Punjab-Haryana High Court
Dr. Namrita Kalia vs Dr. B.R. Ambedkar National ... on 21 November, 2022
CWP No.19686 of 2018 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-19686 of 2018
Date of decision : 21.11.2022
Dr. Namrita Kalia
... Petitioner
Versus
Dr. B.R. Ambedkar National Institute of Technology, Jalandhar and others
.. Respondents
CORAM :HON'BLE MR. JUSTICE ANUPINDER SINGH GREWAL
Present:- Mr. Vivek Salathia, Advocate for the petitioner.
Mr. Vivek Singla, Advocate for respondents No.1 and 2.
Mr. Sudershan Kumar, Advocate for respondent No.3.
***
Anupinder Singh Grewal, J. (Oral)
The petitioner has challenged the selection process initiated
pursuant to advertisement No.9/2017 (Annexure P-6). She has sought further
direction to permit the petitioner to continue as Assistant Professor (on
contract) till the regular selection is made by the respondent-Institute.
2. Learned counsel for the petitioner submits that the petitioner had
been appointed as Assistant Professor on contract basis on 17.07.2015 and had
continued to work till August, 2018. The respondents could not have replaced
her with another Assistant Professor appointed on contractual basis. The
appointment of respondent No.3 as Assistant Professor (on contract) is vitiated
in law. He further submits that in the impugned advertisement, the
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nomenclature of the post was Assistant Professor (on contract) but later the
respondents are trying to convert this appointment to a regular appointment.
This had been done on 27.10.2017 after the initiation of the selection process.
The last date for preferring the applications was 10.10.2017. It has limited the
field as candidates, who would have applied if the post had been mentioned as
regular, could not apply. The change had neither been notified nor put in public
domain. The appointment letter issued to respondent No.3 also mentioned 'on
contract'. In support of his submissions, learned counsel has relied upon the
judgment of the Supreme Court in the case of K. Manjusree versus State of
Andhra Pradesh and another, (2008) 3 SCC 512. He also submitted that
Schedule 'E' of the First Statutes of the National Institutes of Technology
(Amendment) Statues Act, 2017 (for short, 'the Statutes, 2017') the post has
been prescribed as Assistant Professor (on contract) in Pay Band-III with Grade
Pay of Rs.6,000/-. The respondents, through instructions, cannot make the
regular employment contrary to the Statues. The Statue had not been amended
and therefore, as per the notification dated 27.10.2017, the respondents seeking
to fill the post on regular basis would be contrary to law. He has also relied
upon the judgments in the cases of B.S. Minhas versus Indian Statistical
Institute and others, AIR 1984 SC 363, Union of India and others versus N.
Hargopal and others, 1987(3) SCC 308, Dr. (Major) Meeta Sahai versus
State of Bihar and others, 2019(20) SCC 17, Union of India and others
versus Ashok Kumar Aggarwal, 2013(16) SCC 147, Hargurpratap Singh
versus State of Punjab and others, 2007 (13) SCC 292 and the judgment of
this Court in the case of Daljit Kaur and others versus State of Punjab and
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others, bearing CWP No.3363 of 2021, decided on 08.11.2021, in support of
his submissions.
3. Per contra, learned counsel for the respondents submitted that the
petitioner had been appointed as Assistant Professor on contractual basis at a
consolidated salary of Rs.45,000/- per month in pursuance to a walk-in-
interview conducted by an ad-hoc selection committee. She had participated in
the selection process initiated in light of impugned advertisement but after
failing to secure the position in the merit for selection, she had turned around
and challenged the impugned advertisement which is impermissible in view of
the judgments of the Supreme Court in the case of Ramesh Chandra Shah
and others versus Anil Joshi and others, 2013(11) SCC 309 and Dr. Rajasri
Bhattacharaya versus Central Administrative Tribunal, Sector 17,
Chandigarh, 2018(1) SCT 752. The petitioner herself was aware that the
impugned advertisement has been published for a post on regular basis and had
participated in the selection process. Respondent No.3 was a meritorious
candidate and had secured 39.5 marks against 36 marks secured by the
petitioner. The post which had been advertised initially was Assistant
Professor (on contract) Pay Band-III with grade pay of Rs.6,000/-. In terms of
the letter issued by the Ministry of Human Resource Development, Govt. of
India dated 27.10.2017, the nomenclature of the advertised post was changed
from Assistant Professor (on contract) to Assistant Professor Grade-II without
any other change in the terms and conditions of appointment. This was only to
clarify the ambiguity which had arisen on account of the nomenclature. The
selection had been carried out by a regular selection committee consisting of
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five members constituted in terms of Section 23 of the Statutes, 2017.
