
rights thereof cannot be merely determined by the initial
terms of appointment when the actual course of
employment has evolved significantly over time. The
continuous service of the appellants in the capacities of
regular employees, performing duties indistinguishable
from those in permanent posts, and their selection
through a process that mirrors that of regular
recruitment, constitute a substantive departure from the
temporary and scheme-specific nature of their initial
engagement. Moreover, the appellants' promotion
process was conducted and overseen by a
Departmental Promotional Committee and their
sustained service for more than 25 years without any
indication of the temporary nature of their roles being
reaffirmed or the duration of such temporary
engagement being specified, merits a reconsideration of
their employment status.
6. The application of the judgment in Uma Devi (supra)
by the High Court does not fit squarely with the facts at
hand, given the specific circumstances under which the
appellants were employed and have continued their
service. The reliance on procedural formalities at the
// 14 //
outset cannot be used to perpetually deny substantive
rights that have accrued over a considerable period
through continuous service. Their promotion was based
on a specific notification for vacancies and a subsequent
circular, followed by a selection process involving
written tests and interviews, which distinguishes their
case from the appointments through back door entry as
discussed in the case of Uma Devi (supra).
7. The judgement in the case Uma Devi (supra) also
distinguished between "irregular" and "illegal"
appointments underscoring the importance of
considering certain appointments even if were not made
strictly in accordance with the prescribed Rules and
Procedure, cannot be said to have been made illegally if
they had followed the procedures of regular
appointments such as conduct of written examinations
or interviews as in the present case. Paragraph 53 of
the Uma Devi (supra) case is reproduced hereunder:
"53. One aspect needs to be clarified. There may
be cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa
[(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N.
Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR
799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980
SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in
para 15 above, of duly qualified persons in duly
sanctioned vacant posts might have been made
and the employees have continued to work for ten
years or more but without the intervention of
orders of the courts or of tribunals.
The question of regularisation of the services of
such employees may have to be considered on
merits in the light of the principles settled by this
Court in the cases above referred to and in the
light of this judgment. In that context, the Union of
India, the State Governments and their
instrumentalities should take steps to regularise
as a one-time measure, the services of such
irregularly appointed, who have worked for ten
years or more in duly sanctioned posts but not
under cover of orders of the courts or of tribunals
and should further ensure that regular
recruitments are undertaken to fill those vacant
sanctioned posts that require to be filled up, in
cases where temporary employees or daily wagers
are being now employed. The process must be set
in motion within six months from this date. We
also clarify that regularisation, if any already
made, but not sub judice, need not be reopened
based on this judgment, but there should be no
further bypassing of the constitutional requirement
// 15 //
and regularising or making permanent, those not
duly appointed as per the constitutional scheme."
8. In light of the reasons recorded above, this Court finds
merit in the appellants' arguments and holds that their
service conditions, as evolved over time, warrant a
reclassification from temporary to regular status. The
failure to recognize the substantive nature of their roles
and their continuous service akin to permanent employees
runs counter to the principles of equity, fairness, and the
intent behind employment regulations."
2.16. Hon'ble Apex Court in Para-34,36, 37, 43, 45
to 52 of the judgment passed in the case of Somesh
Thapliyal v. HNB Garhwal University, (2021) 10
SCC 116 has held as follows:-
"34. The appointments were made of the teaching
faculty (Assistant Professor-Lecturer and Associate
Professor-Reader) in accordance with the procedure
prescribed under Chapter VI of the 1973 Act, pursuant
to an Advertisement No. 34 dated 4-2-2004 and later by
Advertisement No. 39 dated 19-5-2006 for holding
regular selection of various faculties including the
faculty of pharmaceutical sciences.
36. After the recommendations were finally
approved by the Executive Council, appointments were
made by the Vice-Chancellor of the University and at
this stage, for the first time, arbitrary conditions were
incorporated in the letter of appointment making
appointment to be contractual for a period of three years
in the first instance which came to be extended at the
later stage.
37. From the narration of facts as being referred to
supra, it clearly manifests that the appellants were
appointed after going through the process of selection as
contemplated under Part VI of the 1973 Act which
indeed was an appointment on substantive basis and
since the appellants were not in an equal bargaining
position and were in the need of employment when the
offer of appointment was made, were left with no option
but to accept such arbitrary conditions incorporated in
the letter of appointment in treating it to be contractual
for a limited period still recorded their protest while
joining but no heed was paid. When they were allowed
// 16 //
to continue by extending their services, they remained
under the bona fide belief that as their appointment is
being substantive in character, they will be made
permanent/confirmed immediately after the permanent
posts are sanctioned in the Department of
Pharmaceutical Sciences but to their dismay, after an
advertisement dated 29-8-2011 came to be notified by
the respondent Central University, no option was left
with them but to approach the High Court by filing of a
writ petition.
Xxxx xxxx xxxx xxxx
43. The bargaining power is vested with the
employer itself and the employee is left with no option
but to accept the conditions dictated by the authority. If
that being the reason, it is open for the employee to
challenge the conditions if it is not being in conformity
with the statutory requirement under the law and he is
not estopped from questioning at a stage where he finds
himself aggrieved.
