High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CWP No.2369 of 2020.

Judgment reserved on: 15.09.2020.

Date of decision: 18.09.2020.

Dr. Rajesh Kumar Sharma and others

…..Petitioners.

Versus

Union of India and others …..Respondents.

Coram

Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.

Whether approved for reporting?

1

Yes

For the Petitioners : Mr. Bhuvnesh Sharma and Mr.

Ramakant Sharma, Advocates.

For the Respondents: Mr. Shashi Shirshoo, Central

Government Counsel, for

respondent No.1.

Mr. K.D.Shreedhar, Senior

Advocate with Ms. Shreya

Chauhan, Advocate, for

respondents No. 2 and 3.

COURT PROCEEDINGS

CONVENED THROUGH VIDEO

CONFERENCE.

Tarlok Singh Chauhan, Judge

The instant petition has been filed for grant of the

following substantive reliefs:

1

Whether the reporters of the local papers may be allowed to see the Judgment?Yes

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.2

“(i)That in view of the new Recruitment Rules of

29.05.2017 at Annexure P-8 and amended Statutes of

NIT, 2017 at Annexure P-9, the condition of tenure of

five years of the contract of the petitioners, may kindly

be held to have been rendered infructuous and

inapplicable and their appointment may kindly be

directed to be governed by the provisions of the

amended NIT Statutes, 2017 at Annexure P-9, instead of

applying the Rules in the letter dated 15.01.2014 at

Annexure P-7.

(ii)That in view of the NIT Statutes of 2009 at

Annexure P-5 as were applicable at the time of

recruitment of the petitioners, they may kindly be

deemed to be in regular and continuous service of the

NIT, Hamirpur.”

2. Respondent No.2, the National Institute of

Technology, (for short ‘NIT’) invited applications for different

posts including the posts of Assistant Professors on contract

basis. The petitioners being eligible applied for the said posts

and were selected. The letter of appointment clearly envisages

that the appointment of the petitioners was for a period of five

years. However, it is averred by the petitioners that since their

services are governed by the National Institutes of Technology

Act, 2007, therefore, they had a right to continue beyond five

years, more particularly, when the term of five years that was

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.3

prescribed under the 4-Tier Flexible Faculty Structure has

already been struck down by the Allahabad High Court.

3. The respondents have contested the petition by filing

reply wherein the very maintainability of the petition has been

questioned on the ground that the appointment of the

petitioners was made purely on contract basis as categorically

specified in the 4-Tier Flexible Faculty Structure (MHRD

notification No. F.No.33-9/2011-TS.III dated 23.08.2013 even No.

dated 15.01.2014 and F.No. 33-3/2014-TS.III dated 17.06.2015

(Annexure P-7). The Ministry of Human Resource Development

vide its letter No. F.No.33-9/2011-TS.III dated 23.08.2013

forwarded the approved norms of four-tier flexible faculty

structure wherein it was clearly mentioned that the post of

Assistant Professor in PB-3 of Rs.15600-39100 with AGP

Rs.6000 is on contract basis. Moreover, at Clause No.3 of

Annexure-III of the above referred letter it was clearly

mentioned that “Faculty, who are appointed on contractual

basis, shall be for a fixed period not exceeding five years”

(Annexure P-7). The agenda for the consideration and adoption

of four tier flexible faculty structure, for the implementation in

National Institute of Technology, Hamirpur, was placed on 23

rd

meeting of Board of Governors of the Institute vide item No.

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.4

BOG/23/2013-10/12 and in its decision the Board of Governors

considered and approved the adoption of MHRD notification

(Annexure R-2/1). Therefore, the appointments of the

petitioners are in consonance with the letter dated 15.01.2014

(Annexure P-7).

4. In addition to the aforesaid, the petition is opposed

on the ground of estoppel as first representation against the

appointment was made by petitioner No.1 only on 06.07.2020.

Even though, a number of other objections have also been

raised in the reply, however, we do not find it necessary to deal

with those objections as they are not necessary for decision of

this case, save and except, the additional ground raised for

opposing the claim of the petitioners that they had applied

under the Recruitment Rules, 2017, for the post of Assistant

Professor in the respective departments and appeared before

the Selection Committee, but were not recommended and,

therefore, the petition is liable to be dismissed on the ground of

suppressio veri, suggestio falsi.

5. We have heard the learned counsel for the parties

and gone through the material placed on record.