4. Heard.
5. The petitioner had been appointed as Assistant Professor on
contractual basis at a consolidated salary of Rs.45,000/- in response to a walk-
in-interview held on 07.07.2015 by an ad-hoc selection committee. Her initial
appointment was for a period of six months and was renewed periodically till
2018. The respondents had, thereafter, issued the impugned advertisement
(Annexure P-6) in September, 2017 for filling up the posts of Assistant
Professor (on contract) in the Pay Band-III with Grade Pay of Rs.6000/-. The
relevant extract of the impugned advertisement is reproduced hereunder:-
Advt. Name of Category Total
No. the post
Ope SC ST OBC PWD
09/ Assistant 32 08 06 21 01
2017 Professor (SC)
(on
contract)
Pay Band-
3 with
Grade Pay
of
Rs.6000/-
It was also set out in the advertisement that:-
"Detailed education qualification, experience and other criteria
for selection shall be as per the Schedule E of the First Statues
of the NIT (Amendment Statues, 2017) (Ref. Gazette of India
dated July 24, 2017)."
6. The relevant extract of designation, pay scale, qualification, etc.,
of the post stipulated in Schedule 'E' of the Statutes, 2017 is reproduced
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hereunder:-
Sr. Designation, Pay Band Essential Essential Cumulative
No. and Academic Grade Qualification Requirements Essential
Pay Credit Points
1. Assistant Professor (On Ph.D. Nil Nil
contract)
Pay Band-3 with Grade
Pay of Rs.6000
2. Assistant Professor (On Ph.D. One year post 10
contract) Ph.D.
Pay Band-3 with Grade Experience of
Pay of Rs.7000 teaching and
Research in
Institution of
repute or
Industry
7. The nomenclature of Assistant Professor (on contract) had been
used but subsequently, the clarification received from the Ministry of Human
Resource Development dated 27.10.2017 had specified that the post would be
Assistant Professor Grade-II in Annual Grade Pay of Rs.6,000/-. The relevant
extract of the notification/clarification dated 27.10.2017 is reproduced
hereunder:-
"1(b) The nomenclature of Assistant Professors (contractual) is
changed into Assistant Professor Grade-II (presently in AGP
6,000/- and AGP 7,000/-) and Assistant Professor (presently in
AGP 8,000/- and AGP 9,000/-). There shall be no change in the
terms and conditions of appointment or nature of appointment as
done earlier as per MHRD letter No.23-01/2008-TS-II dated
18.08.2009 read with 16.09.2009. Institutes should put in place a
process or discontinuation of non-performers. The initial pay for
Assistant Professor Grade-II (level 10) be mapped to cell no.8 of
the Annexure-I i.e. Rs.70,900/- instead of the 7 non-compounded
increments."
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8. The appointment letter issued to respondent No.3 also stipulates
that he shall be on probation for a period of one year from the date of joining
duty which is in consonance with General Instructions-19 of the impugned
advertisement which provides that "the selected candidates on regular position
will be under probation and will be confirmed subject to satisfactory
completion of the probation and other requirements as per Institute Rules".
9. It is thus manifest that the respondents had sought to fill the post
of Assistant Professor on a regular basis while the petitioner had been
appointed on contract basis at consolidated salary in pursuance to a walk-in-
interview by an ad hoc selection committee.
