Dismissed

Dr.Rajesh Kumar v. Union of India

Himachal Pradesh HC30 Aug 2017CWP/176/2011

Case brief

AI extract

What is this about?

This writ petition challenged the cancellation of the petitioner's appointment as a lecturer due to failure to join within the stipulated time because of a prior contract in France. The court held the State was bound by established instructions regarding six-month extensions and dismissed the plea.

What did the court decide?

Petition dismissed with costs; each party to bear their own costs.

Dr.Rajesh Kumar Vs Union of India — Service and Employment | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No. 176 of 2011

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Date of decision: 30.8.2017

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Dr. Rajesh K. Sharma. …… Petitioner Vs. Union of India and others ….. Respondents Coram

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

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Whether approved for reporting?1 Yes

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For the petitioner	:	Ms. Ranjana Parmar, Senior Advocate, with Ms. Rashmi Parmar, Advocate.
For the respondents	:	Mr. Ashok Sharma, Assistant Solicitor General of India, with Mr. Adarsh Sharma, Advocate, for respondent No.1.
		Mr. K.D. Sood, Senior Advocate, with Mr. Sanjeev Sood, Advocate, for respondents No. 2 and 3.

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Tarlok Singh Chauhan, Judge (Oral).

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The facts lie in narrow compass. The National Institute of Technology, Hamirpur (for short NIT), i.e. respondent No.2 herein, invited applications for the posts of Lecturers including lecturer in Material Science and Engineering. The interviews for the said recruitment were conducted in February, 2009 and the petitioner was offered an opportunity to appear before the selection committee through video conferencing from South Korea. The petitioner was selected and on his request (Annexure P-9) he was granted extension in joining time upto 30.12.2009 subject to the condition that no further extension would be granted to him (Annexure P-10).

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

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…2…

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Now, the grievance of the petitioner is that the respondent No.2 Institute despite knowing fully well that the petitioner had been selected for one year contract with University Montpellier 2 France for research in the field of nanotechnology, illegally granted only six months time to the petitioner to join knowing fully well that it would be impossible for him to join within the time so granted. Feeling aggrieved, the petitioner has filed the instant writ petition for grant of following substantive reliefs:

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(a) That the order of cancellation of the appointment of the petitioner as lecturer in material science at National Institute Technology, Hamirpur dated 20^th January, 2010 issued by the Registrar of NIT, Hamirpur be quashed and set-aside.

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(b) That the respondents be further directed to consider appointing the petitioner to the post of Lecturer in Material Science & Engineering giving effect to letter No. NIT-HMR-Admn-Apptt-282-2009-1211-15 dated 1^st of June, 2009 (Annexure P-8) vide which the petitioner was appointed to the post of lecturer at NIT, Hamirpur.

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I have heard learned counsel for the parties and have gone through the material placed on record carefully.

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It is vehemently argued by Ms. Ranjana Parmar, Senior Advocate assisted by Ms. Rashmi Parmar, Advocate that the action of the respondents in granting only six months extension to the petitioner is vitiated because of the non-application of mind by the respondents as it was within their knowledge that it would be impossible for the petitioner to join within six months as he had

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…3…

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already entered into one year contract as a research fellow University at France and strong reliance in support of such submission is placed upon the judgment of learned Single Judge of Andhra Pradesh High Court in G. Atchaiah vs. Registrar, Kakatiya University 2000 (3) ALD 403 : 2000 (3) ALT 192.

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I have minutely gone through the judgment relied upon by the petitioner and find that the petitioner therein was appointed as Lecturer in Pharmacy on 16.04.1991 and while he was on probation, he applied for the post doctoral research work in Germany, which was of minimum period of 16 months extendable by one more year as per the prospectus. As per the guidelines of the University Grants Commission (for short ‘UGC’), a person selected to do this post doctoral research work, is entitled to be paid full salary during the research work and if any substitute is posted by the concerned University, 50% of the emoluments are to be met by the UGC. The respondent-University in that case rejected the request of the petitioner to do post doctoral research work on the ground that he was only a probationer, but, ultimately on the directions of the UGC, the respondent therein sponsored the candidature of the petitioner only for a period of one year as per proceedings dated 07.11.1992. While relieving the petitioner to go abroad, the respondent-University got a bond executed from the petitioner and as per the condition of the bond, an amount of `10,000/- was to be forfeited in case:

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(i) if he fails to report after completion of the course;

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(ii) if he returns to India without completing the course ; and

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(iii) if he fails to serve the respondent-University for a period of three years.

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…4…

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The petitioner therein left for Germany on 25.11.1993 and as the post doctoral research work was to be undertaken in German language, he underwent foundation course in German language for over five months and thereafter took the post doctoral research work. The University extended the petitioner stay upto 01.04.1994, but his further request to the University to complete the course was rejected and the petitioner was threatened that his services with the University would stand terminated in case he fails to join back. Later on, the University terminated the services of the petitioner vide letter dated 13.06.1994 with retrospective effect i.e. 01.04.1994.