Xxxx xxxx xxxx xxxx
45. The term "substantive appointment" is not so
defined in the legal dictionary but has been referred in
the service jurisprudence by the recruiting authority
while framing Rules under Article 309 of the
Constitution and what is being termed as "substantive
appointment" can be gathered from the U.P. Sales Tax
Officers (Grade II) Service Rules, 1983. The relevant
extract is as under:
"substantive appointment" means an appointment,
not being an ad hoc appointment, on a post in the cadre
of the service made after selection in accordance with
the rules and, if there are no rules in accordance with
the procedure prescribed for the time being by executive
instructions, issued by the Government."
46. The definition of "substantive appointment"
can further be noticed under Rajasthan Administrative
Service Rules, 1954 as under:
"4. (n) "substantive appointment" means an
appointment made under the provisions of these Rules
to a substantive vacancy after due selection by any of
the methods of recruitment prescribed under these
Rules and includes an appointment on probation or as a
probationer followed by confirmation on the completion
of the probationary period."
// 17 //
47. Almost similar nature of rule is available in
the services where the recruiting authority has defined
what is held as "substantive appointment" under the
Recruitment Rules framed under Article 309 of the
Constitution and this clearly defines that an
appointment made in accordance with the scheme of
Rules are held to be substantive appointment.
48. Adverting to the facts of the case,
undisputedly, the appellants were appointed pursuant
to an advertisement dated 4-2-2004 and 19-5-2006
held for regular selection and after going through the
process of selection as being provided under Chapter VI
of the 1973 Act and on the recommendations been made
by the statutory Selection Committee, constituted under
Sections 31(1) and (4) of the Act and approved by the
Executive Council, which is a statutory authority,
appointments were made in the year 2004 and 2007
respectively.
49. In our considered view, once the appellants
have gone through the process of selection provided
under the scheme of the 1973 Act regardless of the fact
whether the post is temporary or permanent in nature,
at least their appointment is substantive in character
and could be made permanent as and when the post is
permanently sanctioned by the competent authority.
50. In the instant case, after the teaching posts in
the Department of Pharmaceutical Sciences have been
duly sanctioned and approved by the University Grants
Commission of which a detailed reference has been
made, supported by the letter sent to the University
Grants Commission dated 14-8-2020 indicating the fact
that the present appellants are working against the
teaching posts of Associate Professor/Assistant
Professor sanctioned in compliance of the norms of the
Aicte/PCI and are appointed as per the requirements,
qualifications and selection procedure in accordance
with the 1973 Act and proposed by the University, such
incumbents shall be treated to be appointed against the
sanctioned posts for all practical purposes.
51. Thus, it can safely be held that the
appellants became entitled to claim their appointment to
be in substantive capacity against the permanent
sanctioned post and become a member of the teaching
faculty of the Central University under the Act 2009.
52. Consequently, the appeals succeed and are
accordingly allowed. The judgment of the Division
Bench of the High Court dated 19th August, 2013 is
hereby quashed and set aside. The appellants shall be
// 18 //
treated to be substantively appointed
teachers(Associate Professor/Assistant Professor) and
members of service of the Central University, namely,
HNB Garhwal University for all practical purposes,
entitled for a pay scale and notional consequential
benefits admissible to a regularly appointed teacher in
the service of the Central University under the Act 2009.
No costs."
2.17. Hon'ble Apex Court in Para-15, 16 and 18,
of the judgment passed in Civil Appeal No.8157 of
2024 in the case of Shripal and Another as
cited (supra) has held as follows:-
15. It is manifest that the Appellant Workmen
continuously rendered their services over several years,
sometimes spanning more than a decade. Even if certain
muster rolls were not produced in full, the Employer's failure
to furnish such records--despite directions to do so--allows
an adverse inference under well-established labour
jurisprudence. Indian labour law strongly disfavors
perpetual daily-wage or contractual engagements in
circumstances where the work is permanent in nature.
Morally and legally, workers who fulfil ongoing municipal
requirements year after year cannot be dismissed
summarily as dispensable, particularly in the absence of a
genuine contractor agreement. At this juncture, it would be
appropriate to recall the broader critique of indefinite
"temporary" employment practices as done by a recent
judgement of this court in Jaggo v. Union of India3 in the
following paragraphs:
"22. The pervasive misuse of temporary employment
contracts, as exemplified in this case, reflects a broader
systemic issue that adversely affects workers' rights and
job security. In the private sector, the rise of the gig economy
has led to an increase in precarious employment
arrangements, often characterized by lack of benefits, job
security, and fair treatment. Such practices have been
criticized for exploiting workers and undermining labour
standards. Government institutions, entrusted with
upholding the principles of fairness and justice, bear an
even greater responsibility to avoid such exploitative
employment practices. When public sector entities engage in
misuse of temporary contracts, it not only mirrors the
detrimental trends observed in the gig economy but also
sets a concerning precedent that can erode public trust in
governmental operations.
// 19 //
.........
25. It is a disconcerting reality that temporary
employees, particularly in government institutions, often
face multifaceted forms of exploitation. While the
foundational purpose of temporary contracts may have been
to address short-term or seasonal needs, they have
increasingly become a mechanism to evade long-term
obligations owed to employees. These practices manifest in
several ways:
• Misuse of "Temporary" Labels: Employees engaged
for work that is essential, recurring, and integral to the
functioning of an institution are often labelled as
"temporary" or "contractual," even when their roles mirror
those of regular employees. Such misclassification deprives
workers of the dignity, security, and benefits that regular
employees are entitled to, despite performing identical
tasks.
• Arbitrary Termination: Temporary employees are
frequently dismissed without cause or notice, as seen in the
present case. This practice undermines the principles of
natural justice and subjects workers to a state of constant
insecurity, regardless of the quality or duration of their
service.