10. Therefore, I do not find any merit in the contention of the counsel
for the petitioner that as the nomenclature of the post was initially described as
Assistant Professor (on contract) in Pay Band-III with Grade Pay of Rs.6,000/-
and it could not have been later changed to Assistant Professor Grade-II with
AGP of Rs.6,000/-. The petitioner had herself participated in the selection and
only after she had not been successful, she had turned around and challenged
the advertisement. Undoubtedly, respondent No.3 is a meritorious candidate
having secured 39.5 marks against 36 marks secured by the petitioner. The
selection to the post of Assistant Professor (on contract) in Pay Band-III with
Grade Pay of Rs.6,000/- in terms of the impugned advertisement had been
carried out by a five member committee as stipulated in Section 23 of the
Statutes, 2017. The relevant extract of Section 23 of the Statutes, 2017, is
reproduced hereunder:-
"Statute 23 APPOINTMENTS
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(5) (a) The qualification and other terms and conditions of
appointment of Academic Staff (excluding Director) or promotion
shall be as specified in Schedule 'E' and the Selection Committee
for making recommendations for appointment of Academic Staff
(excluding Director) shall consist of the following members,
namely:-
(1) Director or Deputy Director - Chairman
(2) Visitor's Nominee - Member
(3) two nominee of the Board one - Member
being an expert, but other than
a member of the Board
(4) one expert nominee of Senate - Member
from outside of the Institute
(5) Head of the Department concerned - Member
(for other than the post of Deputy
Director and Professor)"
11. No other prospective candidate has come forward to challenge the
advertisement and selection process on the ground that he/she did not apply for
the post as it was sought to be filled on contractual basis but had the post been
advertised to be filled up on regular basis, he/she may have applied.
12. The judgments relied upon by the petitioner are distinguishable on
the facts as in the case of K. Manjusree versus State of Andhra Pradesh and
another (supra), it had been held that the rules of the game cannot be changed
after the commencement of selection process, but in the case at hand, the
clarification with regard to the nomenclature of the post had been carried out
while the criteria set out for the selection process remained unchanged.
13. In the case of B.S. Minhas versus Indian Statistical Institute
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and others(supra), it had been held that any regular appointment to a post
under the State or Union without issuing an advertisement and without holding
a proper selection where all the eligible candidate get a fair chance to compete,
would violate Article 16 of the Constitution of India while in the instant case,
the posts were advertised and due selection process was carried out.
14. In Union of India and others versus N. Hargopal and others
(supra), it was held that as the vacancies were filled up by considering the
candidates sponsored by the Employment Exchange, there is no violation of
Articles 14 and 16 of the Constitution of India. In the instant case, the
advertisement had been issued to the public at large and in pursuance thereto,
the petitioner and other eligible candidates had applied.
15. It had been held by the Supreme Court in the case of Union of
India and others versus Ashok Kumar Aggarwal (supra) that an authority
cannot issue orders/office memorandum/executive instructions in contravention
of the statutory rules. The instructions can be issued only to supplement the
statutory rules not to supplant it. In the instant case, the clarification issued by
the respondents cannot be said to be contrary to the Statute.
16. In Dr. (Major) Meeta Sahai versus State of Bihar and others
(supra), the Supreme Court had held that in exception to the Rule of 'Plea of
estoppel', where there is misconstruction of statutory rules and discriminatory
consequences arise therefrom, a candidate can challenge selection process.
However, in the case at hand, the clarification is not in derogation of the
statutory rules and there is no change in the selection criteria. The petitioner,
after failing to get selected to the post on merit, has now challenged the
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advertisement as well as the selection process.
17. In the case of Hargurpratap Singh versus State of Punjab and
others (supra), it was held that ad hoc appointees are not entitled to
regularization and would continue on the posts till regular incumbents join. It
was further held that the contractual employees cannot be replaced by another
set of contractual employees. In the instant case, the petitioner had been
employed on contractual basis while respondent No.3 had been selected on
regular basis in pursuance to the impugned advertisement wherein the
petitioner had also applied and was considered.
18. In the case of Daljit Kaur and others versus State of Punjab
and others (supra), it was held that the criteria of selection had been changed
with regard to additional marks for educational qualification. It was contrary to
the provisions of the Rules, as the selection had to be made in terms of merit in
the written examination as specified in Rule 6(4) of the Punjab State
Elementary Education (Teaching Cadre) Group C Service Rules, 2018. It is
reiterated in the case at hand that there is no change in the selection criteria and
only nomenclature of the post has been changed in consonance with the
instructions issued by the Ministry of Human Resource Development.
19. In the result, the petition being devoid of merit stands dismissed.
(ANUPINDER SINGH GREWAL)
JUDGE
21.11.2022
sonia gugnani
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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