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Judgment
Sureshwar Thakur, J
Since all these writ petitions contain similar controversies, and, also common questions of law, thereupon, all these writ petitions are amenable for a
common verdict, becoming recorded thereon. Since, as aforestated, there occur(s) the afore commonalities, in all the writ petitions, thereupon the
factual matrix prevailing, in, CWP No. 5317 of 2020, shall alone become alluded to, for, thereons an adjudication becoming meted.
In CWP No. 5317 of 2020, the writ petitioner claims the making of the hereinafter ‘mandamus’, upon, the respondents:
“1. Issue a writ, order or direction in nature of Certiorari quashing the impugned Advertisement no. 03/2020 dated 08.10.2020 issued by the
Registrar, National Institute of Technology, Hamirpur (H.P.) respondent No.4.
Issue a writ, order or direction in nature of Mandamus commanding the respondents concerned to initiate the process of selection through direct
recruitment holding interview of the petitioner for the post of Assistant Professor Grade-I under new Nomenclature (earlier PB-3, AGP 8000) from
their present working as Assistant professor Grade-II {(earlier PB-3, AGP 6000 (on contract)} having become eligible for the same fulfilling the
required essential qualification of having teaching experience of three years after Ph.D. as per the newly adopted Amended Recruitment and
Promotion Rules (R.R.) 2017; through its Gazette notification dated 21. 7.2017 and its incorporation in the First Statue 2009 through coming of
Amended First Statue known as “First Statutes of the National Institutes of Technology (Amendment) Statutes, 2017†and after having dropped
the 5 year contractual period criteria under the new Recruitment Rules (RR-2017).
Issue an writ, order or direction in the nature of Mandamus commanding the respondents concerned to further initiate the process of selection
through direct recruitment holding interview of petitioner for the post of Assistant Professor Grade-I under new Nomenclature (earlier PB-3, AGP
8000) from their present working as Assistant Professor Grade-II {(earlier PB-3, AGP 7000 (on contract )} having fulfilled the requirement of
essential qualification of having teaching experience of three years after Ph.D. after coming of new R.R. 2017 and its adoption in the Statutes 2009,
after having dropped the 5 year contractual period criteria under the new Recruitment Rules (RR-2017).
Issue a writ, order or direction in the nature of Mandamus commanding the respondents concerned not to dispense with the services of the
petitioners (after dropping of 5 year contract period criteria under new RR-2017) now working under newly assigned nomenclature as Assistant
Professor Grade-II (pay Level- 10) as per the notification dated 30.11.2018 w.e.f 27.10.2017 till the petitioners are moved through the next grade pay
as Assistant Professor (AGP 8000).â€
For testing the validity of afore espousal made before this Court, it becomes imperative to allude to Annexure P-2, apposite clause- 3 whereof
becomes extracted hereinafter:
“3. Your contract shall be for a maximum period of 5 years with renewal after every one year subject to satisfactory performance. Your contract
shall be liable to be terminated prematurely in case of dereliction of duties or unsatisfactory performance or any misconduct.â€
The contractual engagement of the writ petitioners against the advertised posts of Assistant Professors, has thereins been stipulated to extend upto
a period of five years, however, renewal thereof is to be made after every one year and subject to satisfactory performance. However, the
respondents concerned, do not contest, the efficiency or satisfactory performance of the writ petitioners, in theirs, discharging the functions
appertaining to their contractual assignments, as, Assistant Professors, nor, the respondents, contest the factum, of the writ petitioners, during the
tenure of their services, in the afore capacity under them, each of them not-derelicting in the discharge of their duties or theirs not-misconducting
themselves.
The respondents concerned proceeded to issue, the, impugned advertisement notice, wherethrough, invitations became invited from the eligible
aspirants concerned vis-Ã -vis the post(s) of Assistant Professors, and whereagainst, the writ petitioners became, earlier appointed, for theirs being
filled up, and also therethrough, there is a purported shortening or curtailing of the period of five years, vis-Ã -vis, the contractual assignment(s), as
Assistant Professors, of, the petitioners, and, as became bestowed upon each of them in pursuance to Annexure P- 2.
The writ petitioners contend, that the afore purported shortening or curtailment of a period of five years of their contractual assignments, as
Assistant Professors, despite theirs, uncontrovertedly satisfactorily discharging the duties, appertaining to their contractual assignments, and despite
theirs not misconducting themselves, infringes the mandate of clause 3 of Annexure P-2, and also, (i) thereupon the mandate of Annexure P-3, hence
making contemplations, for their upward movement to the higher pay band(s), contemplation whereof is in tandem with clause-2 of Annexure P-2,
wherein(s), on completion of three years, in a contractual capacity, by the petitioners, as, Assistant Professors, it becomes enshrined qua theirs
becoming entitled to shift or migrate, to a higher pay band, than the one where to which, before expiry of three years, they were initially
entitled/placed. However, the other migration, as spelt, in Annexure-3 is not automatic, but is subject to each of the aspirants concerned, after issuance
of the apposite advertisement notice, and, theirs making applications theiragainst, rather theirs successfully facing the validly constituted selection
committee.
