Dismissed

Moni Sharma v. State of Hp and Ors.

Himachal Pradesh HC11 Dec 2023LPA/208/2023

Case brief

AI extract

What is this about?

In this Letters Patent Appeal, the Single Judge dismissed a writ petition challenging the appellant's termination as a temporary Assistant Professor. The appellant, lacking a PhD and NET/CSIR eligibility, claimed massive stigma due to her ten years of service. The court held she was ineligible and dismissed the appeal, upholding the dismissal.

What did the court decide?

The appeal was dismissed and the impugned judgment of the learned Single Judge was upheld.

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

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LPA No. 208 of 2023

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Decided on: 11.12.2023

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Smt. Moni Sharma …. Appellant Versus State of Himachal Pradesh & Ors. …. Respondents The Hon’ble Mr. Justice Vivek Singh Thakur, Judge The Hon’ble Mr. Justice Sandeep Sharma, Judge Whether approved for reporting¹ : For the Appellant : Mr. Jyotirmay Bhatt, Advocate. For Respondents : Mr. Ramakant Sharma, Additional Advocate General. Sandeep Sharma, J

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Instant Letters Patent Appeal, lays challenge to judgment dated 11.08.2023 passed by learned Single Judge of this Court in CWP No.1834 of 2023 titled Smt. Moni Sharma versus State of H.P. and others, having been filed by the appellantpetitioner, praying therein to quash the impugned order dated 27.03.2023, whereby appellant-petitioner was relieved from her duties.

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For having bird’s eye view, facts which may be relevant for adjudication of the case at hand are that on 29.07.2013, appellant-petitioner came to be appointed against the post of Assistant Professor (Physics) on temporary basis under Self Financing Scheme. Appellant-petitioner continued to discharge her duty in Physics Department of the respondent-College till the year,

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1 Whether Reporters of local newspaper are permitted to see the judgment ?

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On 6.10.2020, person namely, Ms. Naresh Bala, the then officiating Principal rejoined Physics Department after being relieved from the duty of officiating principal, as a result thereof, total strength of teachers in physics department became four i.e Ms. Naresh Bala, Ms. Indu Bala, Ms. Hani Sharma and Ms. Moni Sharma (appellant-petitioner). Since only three teachers were required for teaching physics to the students of B.Sc. Classes and Ms. Naresh Bala was working as Associate Professor under 95% the GIA Rules and Ms. Indu Bala was fully qualified to be appointed as Assistant Professor, respondent-College with a view to avoid any controversy, relieved the appellant-petitioner as well as another person namely, Ms. Hani Sharma.

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On 7.10.2020, Principal of the College sought permission from the Managing Committee for advertising the posts of Assistant Professors in Physics as per UGC norms. Pursuant to aforesaid proposal, advertisement for walk-in-interview for the posts was published in the newspaper and three candidates, including the appellant-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, whereas appellantpetitioner was at position No.2. Since above named Dr. Surinder Paul did not join, appellant-petitioner being at position No.2 was offered appointment as Assistant Professor (Physics) but on temporary basis under Self Financing Scheme. At this stage, it is

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apt to take note of the fact that appellant-petitioner was only M.Sc. (Physics) and as such, was not eligible to be appointed as Assistant Professor (Physics) as per UGC/HP Govt. norms, but yet was engaged, so that studies of the students do not suffer.

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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 and as such, respondent-College published an advertisement for filling up posts sanctioned under the GIA Rules. Interestingly, appellant- petitioner did not apply for these posts of Assistant Professor (Physics) and on 27.03.2023, the respondent-College issued office memorandum informing the appellant-petitioner that academic session 2022-2023 was over and her services were not required any longer.

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Being aggrieved and dissatisfied with aforesaid decision dated 27.03.2023, appellant-petitioner approached this Court by way of CWP No.1834 of 2023, praying therein for following relief:

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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

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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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Aforesaid writ petition having been filed by the appellant-petitioner came to be opposed by the respondents on the ground that petitioner’s engagement against the post in question was purely on temporary basis and on account of her being not fully eligible, she otherwise could not have been given appointment against the post of Assistant Professor (Physics). Respondents stated in the reply that appellant-petitioner did not possess Ph.D degree, which is mandatory for seeking appointment against the post of Assistant Professor (Physics) and they have already published the advertisement for filling up the posts under GIA Rules.

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Learned Single Judge on the basis of the pleadings adduced on record by the respective parties, dismissed the writ petition by holding that the appellant-petitioner is ineligible for being appointed as Assistant Professor (Physics) in the respondentCollege. In the aforesaid background, appellant-petitioner has approached this Court in the instant proceedings, praying therein to set-aside aforesaid impugned judgment passed by learned Single Judge.

