Rajasthan High Court - Jodhpur

Surendra S. Chouhan vs Mohan Lal Sukhadia University, Udaipur ... on 3 January, 2024

[2024:RJ-JD:226]
      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                   S.B. Civil Writ Petition No. 11719/2023
1.   Surendra S. Chouhan S/o Hanumant Singh Chouhan, Aged
     About 41 Years, Chouhano Ki Haveli, Village Boheda, Tehsil
     Bari Sadri, District Chittorgarh, Rajasthan.
2.   Dr. Kuldeep Singh Jhala S/o Lal Singh Jhala, Aged About 39
     Years, House No.70, Ganpati Vihar, Chirag Complex, Panerio
     Ki Madri, Hiran Magri Sector-4, Udaipur, Rajasthan.
                                                                       ----Petitioners
                                        Versus
1.   Mohan Lal Sukhadia University, Udaipur, Rajasthan Through
     Its Registrar.
2.   Registrar, Mohan Lal Sukhadia University, Udaipur, Rajasthan.
3.   Chairman, University Sports Board, Mohan Lal Sukhadia
     University, Udaipur, Rajasthan.
                                                                     ----Respondents


For Petitioner(s)             :    Dr. Nikhil Dungawat.
For Respondent(s)             :    Mr. Hemant Balani.

         HON'BLE MR. JUSTICE ARUN MONGA

Order 03/01/2024

Petition herein has been filed with the following prayer clause :-

"A) By an appropriate order or direction, the impugned order / correspondence dated 27.05.2023 (Annex.23) may kindly be quashed and set aside, and,

B) By an appropriate order or direction, the respondent may be directed to allow the petitioners to continue on the post of Assistant Director (Physical Education).

C) Any other appropriate order or direction which this Hon'ble Tribunal may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner."

2. Petitioners, being ex guest faculty members, are before this

Court having remained unsuccessful after competing for the

regular appointment on the post of Assistant Director (Physical

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Education), which was advertised by advertisement dated

1.8.2017 (Annex.25).

3. Succinctly put the controversy herein lies in a very narrow

compass i.e. whether a guest faculty member has right to

continue merely because the post, on which he was earlier

working continues to be vacant, notwithstanding that the

University is not in need of further services ?

4. Brief facts first, as pleaded. The petitioners had been

working from 2009 onwards as gust faculty on the posts of

Assistant Director (Physical Education). They were working against

the sanctioned post lying vacant since 1999. There are/were four

sanctioned posts against which two regular appointments have

been made and two are currently still vacant. However, the

respondents hastily terminated their services on 27.05.2023. The

petitioners submitted a detailed representation on 30.05.2023,

but the university did not consider the same, leading them to file

the present petition.

5. Concededly, the petitioners prior to the advertisement

(supra) were continuing for a fairly long period to serve as

members of the guest faculty as the regular appointees were not

available. Once the advertisement was published, the petitioners

also participated in the selection process but were not found

suitable enough and thus remained unsuccessful to be appointed

on the regular posts.

6. After two regular appointments have been made, it

transpires that out of the four regular posts, two posts are still

lying vacant and that is what has made the petitioners to

approach this Court to seek a mandamus that the said two posts

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be allowed to be filled by allowing them to continue on guest

faculty. In fact, this is second foray of the petitioners before this

Court seeking such a mandamus as they had earlier filed another

writ petition bearing SBCWP No.8637/2016, which was disposed of

by a Coordinate Bench presided over by my learned brother

Dinesh Mehta, J. vide order dated 08.05.2023 (Annex.21).

7. The relevant of the order dated 08.05.2023 (Annex.21),

being opposite, is reproduced here in below:-

"6. This Court is of the considered view that it is prerogative of the respondent - University to go for appointment on two posts or for four posts and this Court cannot issue mandamus to the University to continue petitioners' services, when regularly selected candidates have joined.

7. Be that as it may.

8. Considering that vide letter dated 12.09.2022, the University has sought permission to fill up two more posts of Assistant Director (Physical Education), it appears that the University is in requirement of the post of Assistant Director, on which the petitioners are continuing as Guest Faculties.