Be that as it may, the respondents through issuing the impugned advertisement notice No. 03/2020, as, made on 8.10.2020, strive to negate the afore
entitlements of the writ petitioners, and, the afore negations of the afore entitlements, vis-Ã -vis the writ petitioners, become(s) anchored, upon the
coming into force, and, adoptions of Annexure P- 8, hence made on 29.5.2017, (i) whereins, the afore five years’ tenure of contractual
assignments, as Assistant Professors, as, underlined in the afore extracted specific clause No. 3, of, Annexure P-2 became dispensed with, (ii) and the
afore exclusion of clause No. 3, in, Annexure P-8, as occurred on 29.5.2017, becomes purportedly leveraged, hence, by the respondents, to apart from
terminating the contract of employment, as Assistant Professors, hence of the writ petitioners, there is also as aforestated, a, striving of the
respondents concerned, to deprive each of them, of their(s) afore articulated entitlement(s), qua theirs moving upwards or migrating to the higher pay
band, than the pay band, where to which, they were entitled to prior to theirs completing three years, of the apposite contractual assignment(s) under,
the respondents.
Mr. K.D. Shreedhar, the learned Senior Counsel, appearing for the respondents concerned, has made a fervent attempt, to validate the issuance of,
the, impugned advertisement notice, and, also has made a valiant effort to validate the afore concomitant effects, as ensue therefrom. His afore
efforts are made dependent, upon, a verdict made, by a Coordinate Bench of this court in CWP No. 2369 of 2020, titled Dr. Rajesh Kumar Sharma
and Ors v. Union of India and Ors, on 18.9.2020, wherein vis-Ã -vis an alike hereat res-controversia, the reliefs similar to the one as become
canvassed in the extant petition, rather became declined to the petitioners therein.
This Court, has had, an opportunity to incisively marshal the judicial wisdom embodied therein, and, for the reasons to be assigned hereinafter, this
Court does not deem it fit and appropriate, to make any reliance thereon, for making any alike therewith denial, of, the espoused reliefs, to the
petitioners herein, (i) the Coordinate Bench of this Court, though aptly refrained, from interfering with the fixity of the tenure, of, contractual
assignments of the writ petitioners, as Assistant Professors, and, the afore validation of limiting(s) or curtailing(s), of, the tenure of the contractual
assignments of the petitioners therein, who are alike the petitioners herein, rather flowed from the coordinate Bench, in making judgment (supra)
relying upon the common to both the afore writ petition, and, to the extant writ petitioners. (i) Hence the issuance of fresh recruitment rules, in
replacement to the earlier thereto Rules of 2015, (ii) wherein the earlier contemplations vis-Ã -vis the longevity of the period, of, contractual
assignments of Assistant Professors, rather upto a period of five years became dispensed with, and, became substituted by a tenure of three years,
and, (iii) wherefrom, a conclusion became drawn, that the afore replacement, as occurred in the year, 2017, bestowing the completest empowerment
upon the respondents concerned to limit or curtail the period of their contractual assignment(s), (iv)and also, an obvious and inevitable tacit/implied
conclusion, became drawn, that the purported upward migration, of the writ petitioners, to a higher pay band, than the one, they were receiving prior to
the completion of three years, of, contractual assignment(s), as Assistant Professors, under the respondents per-se hence, not carrying any enlivened
legal force, imperatively upon/after the coming into force of the new Recruitment Rules of 2017. In the Coordinate Bench of this Court, making the
afore tacit conclusion, it appears to overlook the legal effects, of, clause 16 of Annexure P-2, clause whereof stands extracted, legal ramifications
whereof, shall become alluded to hereinafterâ€
“16. You shall be governed under the NIT Act-2007/Statues/Rules/Instructions of NIT Hamirpur, framed from time to time relating to Service
conditions, Rules of Discipline and any other matters/conditions not specified in the appointment letter.â€
A reading of the afore extracted clause, as embodied in Annexure P-2, does bring visible upsurgings, that the service conditions, of the writ
petitioners, became amenable for governance(s) or regulation(s), through rules/instructions appertaining to NIT, Hamirpur, H.P., as become framed
from time to time. The further striking legal effect thereof, is, that the subsequent to 16.11.2015, any amendments, as made, in the apposite R&P
Rules, becoming thereins, hence, mandated to govern the service conditions of the writ petitioners, (i) besides the afore also, became contractually
accepted, by the respondents concerned, to hold legal clout and sway, specifically vis-Ã -vis the writ petitioners, whereupons, the latter or subsequent
to the year, 2015, brought into force, hence the apposite amendments vis-Ã -vis the R&P rules, and, wherethrough, hence, substitution occurred of the
earlier tenure of five years of contractual assignment, to, three years, does assume an aura of validity. However, it appears that the respondents
concerned, omitted to galvanize or omitted to put into motion, the afore empowerment, as evident from theirs, rather, permitting the writ petitioners to
continue to serve in the apposite contractual capacity, under them, hence even, beyond the period of three years. Even though, the afore constitute
waivers of apposite powers vested in the respondents, yet may not, subject to the hereinafter drawn inferences, weaponise, any argument in the
petitioners, to contend that hence, the afore apposite substitution becomes nugatory, (ii) nor can they, subject to the hereinafter drawn inferences,
become weaponised, to contend, that the respondents may hence, upon expiry of the afore deemed extension, of their contractual assignments,
inasmuch as, even after, the, ending of five years, since theirs becoming initially engaged, on a contractual basis, as Assistant Professors, rather
become disabled to terminate their contractual assignments.