6. Mr. Bhuvnesh Sharma, learned counsel for the

petitioners, would vehemently contend that contract

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.5

employees cannot be replaced by other contract employees

and would place heavy reliance upon the judgment rendered by

the Hon’ble Bench of three Judges of the Hon’ble Supreme Court

in State of Haryana and others etc . versus Piara Singh and

others etc., AIR 1992 SC 2130 , more particularly, the

following observations:

“25. Before parting with this case, we think it appropriate to say

a few words concerning the issue of regularisation of

ad hoc/temporary employees in government service.

Secondly, an ad hoc or temporary employee should not

be replaced by another ad hoc or temporary employee; he

must be replaced only by a regularly selected employee. This is

necessary to avoid arbitrary action on the part of the

appointing authority.”

7. The aforesaid ratio is clearly not applicable to the

fact situation obtaining in the instant case as it cannot be

disputed that the petitioners herein were selected and

thereafter appointed pursuant to an advertisement, which never

envisaged appointment on permanent basis and were to be

appointed only on contractual basis.

8. Once the appointments were purely contractual then

by efflux of time as envisaged in the contract itself the same

came to an end and the persons holding such posts can have no

right to continue or renewal of contract of service as a matter of

right, and therefore, such cases are clearly distinguishable from

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.6

repeated and ad hoc appointments, which was adopted as a

matter of practice by the State Government in case of Piara

Singh’s case (supra).

9. The difference in the fact situation obtaining in the

instant case vis-à-vis Piara Singh’s case (supra) is stark and

clear. In the instant case, the petitioners were appointed on

fixed term contract and after lapse of period of service are

claiming continuity of the same, and therefore, their services

cannot be equated with the ad hoc employment as was in the

case of Piara Singh (supra). The ad hoc appointment against a

vacancy by the State repeated with number of vacancies, one

after another, was construed to be an unfair practice by the

Hon’ble Supreme Court and it accordingly directed the State to

frame a scheme for regularization of such employees consistent

with the reservation policy, if not already framed. Therefore, the

judgment in Piara Singh’s case cannot be blindly applied to the

facts of the present case where the petitioners have been

appointed on a fixed term contractual appointment and after

lapse of the period of contract, are claiming the continuation of

the term by excluding other persons from seeking similar term

of appointment.

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.7

10. The fixed term contractual appointment as

envisaged under the 4-Tier Flexible Faculty Structure is not to

provide permanent employment, but the laudable object is to

enable bright young scholars to teach and earn experience in

premier institutions. This is clearly envisaged in the norms of 4-

Tier Cadre Structure of Faculty Posts in the National Institutes

of Technology (NITs) which reads as under:

Sr.

No.

Designation, Pay

Band and

Academic Grade

Pay

Essential Qualification and Relevant

Experience

1.Assistant

Professors (On

contract)

PB-3 of Rs.15600-

39100 with AGP of

Rs.6,000/- p.m.

(i) Assistant Professors to be recruited

on contractual basis are not part of the

regular faculty cadre in NITs.

Appointment at this level may be

made on contract basis to enable

bright young Ph.D.s scholars to teach

and earn experience in premier

institutions.

(ii) At the entry level they may be

placed in Pay Band PB-3 of Rs.15600-

39100 with Academic Grade Pay (AGP)

of Rs.6000/- p.m. with seven non-

compoundable advance increments.

(iii) To encourage fresh Ph.D.s to join

the teaching system, at least 10% of

the total faculty strength should be

recruited at this level. However,

relaxation in respect of educational

qualifications could be given upto

25% of total Assistant Professors

recruited. The reasons for such

relaxations should be duly recorded

and reported to the Board of

Governors of the respective

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.8

institutions.

(iv) After one year of post Ph.D

experience, these Assistant Professors

shall be placed in the AGP of Rs.

7,000/- p.m.

11. Thus, once the avowed object is to engage

employment to a large number of persons, therefore, the

persons, who are given fixed term service contract cannot claim

any right of renewal or continuity of employment after the

period of contract is over. The same can neither be equated

with repeated ad hoc employment nor can it be termed as

unfair practice. It lies best in the wisdom of the employer to

grant such appointments on contract to various terms and

unless the decision making process is established to be

arbitrary on the face of it, the Court will be loath to exercise its

extra-ordinary jurisdiction to quash such appointment of fixed

term basis.

12. A careful reading of the letters of appointment as

also the norms of 4-Tier Flexible Faculty Structure leaves no

manner of doubt that the appointment offered to the petitioners

was limited one. The respondents at any given time had never

offered to the petitioners that they would continue in service till

the existence of the 4-Tier Flexible Faculty Structure or till the

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.9

time they did not attain the age of superannuation. It is not

even the case of the petitioners that there was any uncertainty

or ambiguity in the appointments made by the respondents in so

far as the tenure on the post to which they were appointed.

