IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 9485/2008 Reserved on: 19.5.2011 Decided on:25.5. 2011 _____________________________________________ Dr. Pratap Singh. …Petitioner. Versus H.P. University and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioners : Mr. Harish Behl, Advocate. For the Respondents: Mr. B.C. Negi, Advocate for respondents No.1 to 3. Mr. Sandeep Sharma, Assistant Solicitor General of India for respondent No.4. ____________________________________________________ Justice Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that the Agro-Economic Research Centre was set up in the Himachal Pradesh University vide notification No.2/48/72/Econ.PY dated 28.12.1972 by the Ministry of Agriculture and Cooperation, Government of India. The terms and conditions for payment of grant-in-aid by the Government of India were formulated vide Annexure A-1. The Agro- 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 Economic Research Centre has issued notification on 21.12.1978 on the Advice of the Advisory Committee to approve competent authority for various purposes and categories of employees of the Agro Economic Research Centre and allied research. Officer Incharge was the competent authority for the fixation of pay, removal from office below the rank of Research Officer, Field Officer, Statistician Analyst, etc. The Agro-Economic Research Centre was integrated with the respondent-University with effect from 1.4.1995 on the basis of Memorandum of Understanding entered into between the Ministry of Agriculture and Cooperation and the Registrar of the respondent-University. The copy of the Memorandum of Understanding was produced by Mr. Harish Behl for the perusal of the Court during the course of hearing. It is evident from condition No. 15 of the Memorandum of Understanding that for selection to the post of Research Officer and above, there would be a representative of the Ministry on the Selection Committee constituted for the purpose. 2. Petitioner had been working in various projects of the Agro-Economic Research Centre. His name was approved by the Committee of Research Officers for appointment to the post of Senior Research Assistant/Research Investigator. The Vice-Chancellor of the respondent-University, i.e. respondent 3 No.2, issued appointment letter to the petitioner on 28.12.2002. In sequel to appointment letter dated 28.12.2002, petitioner joined his duties on 1.1.2003. The Advisor, Government of India, Ministry of Agriculture has sent a communication to the Vice-Chancellor of the University on 18.6.2003 to cancel the appointment of the petitioner. Petitioner is aggrieved by the issuance of Annexure A-7 dated 18.6.2003. 3. Mr. Harish Behl has strenuously argued that the selection of the petitioner is strictly in accordance with law to the post of Senior Research Assistant/Research Investigator. He then argued that there was no ban imposed as far as the filling of the core faculty was concerned. He has relied upon Annexure A-8. He further argued that as far as the post of the petitioner is concerned, no nominee was required to be appointed by the Government of India, Ministry of Agriculture. 4. Mr. B.C. Negi has relied upon the contents of the reply affidavit filed pursuant to the directions of the Court. 5. Mr. Sandeep Sharma, learned Assistant Solicitor General of India has vehemently argued that the appointment of the petitioner to the post was contrary to Annexures R-4/1 and R-4/4 dated 4.10.2000 and 16.12.2002, respectively. 4 6. I have heard the learned counsel for the parties and have perused the pleadings meticulously. 7. It is true that before the Memorandum of Understanding was signed between the Government of India, Ministry of Agriculture and the Registrar of respondent- University, the post in question was to be filled up as per Annexure A-2 dated 21.12.1978. Even according to Annexure A-1, the appointment to the various posts was to be made by the Selection Committee to be constituted by the Vice Chancellor and the Economic and Statistical Advisor of the Ministry was to be included as one of the Members of the Selection Committee for making appointments to the posts of Research Officers and above. In the instant case, the Court is dealing with the case of a Senior Research Assistant/Research Investigator. Thus, even as per Annexure A-1 there was no requirement of the Economic and Statistical Advisor of the Ministry to be included as one of the Members of the Selection Committee, rather, the appointments were to be made as per notification issued on 21.12.1978. In the case in hand, the appointment of the petitioner has been made on the basis of the recommendations made by the Research Officers’ Committee. Petitioner is possessing qualification of M.Sc., Ph.D and has also worked in various projects. In normal 5 circumstances, it was appropriate if the University had issued the advertisement calling for the applications from all the qualified and eligible persons for filling up the post in question. It appears that the respondent-University by taking into consideration the satisfactory work of the petitioner and his qualification had decided to appoint him to the post of Senior Research Assistant/Research Investigator as per letter dated 28.12.2002. Respondent-University is directed that in future no post shall be filled up without advertising the same in accordance with law. The Court shows serious displeasure for not advertising the post in question. 