• Lack of Career Progression: Temporary employees
often find themselves excluded from opportunities for skill
development, promotions, or incremental pay raises. They
remain stagnant in their roles, creating a systemic disparity
between them and their regular counterparts, despite their
contributions being equally significant.
• Using Outsourcing as a Shield: Institutions
increasingly resort to outsourcing roles performed by
temporary employees, effectively replacing one set of
exploited workers with another. This practice not only
perpetuates exploitation but also demonstrates a deliberate
effort to bypass the obligation to offer regular employment.
• Denial of Basic Rights and Benefits: Temporary
employees are often denied fundamental benefits such as
pension, provident fund, health insurance, and paid leave,
even when their tenure spans decades. This lack of social
security subjects them and their families to undue hardship,
especially in cases of illness, retirement, or unforeseen
circumstances."
16. The High Court did acknowledge the Employer's
inability to justify these abrupt terminations. Consequently,
it ordered re-engagement on daily wages with some
measure of parity in minimum pay. Regrettably, this only
perpetuated precariousness: the Appellant Workmen were
left in a marginally improved yet still uncertain status. While
the High Court recognized the importance of their work and
// 20 //
hinted at eventual regularization, it failed to afford them
continuity of service or meaningful back wages
commensurate with the degree of statutory violation evident
on record.
Xxxx xxxxxx xxxxxx
18. The impugned order of the High Court, to the extent they
confine the Appellant Workmen to future daily-wage
engagement without continuity or meaningful back wages,
is hereby set aside with the following directions:
I. The discontinuation of the Appellant Workmen's
services, effected without compliance with Section 6E and
Section 6N of the U.P. Industrial Disputes Act, 1947, is
declared illegal. All orders or communications terminating
their services are quashed. In consequence, the Appellant
Workmen shall be treated as continuing in service from the
date of their termination, for all purposes, including seniority
and continuity in service.
II. The Respondent Employer shall reinstate the
Appellant Workmen in their respective posts (or posts akin to
the duties they previously performed) within four weeks
from the date of this judgment. Their entire period of
absence (from the date of termination until actual
reinstatement) shall be counted for continuity of service and
all consequential benefits, such as seniority and eligibility
for promotions, if any.
III. Considering the length of service, the Appellant
Workmen shall be entitled to 50% of the back wages from
the date of their discontinuation until their actual
reinstatement. The Respondent Employer shall clear the
aforesaid dues within three months from the date of their
reinstatement.
IV. The Respondent Employer is directed to initiate a
fair and transparent process for regularizing the Appellant
Workmen within six months from the date of reinstatement,
duly considering the fact that they have performed perennial
municipal duties akin to permanent posts. In assessing
regularization, the Employer shall not impose educational or
procedural criteria retroactively if such requirements were
never applied to the Appellant Workmen or to similarly
situated regular employees in the past. To the extent that
sanctioned vacancies for such duties exist or are required,
the Respondent Employer shall expedite all necessary
administrative processes to ensure these longtime
employees are not indefinitely retained on daily wages
contrary to statutory and equitable norms."
2.18. Hon'ble Apex Court in Para-26 to 30, 32 to
34 and 36 of the judgment passed in the case of
// 21 //
Maitreyee Chakraborty as cited (supra) has
held as follows:-
"26. The Appellant went through the normal
process of selection. The employment notice set out
that appointments made to the posts against LIEN
vacancies are likely to be regularized subject to
vacation of lien and satisfactory performance. The
lien admittedly got vacated. The performance has
been satisfactory as nothing adverse had been
pointed out and the Appellant is discharging the
duties for more than seven years. While approving
the panel of names also it was clearly mentioned
that in case the candidate at Serial No.1 - Sri. Brij
Mohan Pandey did not accept the offer, the
Appellant was to be accommodated against the
regular vacancy. This clearly demonstrates that all
the applicants competed for the regular post also
and no one from the open market could have been
prejudiced. Most importantly, the offer of
appointment also stated that in case the lien was
vacated, the Appellant's service was to be
continued further with the approval of the Executive
Council of the University.
27. In this background, particularly when the
Appellant was put through the fire test of a regular
selection, was the University justified in denying
her confirmation when all the contingencies were
cleared with the vacation of the lien and the
performance being satisfactory? We think not. The
University cannot be heard to say:- 'may be the lien
is vacated, and your performance is satisfactory,
but we do not want to confirm your service'. The
Respondent-University, being a statutory body, any
such conduct would tantamount to an arbitrary and
unreasonable exercise of power, apart from being
unfair. The discretion vested in the Executive
Council should be exercised in a fair and non-
arbitrary manner. It cannot be based on the whim
and caprice of the decision-making authority. If
asked to justify, the Executive Council must have
good reasons to defend the exercise of power. In
this case, alas, there are none. The resolution of the
Executive Council denying confirmation and
preferring readvertisement is delightfully vague and
offers no justification. The justification desperately
attempted in the counter affidavit to defend the
decision has, as demonstrated above, come a
cropper.
// 22 //
28. In Somesh Thapliyal (supra) it was held
as under:-
"49. In our considered view, once the Appellants
have gone through the process of selection provided
under the scheme of the 1973 Act regardless of the
fact whether the post is temporary or permanent in
nature, at least their appointment is substantive in
character and could be made permanent as and
when the post is permanently sanctioned by the
competent authority.