Be that as it may, and de hors, the afore, yet since a complete concurrence evidently upsurges inter- se the mandate borne in the notification of
15.1.2015, and clause No.2 of Annexure P-2, as, made on 23.8.2013, whereins, candid prescriptions are cast, rather bestowing entitlement(s) upon
them, to, after theirs completing three years, in the afore capacity, hence theirs ably striving to seek migrations or upward movements to a higher pay
band than earlier thereto, they were receiving, thereupon the afore apposite upward movements cannot become rendered unvindicable, or unworkable,
(i) rather the afore entitlement(s), arising from three years of rendition of service, on a contractual basis, by the writ petitioners, does obviously, foster
an inference, that for ensuring its efficacy, rather being not undone, upon, expiry of three years’ tenure, of, service, (ii) whereupon, after expiry,
of, tenure(s), of, three years’ of contractual service, the respondents concerned become disabled to terminate the contractual assignment(s) of the
petitioners, conspicuously, vis-a-vis, those contractual appointees, who complete three years’ of contractual service, (iii) as thereupon, the afore
apposite vindicable migrations would continue to hold force, or, would continue to govern, and, regulate the service conditions of the writ petitioners,
(iv) besides, obviously, the afore entitlement becomes unamenable to be put at naught or becoming stripped of vigor, (v) unless as aforestated in the
rules of 2017, the afore earlier contemplated apposite upward movement or migrations became evidently established, to, become deleted or struck off.
Consequently, the negations, vis-Ã -vis, the afore entitlements, to the writ petitioners, by the respondents, through, the latter issuing the impugned
advertisement notice, does palpably, infringe clause 16 of Annexure P-2, (vi) and, thereupon, a mandamus becomes enjoined to be pronounced, upon
them to, forthwith constitute a selection committee, and, to preceding therewith, hence, issue an advertisement notice, for ensuring the participation(s)
therein, of the writ petitioners, if each of them has nowat completed three years’ of contractual service, rather for determining the suitabilities of
the writ petitioners, to seek, the benefits of clause-16 of Annexure P-2, as, made on 23.8.2013, and, the concurrent therewith, notification issued on
15.1.2014, whereto which, Annexure P- 3, is designated, unless as afore stated in the rules of 2017, their replacement or deletion, has therein(s) been
made.
Lastly, the learned Senior Counsel, appearing for the respondents herein, has drawn the attention of this court to the verdict of the Allahabad High
Court, existing as Annexure P-5, and, submits that since the afore verdict has attained finality, given the challenge as became carried theiragainst
before the Hon’ble Apex Court, rather becoming, as unfolded by Annexure P-6, hence negated, and whereupon, he contends that the afore
conclusive and binding verdict, does also, govern the lis at hand. However, the afore made submissions also cannot come to be accepted by this Court,
as a reading, of, the verdict of the Allahabad High Court, as borne in Annexure P-5, does not, carry therein, any commonality in facts or in reliefs with
the lis at hand, (ii) especially, when lis at hand is hinged, upon, the apt validity or survivability of the afore clauses borne, in Annexure P-2, de hors, any
apposite replacement or substitutions thereto being made in the year, 2017, whereas, the verdict of the Allahabad High Court embodied in Annexure
P-5, is singularly grooved, vis-Ã -vis, the validity of an advertisement notice issued in the year, 2014, and, as became made in pursuance to the
recruitment Rules, 2013, rules whereof became pronounced therein, to be kept in abeyance, till they do not become part of the statute. However, since
Mr. Shreedhar, has not made any address before this court, that the alike therewith, R&P Rules of the year, 2013, in pursuance whereof the writ
petitioners became initially engaged, on a contractual basis, rather against the advertised post(s) of Assistant Professors, being not made a part of the
statute, and, hence, theirs not acquiring any colour of hue of validity. The sequel of the afore is that respondents concerned are deemed to accept the
validity of the Rules of 2013, in pursuance whereof, the respondents concerned initially engaged the writ petitioners, on a contractual basis, against the
advertised posts of Assistant Professors.
In summa, there is merit in the writ petitions and the same are allowed in the following term:
i. A mandamus is pronounced upon the respondents to forthwith constitute a selection committee, and, preceding thereto to issue an advertisement
notice, for ensuring the participations therebefore of the writ petitioners, if each of them has nowat completed three years’ of contractual service,
for determining theirs suitabilities to seek the benefits, of, clause-3 of Annexure P-2. The entire exercise be completed within a period of two weeks
hereafter.
In the afore terms, the petitions stand disposed of, so also, pending miscellaneous applications, if any.