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Full Case Details
ASHA MENON, J.
- This appeal has been preferred against the judgment dated 20.08.2019, whereby the
learned Single Judge has dismissed in limine, W.P.(C) 8518/2019 filed by the
appellant/petitioner with the following prayers: –
(a) This Hon’ble Court be pleased to issue a Writ of Certiorari or any other appropriate
writ, order or direction under Article 226 of the Constitution of India, quashing the
Impugned letter of termination dated 29.05.2019 issued by the Respondent No.1
College:
(b) this Hon’ble Court be pleased to issue a Writ of Mandamus or any other
appropriate writ, order or direction under Article 226 of the Constitution of India,
directing the Respondent No.1 College to reinstate the Petitioner to the post of
Assistant Professor on Ad Hoc basis from 20.03.2019.
(c) Costs of the Petition be provided for. - The facts, as are relevant for the purposes of disposal of the present appeal, are that
since 07.08.2019, the appellant/petitioner has been working as an ad-hoc Assistant
Professor in different colleges affiliated with the respondent No.3/University of Delhi
and finally, in the respondent No.1/Sri Aurobindo College-Evening, of which the
respondent No.2 is the Principal. According to the appellant/petitioner, the routine
practice adopted by the respondents No.1 & 2/College and other colleges affiliated to
the respondent No.3/University was to renew the contractual appointment of ad-hoc
professors every 120 days, by enforcing a notional or artificial break in service of one
working day. The last renewal of the appellant/petitioner’s contract was done on
19.11.2018 from 19.11.2018 to 18.03.2019. - The appellant/petitioner claims to be the Senior-most ad-hoc Assistant Professor in
the Department of English in the respondents No.1 & 2/College. She states that as she
was expecting her first child on 22.02.2019, she had requested the respondents No.1
& 2/College for grant of maternity leave alongwith all other eligible benefits under
the Maternity Benefit Act, 1961 and had specifically sought leave from 14.01.2019
till 24.05.2019, particularly, in view of the complications of pregnancy. This request
was made by her vide letter dated 04.01.2019. Since no response was received
thereto, she reiterated her request on 16.01.2019, seeking permission to proceed on
maternity leave from 21.01.2019 onwards. - On 03.02.2019, the appellant/petitioner was blessed with a daughter prematurely. Since the
respondents No.1 & 2/College impliedly rejected her representation for maternity leave by
crediting a salary of only 18 days in her account, the appellant/petitioner filed a writ petition
bearing No.3160/2019 on 20.03.2019, praying inter alia for grant of maternity leave as well
as for quashing of the notification dated 11.10.2013, issued by the respondent
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No.3/University extending the benefit of maternity leave only to permanent teachers. She also
sought a mandamus to the respondents No.1 & 2/College to extend maternity benefits to her. - The appellant/petitioner has averred that she reported back to the respondents No.1 &
2/College on 20.3.2019. On 26.03.2019, she reiterated her request for maternity leave. On
27.03.2019, she received a communication from the respondents No.1 & 2/College informing
her that the college had not “forced” her to join duty and that she should also inform the
college of the date when she “intended” to join, thus, indicating that she was still on their
rolls. However, on 12.04.2019, the respondent No.3/University informed the respondents
No.1 & 2/College that maternity leave benefit was not available to contractual employees,
which information was in turn forwarded by them to the appellant/petitioner vide letters dated
16.04.2019 and 13.05.2019, thus, rejecting her request for grant of maternity leave. - The appellant/petitioner submits that on 14.05.2019, she had reiterated her willingness to
re-join the respondents No.1 & 2/College from 24.05.2019 onwards, which was rejected by
them vide letter dated 16.05.2019. However, on 24.05.2019, when she reported to the college
for joining her duties and repeated the same request on 27.05.2019, in a mala fide and wholly
illegal manner the respondents Nos.1 & 2/College informed her on 29.05.2019, that as her
tenure had ended on 18.03.2019, she was no longer on the rolls of the college and therefore,
there was no question of her joining back on duty or being assigned any work. Aggrieved
thereby, she filed the petition, which has been dismissed in limine vide the impugned order
and judgement dated 20.08.2019. - Mr. Darpan Wadhwa, learned Senior Advocate appearing for the appellant/petitioner has
submitted that the appellant/petitioner was the Senior-most ad-hoc Assistant Professor
working in the English Department of the respondents No.1 & 2/College and that after her