50. In the instant case, after the teaching posts in
the Department of Pharmaceutical Sciences have
been duly sanctioned and approved by the
University Grants Commission of which a detailed
reference has been made, supported by the letter
sent to the University Grants Commission dated 14-
8-2020 indicating the fact that the present
Appellants are working against the teaching posts
of Associate Professor/Assistant Professor
sanctioned in compliance of the norms of the
AICTE/PCI and are appointed as per the
requirements, qualifications and selection procedure
in accordance with the 1973 Act and proposed by
the University, such incumbents shall be treated to
be appointed against the sanctioned posts for all
practical purposes."
29. Mehar Fatima Hussain (supra), while following
Somesh Thapliyal (supra), held on the facts of that
case that where appointment was after undergoing
a regular selection process and the incumbents
possess the relevant qualification, they should have
been continued on the posts merged with the
regular establishment of the University instead of
adopting a fresh selection procedure. Further in that
case the University's action of not continuing the
incumbents and starting a fresh selection process
was held to be unjust, arbitrary and violative of
Article 14 of the Constitution of India. Directions to
continue the employment were given. On the facts of
the present case too we are inclined to adopta
similar course.
30. Considering the facts obtaining in the present
case, we are inclined to hold that, in the absence of
any material indicating unsatisfactory performance,
in the ordinary course of things, fair and just
exercise of power would require that the Appellant
be confirmed against the vacancy since there was
no more a lien being exercised by Dr. Praveen
Kumar Mishra. The reasoning given by the learned
// 23 //
Single Judge and of the Division Bench, as
demonstrated above, are fallacious. The Appellant
has, after undergoing the regular selection process,
been working since 17.01.2017, for the last seven
years and approximately six months. Even in the
impugned order, pending the proposed re-
advertisement, she was continued in service.
Xxxx xxxx xxxx xxxx
32. In Ram Pravesh Singh and Others vs.
State of Bihar and Others, (2006) 8 SCC 381, this
Court observed that the repository of the legitimate
expectation is entitled to an explanation as to the
cause for denial of the expected benefit flowing from
the representation held out. Ram Pravesh Singh
(supra) was recently followed by the Constitution
Bench in Sivanandan C.T. and Others vs. High
Court of Kerala and Others, (2024) 3 SCC 799.
Chief Justice D.Y. Chandrachud, speaking for the
Constitution Bench, after felicitously tracing the
entire historyof the development of the doctrine of
legitimate expectation, held in para 18 as under:-
"18. The basis of the doctrine of legitimate
expectation in public law is founded on the
principles of fairness and non-arbitrariness in
Government dealings with individuals. It recognises
that a public authority's promise or past conduct
will give rise to a legitimate expectation. The
doctrine is premised on the notion that public
authorities, while performing their public duties,
ought to honour their promises or past practices.
The legitimacy of an expectation can be inferred if it
is rooted in law, custom, or established procedure."
33. In the said judgment of the Constitution Bench,
it was further held following Food Corporation of
India vs. M/s Kamdhenu Cattle Feed Industries,
(1993) 1 SCC 71 that public authorities have a duty
to use their powers for the purpose of public good
and that the said duty raises a legitimate
expectation on the part of the citizens to be treated
in a fair and non- arbitrary manner. One of the
exceptions recognized in the above judgment is that
the doctrine of legitimate expectation will cede to
larger public interest.
34. In the present case, the only explanation given
in the counter affidavit of the State was that the
University had a discretion and that the denial of
regularization and the decision to re-advertise was
in the larger interest of the candidates who had not
// 24 //
applied as the post was under lien. This
explanation found favour with the High Court.
However, we have in our discussion above,
demonstrated that one of the post of the Assistant
Professor (Law) was clearly a regular post in the
Unreserved Category. We have found that no
prejudice to public interest could have been caused
as eligible candidates desiring the appointment
would have anyway applied to compete for the
regular slot. In view of this, in the facts of the
present case, we find that the legitimate expectation
was not outweighed by any overriding public
interest.
xxxx xxxxx xxxxx
36. In view of the aforesaid, we set aside the
judgment of the learned Single Judge dated
04.12.2019 and of the Division Bench dated
20.06.2022. We also set aside the Resolution in
Agenda No.18/32/2018 of the 32nd Meeting of the
Executive Council held on 13.12.2018 insofar as it
records that the Appellant is not confirmed in
service and that the post should be readvertised.
We also set aside the letter of the Registrar dated
06.02.2019 directing that her services will not be
continued beyond 28.02.2019. We further issue a
writ of mandamus directing the Respondent-
University to place the Appellant's case for
confirmation before the Executive Council and that
the Executive Council and the Respondent-
University shall pass appropriate
resolution/order(s), in accordance with the findings
given in the present judgment. The said exercise is
to be carried out within four weeks' time. The
Appellant should also be given all consequential
benefits."
2.19. Reliance was also placed to a decision of this
Court reported in 2022(II) OLR P-658 (Subrat
Narayan Das and Others Vrs. State of Odisha
and Others). This Court in Para-22 to 27 of the
judgment has held as follows:-
// 25 //
"22. In view of such position, if the Petitioners have
been allowed to continue for a quite long period on
contractual basis, due to financial crunch, they
cannot be thrown out stating that they were not
recruited as per the provisions of BPUT Act and the
Rules framed thereunder. Therefore, the Petitioners'
case should be taken into consideration for
regularization of their services.