13. There is a clear distinction between public

employment governed by the statutory rules and private

employment governed purely by contract. No doubt with the

development of law, there has been a paradigm shift with regard

to judicial review of administrative action whereby the writ court

can examine the validity of termination order passed by the

public authority and it is no longer open to the authority passing

the order to argue that the action in the realm of contract is not

open to judicial review. However, the scope of interference of

judicial review is confined and limited in its scope. The writ

court is entitled to judicially review the action and determine

whether there was any illegality, perversity, unreasonableness,

unfairness or irrationality that would vitiate the action, no matter

the action is in the realm of contract.

14. However, judicial review cannot extend to the Court

acting as an appellate authority sitting in judgment over the

decision. The Court cannot sit in the arm chair of the

administrator to decide whether more reasonable decision or

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.10

course of action could have been taken in the circumstances.

(Refer Gridco Ltd. & Another vs. Sadananda Doloi & Ors ,

AIR 2012 SC 729).

15. The petitioners have failed to place before this Court

any material to show that the action of the respondents is either

unreasonable or unfair or perverse or irrational. As observed

earlier, the norms of 4-Tier Flexible Faculty Structure placed on

record governing the service conditions of the petitioners make

it abundantly clear that petitioners had been appointed on

contractual basis.

16. Faced with this situation, learned counsel for the

petitioners would then contend that the action of the

respondents in terminating and re-appointing the petitioners

was required to be avoided as the petitioners were entitled to be

continued as long as the 4-Tier Flexible Faculty Structure

continued or till the time they did not attain the age of

superannuation and as such the action of the respondents being

contrary to the principles of service jurisprudence was liable to

be quashed.

17. We are unable to agree with the aforesaid

contention for the reason already set out hereinabove. Apart

from that, it is beyond cavil that the petitioners are contractual

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.11

employees, and therefore, would have a right to remain in

employment only for the period mentioned in the contract, that

too, subject to other conditions contained in the 4-Tier Flexible

Faculty Structure, but in no manner would have a right to claim

that their appointments now be treated as co-terminus with the

Institute.

18. It may be noticed that the petitioners had

voluntarily accepted the appointment granted to them subject

to the conditions clearly stipulated in the 4-Tier Flexible Faculty

Structure. These appointments subject to the conditions have

been accepted with their eyes wide open, therefore, now the

petitioners cannot turn around claiming higher rights ignoring

the conditions subject to which the appointments had been

accepted.

19. Indisputably, the 4-Tier Flexible Faculty Structure

under which the petitioners have been appointed does

prescribe a mode of selection but looking to the nature of

appointment, more especially, the tenure thereof, it cannot be

said that the best talent would apply, and therefore, even

though such appointments may not amount to backdoor

appointments yet nevertheless they would be side door

appointments and depend upon the contract service.

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.12

20. It is more than settled that the State or its

instrumentalities may be required to employ persons in posts

which may be temporary or like in the present case on contract

basis which are not regular faculty cadre so as to enable bright

young Ph.D. scholars to teach and earn experience in premier

institutions. The legitimacy of such appointments can be

found in the judgment rendered by a Constitutional Bench of

the Hon’ble Supreme Court in Secretary, State of

Karnataka and others versus Uma Devi (3) and others

(2006) 4 SCC 1, wherein it was held as under:

“12.In spite of this scheme, there may be occasions

when the sovereign State or its instrumentalities will

have to employ persons, in posts which are

temporary, on daily wages, as additional hands or

taking them in without following the required

procedure, to discharge the duties in respect of the

posts that are sanctioned and that are required to

be filled in terms of the relevant procedure

established by the Constitution or for work in

temporary posts or projects that are not needed

permanently. This right of the Union or of the State

Government cannot but be recognized and there is

nothing in the Constitution which prohibits such

engaging of persons temporarily or on daily wages,

to meet the needs of the situation. But the fact that

such engagements are resorted to, cannot be used

to defeat the very scheme of public employment.

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.13

Nor can a court say that the Union or the State

Governments do not have the right to engage

persons in various capacities for a duration or until

the work in a particular project is completed. Once

this right of the Government is recognized and the

mandate of the constitutional requirement for public

employment is respected, there cannot be much

difficulty in coming to the conclusion that it is

ordinarily not proper for courts whether acting under

Article 226 of the Constitution or under Article 32 of

the Constitution, to direct absorption in permanent

employment of those who have been engaged

without following a due process of selection as

envisaged by the constitutional scheme.