service was terminated illegally and unlawfully, those who were junior to her, were given
extensions throughout the same academic year, right from May, 2019 till date. If there was a
need for fewer ad-hoc teachers, then the last come had to go first and not the Senior-most,
i.e., the appellant/petitioner herein particularly when she had disclosed her availability. It was
further contended that the practice had always been to give a break in service and therefore, it
did not lie in the mouth of the respondents to claim that since the appellant/petitioner had
reported for duty on 20.03.2019, after the expiry of her tenure on 18.03.2019, she had lost her
right for extension of her term of ad-hoc appointment. It was also argued that it was only
because the appellant/petitioner had insisted on maternity benefits that, out of sheer
vengeance, her ad-hoc appointment was not extended and therefore, the termination letter
was liable to be quashed. - On the other hand, Mr. Mohinder J.S.Rupal, learned counsel appearing for the respondent
No.3/University submitted that no ad-hoc teacher was entitled to maternity leave as the Rules
did not provide for the same and the appellant/petitioner could not seek any such benefit or
claim extension of her tenure on the plea that when her tenure had ended on 18.03.2019,
being on maternity leave, she was still on the rolls of the respondents No.1 & 2/College. It
was also submitted that there is no vested right in ad-hoc teachers to claim extension of
tenure. - Mr. Sudhir Nandrajog, learned Senior Advocate appearing for the respondents No.1 &
2/College supported the impugned judgement and pointed out that the offer of the
appellant/petitioner to join duty on 24.05.2019, was neither here nor there since the summer
vacation was to commence on that date and the College was closed with no teaching activity.
He submitted that the appellant/petitioner had not disclosed that she was ever willing or
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readily available for teaching in the following semesters and therefore, it cannot be stated that
the respondents No.1 & 2/College had violated any law while appointing other teachers on an
ad-hoc basis who were available to attend to the semester classes, even if they were junior to
the appellant/petitioner. - It was further contended on behalf of the respondents No.1 & 2/College that it was well
within its right to terminate the appointment of the appellant/petitioner as her appointment
letter itself contained such a clause. Since maternity leave was not available to the
appellant/petitioner as per the University Rules, her non-reporting for duty from 21.01.2019
to 18.03.2019, was improper and in any case, non-extension of her tenure was clearly on
account of her unavailability to take classes because on her own showing, she was attending
to her new born baby and her repeated representations were to the effect that it would be
extremely difficult for her and her little baby if she was forced to join on the threat of loss of
job. According to learned counsel for the respondents No.1 & 2/College, despite this, the
College was magnanimous enough to have asked the appellant/petitioner on 27.03.2019, as to
when could she join the College but she waited till 14.05.2019 to respond to this letter, by
which time, the College was about to break for the summer vacation. Therefore, nonassignment of any work to her on her request dated 27.05.2019, was neither illegal, nor mala
fide. With these pleas, the respondents have prayed that the present appeal merited dismissal. - We have heard the submissions of the learned counsel for the parties and have carefully
perused the record, including the correspondence exchanged between the parties. Before
proceeding further, it may be noted here that vide Advertisement dated 01.11.2019, the
respondents No.1 & 2/College had invited applications for making appointments to the posts
of Assistant Professors on a permanent basis and the appellant/petitioner has also applied for
the same. Further, having regard to the fact that W.P.(C) 3160/2019 filed by the
appellant/petitioner for grant of maternity leave, is still pending, we shall refrain from going
into that aspect. However, it does appear from the material on record that the insistence of the
appellant/petitioner for grant of maternity benefit, has irked the respondents No.1 &
2/College, which appears to be the underlying reason for non-extension of her tenure beyond
18.03.2019. - There is no dispute that the appellant/petitioner was first employed as an ad-hoc Assistant
Professor on 20.08.2014 and ever since then, her appointment had been renewed by the
respondents No.1 & 2/College from time to time in the following manner: –
(i) 20.08.2014 to 17.12.2014
(ii) 19.12.2014 to 17.04.2015
(iii) 20.04.2015 to 22.05.2015
(iv) 23.05.205 to 19.07.2015 – Vacation
(v) 20.07.2015 to 17.08.2015
(vi) 19.08.2015 to 16.12.2015