9. In view of above, the present writ petition is disposed of with the direction to the petitioners to file a representation before the competent authority of the respondent - University for continuation of their engagement.

10. In case any such representation is preferred by the petitioners, the respondent - University shall consider the same in accordance with law, more particularly in the light of letter dated 12.9.2022 sent by it to the State Government, which establishes that the University is in need of four Assistant Directors.

11. It is made clear that aforesaid direction to decide the representation has been issued only with a view to ensure expeditious redressal of petitioners' grievance. The same may not be construed to be an order to decide the representation in a particular manner."

8. Apropos the petitioners filed a representation before the

University, which was rejected vide impugned order dated

27.5.2023 (Annex.23).

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9. During pendency of the instant writ petition, Coordinate

Bench of this Court, then ceased further matter, once again, vide

order dated 01.11.2023 directed the University to consider

representation of the petitioners and pass fresh orders, in case,

services were indeed required on the two vacant posts so that the

petitioners could be accommodated on the guest faculty as before.

10. However, having heard the rival contentions, it transpires

that after the two regular appointments have been made, out of

the four sanctioned posts, the University seems to have divided

work in such a way that other two vacant posts are not required to

be filled up at this stage.

11. Merely because sanctioned posts are lying vacant, a person

has no right to stake his claim for seeking appointment on the

same, in case, the Employer does not require the services on the

sanctioned posts. The impugned order, in fact, makes it

unequivocally clear that, not only, at this stage, services are

required only on the two filled up posts by regular appointees,

but as and when, in future there is any requirement of further

services on the two unfilled posts, the petitioners will be accorded

first choice to be appointed as guest faculty members. Provided,

of course, the University wishes to have such an arrangement,

instead opting for regular appointees, as was done earlier. No

grounds of interference are thus made by this court.

12. In the parting, I may hasten to add that reliance by learned

counsel for petitioners on Apex Court judgment rendered in

Manish Gupta and Anr. Etc. Etc. v. President, Jan Bhagidari Samiti

And Ors. Etc. Etc.: AIR Online (2022) SC 576 is misplaced. The

relevant of the same is as below:

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"12. A perusal of the advertisement dated 24 th June, 2016 issued by the Principal, Government Kamla Raja Girls Post Graduate Autonomous College, Gwalior, which is at Annexure P-2 of the Appeal Paper Book and the advertisement dated 2 nd July, 2016 issued by the Principal, SMS Government Model Science College, Gwalior, M.P., which is at Annexure P-3 of the Appeal Paper Book, would show that the appointments were to be made after the candidates had gone through due selection procedure. Though Shri Nataraj, learned ASG has strenuously urged that the appointments of the appellants were as guest lecturers and not as ad hoc employees, from the nature of the advertisements, it could clearly be seen that the appellants were appointed on ad hoc basis. It is a settled principle of law that an ad hoc employee cannot be replaced by another ad hoc employee and he can be replaced only by another candidate who is regularly appointed by following a regular procedure prescribed. Reliance in this respect can be placed on the judgment of this Court in the case of Rattan Lal and others vs. State of Haryana and others1 and on the order of this Court in the case of Hargurpratap Singh vs. State of Punjab and others.

13. In that view of the matter, we do not find that an error was committed by the learned single judge of the High Court by directing the writ petitioners to continue to work on their 1 (1985) 4 SCC 43 2 (2007)

13 SCC 292 respective posts till regular selections are made. We, however, find that the direction issued by the learned single judge of the High Court that the writ petitioners would be entitled to get the salary in accordance with the UGC circular is not sustainable. The advertisements themselves clearly provided that the selected candidates would be paid the honorarium to be determined by the said Committee. "

13. A perusal of the above clearly shows that the shoe is, in fact,

on the other foot. The ratio laid down by the Supreme Court in no

manner helps the petitioners, on the contrary it goes against the

very argument canvassed by learned counsel for the petitioner.

14. As an upshot, the claim of the petitioner that a University

must be compelled by way of a mandamus to appoint them as

guest faculty, merely because two sanctioned posts are still lying

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vacant, does not survive as their services were no longer required

at this stage.