Kumar Gaurav ......Petitoner vs National Institute Of Technology ...
2022 Latest Caselaw 3006 UK

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

      THE CHIEF JUSTICE SHRI VIPIN SANGHI
                      AND
     JUSTICE SHRI RAMESH CHANDRA KHULBE
                   19th SEPTEMBER, 2022

            Writ Petition (S/B) No.518 of 2019

Kumar Gaurav                                         ......Petitoner
                               Vs.

National Institute of Technology and Another
                                        ......Respondents

Presence: -

Mr. Davesh Bishnoi, learned counsel for the petitioner. Mr. Ajay Singh Bisht, learned counsel for the respondents.

JUDGMENT: (Per Shri Vipin Sanghi, Chief Justice)

The petitioner has preferred the present petition to seek the following relief(s):-

"A. Issue a writ, order or direction in the nature of certiorari quashing the Resolution dated 06.03.2018 of the 16th BoG meeting held on 06.03.2018 to the extent that it rejects the petitioner's representation; (Ann.8).

B. Issue a writ, order or direction in the nature of certiorari quashing the Resolution dated 30.09.2019 of the 23rd BOG meeting held on 30.09.2019 to the extent that it rejects the petitioner's representation; (Ann.3)

C. Issue a writ, order or direction in the nature of mandamus directing the respondents to allow the petitioner to join on the post of Assistant Professor in the Pays band of 15,600-39,100 with Grade Pay of 6000, equivalent to Level 10(7) under 7th Central Pay Commission;

D. Issue a writ, order or direction in the nature of mandamus directing the respondents to regularize the services of the petitioner on the post of Assistant Professor in the Pays band of 15,600-39,100 with Grade Pay of 6000, equivalent to Level 10(7) under 7th Central Pay Commission, as granted to other similarly placed colleagues after having completed the Ph.D.;

E. Issue a writ, order or direction in the nature of mandamus directing the respondents to grant him the Pay Level 10(8) under 7th Central Pay Commission to the petitioner as admissible to other similarly placed colleagues after having completed the Ph.D.;"

2. At the outset, we may observe that so far as relief 'A' aforesaid is concerned, the same is not open to the petitioner to claim in the present petition since that relief was also sought by the petitioner in the earlier round of litigation undertaken by the petitioner being WPSB No.98 of 2018 dismissed by the Division Bench on 01.06.2018. That judgment has attained finality.

3. We may now take note of few relevant facts. The petitioner was appointed as Assistant Professor (Electronics Engineering) by the respondent-NIT, Uttarakhand on 14.03.2013. The letter of appointment of the petitioner, inter alia, provided in Clauses 2 and 13 as follows:-

"2. The Part No. 1 shall be on service under the agreement for a maximum period of five years. The contract shall be renewed every year on satisfactory progress in Ph.D. work, good performance in teaching and good conduct. The services of Party No.1 will be regularized w.e.f the date of acquiring Ph. D. degree and his previous service will be counted for administrative and other service benefits. He will be required to execute agreement afresh after

completion of each year of his service till his services are regularised. He will be required to appear before the committee constituted by the Director for regularization of his services.

13. His services shall automatically stand terminated at the end of 5th year of his service, if he fails to acquire Ph.D. degree."

4. The admitted position is that the petitioner did not obtain the Ph.D. Degree within the period of five years of his contract of employment. The petitioner had registered to pursue his Doctorate at I.I.T. Delhi, which was cancelled by I.I.T. Delhi due to his poor performance vide letter No.3295 on 18.09.2014. Even at this stage, the petitioner was issued a show-cause notice on 16.07.2014 for his unsatisfactory progress in acquiring his Ph.D. and requiring him shows cause as to why his services may not be terminated.

5. The petitioner requested respondent-NIT vide a letter no.16.07.2014 to grant one more opportunity to complete his Ph.D. degree from any other reputed institute. The Chairman of the Board of Governors acceded to this request and allowed him to continue in service and allowed him to enroll for Ph.D. from NIT Kurukshetra vide letter no.1161 on 14.08.2014.