(vii) 18.12.2015 to 15.04.2016
(viii) 18.04.2016 to 20.05.2016
(ix) 21.05.2016 to 19.07.2017 – Vacation
(x) 20.07.2016 to 16.11.2016
(xi) 18.11.2016 to 17.03.2017
(xii) 21.03.2017 to 19.05.2017
(xiii) 20.07.2017 to 16.11.2017
(xiv) 18.11.2017 to 17.03.2018
(xv) 20.03.2018 to end of session 2017-18
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(xvi) 20.07.2018 to 16.11.2018; and
(xvii) 19.11.2018 to 18.03.2019 - As can be seen from the above computation, the appellant/petitioner has remained as an
Assistant Professor on an ad-hoc basis in the respondents No.1 & 2/College for five years
with a break in service for a couple of days on each renewal. There is also no dispute that
amongst the four ad-hoc Assistant Professors in the English Department engaged by the
respondents No.1 & 2/College, including the appellant/petitioner, she was the Senior-most.
Admittedly, the remaining three ad-hoc teachers have been re-employed by the respondents
No.1 & 2/College from May, 2019 onwards till date, whereas, the appellant/petitioner has
been denied that opportunity. - The respondents No.1 &2/College have not raised any grievance that the performance of
the appellant/petitioner as a teacher has been below par, to give the others an advantage over
her. The only fact that distinguishes her from the others is that she elected to be a mother and
on account of the demands of the new born baby, sought maternity leave from the
respondents No.1 & 2/College. - No doubt, the Rules of the respondent No.3/University, as reflected from Resolution
No.120(8), at Appendix-V, approving the Report of the Committee appointed by the Vice
Chancellor of the Delhi University in terms of the AC Resolution No.34 dated 23.04.2005,
excluded ‘maternity leave’ from ‘admissible leave’. However, leave other than maternity
leave, such as half pay leave on medical grounds, casual leave and earned leave, were
admissible even at the time when the appellant/petitioner had proceeded on leave, which
could have been granted to her instead. Therefore, the contention of the respondents No.1 &
2/College that she was not on the rolls when her tenure had ended, as she was not available
for teaching, cannot be accepted as a justification for non-extension of her tenure thereafter.
Moreover, the details of the extensions granted to the appellant/petitioner over five years, as
reproduced hereinabove, also show that her reporting for duty on 20.03.2019, instead of on
18.03.2019 or 19.03.2019, cannot be taken against her inasmuch as all the extensions have
been made with a break of at least one day. - There is no gain saying that an act of an administrative authority has to be pervaded by
fairness and can never smack of arbitrariness or whimsicality. In the instant case, the
appellant/petitioner has been working in the respondents No.1 & 2/College for five years,
having been granted repeated extensions with a break in service, as found necessary by the
respondents No.1 & 2/College, to maintain her appointment as ad-hoc in nature. There has
been no complaint regarding her work performance. Therefore, her proficiency and ability
did not form the basis of the decision of the respondents No.1 & 2/College to decline
extending her services despite the necessity, as is reflected from their continuing with the
other ad-hoc Assistant Professors in the English Department as also Guest Lecturers. - The only reason that stares in the face is the fact that knowing that she was an ad-hoc
teacher, the appellant/petitioner had applied for maternity leave. Without commenting on the
rule position regarding her entitlement to maternity leave, which is the subject matter of a
pending writ petition, we decline to accept that as a legitimate ground for denying extension
of tenure to the appellant/petitioner. Such a justification offered by the respondents for
declining to grant an extension to the appellant/petitioner as she had highlighted her need for
leave due to her pregnancy and confinement would tantamount to penalizing a woman for
electing to become a mother while still employed and thus pushing her into a choiceless
situation as motherhood would be equated with loss of employment. This is violative of the
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basic principle of equality in the eyes of law. It would also tantamount to depriving her of the
protection assured under Article 21 of the Constitution of India of her right to employment
and protection of her reproductive rights as a woman. Such a consequence is therefore
absolutely unacceptable and goes against the very grain of the equality principles enshrined
in Articles 14 and 16. - Service law recognizes the principle of ‘last come, must go first’, other things being
equal. In the present case, the appellant/petitioner was the Senior-most amongst the four adhoc Assistant Professors, i.e. Ms.Manisha Priyadarshini, (appellant/petitioner herein), Ms.