23. On the basis of the materials available on record,
this Court is of the firm view that the Petitioners were
engaged against sanctioned posts by following due
process of selection, pursuant to the advertisements
issued. And, because of satisfactory performance,
even though they were appointed for a period of one
year, their services have been extended time to time
and in the meantime, they have gained experience of
more than 16 years. The contention raised that
because of the interim order passed by this Court,
they have been allowed to continue, does not stand
to reason, in view of the fact that once the Petitioners
are continuing against sanctioned posts, if the
advertisements were issued for filling up those posts,
the Court, having considered the gravity of the issue,
passed interim orders protecting the interest of the
Petitioners and, ultimately, the Authorities
themselves have withdrawn those advertisements
realizing the fact that the Petitioners are continuing
against those posts. Therefore, the contention that by
virtue of the interim orders they have been
continuing, cannot have any justification, rather, the
Opposite Party No.4 has tried to exploit the
Petitioners. In the circumstances, a right has already
accrued in favour of the Petitioners for seeking
regularization of their services.
The Petitioners' right to seek for regularization of
services, cannot be set at naught by relying on a
clause that they cannot ask for regularization. In the
considered view of this Court scion clause is a Henry
VIII clause, smacks of arbitrariness and hence such
arbitrary clause cannot be sustained in the eye of
law.
24. Mr. S. Palit, learned Senior Advocate laid
emphasis on the judgment of the apex Court in Union
of India v. N. Murugesan, (2022) 2 SCC 25 and
contended that the provisions of Contract Act, 1872
and principle of approbate and reprobate are
applicable to the present case. This Court is of the
considered view that the principle, which has been
referred to, is applicable to the facts and
circumstances of that case only, as because in that
case an advertisement was made to fill up the post of
// 26 //
Director General either by direct recruitment or on
deputation in tune with Central Power Research
Institute (Pay, Recruitment and Promotion) Rules,
1989. The respondent had applied for the said post
being eligible to be appointed on direct recruitment.
The approval for appointment of respondent was
given for an initial tenure of five years or until further
orders, with a further direction that the respondent
would be eligible for reappointment for a further term
up to the date of his superannuation. On finding his
tenure coming to an end, the respondent submitted a
representation after about four years and nine
months from the date of his joining, taking a stand
that since his appointment was made by way of
direct recruitment, he should be treated as a regular
employee and therefore, to be continued till the date
of his superannuation.
25. The factual matrix of the judgment, as referred to
above, being distinguishable from that of the Present
Petitioners, on the basis of the ratio decided by the
apex Court, as mentioned in the foregoing
paragraphs, the Petitioners' service should have been
regularized. But the Tribunal, without considering the
case of the Petitioners in proper perspective, has
come to an erroneous conclusion and dismissed the
Original Applications filed by the Petitioners.
26. In view of the facts and law, as discussed
above, this Court is of the considered view that the
order dated 03.10.2016 passed by the Tribunal
cannot be sustained in the eye of law and is liable to
be quashed and hereby quashed.
27. Consequentially, this Court is of the considered
view that the Opposite Parties should absorb the
Petitioners on regular basis against sanctioned
vacant posts taking into account the length of service
rendered by them in their respective posts, in which
they are continuing, without insisting upon them to
undergo the rigors of the selection procedure, since
they were engaged by following due process of
selection in a transparent manner conducted by the
Authority through the selection committee on
contractual basis and are continuing for more than
16 years. The Petitioners being not backdoor entrants
to the service and admittedly their performance
having been found to be satisfactory for more than a
decade and half, Opposite Party No.4 should extend
all consequential benefits, as due and admissible in
accordance with law, as expeditiously as possible,
preferably within a period of four months. Ordered
accordingly."
// 27 //
2.20. It is contended that in view of the
continuance of the petitioners for more than 7 years
in each of the cases and their continuance as against
sanctioned regular post, in view of the decisions as
cited (supra), petitioners are eligible and entitled to
get the benefit of absorption in their posts in the
respective departments. It is accordingly contended
that appropriate direction be issued to the University
to absorb the petitioners against regular post in
different departments in which petitioners are so
continuing in terms of the order of engagement
issued under Annexure-1 series.
3. Mr. B. Routray, learned Senior Counsel
appearing for the University-O.P. Nos.1 and 2 along
with Mr. Sarbeswar Behera, learned counsel on the
other hand made his submission basing on the stand
taken in the counter affidavit so filed by the
University. It is contended that the impugned
advertisement dated 23.01.2023 was issued by the
University under Annexure-12 to fill up the post of
Assistant Professor on regular basis in various
// 28 //
departments of the University. The recruitment is to
be conducted in accordance with UGC Regulations,
2018, AICTE Regulations, 2019, NCTE Regulations,
2014 as applicable.
3.1. It is contended that pursuant to the interim
order passed by this Court on 16.02.2023, all the
petitioners participated in the selection process in
terms of Annexure-12. Save and except Petitioner
No.6, all failed to qualify and accordingly in terms of
further orders passed by this Court on 23.11.2023,
all the recommended candidates in different
departments including Petitioner No.6, have been
appointed on regular basis. But in view of the interim
order passed by this Court initially in the Writ
Petitions filed in the year 2019 and the interim order
passed by this Court in the present Writ Petition, all
the petitioners are continuing as Lecturer on
Contract. It is contended that since all the petitioners
except Petitioner No.6 have failed to qualify the
selection in terms of Annexure-12 they don't have
any right to continue any further.