43……. If it is a contractual appointment, the

appointment comes to an end at the end of the

contract, if it were an engagement or appointment

on daily wages or casual basis, the same would

come to an end when it is discontinued. Similarly, a

temporary employee could not claim to be made

permanent on the expiry of his term of appointment.

………...It is not open to the court to prevent regular

recruitment at the instance of temporary employees

whose period of employment has come to an end or

of ad hoc employees who by the very nature of their

appointment, do not acquire any right.”

21. Similar reiteration of law can be found in a

subsequent judgment of the Hon’ble Supreme Court in

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.14

Official Liquidator versus Dayanand and others (2008)

10 SCC 1 wherein after relying upon the judgment in Uma

Devi’s case (supra), it was observed as under:

“75. By virtue of Article 141 of the Constitution, the

judgment of the Constitution Bench in Secretary,

State of Karnataka vs. Uma Devi (supra) is binding

on all the courts including this Court till the same is

overruled by a larger Bench. The ratio of the

Constitution Bench judgment has been followed by

different two-Judges Benches for declining to

entertain the claim of regularization of service made

by ad hoc/temporary/ daily wage/casual employees

or for reversing the orders of the High Court granting

relief to such employees - Indian Drugs and

Pharmaceuticals Ltd. vs. Workmen [2007 (1) SCC

408], Gangadhar Pillai vs. Siemens Ltd. [2007 (1)

SCC 533], Kendriya Vidyalaya Sangathan vs. L.V.

Subramanyeswara [2007 (5) SCC 326], Hindustan

Aeronautics Ltd. vs. Dan Bahadur Singh [2007 (6)

SCC 207]. However, in U.P. SEB vs. Pooran Chand

Pandey [2007 (11) SCC 92] on which reliance has

been placed by Shri Gupta, a two-Judges Bench has

attempted to dilute the Constitution Bench judgment

by suggesting that the said decision cannot be

applied to a case where regularization has been

sought for in pursuance of Article 14 of the

Constitution and that the same is in conflict with the

judgment of the seven-Judges Bench in Maneka

Gandhi vs. Union of India [1978 (1) SCC 248].

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.15

92. In the light of what has been stated above, we

deem it proper to clarify that the comments and

observations made by the two-Judges Bench in UP

State Electricity Board vs. Pooran Chandra Pandey

(supra) should be read as obiter and the same

should neither be treated as binding by the High

Courts, Tribunals and other judicial foras nor they

should be relied upon or made basis for bypassing

the principles laid down by the Constitution Bench.”

22. It is also well settled that regularization, absorption

or permanent continuance of an employee cannot be

directed by a Court, unless the employees have been

appointed in pursuance of a regular recruitment in

accordance with relevant rules in an open competitive

process against sanctioned vacant posts. In taking this

view, we are supported by the judgment of the Hon’ble

Supreme Court in State of Rajasthan & Ors. versus Daya

Lal & Ors. (2011) 2 SCC 429 , which reads as under:

“12. We may at the outset refer to the following well

settled principles relating to regularization and parity

in pay, relevant in the context of these appeals:

(i) High Courts, in exercising power under Article

226 of the Constitution will not issue directions for

regularization, absorption or permanent

continuance, unless the employees claiming

regularization had been appointed in pursuance of a

regular recruitment in accordance with relevant

rules in an open competitive process, against

sanctioned vacant posts. The equality clause

contained in Articles 14 and 16 should be

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.16

scrupulously followed and courts should not issue a

direction for regularization of services of an

employee which would be violative of constitutional

scheme. While something that is irregular for want

of compliance with one of the elements in the

process of selection which does not go to the root of

the process, can be regularized, back door entries,

appointments contrary to the constitutional scheme

and/or appointment of ineligible candidates cannot

be regularized.”

23. Moreover, advertising the posts, as fixed term

contractual appointment initially and thereafter permitting the

incumbents so appointed to continue and making their

appointments co-terminus with the 4-Tier Flexible Faculty

Structure or permitting them to continue in service till the age

of superannuation, would amount to playing fraud with those

multitude of people, who would otherwise be eligible to apply

and may have skipped the employment process thinking that

it is only for a temporary period or a contractual period.

24. In addition to the aforesaid, in case the contention

of the petitioners is accepted that their services be made

co-terminus with the 4-Tier Flexible Faculty Structure or they

be continued till the age of retirement, then this would amount

to rewriting the contract by way of interpretation, contrary to

the terms and conditions, that are agreed by the parties to the

contract, besides substituting the very norms of 4-Tier Flexible

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.17

Faculty Structure under which they have been appointed.

