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2017 Supreme(Bom) 1947
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.R. GAVAI, MANISH PITALE, JJ.
Dr. Hemalatha Muthulingom - Petitioner
Vs.
The University of Mumbai and Department of Atomic Energy Centre for Excellence in Basic Sciences, University of Mumbai, Kalina Campus, Santacruz (East) Mumbai and Ors. - Respondents
WRIT PETITION No. 1647, 1034 OF 2017 WITH NOTICE OF MOTION (L) No. 375, 667 OF 2017 WITH CONTEMPT PETITION No. 46 OF 2017 WITH WRIT PETITION (L) No. 2442 OF 2017
Decided On : 19-12-2017
For the Petitioners: Mr. Mihir Desai, C.K. Thomas, M/s. C.K. Thomas & Associates
For the Respondent: Mr. S.S. Pakale, Saurabha Pakale, S.M. Katkar, Mr. P.M. Palshikar, Mr. Rui Rodrigues
The main legal point established in the judgment is that contractual appointments come to an end at the end of the contract, and only appointments made after proper competition among qualified persons confer the right to permanent employment.
Headnote:
EMPLOYMENT - CONTRACTUAL APPOINTMENTS - [Sec. 43, Sec. 13, Sec. 24, Sec. 15, Societies Registration Act, 1860] - The court considered the nature of appointment of the Petitioners and concluded that their appointments and subsequent extensions were purely contractual in nature. The appointments were made on recommendations and not through a proper process of widely published advertisements, followed by interviews by a properly constituted selection committee. The court held that the Petitioners were not appointed against any regular, permanent, or sanctioned posts, as the Respondent No. 1 Centre was initially established on an experimental basis and was not registered as a Society until May 2017. Therefore, the Petitioners were required to apply and face open competition along with other applicants for regular appointment to the sanctioned posts. The court dismissed the petitions and held that the Petitioners were not entitled to the relief claimed.
Fact of the Case:
The Petitioners were appointed on contractual basis for specific periods with Respondent No. 1 Centre. They claimed entitlement to be continued in service till their superannuation, alleging unfair treatment in the extension of their services.
Finding of the Court:
The court found that the appointments and subsequent extensions granted to the Petitioners were purely contractual in nature and that they were not entitled to the relief claimed.
Issues: The main issues were the nature of the Petitioners' appointments, whether they were entitled to be continued in service, and whether they were discriminated against in the extension of their services.
Ratio Decidendi: The court held that the Petitioners' appointments and subsequent extensions were contractual in nature and that they were not entitled to the relief claimed. The court also emphasized that the Petitioners were required to apply and face open competition for regular appointment to the sanctioned posts.
Final Decision: The court dismissed the petitions and held that the Petitioners were not entitled to the relief claimed.
MANISH PITALE, J.
1. Heard. Rule (in all petitions). Rule (in all petitions) is made returnable forthwith. The learned counsel Mr. S.S. Pakale, waives service of notice for Respondent No. 1 and 4; the learned counsel Mr. P.M. Palshikar waives service of notice for Respondent No. 2; the learned counsel Mr. Rui Rodrigues waives service of notice for Respondent No.3, in all the writ petitions. By consent of parties, all the petitions are taken up for final hearing.
2. The question that arises for consideration in these petitions is, as to whether the Petitioners are entitled to be continued in their respective posts with Respondent No. 1 till their superannuation, having been in service since 22.1.2009, in the case of Dr. Hemalatha uthulingom (Petitioner in Writ Petition No. 1647 of 2017) and 1.1.2010 in the case of Dr. Gargi Shaw (Petitioner in Writ Petition No. 1034 of 2017). The main grievance of the Petitioners is that having put in long years of service and being part of the Centre for Excellence, which helped development of Respondent No. 1 Centre in all these years, could the Petitioners be told that their services would no longer continue and that they should now apply for appointment in the Respondent No. 1 Centre in pursuance of advertisement, inviting applications for all the posts in the faculty of Respondent No. 1. In other words, whether the Petitioners are entitled to the posts held by them in the Respondent No. 1 Centre, and whether they were entitled to continue as if they were permanent employees with Respondent No. 1 Centre.
3. Respondent No. 1 i.e. Centre for Excellence in Basic Sciences was established by the Department of Atomic Energy, Government of India and the University of Mumbai for which a Memorandum of Understanding dated 27.3.2007 was executed. A Memorandum of Association was also executed between the said two parties with the objective of establishing a brand institution in the field of Basic Sciences, in which high quality undergraduate training embodied in a Post Graduate Research environment would be created, with strong linkages to existing National Research Institutes like BARC, TIFR, IIT and other institutes for providing an innovative and flexible five years integrated course after Higher Secondary Certificate or equivalent examination.
4. A student entering such a course with Respondent No. 1 Centre would be awarded a Masters Degree (M. Sc.) at the end of the 5th year and in addition, the Centre would provide avenues for doctoral degrees for carrying out advanced research in Science and Technology. The Centre was initially set up for a period of five years and depending upon its further development and funding, it was to be set up as a permanent Centre. The Respondent No. 2, Union of India through Department of Atomic Energy has financed the said Respondent No. 1 Centre while infrastructure and other facilities have been provided by Respondent No. 3 – University of Mumbai, as per the aforesaid Memorandum of Understanding.
5. There are three writ petitions and one contempt petition and two notices of motion that are being disposed by this common judgment.
The facts pertaining to the case of two Petitioners are as follows:
6. The Petitioner in Writ Petition No. 1647 of 2017 (Dr. Hemalatha Muthulingom) holds a Ph.D. in Physics and she claims to have applied to the Respondent No. 1 Centre in pursuance of an advertisement on the website of Respondent No. 1. There are two advertisements placed on record, claimed to have been available on the website of Respondent No. 1, in the year 2008-2009. One of the advertisements shows availability of the posts of Assistant Professor and Research Associate and other posts, prescribing required qualifications while the other shows the said posts in the Respondent No. 1 Centre available for the specific periods of five years and three years. The said Petitioner claims to have applied for appointment in Respondent No. 1 – Centre in pursuance of the first adv
