Dr. Gaurav Upadhyay vs Union Of India Through Additional ...
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Uttarakhand High Court

Dr. Gaurav Upadhyay vs Union Of India Through Additional ... on 5 June, 2024

Author: Pankaj Purohit

Bench: Manoj Kumar Tiwari, Pankaj Purohit

   IN THE HIGH COURT OF UTTARAKHAND AT
                 NAINITAL
      Writ Petition (S/B) No. 235 of 2021

Dr. Gaurav Upadhyay                                   ... Petitioner

                              Versus

Union of India through Additional Secretary,
Technical Education, 127-C Shastri Bhawan,
New Delhi & Others             ... Respondents

                     With
      Writ Petition (S/B) No. 238 of 2021
      Writ Petition (S/B) No. 551 of 2022
      Writ Petition (S/B) No. 553 of 2022

   Mr. Abhijay Negi, Advocate, for the petitioners.
   Mr. V.K. Kapruwan, Central Govt. Standing Counsel, for the
   Union of India.

   Mr. P.S. Bisht, Additional CSC, for the State of Uttarakhand.

   Mr. Subhang Dobhal, Advocate, for the G.B. Pant University.

   Mr. Siddhartha Sah and Mr. Bhupesh Kandpal, Counsel
   for the respondent no. 4.
   Mr. Anil Kumar Joshi, Advocate, for the respondent no.
   5.


                       JUDGMENT

Hon'ble Manoj Kumar Tiwari, J.

Hon'ble Pankaj Purohit, J.

Since common questions of facts and law are involved in these writ petitions, therefore, these are being heard and decided together by this common judgment. However, for the sake of brevity, facts of Writ Petition (S/B) No. 235 of 2021 alone are being considered and discussed. Petitioner Dr. Gaurav Upadhyay has filed this writ petition seeking the following reliefs:

"I. Issue a writ, order or direction in the nature mandamus, commanding the Respondents to insure that a Sustainability Plan is formulated for the

TEQIP III Phase faculty, currently teaching at Institute of Technology, Gopeshwar, in accordance with the directives of the Government of India and the State of Uttarakhand.

II. Issue a writ, order or direction in the nature of Mandamus, commanding the respondents to ensure fair and transparent selection process, by which high performing faculty can be identified in the interest of student of the Institute of Technology, Gopeshwar.

III. Issue a writ, order or direction in the nature of certiorari quashing the advertisement dated 15.2.2021 as being arbitrary, unreasonable and contrary to law."

(2) According to petitioner, he was appointed in Institute of Technology, Gopeshwar in the year 2018 under Technical Education Quality Implementation Programme, introduced by Ministry of Human Resource Development, Department of Higher Education with the help of World Bank. In the appointment order itself, it was mentioned that petitioner's appointment shall stand terminated on stipulated date (31.3.2020) and/or shall be co-terminus with the project, whichever is earlier. According to petitioner, the term of the project was extended up to 31st March, 2022. Apprehending termination of his service, petitioner has filed this writ petition. A coordinate Bench of this Court passed an interim order in favour of petitioner in Writ Petition (S/B) No. 235 of 2021 alone, on the strength of which petitioner is said to be continuing in service.

(3) In sum and substance, petitioner wants a sustainability plan to be formulated for implementation of TEQIP-III Phase so that his employment with Institute of Technology, Gopeshwar is continued unhindered.

(4) Mr. Siddhartha Sah and Mr. Bhupesh Kandpal, learned Counsel appearing for the Institute of Technology, relied upon a judgment rendered by Hon'ble Delhi High Court in W.P. (C) 9647/2020 and other connected writ petitions for contending that similarly situate persons appointed as faculty under TEQIP Project had approached Delhi High Court claiming various reliefs, however, their writ petitions were dismissed. Para 21 to 25 of Delhi High Court judgment are reproduced below:

"21. There is no dispute that the petitioners' appointment was with regard to a project (TEQIP-Ill) started on the basis of the funding made by the World Bank. The purpose of the Project is very clear to improve the technical education in the country and the same is to be achieved by appointing faculties in different Govt. / Govt. funded institutes. The terms of appointment of the petitioners are very clear that the same is temporary for a period of three years. It is the case of the respondent No. 1 that the World Bank has decided not to fund the Project beyond March 31, 2021 and pursuant thereto the Project Unit shall be disbanded. In other words, the Project for which the petitioners are working would no more exist. The very basis of employment of the petitioners shall cease to exist. If that be so, the appointment of the petitioners shall also be discontinued. The petitioners being Project employees, cannot continue beyond the project life, i.e., March 31, 2021. The plea of

Mr. Mehta is that the posts being in existence, the petitioners need to be continued. I am not in agreement with the said submission for the reason, the posts on which the petitioners are working were created for the purpose of the project namely TEQIP-Ill and are called the project posts and shall with the disbanding of the project, ceases to exist. The plea of Mr. Mehta, that the objective of the Project being perennial in nature, the same need to be continued is also not appealing as (1) the project Is funded by the World Bank, who has decided to stop the funding and in the absence of the same, project has to be discontinued (2) it is for the authorities and not for the Court to decide, whether the project has to be continued or not.