Ipshita Nath, Dr. Vipin Singh Chauhan and Ms. Jyoti Kulshreshtha, who have been engaged
by the respondents No.1 & 2/College, their initial appointment dates being 20.08.2014,
06.08.2015, 14.10.2015 and 07.09.2017 respectively, which were extended from time to time.
It is thus apparent that the last one to be appointed was Ms. Jyoti Kulshreshtha. The ad-hoc
appointments of the other three Assistant Professors, except for the appellant/petitioner
herein, were lastly extended on 16.11.2019. - It is conceded by the respondents No.1 & 2/College that all the three ad-hoc Assistant
Professors who are junior to the appellant/petitioner, reckoned by the date of their
engagement with the respondents No.1 & 2/College, have been continued as ad-hoc Assistant
Professors since July, 2019, till date. On this score also, the act of the respondents No.1 &
2/College neither appears reasonable, nor justifiable assuming that non-availability of the
appellant/petitioner on 27.03.2019, was the real reason for her non-extension, as she had
clearly informed the respondents No.1 & 2/College of her availability on 24.05.2019.
Moreover, the fact that the summer vacations were to commence soon thereafter, also does
not appear to be a valid explanation since on two previous occasions, the respondents No.1 &
2/College had no hesitation in extending the tenure of the appellant/petitioner during the
vacations, as is apparent from the details of her appointment reproduced in para (12) above. - Learned Senior Counsel appearing for the respondents No.1 & 2/College has relied on
several judgments to contend that the appellant/petitioner had no vested right to such an
appointment made on an ad-hoc basis. We may proceed to examine each one of them.
Relying on the judgment in Executive Committee of Vaish Degree College, Shamli and
Others v. Lakshmi Narain and Others, (1976) 2 SCC 58, it has been contended that a
contract for employment cannot be specifically enforced. No doubt, that is the law. However,
from the instances given in the said judgment, it is clear that where termination or dismissal
is invalid, being contrary to the principles of natural justice or in violation of the provisions
of a Statute, the question that would arise is not regarding enforcement of a contract of
personal service, but would rather become one of enforcement of the right to protection
against unlawful action. - The second judgment cited by the learned Senior Counsel is of this court, reported as
Union of India and Anr. v. Satish Joshi, ILR (2013) V Delhi 3504. Once again, it was
contended on the basis of the said judgment that a party to a contract has no right to claim
that the contract with him be extendable, even if such a right is not afforded by the terms of
the contract and the contract had come to an end. However, this judgment records that it is
settled law that even in matters of contract, the State cannot act whimsically or capriciously,
or in an arbitrary manner. Furthermore, the captioned case can be distinguished on facts, as in
that case, the concerned authority decided not to recommend extension of employment on the
basis of the performance of the employee. As noticed hereinabove, in the present case, no
shadow has been cast on the capability/suitability of the appellant/petitioner for appointment
as an ad-hoc Assistant Professor.
