Dismissed

Moni Sharma v. State of Hp and Others

Himachal Pradesh HC11 Aug 2023CWP/1834/2023

Case brief

AI extract

What is this about?

Single Judge dismissed the petitioner's writ petition. The court held that an ineligible ad-hoc employee cannot claim a right to continue services until a regular appointment is made. Merely not being replaced by another ad-hoc employee does not protect an employee who fails to meet statutory eligibility criteria.

What did the court decide?

Writ petition dismissed with pending applications.

Moni Sharma Vs State of Hp and Others — Pension and Retirement Benefits | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No. 1834 of 2023

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Reserved on : 26.07.2023

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Date of decision : 11.08.2023

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Smt. Moni Sharma ..Petitioner

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Versus

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State of H.P. and others ..Respondents

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Coram :-

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Justice Jyotsna Rewal Dua, Judge

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Whether approved for reporting ?¹ Yes

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_____________________________________________________________ For the Petitioner : Mr. Onkar Jairath, Advocate For the Respondents : Mr. Y.P.S. Dhaulta and Mr. Varun Chandel, Additional Advocates General, with Ms. Seema Sharma and Mr. Sumit Sharma, Deputy Advocates General, for respondents No. 1 & 2. Mr. R.K. Bawa, Senior Advocate, with Mr. Ajay Kumar Sharma, Advocate, for respondents No. 3 & 4. -------------------------------------------------------------------------------------------

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Jyotsna Rewal Dua, Judge

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Petitioner was serving as temporary Lecturer (Physics) in the

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respondent-College against a post under the Self Financing Scheme. Her services were terminated by the respondents-College on 27.03.2023, therefore, the writ petition.

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2. It would be appropriate to take into consideration following facts

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from the reply filed by respondents No. 3 and 4 concerning appointment

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of the petitioner :-

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2(i) Petitioner was engaged on 29.07.2013 on the post of Assistant Professor (Physics) by the respondents purely on temporary basis. Her such engagement was under the Self Financing Scheme. Petitioner was not appointed against the sanctioned posts under the Grant-in-Aid Rules (GIA Rules in short) as sanctioned post under the said Rules was not available at that time.

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2(ii) Petitioner continued to discharge her duty in Physics Department of the respondent S.D.P.G. College Bhatoli, Tehsil and District Una, till the year 2020.

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2(iii) On 06.10.2020, Ms. Naresh Bala, the then officiating Principal re-joined Physics Department after being relieved from the duty of officiating Principal. Resultantly, strength of total teachers in Physics Department became four viz: Ms. Naresh Bala, Ms. Indu Bala, Ms. Hani Sharma and Ms. Moni Sharma (the petitioner). The available workload did not justify continuation of four teachers. Only three teachers were required for teaching Physics to the students of B.Sc. Classes. Ms. Naresh Bala was working as Associate Professor under 95% the GIA Rules. Ms. Indu Bala was CIR-UGC/NET qualified and was also eligible to be appointed as Assistant Professor. Hence, to avoid any controversy for engagement against the third post, the then Principal relieved Ms. Hani Sharma and the petitioner as both were ineligible for the post in view of prescribed norms.

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2(iv) The Principal of the College sought permission on 07.10.2020 from the Managing Committee for advertising the posts of Assistant Professors in Physics as per UGC norms.

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2(v) In view of above proposal, advertisement for walk-in-interview for the posts was published in the newspaper on 9/12.10.2020. Three candidates, including the petitioner, appeared in the walk-in-interview conducted on 12.10.2020. Out of the three candidates, Dr. Surinder Paul was considered eligible as per UGC/HP Govt. norms. He was placed at position No.1, whereas petitioner was at position No.2. Dr. Surinder Paul did not join. On 14.10.2020, petitioner being at position No. 2 in the recommendation list, was offered appointment as Assistant Professor (Physics). Her appointment was purely on temporary basis under Self Financing Scheme. Petitioner joined the same day after accepting the terms and conditions. Petitioner though was appointed as Assistant Professor (Physics), however, she was not eligible as per UGC/HP Govt. norms as she did not possess Ph.D degree in Physics. Petitioner was only M.Sc. (Physics). She was engaged so that studies of the students did not suffer.

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2(vi) In December, 2021, Principal of the College received a communication from the Secretary, H.P. Private Educational Institutions Regulatory Commission (HPEIRC), inter alia, stating that the College should recruit teaching faculty as per UGC/other applicable regulatory norms.

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2(vii) On 11.01.2023, the respondent-College published an

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advertisement for filling up posts sanctioned under the GIA Rules. The petitioner did not apply for these posts of Assistant Professor (Physics). On 27.03.2023, the respondent-College issued office communication informing the petitioner that academic session 2022-2023 was over and her services were not required any longer. Petitioner was relieved from her duties. Feeling aggrieved, petitioner has assailed the decision dated 27.03.2023 (Annexure P-5) in the instant writ petition. Substantive reliefs claimed by her are :-

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“A. That the writ in the nature of certiorari or any other appropriate writ, order or directions may kindly be issued for quashing the impugned order dated 27.03.2023 (Date wrongly mentioned as 27.03.2022) contained in Annexure P-4.

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B. That a writ in the nature of Mandamus or any other appropriate writ, order or directions may kindly be issued directing the respondents to allow the petitioner to continue as Assistant Professor (Physics) in SVSDPG College Bhatoli, District Una, Himachal Pradesh on the existing terms and conditions.”

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3. Contention of learned counsel for the petitioner is that petitioner had been discharging her duty on the post in question for the past about 10 years. Impugned decision of the respondent-College in terminating her services is unjust and arbitrary. The petitioner was working in the respondent-College as Assistant Professor (Physics) (temporary basis). She should have been allowed to continue in the College in the same

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capacity till the time the respondents filled up the post on regular basis. Learned counsel for the petitioner also pressed into service the principle that ad-hoc/temporary employee should not be replaced by another ad-hoc or temporary employee. He must be replaced by only a regularly selected employee.

