WA 375/2010 BEFORE THE HON BLE MR. JUSTICE AMITAVA ROY THE HON BLE MR. JUSTICE C.R. SARMA JUDGMENT AND ORDER (CAV) Amitava Roy, J The Judgment and order dated 03.11.2010 passed in WP(C) (SH) No.155/2010 sustaining the challenge of the Respondent No.1 herein to the decision of the a ppellant-Institute to keep her appointment as Asstt. Professor therein on hold and instead requiring her to appear in an interview in connection, therewith for ms the subject matter of challenge in the present appeal. By order dated 02.11. 2010 the appellant-Institute in the interim had been restrained from making appo intment to the aforementioned post. 02. We have heard Mr. A.K. Bhattacharjee, Senior Advocate for the ap pellants and Mr. D.C. Bora, learned counsel for Respondent No.1. Heard, as well Mr. S. Chakraborty, learned Central Government Standing Counsel for Respondent No.2. 03. The rival pleadings provide the factual preface. The Respondent No.1 has introduced herself to be an highly academically decorated personalit y, having inter alia acquired Master of Science Degree in Chemistry (Analytical Chemistry) from Rourkee University. Details of her research and professional exp eriences have been profusely provided to highlight her worth and suitability for the post. According to her, in response to an advertisement made by the Direct or, Rajiv Gandhi Indian Institute of Management (RGIIM), (for short referred to as the Institute) at its website for the post of Asstt. Professor, she applied t herefor online on 23.11.2008 alongwith her curriculum vitae. She also posted ad ditional testimonials thereafter to fortify her candidature for the said post. She received an offer of appointment on 05.05.2009 issued by the Officer on Spec ial Duty, RGIIM, Shillong informing her that the Director of the Institute had b een pleased to make the same for the post of Asstt. Professor initially for a pe riod of three years. Inspired thereby, the Respondent No.1 claims that she retu rned with her husband from abroad on 06.05.2009, she forwarded an e-mail to th e Director of the Institute conforiming her acceptance of the offer intimating t he latter that she would join the RGIIM latest by 01.07.2009. In response to a query made by the Director, she confirmed her joining on 29.06.2009, by her two communications dated 30.05.2009 and 27.06.2009 . She has averred that accordingly, on that date she reported at the Institute a nd submitted her joining report. As she was then in her family away, according to her, the Director of the Institute instead of accepting her joining report, a dvised her to seek extension of time by a period of six months for joining. She accordingly, on 01.07.2009 submitted an application before the Director, RGIIM, Shillong to that effect seeking extension from 01.07.2009 to 01.01.2010 on medi cal grounds and that the application was duly received by the said authority. 04. The further pleaded case of the Respondent No.1 is that when the reafter, on 14.12.2009 she submitted her application before the Director informi ng him of her arrival for joining with effect from 01.01.2010, she was served w ith a letter dated 22.12.2009 from the said authority to the effect that in view of the changed directive it had been decided to keep her appointment on hold pe nding the processing thereof through the normal procedures. She has alleged tha t inspite of her request made on 04.01.2010 to the Director of the Institute see king information about the changed directives, the same was not responded to. H er reminder to the said effect also did not evoke any result. It was subsequent thereto, that the Chief Administrative Officer of the Institute by letter dated 13.02.2010 requested her to appear in an interview to be held on 01.03.2010. B eing aggrieved by the action which she perceived to be wholly illegal, unjustifi ed and arbitrary, the Respondent No.1 got a legal notice dated 04.03.2009 served upon the Director, RGIIM, Shillong insisting for being allowed to join in the I nstitute as an Assistant Professor as per the terms and conditions of the offer of appointment dated 05.05.2009. The legal notice elicited response from the Institute to the effect that she was on probation and that she had therefore be en asked to appear in the interview. The challenge was laid by her before this C ourt in this backdrop. 05. The Institute through its Director, in its affidavit, while end orsing the decision impugned pleaded that the assailment was misconceived as the offer of appointment made to the Respondent No.1 on contract basis for a limite d tenure and was thus was not enforceable by a writ Court. According to it, the number of faculty position in the Institute depends on the number of students a nd by way of an objective norm, the Ministry of Human Resource Development, Depa rtment of Higher Education, Govt. of India has prescribed for the purpose the te acher-student ratio of 1:10. The Institute averred that to maintain the above r atio of the Institutes of Management in the country were empowered to create a f aculty post for three years, the term being extendable if duly sanctioned by the Ministry. The Institute further contended that having regard to the nascent an d formative stage of the appellant-Institute, the Ministry relaxed the prescrip tion of 1:10 ratio by granting it the liberty of drafting higher number of facul ty positions for initial batches. A faculty post of Asstt. Professor, on an ass essment of the existing need of the Institute was thus created for a period of t hree years to which the Respondent No.1 was offered the appointment for the said term. The Institute underlined that the appointment, however was not proceeded by any selection process and was wholly impelled by the prevailing exigencies. According to the appellant, the Institute had not advertised any post of Asstt. Professor