197 - The third case relied upon on behalf of the respondents No.1 & 2/College is State of
Maharashtra and Others v. Anita and Another, (2016) 8 SCC 293. Once again, the facts of
the said case are vastly different from the instant case, in that, the issue there was whether the
respondents were entitled to be appointed to permanent service and whether they would have
to face the selection process. In the present case, the respondents No.1 & 2/College has
already advertised for filling up the posts of Assistant Professors on a permanent basis and
admittedly, the appellant/petitioner has also applied for such an appointment and would be
participating in the selection process. It is not as if the appellant/petitioner is seeking any
exemption from the rigours of the selection process. Thus, the said judgment is not relevant
for a decision in the present case. - The last case relied upon by the learned Senior Counsel for the respondents No.1 &
2/College is Yogesh Mahajan v. Professor R.C.Deka, Director, All India Institute of Medical
Sciences, (2018) 3 SCC 218. The issue raised there was, once again, in relation to
appointment on a regular basis in view of the contractual services rendered by the employee,
without adherence to the procedure for regular appointment. The Supreme Court noticed that
though the petitioner before it could not show any Statutory or other right to have his contract
extended beyond the tenure fixed under the contract, nevertheless, it accepted that he could
have claimed that the authorities concerned should consider extending his contract and in the
said case, due consideration was in fact given to his claim, but the respondent/All India
Institute of Medical Sciences did not find it appropriate or necessary to continue his
contractual services. In the instant case, there is not a whisper that extending the tenure of the
appointment of the appellant/petitioner on an ad hoc basis, would be inappropriate. By their
own action, the respondents No 1 &2/College have disclosed that there was a necessity for
the appointment of ad-hoc professors as they have continued to engage ad-hoc Assistant
Professors till date and have confirmed before us that they propose to do so till the vacant
posts are filled up on completion of the selection process, which we are given to understand
is likely to take some time, due to procedural rigmaroles. - In short, the judgments relied upon by learned Senior Counsel for the respondents No.1 &
2/College not only have no application to the facts of the present case, but rather go to
establish the case of the appellant/petitioner that she had a right to be considered and could
not be subjected to the whimsical and arbitrary decisions of the respondents when
fundamentally, there was a need for the appointment of ad-hoc Assistant Professors and her
performance has remained blemishless throughout. - We may emphasise that in the present case, we are not concerned with the regular
appointment of the appellant/petitioner to the post of Assistant Professor with the respondents
No.1 & 2/College. Given the fact that process has already commenced and the
appellant/petitioner would be entitled to participate therein, the judgments relied upon by the
appellant/petitioner, namely, Rattan Lal and Others v. State of Haryana and Others, (1985) 4
SCC 43, State of Haryana and Others v. Piara Singh and Others, (1992) 4 SCC 118 and
Karnataka State Private college Stop-Gap Lecturers Association v. State of Karnataka and
Others, (1992) 2 SCC 29 may not be of any relevance here. However, the judgment in Om
Prakash Goel v. Himachal Pradesh Tourism Development Corporation Ltd. Shimla and
Another, (1991) 3 SCC 291 is apposite. It would be useful to reproduce below, the
observations made by the Supreme Court in the said case: –
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“6. In this context, the learned counsel also questioned the termination order from another
angle. In that order it is mentioned that the services of the petitioner are no longer required,
therefore they are terminated. But from the record it is clear that juniors to the petitioner are
retained and they are continuing in service. In the affidavit it is clearly mentioned that
juniors whose names are given there are retained in service in violation of Articles 14 and 16
of the Constitution. In the counter-affidavit only a vague reply is given simply stating that the
averments made by the petitioner are not correct. In K.C. Joshi v. Union of India [(1985) 3
SCC 153 : 1985 SCC (L&S) 656 : (1985) 3 SCR 869] it is observed that: (SCC p. 158, para
8) “If it is discharge simpliciter, it would be violative of Article 16 because a number of
store-keepers junior to the appellant are shown to have been retained in the service”.
Likewise in Jarnail Singh case [(1986) 3 SCC 277 1986 SCC (L&S) 524 : (1986) 1 ATC 208
: (1986) 2 SCR 1022] it was observed as under: (SCC p. 292, para 35)
“In the instant case, ad hoc services of the appellants have been arbitrarily terminated as
no longer required while the respondents have retained other Surveyors who are junior to
the appellants. Therefore, on this ground also, the impugned order of termination of the
services of the appellants is illegal and bad being in contravention of the fundamental
rights guaranteed under Articles 14 and 16 of the Constitution of India.”