6. In spite of the aforesaid accommodation, as well as grant of extraordinary leave for 149 days from 15.01.2015 to 12.06.2015, the petitioner failed to complete his Ph.D. within the contract period of five years and sought further extension of one year. His request for extension of time was placed before the BoG meeting held on 06.03.2018 and turned down. In terms of this contract of his employment, the petitioner was

relieved from his service on 13.03.2018 i.e. at the end of five years' contract period. Even before the petitioner being relieved, his case was considered by the Review Committee consisting of three persons, namely, Prof. G.N. Pillai, Professor, IIT Roorkee - Chairman, Prof. R.S. Bhatia, Professor, NIT Kurukshetra - Member, and Dr. P. Sumathi, Associate Professor, IIT Roorkee - Member, who found that the research work of the petitioner was not at the completion stage. The petitioner's publications' record was also not found to be satisfactory. The said Committee found as aforesaid on 26.02.2018 i.e. before the expiry of the petitioner's term.

7. At aforesaid stage, the petitioner preferred the earlier writ-petition WPSB No.98 of 2018 assailing the decision of the BoG dated 06.03.2018 rejecting his request for extension by six months. As aforesaid that writ-petition was dismissed by the Court.

8. The petitioner preferred Review Application No.931 of 2018 in respect of the decision in WPSB No.98 of 2018. That review petition was decided on 14.06.2019. The review petition was dismissed by the Court with liberty to the petitioner to make a representation to the respondents bringing to their notice that he had submitted his Ph.D. thesis on 06.09.2018 i.e. within six months from the date of Board's resolution dated 06.03.2018 and that he would be awarded Ph.D. degree on 05.03.2019. The Court observed that if such a representation is made by the petitioner, the respondents would consider the same in accordance with the law without being influenced by

any observation made by the Court or in the order under review.

9.              The           petitioner                 once           again         made          a
representation                to      the            respondents,                which            was

considered and rejected by the BoG in its 23rd meeting held on 30.09.2019, which is now under challenge in the present writ-petition. The relevant extracts from the Minutes of the 23rd meeting of the BoG dated 30.09.2019 reads as follows:-

"BoG 23.03: Regarding case of Mr. Kumar Gaurav, Ex- Assistant Professor, Department of Electronics Engineering. Mr. Kumar Gaurav was relieved from the Institute services on 13/03/2018 i.e. at the end of his five years contract period as he failed to acquire Ph.D. degree within the stipulated contract period of 05 years. His vital data is as follows:

S.No Name Designation Qualification Department Date of Date of Remarks on the day of Joining Termination Appointment of Service

1. Mr. Assistant M.Tech Electronics 14/03/13 13/03/18 Services Kumar Professor and Terminate Gaurav Grade II (On 05 Communicati d as Mr. years contract) on on Gaurav under Three Engineering Kumar Tier Rigid could not Faculty complete Structure his Ph.D within the contract period of five year

His request for grant of extension of contract period beyond 05 years was turned down by the BOG vide resolve to agenda item BoG 16.03 dated 06/03/2018, as he was already given one opportunity to re-register for Ph.D. at NIT Kurukshetra when his registration at IIT Delhi was cancelled due to his poor performance vide IIT Delhi letter no.3295 dated 18/09/2014.

On his de-registration from IIT Delhi, he was issued show- cause notice dated 16/07/2014 for un-satisfactory progress in acquiring Ph.D. degree and as to why he should not be terminated from the service as per terms of the contract. In response to the show-cause notice, he requested vide letter dated 16/07/2014 to grant him one more opportunity to complete the Ph.D. degree from any other reputed Institute, which was sympathetically considered by the Hon'ble Chairman of BOG and he was allowed to continue in service and given an opportunity to enroll for Ph.D. at

NIT Kurukshetra vide letter no.1161 dated 14/08/2014.

Second deputation for Ph.D. course work was granted to him vide No Objection Certificate no.3736 dated 15/01/2015 for pursuing Ph.D. from NIT Kurukshetra along with Extraordinary Leave of 149 days from 15/01/2015 to 12/06/2015 vide office order no.A-426 dated 15/01/2015, but he failed to complete his Ph.D. within the contract period of five years and further asked for 01 year extension. His request was placed before the BOG vide agenda item no.BoG 16.03 dated 06/03/2018 and the same was not considered by the BoG. Consequently, he was relieved from the Institute services on 13/03/2018 i.e. end of the five years contract period.