through its website, which, contained detailed data and relevant info rmations about its faculty to which it was open for the interested/prospective c andidates to respond by forwarding their curriculum vitae online. The Institute however admitted that at times depending on the institutional demands, informat ions so furnished used to be acted upon for the purpose of temporary appointment s. 06. The appellant maintained that for recruitment to the faculty pos ition at the relevant time it had adopted the rules and regulations of the India n Institute of Management, Ahmedabad and the requisite qualification prescribed for the post of Asstt. Professor thereby contained in the letter dated 18.08.200 9 of the Ministry of Human Resource Development, Department of Higher Education, was Ph.D with first class or equivalent at the preceeding degree in the approp riate branch with a very good academic record throughout and at least 3 years in dustrial / research / teaching experience excluding however, the experience gain while pursuing Ph.D. The appellant insisted that for a management institute, the appropriate degree is P.hd in Management Science. While Respondent No.1 was a doctorate in Chemistry and her paper presentations in the conferences referre d to by her demonstrated that the same were in Bio-Chemical-Chemistry and not in Management. 07. The appellant-Institute has asserted that while the Respondent N o.1 came to join her post in the institution, it transpired for the first time t hat she was in an advance stage of pregnancy for which she sought a deferment by six months. According to the Institute, had her health condition being divulge d earlier, having regard to the exigencies for which the appointment had been co ntemplated, the offer therefor would not have been made to her. As the Responde nt No.1 was thus unable to join immediately and with the passage of time the imm ediate need for being attended to otherwise eased doubt, the impugned decision w as taken. The appellant however, insisted that the action was wholly bona fide and the Respondent No.1 was thereby accorded an opportunity of participating in a regular selection process to attest her suitability for permanent induction t o the Institute. 08. The Respondent No.1, in her affidavit-in-reply while referring t o the stipulations contained in the offer of appointment, insisted that the same was on regular basis and not for a fixed term. 09. The learned Single Judge sustained the impugnment on the followi ng considerations: (a) The offer of appointment dated 05.05.2009 subsists and has not been canc elled. (b) The offer had been made to the Respondent No.1 after exhaustive delibera tions on her candidature submitted in response to the advertisement of the Insti tute lodged in its website. (c) Her request for extension of time to enable her to join on 01.01.2010 ha d been accepted by the Director of the Institute by making an endorsement Agree d on her application dated 01.07.2009 to that effect. (d) If the Respondent No.1 had been on probation as mentioned in the reply o f the Institute to her legal notice, she was required to be appointed formally e nabling her to render service and draw her salary. (e) The offer of appointment dated 05.05.2009 indicated some sort of permane nce of the arrangement vis-a-vis the post involved, as amongst others it assured that she would be entitled to retirement benefits as per the decision of the I nstitute from time to time. (f) The insistence of the Institute for the Respondent No.1 to appear in the interview was irreconcilable with the earlier approval of extension of the time of her joining till 01.01.2010. (g) The two sheets of paper produced in the name of records containing the n otes dated 16.12.2009 and thereafter did not indicate the origin of the process and instead recorded a decision to require the Respondent No.1 to appear in an i nterview for her regular appointment. (h) Everything was done in a hurry without putting the Respondent No.1 to an y prior notice. The Respondent No.1 being encouraged by the offer had abandoned her earlier service abroad and returned to India to join the new assignment. (i) The post was still vacant and the appointment of the Respondent No.1 th ereto was valid for three years. 10. In its supplementary affidavit in the present appeal, the Instit ute pleaded that its first academic session after its establishment started from the month of July,2008. It averred that in the two year Master of Business Ad ministration course, there is a compulsory subject title Strategic Management to be taught in the forth term in the institution, which commences in the second academic year around June-July. As at that relevant point of time the instituti on was lacking in competent faculty to teach the said compulsory subject, it whi le scouting for competent person came across the candidature of the Respondent N o.1 and decided to offer her appointment to the post of Asstt. Professor for a f ixed period of three years without undertaking a regular selection process and h olding necessary interview. The Institute maintained that the step was taken by its Director in its discretion to meet the immediate exigency prevailing in the interest of the career of its first batch of students. The deponent, Director of the Institute while admitting his endorsement on the Respondent No.1’s applic ation dated 01.07.2009 seeking extension of the joining time till 01.01.2010, ha s conceded that the same laid the institute in an awkward and embarrassing situa tion having regard to the very purpose of her appointment to teach the compulsor y subject in the forth term beginning from July,2009. The deponent had disclosed in unambiguous terms that had the Respondent No.1 revealed that she was in the family way at the time of being offered the appointment, she would not have exer cised his discretion without resorting to the normal course of selection. Accor ding to the deponent, this much belated disclosure resulted in a spali of avoid able inconveniences to the students and the Institute. Situated thus, the Direc tor of the Institute referred to the matter to the Finance Department for its su ggestion and comment without cancelling her appointment. According to the appel lant-Institute, the Finance Department in its note dated 16.12.2009 observed as hereunder: 1. The letter of offer was issued for a specific period to meet the urgent requirement of the Institute. 