After a careful perusal of the record we are satisfied that the juniors to the petitioner are
retained. Therefore on this ground also the termination order is liable to be quashed.”
(emphasis added) - There is no denial in the instant case that juniors to the appellant/petitioner are still
employed by the respondents No.1 & 2/College as ad-hoc Assistant Professors. Therefore,
the action of dis-continuing with the services of the appellant/petitioner on the ground that
her earlier contract stood terminated by efflux of time, is unacceptable. In GRIDCO Limited
and Another v. Sadananda Doloi and Others, (2011) 15 SCC 16, the Supreme Court had
referred to its earlier decision in Shrilekha Vidyarthi (Kumari) v. State of U.P., (1991) 1 SCC
212 and held as below:
“20. Even apart from the premise that the ‘office’ or ‘post’ of DGCs has a public element
which alone is sufficient to attract the power of judicial review for testing validity of the
impugned circular on the anvil of Article 14, we are also clearly of the view that this power is
available even without that element on the premise that after the initial appointment, the
matter is purely contractual. Applicability of Article 14 to all executive actions of the State
being settled and for the same reason its applicability at the threshold to the making of a
contract in exercise of the executive power being beyond dispute, can it be said that the State
can thereafter cast off its personality and exercise unbridled power unfettered by the
requirements of Article 14 in the sphere of contractual matters and claim to be governed
therein only by private law principles applicable to private individuals whose rights flow only
from the terms of the contract without anything more? We have no hesitation in saying that
the personality of the State, requiring regulation of its conduct in all spheres by requirements
of Article 14, does not undergo such a radical change after the making of a contract merely
because some contractual rights accrue to the other party in addition. It is not as if the
requirements of Article 14 and contractual obligations are alien concepts, which cannot coexist.”
(emphasis added) - An attempt was also made to urge that the respondents No.1 and 2/College is not a State
and the matter was contractual. But there can be no dispute that colleges are run with an
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element of public interest and for public good. The following observation of the Supreme
Court in GRIDCO Limited (supra) is an answer to the said submission: –
“28. Recognising the difference between public and private law activities of the State, this
Court reasoned that unlike private individuals, the State while exercising its powers and
discharging its functions, acts for public good and in public interest. Consequently every
State action has an impact on the public interest which would in turn bring in the minimal
requirements of public law obligations in the discharge of such functions. The Court declared
that to the extent, the challenge to State action is made on the ground of being arbitrary,
unfair and unreasonable hence offensive to Article 14 of the Constitution, judicial review is
permissible. The fact that the dispute fell within the domain of contractual obligations did
not, declared this Court, relieve the State of its obligation to comply with the basic
requirements of Article 14.”
(emphasis added) - It would be useful to once again revert back to the observations of the Supreme Court in
Shrilekha Vidyarthi (supra) in this context, which are reproduced as under: –
“22. There is an obvious difference in the contracts between private parties and contracts to
which the State is a party. Private parties are concerned only with their personal interest
whereas the State while exercising its powers and discharging its functions, acts indubitably,
as is expected of it, for public good and in public interest. The impact of every State action is
also on public interest. This factor alone is sufficient to import at least the minimal
requirements of public law obligations and impress with this character the contracts made by
the State or its instrumentality. It is a different matter that the scope of judicial review in
respect of disputes falling within the domain of contractual obligations may be more limited
and in doubtful cases the parties may be relegated to adjudication of their rights by resort to
remedies provided for adjudication of purely contractual disputes. However, to the extent,
challenge is made on the ground of violation of Article 14 by alleging that the impugned act
is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of
contractual obligations would not relieve the State of its obligation to comply with the basic
requirements of Article 14. To this extent, the obligation is of a public character invariably in
every case irrespective of there being any other right or obligation in addition thereto. An
additional contractual obligation cannot divest the claimant of the guarantee under Article
14 of non-arbitrariness at the hands of the State in any of its actions.”
(emphasis added) - Thus, the Supreme Court has held in the above cases that where public interest is
involved, the State would include instrumentalities of the State and the respondents herein
cannot escape their obligations under Article 14 of the Constitution on such a specious plea.