Obviously, such a course is legally impermissible.

25. The learned counsel for the petitioners would then

once again argue that it is settled law that a

contract/temporary employee cannot be replaced by another

employee and would rely upon the judgment rendered by a

Co-ordinate Bench of this Court of which one of us (Hon’ble

Ms. Justice Jyotsna Rewal Dua) was a member, in CWP No.

3054 of 2019 titled ‘Dr. Meera Devi versus Himachal

Pradesh University another’ decided on 07.01.2020.

26. We have gone through the judgment and find that

the issue therein was regarding termination and appointment

of Guest Faculty/Teacher. It was in this background that the

Court after relying upon the judgment of the Hon’ble Supreme

Court in State of H.P. versus Suresh Kumar Verma and

another (1996) 7 SCC 562 held the action of the respondent-

University to be bad and directed the continuance of the

petitioner till regular appointment was made.

27. Clearly, the ratio laid down in the aforesaid

judgment does not apply to the facts of the instant case as

there are two categories of posts of Assistant Professors in the

Institute. One is filled up on contract basis while the other is

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.18

on regular basis. One filled up on contract basis, as observed

above, is not a part of the regular faculty cadre and is made

to enable bright young scholars to teach and earn experience

in premier institutions.

28. The learned counsel for the petitioners would next

rely upon the judgment delivered by one of us ( Justice Tarlok

Singh Chauhan) in CWP No. 4451 of 2013 titled Dharam

Pal Singh versus State of H.P. and others, decided on

26.03.2015, which again relates to a contractual employee

being replaced by another contractual employee.

29. For the reasons stated above, even this judgment is

of no assistance to the petitioners.

30. Lastly, learned counsel for the petitioners would rely

upon the judgment authored by one of us (Justice Tarlok Singh

Chauhan) in LPA No. 132 of 2014, titled ‘Dr. Lok Pal versus

State of Himachal Pradesh and others, decided on

18.12.2014, to contend that the respondents on the sheer

strength of their bargaining power cannot take advantage of

their position and impose wholly un-equitable and

unreasonable condition of employment on their employees,

who did not have any other choice but to accept the

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.19

employment on the terms and conditions offered by the

respondents.

31. We fail to understand as to how the ratio of this

judgment is of any assistance to the petitioners. There is no

gainsaying that the respondent-Institute i.e. National Institute

of Technology is a premier institute running various institutes

pan India and has consciously provided an avenue for Ph.D

scholars to earn experience in teaching in the premier

institutions under the norms of 4-Tier Cadre Structure of Faculty

Posts as reproduced (supra). The avenue so provided by the

respondents is not a source of employment, but is only for the

purpose of gaining teaching experience in a premier institute.

32. As already observed earlier, the appointment of the

petitioners was limited one and the respondents had not at

any given time offered to the petitioners that they would

continue in service even after the tenure of five years has

come to an end. In addition to the above, it is not the case of

the petitioners that there was any uncertainty or ambiguity in

the appointments made by the respondents in so far as the

tenure to which they were appointed.

33. The petitioners at the time of entering into the

contractual employment were fully aware of the appointments

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.20

being contractual and such persons cannot even invoke the

theory of legitimate expectation for being continued in the

post. The petitioners being appointed on contractual basis

can have no right to claim higher right than what is envisaged

in the contract of appointment and same would come to an end

by efflux of time as entered in the contract. Moreover, the

petitioners having accepted the offer of appointment with eyes

wide open cannot turn around by claiming higher rights

ignoring the conditions subject to which the appointments had

been accepted.

34. Now, adverting to the contention of the petitioners

regarding the 4-Tier Flexible Faculty Structure being struck

down by the Allahabad High Court, suffice it to state that this

contention if accepted would boomerang on the petitioners

themselves as it would invalidate their very appointments.

35. Lastly and more-importantly, the petitioners after

participating unsuccessfully in the process of selection to the

regular posts of Assistant Professors are estopped from filing

the instant petition as they very well knew that their

appointments are on contract basis that too only for a

maximum period of five years and that is why they

::: Downloaded on - 02/10/2022 12:30:27 :::CIS

High Court of H.P.21

participated in the selection process for the regular vacancy of

Assistant Professors.

36. In view of the aforesaid discussion, we find no merit

in this writ petition and the same is dismissed, leaving the

parties to bear their own costs. Pending application(s), if any,

also stands disposed of.

(Tarlok Singh Chauhan)

Judge

(Jyotsna Rewal Dua)

Judge

18

th

September, 2020.

(krt)

::: Downloaded on - 02/10/2022 12:30:27 :::CIS