8. Now, the Court will advert to the main argument of Mr. Sandeep Sharma that there was ban imposed for filling up the post. He has drawn the attention of the Court to Annexure R-4/1 dated 4.10.2000 whereby a decision was taken to the effect that the vacancies arising in the Agro-Economic Research Centres/Regional Institutes, as a result of superannuation, resignation etc. will not be filled up in future and wherever necessary, the work will be got completed on contract basis. It was also decided that the automatic promotion scheme will not be implemented in the Agro-Economic Research Centre/Regional Institutes. In the case in hand, the post was lying vacant since 12.9.1989. It is not pleaded by the 6 respondents that the post had become available on the basis of superannuation/resignation etc. 9. Mr. Sandeep Sharma has also drawn the attention of the Court to Annexure R-4/4. Suffice it to say that Annexure R-4/4 only talks of Career Promotion Advancement Scheme and not of fresh appointment. 10. Mr. H.S. Behl has drawn the attention of the Court to Annexure A-8. Annexure A-8 is a copy of the Minutes of the Meeting of the Directors/Officers-in-charge of Agro-Economic Research Centres/Units held on 14/15.1.2002. Following decision was taken by the Committee: “IV. Not to fill up the vacant posts ESA informed that expenditure on implementation of AER Scheme has been increasing over a time. For its continuation the Government has decided that vacancies arising in the AER Centres/Units as a result of superannuation, resignation etc. will not be filled up in future. Wherever necessary, the work will be got completed on contract basis. Some of the Centres expressed difficulties in employing staff on contract basis. ESA suggested to take decision on contract appointment in the Advisory Committee Meeting of the Centre. Further, ESA requested all AERCs to give their suggestions for processing the issue and also provide details of core staff required to run the Centre smoothly. ESA also suggested that the core faculty should be appointed in regular basis only, and other supporting staff could be recruited on contract basis.” 7 11. It is evident from the contents of para (IV) of the Minutes of the Meeting whereby the Economic Research Assistant (ESA) has requested that vacancies in the AER Centres/Units as a result of superannuation, resignation etc. will not be filled up in future and the work will be got completed on contract basis. Since certain Members had felt difficulty in employing staff on contract basis, ESA requested all AER Centres/Units to give their suggestion for processing the issue and also provide details of core staff required to run the Centre smoothly. ESA also suggested that the core faculty should be appointed on regular basis and other supporting staff could be recruited on contract basis. The post in question, i.e. Senior Research Assistant/Research Investigator is a core faculty. The person appointed as Senior Research Assistant/Research Investigator has to undertake research work. The very purpose of setting up of the Agro-Economic Centre was to carry out studies in economic problems at the Himachal Pradesh University and was required to integrate in carrying out studies in agro problems in Himachal Pradesh and other adjoining hilly areas. The Centre has to conduct studies into problems in which the Government of India was specially interested. Thus, it is evident that there was no absolute ban on the appointment of the core staff. 8 12. Mr. B.C. Negi has drawn the attention of the Court to Annexure R-1 dated 30.10.2007 whereby the Economic and Statistical Advisor has informed all the Agro-Economic Research Centres/Units that there was no ban on promotion and appointments on existing posts provided they are not vacant for more than a year. Accordingly, AERCs/Units were directed to take appropriate action. This communication is in league with the earlier decision taken in the meeting held on 14/15.1.2002. It also makes abundantly clear that there was no absolute ban on making appointment in Agro-Economic Research Centre. It is also evident from Annexure R-II dated 22.10.2008 that the competent authority has given approval for revival of 91 posts in the Agro-Economic Research Centres/Units. The post of Director/Professor, Deputy Director/Reader/Assistant Professor, Research Fellow, Research and Reference Assistant (Library), Section Officer/Office Superintendent and Personal Assistant to Director have already been approved in the Agro-Economic Research Centre, Shimla. In all, 7 posts have been revived as far as the Agro-Economic Research Centre, Shimla is concerned. In the reply-affidavit filed by respondent No.2, it has been specifically averred that the appointment of the petitioner be continued since he had been working for the last 8 years and was qualified and was 9 having experience. It has also come in the reply-affidavit that prior to his appointment on regular basis; petitioner was working in various projects in the respondent-University since 1999. Thus, the petitioner had worked with effect from 1999 till his date of regular appointment, i.e. 28.12.2002 in various projects and has gained sufficient experience to discharge the duties of the post in question. It is clear from the phraseology employed in Annexure A-5 dated 28.12.2002 that the Research Officers Committee has recommended the case of the petitioner on the basis of his past performance of several years as Research Assistant/Research Associate while appointing him as Senior Research Assistant/Research Investigator 13. Accordingly, in view of the observations and discussions made hereinabove, the present petition is allowed. Annexure A-7 dated 18.6.2003 is quashed and set aside. No costs. (Justice Rajiv Sharma), Judge 25.5. 2011 *awasthi*