Saturday, October 1, 2022

Allahabad High Court directs petitioners to continue working with CSJM Kanpur University as Assistant Professors

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The Allahabad High Court has directed the assistant professors appointed on contract in the Department of Microbiology and Life Sciences of Chhatrapati Shahu Ji Maharaj Kanpur University to work till the Self-financed Course continues, provided that their service is satisfactory and has not completed the age of retirement.

A Single Bench of Justice Saumitra Dayal Singh passed this order, while hearing a petition filed by Shilpi Uttam and other connected petitions.

The connected petitions have been filed by persons engaged on contractual basis to run Self-financed Courses, by the Chhatrapati Sahuji Maharaj University, Kanpur.

The University started running courses in Microbiology under the Self-finance Scheme. It issued Notification on June 8, 2010 amongst others, calling for applications for appointment on contractual basis on the posts of Professor, Reader and Lecturers.

All petitioners applied and were appointed. The petitioner was issued appointment letter dated 11.3.2011 appointing her Lecturer (under OBC Category) on contract under Self-finance Scheme, in the department of Microbiology, IBSBT, for a period of three years, on fixed salary of Rs 19,680.

The Court noted, Similar appointment letters came to be issued to the other petitioners as well. Though the term of contractual engagement as specified in the appointment letter noted above was three years, it is a common fact, the petitioners have continued to serve on that position on contractual basis since then.

At the relevant time, the State Government had issued a Government Order dated 04.2.2000. Under that Government Order, the contractual posts could be created by a University upon resolutions and approvals of its authorities. Therefore undisputedly, there was no illegality either in the starting of the Self-finance Courses or in the engagement of petitioners on contractual basis. Then on 13.3.2000, the State Government issued a further Government Order.

Acting on the same, vide resolution dated 28.4.2020 of the Executive Council of the University, it was resolved under.

Therefore, it also cannot be disputed that the University incorporated the Government Order dated 13.3.2020. Accordingly, it became the law of the University. Any teaching faculty engaged on contractual basis would continue to be retained on that position during the course of the relevant course subject to his services being satisfactory. In the event of the University seeking to dispense with such service, minimum compliance of rules of natural justice was to be ensured. Again, it is not disputed that the services of the petitioner have remained satisfactory.

The last extension of service was granted to the petitioners vide communication dated 16.7.2021 whereby the Registrar of the University granted extension to the petitioner for a period of three months or till regular appointments were made, whichever be earlier.

It is this communication coupled with two advertisements issued by the University dated 07.8.2021 and 19.8.2021 that gave rise to the cause of action to the petitioners. They allege the University is now seeking to illegally dispense with their services though the courses are continuing and though the working of the petitioners is wholly satisfactory. In such circumstances, these writ petitions were entertained and it was provided that the working of the petitioners shall not be disturbed during the pendency of the (respective) writ petition.

It now transpires, the University does not propose to make any recruitment against the advertisements dated 07.8.2021 and 19.8.2021. However, the University seeks to make appointments against an earlier advertisement issued by it dated 28.7.2021. Again, relevant to the dispute, the posts of Assistant Professor Biotechnology and Life Sciences have been advertised.

It further transpires that the State Government has vide its communication dated 26.2.2021 sanctioned 02 posts of Associate Professor and 05 post of Assistant Professor. Similarly, at the Biotechnology department, which runs B.Sc and M.Sc  Courses, the government has sanctioned 01 post of Professor, 02 post of Associate Professor and 04 post of Assistant Professor.

In such circumstances, a query was put to the counsel for the University as to the genesis of the order dated 26.2.2021 issued by the State Government. It has been fairly informed that the University seeks to run the self-finance Courses (being presently run by it) in addition to aided courses now proposed to be introduced. Also, it has been stated, for that purpose, the University had sought and the government has granted approval to the posts of teaching faculty, described above.

In such circumstance, it has been vehemently urged by the Senior Counsel for the petitioner, in the first place the services of the petitioners would continue to be governed by the Government Order dated 13.3.2020 as incorporated by the University vide resolution of the Executive Council dated 28.4.2020. Their services cannot be dispensed with except as provided by that Government Order.

On the other hand, counsel for the University contend, petitioners continue to be contractual employees. In absence of any conversion of posts held by them to regular posts and in absence of regular selection having been faced by the petitioners, they are not entitled to claim absorption on such posts, now sanctioned.

Further difficulties have been claimed owing to stipulations in the Government Orders as may not allow the University to absorb the contractual employees against sanctioned posts. Since in this case the petitioners were always aware that they were engaged under the Self-finance Scheme, they can never claim to be absorbed against regular posts.

Having heard counsel for parties and having perused the record, in the first place as a contractual employee governed by the terms of the appointment letter read with Government Order dated 13.3.2020 as incorporated by the University on 28.4.2020, the petitioners are clearly entitled in law to be retained on their position so long as work is available and so long as their working is satisfactory.

As to the existence of work, there is absolutely no doubt. In fact, in view of a fair statement made by the counsel for the University, it transpires that the courses as were being run by the University under the Self-finance Scheme are now proposed to be run in addition to aided courses, upon approvals granted by the State Government, the Court observed.

The Court said that,

As to their performance/working, again no fact has been brought on record by means of the counter affidavit filed by the University as may allow any doubt to arise as to satisfactory nature of duties performed by the petitioners.

The inescapable conclusion that therefore arises is, dehors sanction of posts and grant of approval to run courses as aided courses, the University could not have dispensed with the services of the petitioners except after affording due opportunity of hearing to the petitioners, if their services were to be alleged to be non-satisfactory. That not being the case, the petitioners would continue against contractual engagement, during the currency of the Self-finance program run by the University.

All that requires to be examined is whether upon introduction of the aided courses, the petitioners became entitled to absorption or continuance. Here the conduct of the University is found to be wanting. While no mala fides are required to be examined and no observation is being made to reach that conclusion, it defies plain common sense why the University sought grant of sanction of post from the State Government and not conversion. According to the stand taken by the University, it is still not clear if the University was proposing to convert the Self-finance Courses into aided courses or if it has added/ started any new course. Here it may be noted, it is not the case of the University that the courses approved are courses other than those it has been running as Self-finance Courses, from before.

In that, even the sanction and approval letters that have been annexed to the Rejoinder Affidavit, also do not indicate that the posts had been sanctioned with respect to any course other than those already undertaken by the respondent University under the Self Finance Scheme.

“In this case, as has been noted above, the initial engagement of the petitioners was through selection against advertisement upon recommendation of the selection committee and upon approval of the Executive Council. Also, no dispute exists as to the eligibility of the petitioners to be appointed as Assistant Professors.

In view of the above, a mandamus is issued to the University to allow the petitioners to continue against their engagement as before till the University chooses to run the Self-finance Courses against which the petitioners had been engaged, subject to their services being satisfactory or till they attain the age of superannuation, whichever is earlier”, the Court observed while disposing the writ petitions.

“In the event, the University has/would run the Courses (against which petitioners were engaged) as aided courses, it would take appropriate steps with the State Government to absorb the petitioners against posts sanctioned by the State Government, against such courses.

In any case, amounts that may have become due to the petitioners till date, for contractual engagement would be paid to the petitioners within a period of one month failing which the same shall attract interest at 8 percent,” the order read.

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