Candidate Can't Challenge A Post As Illegal & Claim Entitlement To Appointment On Same Post : Himachal Pradesh HC

Background Facts

Petitioner applied for the post of Associate Professor in the department of Environmental Sciences. The respondent University had invited applications for appointment to two posts of Associate Professor, through advertisement dated 13.06.2011. The petitioner was shortlisted and interviewed. A select list was prepared and two persons from general category were appointed as Associate Professors in the department of Environmental Sciences in respondent University. Petitioner was placed at serial No. 1 of the waiting list and private respondent was placed at serial No. 2. Later, petitioner came to know that private respondent had also been appointed as Associate Professor.

Aggrieved by the same, the petitioner filed the writ petition to challenge the appointment of private respondent as an Associate Professor in the department of Environmental Sciences in the respondent University and to further quash his appointment. The petitioner further prayed for direction to the respondent authorities to appoint the petitioner against the newly created post of Associate Professor.

It was contended by the petitioner that the appointment of private respondent was against non-existent post. Since, only two vacancies were advertised and there was no advertisement for the third post, if at all the additional post was to be created in the department of Environmental Sciences, petitioner being at serial No. 1 of the waiting panel was entitled to be appointed against the same.

On the other hand it was submitted by the respondent that the University had advertised total 36 posts of Associate Professors in different disciplines vide two separate advertisements dated 15.12.2010 and 13.06.2011. Two posts in the department of Environmental Sciences were also included in the advertisements. It was further argued that the University followed the reservation policy of Government of India where 15% posts were to be reserved for Scheduled Caste category candidates and 7.5% for Scheduled Tribe category candidates. Therefore, the University implemented the cadre-wise reservation. It was further stated that it was done in accordance with the guidelines circulated by UGC on 25.08.2006, to ensure the effective implementation of the reservation policy.

It was also submitted by respondent University that the persons appointed against two posts of Associate Professors in the department of Environmental Sciences were from general category. The private respondent submitted two representations dated 18.04.2012 and 25.04.2012, seeking claim to one of the posts of Associate Professors in the department of Environmental Sciences on the premise that by strict implementation of reservation policy, one of the vacancies in the department of Environmental Sciences was to fall in the share of Scheduled Tribe category. The private respondent being candidate belonging to said category was entitled to be appointed.

It was further submitted by the respondent that one post of Associate Professor was transferred from another department to the department of Environmental Sciences on supernumerary basis and transferred one post of Assistant Professor from the department of Environmental Sciences to another department. Therefore, the private respondent was appointed against a supernumerary post. This exercise, according to respondent University had to be undertaken as both the selected persons from general category had already joined.

Findings of the Court

It was observed by the court that about twelve years had elapsed since the filing of the petition by the petitioner. There must be lot of changes in the cadre of Associate Professors in the University in general and in the department of Environmental Sciences in particular. It was observed by the court that nothing was presented on record by the petitioner during the pendency of the petition.

It was further observed by the court that respondent had already left the respondent University, meaning thereby that the post he had occupied stood abolished as the same was only supernumerary. It was further observed that the petitioner on one hand had challenged the appointment of private respondent on the ground that he was appointed against non-existent post as there was no vacancy, on the other, petitioner was seeking claim to the same post.

It was held by the court that the petitioner cannot claim any right over the supernumerary post, because the petitioner himself contended that the appointment of the private respondent was illegally made on a non-existent post. Therefore, it was held that the petitioner cannot seek parity based on an illegality.

With the aforesaid observations, the writ petition was dismissed.

Case Name : Deepak Pathania v. Central University of Himachal Pradesh and Anr

Case No. : 5254 of 2013

Counsel for the Petitioner : Nitin Thakur, Advocate

Counsel for the Respondents : Balram Sharma, Deputy Solicitor General of India; Lalit K. Sharma, Advocate