G.S. Tomar vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. T.A. Khan, learned Senior Counsel appearing on behalf of petitioner and Mr. B.P.S. Mer, learned Brief Holder for the State of Uttarakhand.

The objection raised by the registry is that prayer No.2 is wrongly mentioned. By way of the second prayer, the petitioner seeks a mandamus commanding the first respondent not to remove the petitioner till a regular selection is made, pursuant to the advertisement issued by the Government/ respondent authority on 22.01.2019, in accordance with law. While the question whether or not such a relief should be granted is for the Court to decide, it is always open to the petitioner to seek whatever prayer he desires. The objection raised by the Registry regarding prayer No.2 is, therefore, overruled.

The petitioner was, hitherto, the Director, Tehri Hydraulic Development Corporation-Institute of Hydro Power Engineering and Technology. He has invoked the jurisdiction of this Court seeking a writ of certiorari to quash the letter dated 18.06.2019 issued by the respondents; a writ of mandamus commanding respondent No.1 not to remove the petitioner till the regular selection is made pursuant to the advertisement issued by the Government/respondent authority on 22.01.2019; a writ of mandamus commanding the respondent to conduct and complete the selection process to the post of Director THDC-IHET as early as possible with a selection committee as per AICTE norms laid down in the Gazette of India dated 01.03.2019, as the selection committee, constituted for the post of Director, is not as per AICTE norms.

The petitioner was appointed as a Director of the Institute in February, 2016 and joined duty on 27.02.2016. On completion of his tenure appointment for a period of three years in February, 2019, the Secretary, Technical Education by his letter dated 21.02.2019 granted the petitioner extension till a regular selection was made to the post of Director THDC-IHET as per THDC-IHET Regulations, 2018 framed by the State Government. Rule 6 thereof required the State Government to appoint the Director as per the relevant Rules or Government Orders as applicable from time to time. The Selection process, for selection of an eligible candidate for the post of Director, commenced by way of an advertisement issued in January, 2019; and the petitioner also applied for appointment to the regular post of Director, and is said to have been interviewed for appointment to the said post. The process of selecting and appointing a regular Director is still underway, and has not yet been completed.

While matters stood thus, the Secretary, Technical Education, by Office Order dated 18.06.2019, informed the petitioner that, vide order dated 21.02.2019, the services of the petitioner as the Director was extended till regular selection; his services were terminated with immediate effect; and additional charge of the post of Director, THDC-IHET was being given to the Director, Technical Institute, Gopeshwar till regular selection; and, for the said purpose/work, no additional wages would be given to the Director, Technical Institute, Gopeshwar.

Mr. T.A. Khan, learned Senior counsel appearing on behalf of the petitioner, would submit that it is settled law that a contractual appointee cannot be substituted with another; instead of completing the regular process of selection, the respondents have, instead, appointed the Director, Technical Institute, Gopeshwar as the Director of THDC-IHET; such an appointment is contrary to law; the impugned order is stigmatic, and could only have been passed after disciplinary proceedings had been initiated, a charge sheet was issued, and the petitioner was given an opportunity to submit his reply thereto; disciplinary action could only have been initiated by the Board of Governors of the Institute; since the Institute is an independent legal entity, distinct that from the Government, the order of termination could only have been passed by the Board of Governors of the Institute, and not by the Government; and the order of termination, therefore, necessitates interference.

As noted hereinabove, the period for which the petitioner was appointed as a Director was three years. The contractual period of three years expired in February, 2019; and but for the order of extension passed by Secretary, Technical Education on 21.02.2019, directing that the petitioner be continued as a Director till the regular selection process was completed, the petitioner would have been required to hand over charge of the office of Director on 21.02.2019 itself. The contention, that the impugned order is stigmatic, does not merit acceptance, since the impugned order merely states that the petitioner, whose term as a Director was extended till regular selection, was terminated with immediate effect, and additional charge of the said post was being given to the Director, Technical Institute, Gopeshwar till regular selection. The order does not refer either to the performance or the conduct of the petitioner. Since the order is not stigmatic, the question of issuing a charge sheet, and taking disciplinary action against the petitioner, does not arise. Consequently Rule 7 (d), which relates to disciplinary action against the Director and confers power to do so on the Chairman of the Board, has no application.

While it is no doubt true that no contractual appointee can be replaced by another appointment made on a contractual basis, and the services of a contractual employee can only be dispensed with on a regular appointment being made, in the present case, the petitioner has not been substituted by another contractual appointee. All that the Secretary, Technical Education has done is to entrust charge of the post of Director of THDC-IHET to the Director of Technical Institute, Gopeshwer. The said Office Order further records that such entrustment of charge, to the Director of Technical Institution, Gopeshwer, would not entitle him to claim any additional wages. An in-charge arrangement does not amount to a substantial appointment either on a regular or on a contractual basis; and the charge entrusted to an officer can always be withdrawn, or entrusted to another, at any time.

While the submission, that the Institute has an independent legal entity distinct from that of the State Government, is justified, the contention than the order of termination can only be passed by the Board of Governors of the Institute, and not by the State Government, does not merit acceptance. Even in his affidavit, filed in support of the Writ Petition, the petitioner has stated that it was the Secretary, Technical Education who had extended his services, after he had completed the contractual period of three years on 21.02.2019. If, as is now contended by before us by Mr. T.A. Khan, learned Senior Counsel, the petitioner's services on contractual basis cannot be terminated by the Secretary, Technical Education, then the extension of the petitioner's services beyond 21.02.2019, by the very same Secretary, Technical Education, would also be unauthorised and illegal, in which even the petitioner's tenure as the Director THDC-IHET should have come to the end on 21.01.2019 itself.

We see no reason, therefore, to interfere with the order impugned in the Writ Petition. Suffice it to make it clear that the order of termination of the petitioner's services, on a contractual basis, shall have no bearing on his being considered for regular appointment, by the duly constituted Selection Committee, strictly in accordance with law without being influenced by any observations made in order impugned in this writ petition.

We see no reason, at this stage, to examine the petitioner's contention on the mode of selection and the procedure being adopted by the Selection Committee to select and appoint a candidate to the post of Director. Suffice it to make it clear that this order shall not disable the petitioner, if he so chooses, from questioning the selection process, after a Director is selected and appointed, in duly constituted legal proceedings.

Subject to the aforesaid observations, the writ petition fails and is, accordingly, dismissed. No costs.