2. The appointment offer was made without going through the norm al procedure for such appointment. Now, as Dr. Tyagi failed to join the Institute the very purpos e of her apptt. is frustrated. It is, therefore, suggested that her appointment may be regularized by following the normal procedure of such ap pointment. The Advisor of the Director responded to the aforementioned note as hereunder: The observations made by the Finance are correct. Since Dr. Tyagi could not jo in in time, the purpose for which her appointment was made without proper interv iew is not served. Since we have time now, it is advised that Dr. Tyagi be aske d to appear before the Selection Committee so that regular appointment may be ma de if she qualifies. 11. The answering Institute further asserted that the Chairman of it s Board of Directors also concurred with the suggested steps as above and accord ingly the Respondent No.1 was requested to appear in the interview to be held by the Selection Committee as conveyed by the impugned communication dated 13.02.2 010 that due to the failure of the Respondent No.1 to join the Institute in time , the Director had to make a hurried arrangement to seek a competent faculty to teach the first batch of students, the concerned compulsory subject has been men tioned in the affidavit. While emphasizing that the Institute of Excellence like the RGIIM cannot afford to appoint any faculty permanently without pursuing the appropriate procedure for selection, it’s contended that in the interview held as scheduled, the Respondent No.1 did not participate and that the Interview Pa nel recommended two candidates for appointment to the post of Asstt. Professor a nd Associate Professor respectively, who eventually were extended the offer of a ppointment. 12. To this, the Respondent No.1 in her affidavit-in-opposition stou tly denied the imputation of her failure to join the Institute and reiterated he r, the ever readiness to do so at all relevant points of time. While contending that the reference of the issue to the Finance Department of the Institute as w ell as its suggestions were wholly in significant, she also dismissed the notes appearing in the documents produced as non est and void. 13. Mr. Bhattacharjee in the background of the above pleaded stand o ff has persuasively urged that the offer of appointment not having conferred an y unassailment right on the Respondent No.1, it is not enforceable in law and th at therefore the learned Single Judge had erred in directing the Institute to a llow her to join the post. Referring to the exchange of her letters with the In stitute bearing on the offer, the Senior counsel has questioned the bona fide of the Respondent No.1 in withholding from the latter the factum of her pregnancy till 01.07.2009, reiterating that the offer of appointment had been made in comp elling institutional need for a limited duration by skipping the regular partici patory process for selection and recruitment. Mr. Bhattacharjee laboured to demo nstrate that such a veiled disposition of the Respondent No.1 disentitled her to any equitable relief. The learned counsel contended that as with the passage of time for which the Respondent No.1 is responsible, the demand for her stop ga p induction had ceased, the impugned decision to provide her with an opportunit y to get her temporary appointment consolidated into a regular one cannot be fau lted with in any manner. As admittedly, the offer of appointment to the Respond ent No.1 was not preceded by any selection therefor, the stipulations contained in the letter dated 05.05.2009 to that effect ought not to be construed to lend any attribute of permanence, the Senior counsel insisted. According to Mr. Bha ttacharjee, the action having been taken in the best interest of the Institute a s is demonstrated by the relevant official records, the impugned judgment and or der ought to be interfered with. The following decisions were relied upon: AIR 1958 Supreme Court 36(PARSHOTAM LAL DHINGRA VS. UNION OF IND IA), AIR 1966 Supreme Court 1842(State of Uttar Pradesh, v. Akbar Ali Khan); AIR 1972 SC 873( Kdear Nath Bahl, v. The State of Punjab and others and 1997 3 SCC 209(Dr. Kishore v. State of Maharashtra and Others). 14. Whereas, the learned Central Government Standing Counsel did not offer any comment, Mr. Bora appearing for Respondent No.1 maintained that the o ffer of appointment in all essential particulars portrayed the permanence thereo f. While admitting that such an offer was not based on any selection of the Res pondent No.1, on a comparative suitability of competing candidates the learned c ounsel asserted that she having been advised to seek extension of her joining ti me by the Director of the Institute and the latter having accepted her request w hen so made, Institute is estopped from denying her appointment on the ground of her non availability. As any exercise of the discretion by the said authority o n whims and caprices is incomprehensible in law, the impugned decision on that c ount is liable to be adjusted non est. Mr. Bora pleaded that the ground of urge ncy expressed by the Institute seeking to justify the impugned decision not having been expressed earlier and as the Respondent No.1 acting on the offer of appointment had abandoned her earlier job, on equitable considerations as well, the impugned judgment and order does not warrant interference, he argued. 