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Precisely, the grouse of the appellant as has been highlighted in the appeal and further canvassed by Mr. Jyotirmay Bhatt, learned counsel for the appellant, is that learned Single Judge failed to take note of the fact that petitioner had been

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discharging her duty on the post in question for the last ten years and as such, she should have been allowed to continue in the College in the same capacity till the time post in question is not filled up on regular basis. Mr. Bhatt, vehemently argued that adhoc/ temporary employees otherwise cannot be replaced by another adhoc or temporary employee, rather he/she must be replaced by only a regularly selected employee.

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To the contrary, learned counsel representing the respondents justified the action of the respondents by stating that since appellant- petitioner did not possess requisite eligibility criteria i.e. Ph.D degree, coupled with the fact that she had never applied

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for the post of Assistant Professor (Physics) pursuant to advertisement dated 11.01.2023, no illegality can be said to have been committed by the respondents while relieving the appellantpetitioner from her duties.

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Having heard learned counsel for the parties and perused the material available on record vis-à-vis reasoning assigned in the impugned judgment passed by learned Single Judge, this Court finds no illegality and infirmity in the same and as such, no interference is called for.

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11. No doubt, appellant- petitioner had been discharging her duty against the post of Assistant Professor (Physics) in the respondent-College for the last ten years, but in temporary capacity. At no point of time, she was given appointment under GIA rules.

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Petitioner was engaged on 29.07.2013 on the post of Assistant Professor (Physics) by the respondents on temporary basis under self Financing Scheme and thereafter she was relieved from duty in the year 2020 when person namely Ms. Naresh Bala joined the physics department after her being relieved from the duty of officiating Principal. On account of re-joining of Ms. Naresh Bala not only petitioner rather other person namely Ms. Hani Sharma was also relived. Only three teachers were required for teaching Physics to the students of B.Sc classes. Since Ms. Naresh Bala was working as Assistant Professor under 95% GIA Rules and other incumbent Ms. Indu Bala was fully qualified to be appointed against the post of Assistant Professor, services of the petitioner alongwith other person namely Ms. Hani Sharma were rightly dispensed with. 12. Subsequently , on 7.10.2020 respondent- College with a view to protect the interest of the students, again advertised the posts of Assistant Professors in Physics as per UGC norms but even at that time petitioner was not having requisite qualification but on account of non-joining of Dr. Surinder Paul was given appointment but on temporary basis.

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Since, it is not in dispute that specific communication came to be received by the respondent in December, 2021, thereby calling upon Educational Institutes to recruit teaching faculty as per UGC/ other applicable regulatory norms, coupled with the fact that petitioner was not having requisite qualification in terms of UGC/

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other applicable norms, respondent had no option but to issue fresh advertisement for filling up the post under GIA Rules, but admittedly by the candidates having requisite qualification. Otherwise also, at this juncture, petitioner nowhere applied, rather straightway approached this Court for quashing order dated 27.03.2023, whereby she was relieved from her duties. There cannot be any quarrel with the proposition of law that ad-hoc employee cannot be replaced with another ad-hoc employee but facts of the judgment passed by Hon'ble Apex Court in Manish Gupta and another Vs. President, Jan Bhagidari Samiti and others, Civil Appeal Nos. 3084-3088 of 2022, decided on 21.04.2022, are totally different to the facts of the present case because in Manish Gupta’s case petitioners were duly qualified for the post held by them on adhoc basis. However, in the instant case admittedly petitioner was never eligible to be appointed against the post of Assistant Professor because she did not possess Ph.D degree, which is mandatory for being appointed as Assistant Professor (Physics). Petitioner has neither cleared National Eligibility Test (NET) conducted by UGC or CSIR nor she has completed her Ph.D degree and as such, she cannot be appointed against the post of Assistant Professor (Physics). Past service rendered by the petitioner in the Physics Department of the respondent-College cannot be a ground for her to claim continuance of her service as Assistant Professor, especially when .H.P. Private Educational Institution Regulatory Commission

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has specifically issued directions with regard to recruitment of faculty members as per UGC/Regulatory Body norms. Moreover, 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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Leaving everything aside, this Court finds that pursuant to advertisement dated 11.01.2023 petitioner never applied for the post of Assistant Professor (Physics).

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Consequently, in view of the above, this Court finds no illegality and infirmity in the impugned judgment passed by learned Single Judge and as such, same is upheld. The present appeal fails and is accordingly dismissed alongwith pending applications, if any.

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December 11, 2023 (shankar)

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(Sandeep Sharma) Judge

Moni Sharma v. State of Hp and Ors.

Case brief

What is this about?

What did the court decide?

Moni Sharma v. State of Hp and Ors.

Case brief

What is this about?

What did the court decide?

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