22. Insofar as the reliance placed by Mr. Mehta on the judgments in the case of Karnataka State Private College Stop Gap Lecturers Association (supra), State of Karnataka v. Uma Devi (supra) are concerned, the same have no applicability in the facts of this case, inasmuch as (i) the employees in the aforesaid judgments were engaged in the regular establishment but on ad hoc / temporary / contractual basis and not in a project that too funded by an outstanding agency for limited duration. (ii) The employees in those cases have worked for a longer duration unlike in the case in hand where the petitioners have been engaged for the last three years and which appointment is co-terminus with the project and (iii) in Uma Devi (supra), the Supreme Court has held that appointments can be made by the Government or authority against sanctioned posts; vacancies in sanctioned posts; through open competition; by persons having eligibility in terms of the recruitment rules. None of the conditions are fulfilled when engagement is in a project, of a limited duration and funded by an outside agency.

23. The learned counsel for the respondent No. 1 is justified in relying upon the Judgment in the case of Mohd. Abdul Qadir and Ors. (supra) wherein in Para 13 10 15. the Supreme Court has held as under:

"13. The fact that the appellants were employed under the PIF Additional Scheme is not disputed. The duration of PlF Additional Scheme under which they are employed was initially two years, to be reviewed for continuation along with the original PIF Scheme. The said scheme is being extended from time to time and is being continued.

If the temporary or ad-

hoc engagement or appointment is in connection with a particular project or a specific scheme, the ad hoc or temporary service of the persons employed under the Project or Scheme would come to an end, on completion/closure/cessation of the Project or the Scheme.

14. The fact that the Scheme had been in operation for some decades or that the employee concerned has continued on ad hoc basis for one or two decades would not entitle the employee to seek permanency or regularization. Even if any posts are sanctioned with reference to the Scheme, such sanction is of ad hoc or temporary posts co-terminus with the scheme and not of permanent posts.

15. On completion of the project or discontinuance of the scheme, those who were engaged with reference to or in connection with such Project or Scheme cannot claim any right continue in service, nor seek regularization in some other project or service. (See Bhagwan Dass v. State of Haryana - 1987(4) SCC 634, Delhi Development Horticulture Employees Union v. Delhi Administration - 1992 (4) SCC 99, Hindustan Steel Works Construction Ltd., vs. Employees Union - 1995 (3) SCC 474, UP Land Development Corporation vs. Amar Singh - 2003 (5) SCC 388, Madhyamik Shiksha Parishad UP v. Anil Kumar Mishra -

2005 (5) SCC 122, Secretary, State of Karnataka v. Umadevi - 2006 (4) SCC 31, Indian Council of Medical Research vs. K. Rajyalakshmi - 2007 (2) SCC 332. and Lal Mohammed vs. Indian Railway Construction Co. Ltd.

- 2007 (2) SCC 513). In view of this settled position, the appellants will not he entitled to regularization.

24. These petitions are squarely covered by the ratio of the Judgment in the case of Mohd. Abdul Qadir (supra) and the petitioners are not entitled to their continuance on the post of Assistant Professor with benefits of a regular employee.

25. I do not see any merit in these petitions. The same are dismissed. I take on record the stand of respondent No. 1 that it shall advice CPTIs to consider the work experience of the petitioners as Assistant Professors (TEQIP) Faculty and also treat the monthly remuneration of these Assistant Professors equivalent to relevant AICTE pay scale, as stated in the letter dated September 17, 2019. No costs."

(5) We are in respectful agreement with the view taken by Delhi High Court. A person appointed under a project cannot continue in service upon expiry of the project, unless there is some agreement to the contrary between the funding agency and the host institution/organization. Thus the relief as claimed by the petitioner cannot be granted. Thus there is no scope for interference. However, having regard to the facts and circumstances of the case, writ petitions are disposed of with liberty to petitioners to approach the State Government for continuance of their engagement.

(6) All admissible dues, if not released, shall be released in favour of petitioners within six weeks from the date of production of certified copy of this order.

(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.)

5.6.2024 Pr