Prithvi Nath Pandey vs Moti Lal Nehru College & Ors

V. Kameswar Rao, J

Rev. Pet. 57/2018

This Review Petition has been filed seeking review of order dated September 20, 2017 passed in the aforesaid writ petition whereby this Court had

dismissed the writ petition being without any merit. The petitioner challenged the said order before the Supreme Court in SLP(Civil) 1196/2018

wherein, the Supreme Court on January 22, 2018 had passed the following order:-

Learned counsel for the petitioner seeks leave to withdraw the special leave petition. He says that he will file a review petition before the High Court.

The special leave petition is dismissed as withdrawn. If the review petition is filed within two weeks, the question of delay will not be taken into

consideration by the High Court.â€​

The case as argued by Mr. Mohanty on the first date of hearing of the Review Petition, is the following:-

“The present review petition has been filed by the petitioner seeking review of order dated September 20, 2017. Suffice to state, the petitioner had

filed an SLP against the said order before the Supreme Court, which SLP was considered by the Supreme Court on January 22, 2018 wherein the

Supreme Court has recorded the submission made by the learned counsel for the petitioner to withdraw the SLP and file a review petition before this

Court.

It is the submission of the learned counsel for the petitioner that the finding of this Court based on a representation made by the learned counsel for

the respondent Nos.1 and 2 that the petitioner had appeared before the Selection Committee for being assessed for appointment as an ad-hoc

Lecturer (Physics) and which had not selected him, is factually incorrect, inasmuch as the petitioner had not appeared before the Selection Committee,

which is clear from the note of the Chairman, Governing Body, Moti Lal Nehru College dated August 21, 2012 wherein in paragraph 14 it is stated

“Dr. P.N. Pandey did not attend this interviewâ€. According to the learned counsel for the petitioner, if the petitioner had not attended the

interview there is no question of his being not selected by the Selection Committee and the effect thereof would have been, the petitioner would have

continued as an ad-hoc Lecturer (Physics) even for the period thereafter.

Issue notice for service on the respondents 1 and 2 and their counsel, returnable on 13th April, 2018.â€​

When the matter was finally heard, Mr. Mohanty did not dispute the factum that the petitioner did appear before the Selection Committee in the

month of July 2011. Rather his case was, the respondent asking the petitioner to appear in the interview before the Selection Committee was in clear

violation of the clarifications issued by the University and the Governing Body, as according to him, those Lecturers who were working earlier, were

not required to face the selection process as, it is not a fresh ad-hoc appointment, but a continuance of earlier appointment. In other words, the

petitioner could not have been denied reappointment to the post of Lecturer in Physics on ad-hoc basis, as the same was in continuity.

Mr. Mohanty had stated that whether the guidelines were retrospective or prospective in their operation, has not been considered / analyzed by this

Court. According to him, the discontinuance of the appointment of the petitioner on the post of Lecturer, Physics, is non-est and the petitioner must be

treated as continuing in his ad-hoc service as Lecturer, Physics, in the College. Mr. Mohanty stressed on the fact that the Supreme Court has, in

catena of judgments held that the ad-hoc appointee cannot be replaced by another ad-hoc appointee as, the persons already working on ad-hoc basis

have gained experience, which will be more beneficial and useful to the College concerned, rather to appoint persons afresh on ad-hoc basis. In fact,

the Supreme Court on that proposition has interdicted fresh appointments. Otherwise, if such a process is allowed to continue then the same would

lead to arbitrariness. According to him, if a Government or a University, which is a State within the meaning of Article 12 of the Constitution of India,

despite repeated observations of the superior Courts continue to replace ad-hoc Teachers, such process must be deprecated. In this regard, he had

relied upon the following case law:-

(i) Veer Kunwar Singh University Ad Hoc Teachers Association and Others v. Bihar State University (C.C.) Service Commission and Others (2009)

17 SCC 184;

(ii) State of Punjab and Others v. Supreet Rajpal and Another (2007) 13 SCC 290;

(iii) Secretary, State of Karnataka and Others v. Uma Devi (3) and Others (2006) 4 SCC 1;

(iv) Secretary, State of Karnataka and Others v. Uma Devi (2) and Others (2006) 4 SCC 44;

(v) Rattan Lal & Ors. v. State of Haryana (1985) Supp 2 S.C.R.;

(vi) Abhinav Chaudhary & Ors. v. Delhi Technological University & Anr. W.P.(C) Nos. 3512/2014 & 3834/2014 decided on January 20, 2015;

(vii) Anil Lamba & Ors. vs. Govt. of NCT & Ors. W.P.(C) No. 1958/2017 and connected writ petition decided on March 06, 2017;

(viii) Shri Krishan v. The Kurukshetra University, Kurukshetra AIR 1976 SC 376.

Mr. A.P.S. Ahluwalia, learned Senior Counsel for the respondents justifies the order passed by this Court. According to him, as a matter of fact,

the petitioner was called for the interview on July 20, 2011 and after interviewing him, the Committee has placed him at Sl. No.8 in the panel of

selected candidates. He submitted, the plea of Mr. Mohanty, on the date when the Review Petition was listed for the first time, that the petitioner did

not appear in the interview, is incorrect. It was his submission that the writ petition is being reargued, which is impermissible in a review jurisdiction.

He further submitted that there is no apparent error on the face of the record nor the Review Petition has been filed on the grounds seeking review of

the order. According to him, if the petitioner’s case is that the judgment of this Court is contrary to law, the remedy for the petitioner is to

approach a higher Court against the same.

Having heard the learned counsel for the parties, it is clear that the attempt of Mr. Mohanty, is to reargue the case on merit. Mr. Mohanty does not

deny the fact that the petitioner did appear before the Selection Committee for interview on July 20, 2011, which placed him at Sl. No.8 in the list of

selected candidates. As there were limited number of vacancies, the petitioner could not get the appointment. This Court has clearly held that the

effect of appearing in the interview without demur, shall amount to acquiescence and the principle of estoppel will come into play. This Court had

referred to the judgments in that regard.

The plea of Mr. Mohanty, now is that this Court has not analyzed the effect of the clarifications issued by the University and the Governing Body

and in terms of the said clarifications, the respondents could not have insisted on the appearance of the petitioner before the Selection Committee and

even if appeared and not found fit, the same will not have any bearing on his appointment as Lecturer, on ad-hoc basis. The said submission of Mr.

Mohanty is without any merit. If the petitioner was of the view that in terms of the clarifications, he was not required to appear before the Selection

Committee, he should have abstained from appearing. Having not done that and taken a chance before the Selection Committee, he is estopped from

challenging the outcome of the proceedings of the Selection Committee, in view of the position of law as noted in the order under review.

In view of the said conclusion, it was not necessary for this Court to go into the issue whether the clarifications were retrospective or prospective in

nature.

The plea of Mr. Mohanty that the ignorance of the petitioner with regard to the existence of the clarifications is not appealing. The petitioner is

expected to know the clarifications / instructions issued from time to time, and their effect. The scope of review being very limited and the attempt of

Mr. Mohanty is to re-argue the matter, which is impermissible. I do not see any reason to review the order dated September 20, 2017. The Review

Petition is dismissed.