// 29 //
3.2. It is contended that as provided under the UGC
Regulation, 2018 so issued by the UGC vide
Notification dated 18.07.2018 under Annexure-D to
the counter affidavit, petitioners were appointed on
contract basis in terms of the provisions contained
under Para-13 of the said regulation. Para-13 of the
Regulation reads as follows:-
"13. Appointments on Contract Basis
The teachers should be appointed on contract
basis only when it is absolutely necessary and when
the student-teacher ratio does not satisfy the laid-
down norms. In any case, the number of such
appointments should not exceed 10% of the total
number of faculty positions in a College/University.
The qualifications and selection procedure for
appointing them should be the same as those
applicable to a regularly-appointed teacher. The fixed
emoluments paid to such contract teachers should
not be less than the monthly gross salary of a
regularly appointed Assistant Professor. Such
appointments should not be made initially for more
than one academic session, and the performance of
any such entrant teacher should be reviewed for
academic performance before reappointing him/her
on contract basis for another session. Such
appointments on contract basis may also be resorted
to when absolutely necessary to fill vacancies arising
due to maternity leave, child-care leave etc."
3.3. It is also contended that Para-4 of the
Regulation prescribes the qualification for direct
recruitment to the post of Assistant Professor.
Similarly, Para-10 of the Regulations provides the
counting of previous regular service for direct
// 30 //
recruitment and promotion under Career
Advancement Scheme of a Teacher as Asst.
Professor, Associate Professor, Professor or any other
nomenclature. Para-10(f) of the said Regulation
provides that previous adhoc or temporary or
contractual service (by whatever nomenclature it may
be called) shall be counted for direct recruitment and
for the promotion, provided that essential
qualification of the post held were not lower than the
qualifications prescribed by the UGC for Assistant
Professor, Associate Professor and Professor as the
case may be.
3.4. It is contended that since in terms of Regulation
13 of 2018 Regulation, petitioners were all appointed
on contract basis, petitioners have got no right to
claim absorption as against such posts in which they
were appointed on contract basis. Similarly,
Regulation 6 of the Regulation provided the criteria
for regular selection of Asst. Professor/Associate
Professor/ Professor/ Sr. Professor in Universities
and Colleges.
// 31 //
3.5. It is also contended that as provided under
Regulation 6.2 of the Regulations, the constitution of
the selection committee and selection procedure as
well as the assessment criteria and methodology of
the above cadres, either through direct recruitment
or through Career Advancement Scheme, shall be in
accordance with these regulations. It is contended
that though it is not disputed that all the petitioners
were engaged as Lecturer on Contract as against
regular sanctioned post and petitioners also do
possesses the required qualification to hold the post
in question, but since petitioners save and except
Petitioner No.6, failed to qualify the selection in terms
of Annexure-12 notification, petitioners are not
eligible and entitled to get the benefit of absorption
as prayed for.
3.6. It is contended that since petitioners have failed
to qualify the selection process in terms of Annexure-
12, their further continuance is not in the interest of
the University and they are continuing because of the
interim order passed by this Court in the Writ
// 32 //
Petitions filed in the year 2019 and the interim order
passed in the present Writ Petition.
3.7. Learned Senior Counsel appearing for the
University also contended that in terms of the
provisions contained under Section 18 of the Central
University Act, 2009 (In short "the Act"), there shall
be a Selection Committee for making
recommendations to the executive council for
appointment to the post of Professor/Associate
Professor/Asst. Professor, Registrar etc. maintained
by the University. Section 18(2) of the said Act
provides the constitution of Selection Committee for
appointment to different posts which includes the
post of Asst. Professor. Section 18(6) of the said Act
further provides for appointment to temporary post
in the manner indicated below. Section 18(6) of the
Act reads as follows:-
"(6) Appointments to temporary posts shall be
made in the manner indicated below:-
(i) If the temporary vacancy is for duration
longer than one academic session, it shall be filled on
the advice of the Selection Committee in accordance
with the procedure indicated in the foregoing clauses:
// 33 //
Provided that if the Vice-Chancellor is satisfied
that in the interest of work it is necessary to fill the
vacancy, the appointment may be made on a purely
temporary basis on the advice of a local Selection
Committee referred to in sub-clause (ii) for a period
not exceeding six months.
(ii) If the temporary vacancy is for a period less
than a year, an appointment to such vacancy shall
be made on the recommendation of a local Selection
Committee consisting of the Dean of the School
concerned, the Head of the Department and a
nominee of the Vice-Chancellor.
Provided that if the same person holds the
office of the Dean and the Head of the Department,
the Selection Committee may contain two nominees of
the Vice-Chancellor.
Provided further that in the case of sudden
casual vacancies of teaching posts caused by death
or any other reason, the Dean may, in consultation
with the Head of the Department concerned, make a
temporary appointment for a month and report to the
Vice-Chancellor and the Registrar about such
appointment.
(iii) No teacher appointed temporarily shall, if
he is not recommended by a regular Selection
Committee for appointment under the Statutes, be
continued in service on such temporary employment,
unless he is subsequently selected by a local
Selection Committee or a regular Selection committee,
for a temporary or permanent appointment as the
case may be."
