Dr. Rajiv Kumar v. Shivaji College through its Principal & Ors.

1. This writ petition is filed by the petitioner-Dr. Rajiv Kumar seeking appropriate writ/directions for quashing of the order dated 28.1.2009 passed by the respondent no.2/governing body of the College terminating the services of the petitioner as a Lecturer (Chemistry) from the College. The College is respondent no.1 and the governing body is sued as respondent no.2.

2. It is undisputed that petitioner applied for the post of Lecturer with the respondent no.1 pursuant to the advertisement dated 13.5.2008. As per the 2013:DHC:1548 advertisement, so far as the posts for the Lecturer in Chemistry is concerned, they were said to be three in number, one each in General Category, Scheduled Caste Category and Other Backward Class Category. In the advertisement, however there was a note which reads as under:- “4. The College reserves its right to change the number and/or nature of the posts and/or not to fill any or all posts advertised without assigning any reason.”

3. The respondent no.1-College conducted the necessary interviews with respect to the post of Lecturer in Chemistry and prepared a panel. Petitioner was at No.2 in the panel. The first person in the panel namely Ms. Vandana Katoch was appointed. Since however the respondent no.1-College required appointment of one more lecturer, it exercised the option in terms of the note 4 in the advertisement dated 13.5.2008 and appointed the petitioner.

4. Respondent no.3-University, and to which, the respondent no.1- College is affiliated, raised objections to the appointment of the petitioner. Objection was raised on the ground of Rule 3(1) of Order XII of the Calendar (The Act, Statutes & Ordinances) of the University, and which Calendar contains the necessary rules applicable to the University and the affiliated colleges of the University. This Rule 3(1) reads as under:- “ 3.(1) All vacancies of teachers shall be filled after advertisement and by open recruitment, save in the cases of vacancies, appointment to which may be required to be made urgently in the interest of organisation of teaching in the college concerned for a period not exceeding four months or beyond the term in which it is made whichever is earlier.”

5. The limited issue for consideration in this writ petition is that whether the appointment of the petitioner was made in violation of the aforesaid Rule 3(1) of the Order XII. A reading of the aforesaid Rule shows that the only requirement is that vacancies of teachers cannot be filled in, except after advertisement and by open recruitments. On behalf of the petitioner, what is argued, and in my opinion rightly, that actually vacancies of the Lecturers in Chemistry of the respondent no.1-college were in fact filled in by open recruitment and through advertisement, and advertisement in question is the advertisement dated 13.5.2008. I agree that once the appointment is through regular recruitment where candidates are given equal chance and there is proper competition amongst all the candidates who apply, the requirement of Rule 3(1) is duly satisfied inasmuch as it cannot be said that anyone who may not have wanted to apply pursuant to the advertisement would be taken by surprise. I cannot agree with the contention of the respondents that the petitioner was not appointed pursuant to an advertisement and that Order XII Rule 3(1) of Calendar of University is violated. In fact, any doubt with respect to entitlement to appoint more than one Lecturer in the general category is removed from fourth note of the advertisement and there cannot be ambiguity therefore in this regard of entitlement of the college to appoint more than one Lecturer for the post of Chemistry in the General Category, provided such posts are available and there are vacancies in such posts.

6. Learned senior counsel for the petitioner places reliance upon the judgment of the Supreme Court in the case of Suvidya Yadav & Ors. Vs. State of Haryana & Ors. (2002) 10 SCC 269 to argue the proposition that an employer was allowed to increase the posts from 18 to 30 once in the advertisement it was specially mentioned that the number of posts can vary. Learned senior counsel for the petitioner also has placed reliance upon a Division Bench judgment of the Allahabad High Court in the case of Rakesh Kumar Trivedi Vs. High Court of Judicature and Anr. MANU/UP/0546/1994 wherein the Division Bench of the High Court in similar circumstances has interpreted the expression “Vary” as was found in the advertisement, and it was held that the appointing authority had a power to increase the number of appointments by varying the posts to which selection could be held.

7. In my opinion, though some of the observations in the aforesaid two judgments relied upon by the petitioner may merit acceptance, however, in the present case, I am concerned with a specific provision namely Rule 3(1), and the interpretation of Rule 3(1), in my opinion, cannot be made in the manner as is being argued on behalf of respondents that there cannot be any advertisement which provides that the number of vacancies can also vary if circumstances so require.

8. In view of the above, the writ petition is allowed. The impugned order dated 28.1.2009 is quashed. Respondents are restrained from terminating the services of the petitioner. Parties are left to bear their own costs.

MARCH 21, 2013 VALMIKI J. MEHTA, J. ib