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Opposing the above contentions, learned Senior Counsel for the respondent-College submitted that :- services of the petitioner were terminated as she did not possess the requisite eligibility criteria ; The petitioner did not possess Ph.D. degree ; The respondents has already published the advertisement for filling up the posts under the GIA Rules. In view of this position, services of the petitioner had to be terminated.

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4. Having heard learned counsel on both sides and after considering the case file, my observations are as under :-

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4(a) It would be relevant to mention here that vide interim order dated 06.04.2023 passed in this petition, respondents No. 3 and 4 have been restrained from appointing any person as Assistant Professor (Physics) on temporary basis.

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4(b) During hearing of the case on 24.07.2023, learned Senior Counsel for respondents No. 3 and 4 placed on record written instructions memo indicating that :- there were three sanctioned posts of Assistant Professor in Physics in the respondent-College ; All the three posts were lying vacant as on date. It was also projected in the instructions memo that :- two Assistant Professors are to be recruited under 95% GIA Scheme, whereas one post of Assistant Professor (Physics) will be filled

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up under the Self Financing Scheme ; The recruitment process initiated by the respondents for filling up two sanctioned posts under the GIA Scheme is presently halted as the process has been postponed by H.P. University due to administrative reasons ; In view of this, the respondent-College intends to fill up two GIA posts by appointing eligible teachers as Guest Faculty for academic session 2023-2024 as per UGC/H.P. University norms or till the regular appointments are made under the GIA Scheme ; The third post in Physics under the Self Financing Scheme would be filled up as per UGC-HPU norms by engaging eligible teacher as and when matter is settled in this writ petition.

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4(c) Petitioner has no claim to the two posts of Assistant Professors (Physics) sanctioned under the GIA Scheme. Her grievance pertains to the post of Assistant Professor (Physics) under the Self Financing Scheme. In that also, petitioner’s prayer is very limited. During hearing of the case, learned counsel for the petitioner restricted the prayer to allow the petitioner to serve as Assistant Professor (Physics) in respondent-College till the post under the Self Financing Scheme was filled up by the College on regular basis.

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4(d) It is well settled that ad-hoc employee cannot be replaced with another ad-hoc employee. An ad-hoc employee can be replaced only by another candidate who is regularly appointed by following a regular procedure prescribed. [Re: Civil Appeal Nos. 3084-3088 of 2022, decided on 21.04.2022 (Manish Gupta and another Vs. President, Jan Bhagidari Samiti and others)] .

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It would be pertinent to notice here that the appellants before the Hon’ble Apex Court in Manish Gupta’s case were duly qualified for the posts held by them on ad-hoc basis.

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In the instant case, vide order dated 14.10.2020 (Annexure R-5), petitioner was appointed as Assistant Professor (Physics) purely on temporary basis. Her services could be terminated by giving 24 hours notice. Admittedly, petitioner is not eligible for being appointed as Assistant Professor (Physics). She does not satisfy the UGC/HPU norms. Petitioner does not have Ph. D degree in the concerned subject. Petitioner has also not cleared National Eligibility Test (NET) conducted by UGC or CSIR. She thus cannot be appointed to the post of Assistant Professor. Perhaps for this reason, she has not even applied for the duly sanctioned posts in Physics under the GIA Scheme, recruitment of which is stated to be underway. Her past service in the Physics Department in the respondent-College cannot ipso-facto vest a right in her to continue to serve as Assistant Professor even though she is ineligible for the post. Respondent College has very specifically referred to the directions received by it from H.P. Private Educational Institution Regulatory Commission for recruiting the faculty members as per UGC/Regulatory Body norms. Such directions are in consonance with law. Petitioner was appointed as Assistant Professor (Physics) on 14.10.2020 purely on temporary basis with a rider that her services could be terminated by giving 24 hours notice.

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5. Conclusion

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Petitioner, who admittedly does not satisfy the qualification criteria for the post of Assistant Professor (Physics), required under UGC/HPU norms being ineligible for the post, cannot force the respondents to continue to engage her till an incumbent is appointed on regular basis. This is irrespective of nature of post, be it under the GIA Scheme or the Self Financing Scheme. In light of the facts of the case, the settled legal position that ad-hoc employee cannot be replaced by another ad-hoc employee, will also not come to the rescue of the petitioner. Such an ad-hoc employee has to satisfy the prescribed eligibility criteria for claiming the protection. An ineligible ad-hoc employee cannot seek to remain in service till the appointment of a regular employee. Such an ineligible employee cannot force the College to let him/her continue in service dehors the Rules/Norms position. The new academic session in the respondent-College has just begun. All the three posts of Assistant Professor (Physics) i.e. two under the GIA Rules and one under the Self Financing Scheme are lying vacant. Respondent-College has specified in the instructions placed on record that pending finalization of regular recruitment process by the HPU, it intends to fill up two posts under the GIA Scheme by appointing eligible teachers as Guest Faculty for academic session 2023-2024 as per UGC/HPU norms and the third post under the Self Finance Scheme shall also be filled up as per UGC/HPU norms by engaging eligible teachers as per norms.

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In view of above, there is no merit in the claim of the petitioner for serving as Assistant Professor (Physics) in the respondent-College as

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she is ineligible for being appointed as such. The writ petition is accordingly dismissed alongwith the pending applications, if any.

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11^th August, 2023 (K)

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Jyotsna Rewal Dua Judge

Moni Sharma v. State of Hp and Others

Case brief

What is this about?

What did the court decide?

Moni Sharma v. State of Hp and Others

Case brief

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