3.8. Placing reliance on the provisions contained
under Section 18(6)(iii) of the Act, learned Senior
Counsel contended that since the petitioners were
appointed on temporary basis and are not
recommended by the Regular Selection Committee
for appointment under the statutes, they are not
eligible to continue in service on such temporary
// 34 //
employment. It is contended that since in terms of
Annexure-12 notification, petitioners were not
recommended by the selection committee for their
appointment as against the post of Assistant
Professor in the concerned department on regular
basis, they are not eligible to continue in service on
such temporary employment. It is accordingly
contended that petitioners are neither eligible for
their absorption in the concerned department as
prayed for, but also they are not eligible to continue
any further on such temporary employment.
3.9. Making all these submissions learned Senior
Counsel appearing for the University contended that
petitioners are not eligible and entitled to get the
benefit as prayed for and the Writ Petition is liable for
dismissal with vacation of the interim order.
4. To the submissions made by learned Senior
Counsel appearing for the University, learned
counsel for the petitioners made further submission
basing on the stand taken in the rejoinder affidavit. It
// 35 //
is contended that as admitted in the counter
affidavit, the University was established in the year
2009 with the sanctioned strength of 22 Professors,
43 Associate Professors and 88 Asst. Professors.
Pursuant to the selection process initiated by the
University at different point of time, the university
could recruit 2 Associate Professor and 15 Asst.
Professor till the date of filing of the present Writ
Petition. Stand taken in Para-13 of the counter
affidavit reads as follows:-
"13. That, in response to para-3 the Opp. Parties
humbly submitted that in this application, the university
was established in the year 2009 with a sanctioned
strength of Professor 22, Associate Professor 43,
Assistant Professors 88. The university could recruit 2
Associate Professors and 15 Assistant Professors till the
date of the WP and selection process for appointment of
Professors, Associate Professors and Assistant
Professors is going on which has been challenged in this
WP."
4.1. It is also contended that subsequent to
engagement of the petitioners vide different orders
issued under Annexure-1 series, the University
though made various attempt to fill up the posts on
regular basis vide advertisements issued vide
Advertisement Nos.01/2010, 02/2012, 02/2016,
// 36 //
01/2019, 02/2019, 03/2019 and 01/2020, but the
University basing on said selection process could
only appoint 15 Assistant Professors and 2 Associate
Professors.
4.2. It is also contended that advertisements issued
by the University as indicated hereinabove were
withdrawn by the University subsequently, save and
except the present advertisement issued vide
Advertisement No.03/2023 under Annexure-12.
Stand taken by the University in Para-15, 20, 21 and
22 reads as follows:-
"15. That, in response to para-5 the Opp.
Parties humbly submitted that in this application
the university made several attempts to appoint
regular faculty for teaching and advertised the
positions ever since its establishment in 2009. Advt.
No.01/2010, 02/2012, 02/2016, 01/2019,
02/2019, 03/2019, 01/2020 and latest in 2023
vide advertisement no.01/2023, 02/2023,
03/2023.
But, due to various reasons, could appoint
only 15 Assistant Professors and, 2 Associate
Professors. The university was not having a regular
Vice-Chancellor in September 2022 the university
progressed well and advertised all the teaching
positions, i.e., Professors, Associate Professors and
Assistant Professors in January 2023 which has
been challenged by the petitioners thus creating a
road block again in the recruitment process of
regular faculty.
Xxxx xxxx xxxx
// 37 //
20. That, in response to para-10 and 11 the
Opp. Parties humbly submitted that in this
application the Office Order
No.CUO/Admn./AL/41/VI dated 01.07.2019 has
been withdrawn by the university following the
Hon'ble High Court in WP 11593/2019 order dated
09/07/2019, 22.07.2019 and 06.08.2019.
21. That, in response to para-12 the Opp.
Parties humbly submitted that in this application
the university advertisement No.03/2019 dated
01.08.2019 was withdrawn due to technical
reasons.
22. That, in response to para-13 the Opp.
Parties humbly submitted that in this application
the university advertisement No.01/2020 dated
22.06.2020 was withdrawn on 03.11.2021 due to
recasting the reservation rosters."
4.3. It is contended that since as against 88 posts of
Assistant Professor as admitted by the University
only 15 posts of Assistant Professor have been filled
up on regular basis, taking into account the long
continuance of the petitioners on contractual basis
and their continuance for more than 7 (seven) years,
in view of the decisions relied on by the learned
counsel for the petitioners as cited (supra),
petitioners are eligible and entitled to get the benefit
of absorption in the departments in question in
which they are continuing on contract basis.
4.4. It is also contended that since by the time
petitioners were all engaged as Lecturer on contract,
// 38 //
UGC Regulation, 2018 was not in picture, the same
having been notified on 18.07.2018, petitioners are
not covered as per the said regulations issued by the
UGC under Annexure-D to the counter affidavit.
4.5. Similarly, placing reliance on the provisions
contained U/s.18(6)(iii) of the Act, it is contended
that since petitioners have not been recommended by
the Selection Committee pursuant to Annexure-12,
petitioners are eligible and entitled to continue on
temporary basis till they are absorbed on regular
basis.
4.6. It is also contended that as prescribed under
the 2018 Regulations, the qualification and
procedure for engagement of Teachers on Contract
basis is same as applicable to regularly appointed
teachers. It is also contended that even though
petitioners were continuing on contract basis, but in
terms of the provisions contained under Regulation-
10(f) of the Regulation, 2018, their previous
// 39 //
continuance was not counted during the process of
selection in terms of Annexure-12 advertisement.
4.7. It is also contended that had the previous
experience of the petitioners would have been taken
into consideration, petitioners should have been
recommended to get the benefit of regular
appointment in terms of Annexure-12. It is
accordingly contended that the petitioners are eligible
and entitled to get the benefit of absorption in the
department in which they are continuing at present.