The doctrine of fairness has been developed in administrative law only to ensure that Rule of
Law prevails and to prevent failure of justice where the action that is questioned, is
administrative in nature. A duty has been cast on administrative bodies to act fairly and
reasonably and to ensure fair action in discharging their functions. - While there is no doubt in our mind that ad-hoc employees cannot be exempt from the
process of regular appointment only because of their legitimate employment on an ad-hoc
basis and ordinarily, on termination of the contract, such contractual or ad-hoc employees
have no right to insist on renewal of the contract, in circumstances where there is arbitrariness
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writ large, courts have not hesitated in extending protection to the aggrieved party. The
validity of a termination order is subject to judicial review for the court to determine whether
the action of the respondents was illegal, perverse, unreasonable, unfair or irrational. It is
only when the action taken by the authority is not vitiated by such infirmities that the court
would stay its hands. In the instant case, we find that unreasonableness, unfairness and
irrationality is writ large in the action of the respondents No.1 & 2/College, inasmuch as they
have continued with the services of others who are junior to the appellant/petitioner, on an
ad-hoc basis and have deprived her of the benefit of further ad-hoc appointment, without any
reasonable cause. - The only argument advanced by learned Senior Counsel for the respondents No.1 &
2/College was that the appellant/petitioner’s ad-hoc employment had ceased on 18.03.2019
and therefore, she could not claim further service after such termination of contract by efflux
of time and that in any case, she was unavailable for such ad-hoc employment. Neither of
these reasons can withstand judicial scrutiny. The contracts of the others have been extended
after their termination and the regular practice has been to give ad-hoc employees a break in
service. That being the case, after expiry of the earlier contract on 18.03.2019, the
appellant/petitioner was justified in reporting for duty on 20.03.2019. Such a reporting for
duty cannot be taken as her disinclination to have a further tenure with the respondents No.1
& 2/College. - The second argument of her unavailability is also not borne out from the record. The
appellant/petitioner was in repeated communication with the respondents No.1 & 2/College,
who, in turn, were in constant communication with the respondent No.3/University. On
27.03.2019, the respondents No.1 & 2/College had even asked the appellant/petitioner as to
by when she could join her duty and in response, she had informed that she could join duty
on 24.05.2019. Even if it was to be accepted that it was the last working day before the
summer vacations, it has been conceded that the appointment of the other ad-hoc Assistant
Professors was renewed from 26.05.2019 to 19.07.2019, on vacation salary and thereafter,
from 20.07.2019 to 16.11.2019 as ad-hoc. In other words, when the appellant/petitioner had
expressed her availability for engagement on 24.05.2019 and when on the following day, the
others were actually appointed as ad-hoc employees, there was no good reason for the
respondents No.1 & 2/College to have refused to engage her either on 26.05.2019 alongwith
the others, or at the very least from 20.07.2019, when the others were reappointed. The plea
that it was on account of non-availability of the appellant/petitioner to discharge her duties as
an Assistant Professor, that the respondents No.1 & 2/College had not engaged her services
on an ad-hoc basis, is completely unmerited and turned down. - In the light of the foregoing discussion, the impugned judgement is not sustainable and is
accordingly set aside. We have no hesitation in quashing the termination order dated
29.05.2019, issued by the respondents No.1 & 2/College, who are directed to appoint the
appellant/petitioner forthwith to the post of Assistant Professor in the English Department on
an ad-hoc basis till such time that the vacant posts are filled up through regular appointment,
a process that is already underway. The appointment letter shall be sent by email by the
respondents No. 1 & 2/College within one week, upon receipt whereof, the
appellant/petitioner shall report for duty immediately on the lockdown being eased/lifted or
through e-mail/online, as may be directed by the respondents No.1 &2/College.
201 - The appeal is allowed with costs of Rs.50,000/- (Rupees Fifty Thousand only) imposed
on the respondents No.1 & 2/College to be paid to the appellant/petitioner within four weeks.
The pending applications are disposed of.
(ASHA MENON)
JUDGE
(HIMA KOHLI)
JUDGE
MAY 01, 2020