Before, his services were terminated a due process of common Review Committee was carried out in the month of May-2017, with an aim to review the status of all such faculty members including Mr. Kumar Gaurav was conducted. The Performance Review Committee advised Mr. Kumar Gaurav to publish paper and try to finish Ph.D. by February-2018. The committee graded his performance as "Satisfactory and advised him to improve teaching skills. But he failed to comply and could not even submit his Ph.D. thesis before the expiry of the five years contract i.e. by 13/03/2018.

Consequently, Mr. Kumar Gaurav filed a writ petition before the Hon'ble High Court of Uttarakhand, Nainital vide WP No. WPSB 98 of 2018, against his termination of services, but the same was dismissed by the court on 01/06/2018. The copy of the judgment is placed as Annexure BoG 23.02. Now, he has submitted an application to the BoG to re-instate him back in service as he has completed his Ph.D.

It is brought to the notice of the Board members that BoG had uniformly extended one opportunity to all such faculty members including to Mr. Kumar Gaurav when he was given an opportunity to re-enroll at NIT Kurukshetra when his enrollment was cancelled at IIT Delhi due to his poor performance.

Availing the first opportunity other faculty members submitted their Ph.D. thesis before the expiry of the extended period, but Mr. Kumar Gaurav.could not. The board is requested to deliberate upon the request application of Mr. Kumar Gaurav and issue necessary instructions.

Resolution: The Board perused the application of Mr. Kumar Gaurav regarding representation to the BoG and also perused the judgment of the Hon'ble High Court of Uttarakhand at Nainital against his Writ Petition No. (S/B) No.98 of 2019.

The Board of Governors unanimously rejected the request of Mr. Kumar Gaurav and his representation, therefore,

fails and is hereby dismissed."

10. The submission of the learned counsel for the petitioner is that the action of the respondents is discriminatory inasmuch as the respondents granted extension even beyond five years of the contractual term in several other cases. Learned counsel for the petitioner has placed a tabulation of such instances where extension of time was granted by the respondents-Institute along with impleadment application no.4326 of 2020.

11. There are eight instances cited by the petitioner where upto three extensions were granted in three cases; one extension was granted in four cases and two extensions were granted in two cases.

12. The petition is opposed by the respondents, who have filed their counter affidavit. The respondents have submitted that under the contract of employment of the petitioner, it was clear to him that he had to complete his Ph.D. within five years to claim regularization, it was also clear that the tenure of the contract of employment was five years at the end of which his services automatically stood terminated, if he fail to acquire the Ph.D. degree.

13. Having heard learned counsels and perused the record, we are not inclined to grant the relief(s) to the petitioner as sought in this writ-petition.

14. Consideration of the petitioner's case by the BoG in its 23rd meeting held on 30.09.2019 shows that the Committee graded the performance of the petitioner "satisfactory" and advised him to improve teaching

skills. It also observed that he failed to complete and even could not submit his Ph.D. degree before the expiry of the contract i.e. by 14.03.2018. The Board of Governors also observed that while the other faculty members submitted their Ph.D. thesis before the expiry of the extended period, the petitioner could not.

15. The contract of the employment in Clause 2 states that the contract shall be renewed every year on satisfactory progress of Ph.D. work good performance in teaching and good conduct.

16. Clearly, the contract of employment did not envisage that the employee would be granted, firstly, extension of time for completion of the Ph.D. beyond the period of five years under all circumstances and, secondly, that his or her services would be regularized, if he or she completes the Ph.D. degree within the period of five years, automatically. This was all subject to good performance in teaching and good conduct. The Minutes of the BoG meeting show that the petitioner's teaching was not found to be satisfactory. That apart, the three member committee as aforesaid found that the research work of the petitioner was not complete in relation to his Ph.D. when it met on 26.02.2018 and his publications records was also not found to be satisfactory.

17. In these circumstances, we are of the view that the petitioner cannot claim discrimination by referring to other cases where extension may have been granted by the respondents as extension in those cases was granted in the facts and circumstances relating to those cases which are not before us.

18. Pertinently, no allegation of personal malafides against any office-bearers of the respondents, much less the Expert Committee, which examined the petitioner's case have been made by the petitioner.

19. In these circumstances, we find no reason to interfere with the decision of the respondents taken in their 23rd BoG meeting held on 30.09.2019.

20. Accordingly, the present writ-petition is dismissed.

________________ VIPIN SANGHI, C.J.

________________________ RAMESH CHANDRA KHULBE, J.

Dated: 19th September, 2022 SS/RB