5. To the submissions made by learned counsel for
the petitioners, learned Sr. Counsel appearing for the
University contended that this Court in W.P.(C)
No.11593 of 2019, W.P.(C) No.13022 of 2019 and
W.P.(C) No.11725 of 2019, when passed a further
order on 05.12.2019 by permitting the University to
continue with the selection process in terms of the
advertisement issued on 01.07.2019 under
Annexure-9, the same was challenged by the
// 40 //
University by filing W.A. Nos.614, 619 and 620 of
2019.
5.1. It is contended that this Court while taking up
all those 3 (three) Writ Appeals on 20.12.2019,
learned counsel for the petitioners in the present
batch of Writ Petitions, made a submission that the
intention of the University is to avoid the Regular
selection process and the University is trying to
engage Guest Faculty temporarily and continue with
that system.
5.2. It is accordingly contended that in view of the
submission made by learned counsel for the
petitioners in the aforesaid Writ Appeals, petitioners
are not permitted to challenge the steps taken by the
University to fill up the post of Asst. Professor on
regular basis with issuance of the notification under
Annexure-12. It is accordingly contended that in view
of such stand taken by the petitioners before this
Court in the Writ Appeal, they are not permitted to
challenge the selection process initiated by the
// 41 //
University to fill up the post of Asst. Professor on
regular basis vide Annexure-12 and petitioners are
not eligible and entitled to get the benefit as prayed
for.
6. I have heard Mr. C.K. Agrawal, learned counsel
for the petitioners, Mr. B. Routray, learned Sr.
Counsel along with Mr. Sarbeswar Behera, learned
counsel appearing for O.P. Nos.1 and 2 and Mr. T.K.
Satapathy, learned counsel appearing for O.P. No.3.
With due exchange of the pleadings and on the
consent of learned counsels appearing for the parties,
the matter was heard at the stage of admission and
disposed of by the present order.
7. Having heard learned counsel for the parties,
considering the submissions made and after going
through the materials available in the record, this
Court finds that pursuant to the notifications issued
by the University at different point of time vide
Annexure-E series to the counter affidavit so filed by
the University, petitioners were all engaged as Guest
// 42 //
Faculty/Junior Consultant/Lecturer on Contract
vide different orders issued under Annexure-1 series
starting from 15.07.2015 to 05.06.2018.
7.1. Engagement of the petitioners were
subsequently extended from time to time vide
different orders issued under Annexure-2 series
starting from 03.08.2015. While so extending
engagement of the petitioners on contractual basis,
engagement of the petitioners was taken as against
the post of Lecturer (on contract). It is also found
that consolidated salary of petitioners was enhanced
at different point of time and petitioners were
allowed to continue in different committees formed
by the University so found under Annexure-3 series.
7.2. It is also found that while the petitioners were
so continuing as Lecturer on contract on contractual
basis, when the University vide office order dated
01.07.2019 relieved the petitioners from their
engagement w.e.f. 30.06.2019 vide office order dated
01.07.2019 under Annexure-8 and a fresh
// 43 //
notification was issued calling for walk in interview
for empanelment of Guest Faculty vide notification
dated 01.07.2019 under Annexure-9, the same was
challenged by the present petitioners by filing W.P.(C)
Nos.11593, 13022 & 11725 of 2019. Pursuant to the
interim order passed by this Court on 09.07.2019
and 22.07.2019 as well as 06.08.2019 under
Annexure-10 series, petitioners were allowed to
continue in their respective departments. However,
as found from the counter affidavit so filed by the
University, all the advertisement issued by the
University at different point of time were withdrawn
by the University, save and except the impugned
advertisement dated 23.01.2023 issued under
Annexure-12.
7.3. It is also found from the record and as admitted
by the University, all the petitioners were appointed
as Lecturer on Contract against sanctioned regular
posts and it is also not disputed that the petitioners
possess the required qualification to teach at Under
Graduate and Post Graduate level. As further found
// 44 //
from the UGC Regulation, 2018 so notified on
18.07.2018 under Annexure-D, the essential
qualification for engagement/appointment of Asst.
Professor on temporary basis and regular basis as
provided under Regulation 10(f) is same.
7.4. All the petitioners were engaged on temporary
basis as Lecturer on Contract pursuant to the
selection process initiated by the University vide
Annexure-E series to the counter affidavit. Taking
into account the fact that the petitioners were all
engaged as Lecturer on contract against sanctioned
regular post in terms of the selection process
initiated under Annexure-E series and petitioners
since possess the required qualification to hold the
post of Asst. Professor on regular basis, placing
reliance on the decisions so cited (supra), this Court
is of the view that petitioners are eligible and entitled
to get the benefit of absorption in their respective
posts in which they are engaged vide orders issued
under Annexure-1 series.
// 45 //
7.5. Therefore, this Court while disposing the Writ
Petition, directs the University to take steps for
absorption of the petitioners in their respective posts.
This Court directs the University to issue appropriate
order in that regard within a period of 2 (two) months
from the date of receipt of this order. Till such order
of absorption is issued, petitioners save and except
petitioner No.6 be allowed to continue as Lecturer on
Contract in their respective departments.
8. With the aforesaid observation and direction,
the Writ Petition stands disposed of.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 2nd May, 2025/Basudev
Location: High Court of Orissa, Cuttack