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Questioning the said order, the writ petition came to be filed by the petitioner and the same was allowed on the ground that when once the permission had been granted by the University, it could not raise a dispute that the petitioner had applied for the course without the knowledge of the University.

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Thus, it would be evidently clear from the above discussion that the facts in G. Atchaiah’s case (supra) are entirely different from the instant case and it was in the given facts and circumstances that the Court granted relief to the petitioner therein. Even otherwise, once the competent authority i.e. University had granted the permission to the petitioner, they could not feign ignorance regarding the application having been submitted to the UGC without the knowledge of the University.

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Whereas, in the instant case, it was the petitioner who of his own, had sought to improve his career prospectus and accepted

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…5…

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12 months contract with the University at France. This contract was not undertaken with the consent whether express or implied of the respondent. It was therefore for the petitioner to opt for research work at France or to join the University, even if, it entailed certain other consequences. The petitioner at this stage cannot be heard to complain that because his family had been staying at France or that he had an accommodation with electricity, water, internet, medical insurances and permit contracts, which were valid for one year, he should have been granted extension as a matter of right.

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As observed above, it was for the petitioner to have opted to serve either at France or report to the respondents, he cannot be heard to complain, more particularly, when it has specifically come on record that the services of the petitioner were essentially required before January, 2010 to start the academic session particularly once it has come on record that the respondents in view of non-joining of the petitioner had to make alternate arrangements by recruiting the faculty on contract for this purpose to accomplish the start of new academic session as per schedule. The petitioner has only made grievance about his individual prospects, but has kept mum and silent on the question of larger interest of the students, who obviously would have or rather had suffered on account of his non-joining within the stipulated period. It is more than settled that individual interest, aspiration and ambition has to yield the larger public interest.

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That apart, it would be noticed that the respondentInstitute is a State within the meaning of Article 12 of the Constitution

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…6…

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of India and cannot, therefore, act like a private individual, who is free to act in a manner whatsoever he likes, unless interdicted by law. It needs no reiteration that the State or its instrumentalities have to strictly fall within the four corners of the law and all its activities are governed by the Rules, Regulations, Instructions etc.

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In the present case also, the instructions contained in GOI OM 9/23/71-Estt.(D) dated 6^th June, 1978 cited in the Establishment and Administrative Manual (Annexure R-1), only provide for extension of six months in cases like that of the petitioner and obviously therefore the respondents being bound by such instructions could not have flouted or violated the same.

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The petitioner has not been able to show any instruction to the contrary and, therefore, cannot be heard to complain that the action of the respondent(s) is illegal only because they choose to follow the law.

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As noticed above, the petitioner apart from other reliefs has sought a writ of mandamus, which can only be enforced in case the petitioner can prove his legal right and corresponding performance of a legal duty by the respondent(s).

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It is the basic principle of jurisprudence that every ‘Right’ has a co-relative ‘Duty’ and every ‘Duty’ has a co-relative ‘Right’. But the rule is not absolute. It is subject to certain exceptions in the sense that a person may have a ‘Right’ but there may not be co-relative ‘Duty’. ‘Right’ is an interest recognized and protected by moral or legal rules. It is an interest the violation of which would be a legal wrong. Respect for such interest would be a legal duty. That is how

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…7…

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Salmond has defined the “Right”. Therefore, in order, that an interest becomes the subject of a legal right, it has to have not merely legal protection but also legal recognition. The elements of a ‘Legal Right’ are that the ‘right’ is vested in a person and is available against a person who is under a corresponding obligation and duty to respect that right and has to act or forbear from acting in a manner so as to prevent the violation of the right, if, therefore, there is a legal right vested in a person, the latter can seek its protection against a person who is bound by a corresponding duty not to violate that right.

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In Zonal Manager, Central Bank of India vs. Devi Ispat Limited and others (2010) 11 SCC 186, the Hon’ble Supreme Court held that mandamus can be issued by the High Court under Article 226 of the Constitution, if a legal right must exist and/or corresponding legal duty is available to be performed by the State or its instrumentality.

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A writ of or in the nature of mandamus, it is trite, is ordinarily issued where the petitioner establishes a legal right in himself and a corresponding legal duty in the public authorities. 17. Thus, on the basis of the aforesaid discussion, the petitioner having failed to establish his right and having failed to point out any corresponding legal duty in the public authority i.e. respondent(s), is, therefore, not entitled to any relief whatsoever. Accordingly, there is no merit in this petition and the same is dismissed, leaving the parties to bear their own costs. Pending application(s), if any, also stands disposed of.

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August 30, 2017. (Tarlok Singh Chauhan) (GR) Judge

Dr.Rajesh Kumar v. Union of India

Case brief

What is this about?

What did the court decide?

Dr.Rajesh Kumar v. Union of India

Case brief

What is this about?

What did the court decide?

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