15. The pleadings and the documents on record as well as the assiduo us arguments have been duly analysed that the roots of the offer of appointment of the Respondent No.1 as conveyed by the letter dated 05.05.2009 are traceable two interactive exchanges between her and the Institute while at its primordial state is clearly discernible. Whereas, the Respondent No.1 asserts that she had proffered her candidature responding to on the advertisement of the Institute i n its official website, according to the latter it had simply posted thereat, th e essential informations about the institution highlighting in particular its fa culty and the curriculum of study. Be that as it may, in the ultimate, without a selection though, on scrutiny of her testimonials as considered relevant she w as offered appointment as Asstt. Professor in the Institute initially for a peri od of three years in the scale of pay of Rs.12,000-420-18,300/- . 16. The official records placed with the Court contained documents evidencing inter alia the hierarchy of the teaching faculty in Central Funded T echnical Institutions including the appellant-Institute, criteria of eligibility for appointment thereto and the conditions of service. The minutes of the fourt h meeting of its Board of Governors held on 04.08.2008 resolved that it (Institu te) would be guided by and would follow the Rules of Govt. of India/other IIMS i n India till it adopts its own rules and regulations. The rules and regulations of the Indian Institute of Management, Ahemadabad, the model whereof as has be en disclosed in course of the arguments had at the relevant time been adopted by the Institute provides amongst others that unless waived in particular or full by the appointing authority, there would be a probationary period of two years which may be extended at the end thereof. The services of an employee on prob ation the same enjoins can be terminated without notice or either side, without assigning any reason. 17. In this backdrop, the assertion of the Institute that in the ins titutional exigencies to teach the compulsory subject of Strategic Management to the first batch of its students from the beginning of the second academic yea r in June-July, 2009 , its Director in the exercise of his discretion had offere d temporary appointment to the Respondent No.1 to tide over the immediate demand s of the course cannot be jettisoned in absence of prepolent materials to the co ntrary Not only this averment has remained unrefuted, the Respondent NO.1 does n ot dispute as well that the said offer was not preceded by any process of select ion contemplated in law for evaluation of comparative assessment of competing el igible candidates. The offer of appointment as communicated by the letter dated 05.05.2009 being the substratum of her case, the contents thereof deserves extr action- The Director of the Institute is pleased to offer the post of A ssistant Professor to Dr. Sadhna Tyagi initially for a period of 3(three) years in the scale of pay of Rs.12,000 - 420 - 18300/- (likely to be revised) plus al lowances as admissible to the faculty from time to time. If Dr. Sadhna Tyagi decides to join the Institute, she will be on probation for 2(two) years. Other terms and conditions of service will be subject to Rules, Regulations, nor ms and executive instruction of the Institute as enforced from time to time. Th e Institute has, for time being, adopted the rules and regulations of IIM, Ahmed abad. She will be entitled to retirement benefits as per the decision of the In stitute from time to time. If the offer is acceptable, Dr. Sadhna Tyagi is required to send her willingness within 20 (twenty) days indicating probable date of joining. 18. A plain reading of the above quoted would unequivocally evince t hat not only the offer was initially for a period of three years, the Respondent No.1 on her decision to join, she was to remain on probation for two years. Th ereby, she was required to convey her willingness within 20 days indicating as w ell the probable date of her joining. The letter disclosed that the Institute h ad for the time being adopted the rules and regulations of IIM, Ahmedabad. It c onveyed as well that the other terms and conditions of service would be the Rule s and Regulations, norms and executive instructions of the Institute inforce fro m time to time. The Respondent No.1 was assured retirement benefits as per the decision of the Institute from time to time. Not only, the offer as above testifies that it is bound by time to start with, the Respondent No.1 was essentially to remain on probation for tw o years on and from her decision to join the Institute in response thereto. As referred to hereinabove, her services on probation was thus terminable without n otice on either side without assigning any reason in terms of the rules and regu lations of the Indian Institute of Management, Ahmedabad. Viewed in that contex t, her notion of permanence in service based on this offer has no apparent found ation. The offer of appointment per se was not determinative of her regular ind uction in the services of the Institute from its very inception. The stipulatio n for the retiral benefits was clearly referable to the event if any of her perm anent assimilation in the faculty of the Institute. 19. That it was on 01.07.2009 it transpired for the first time that the Respondent No.1 was in her family way is not in dispute. Though the written exchanges bearing on the process had continued for some time prior thereto, the Respondent No.1 did not reveal this fact earlier. This assumes significance in view of her request for extension of the joining time till 01.01.2010. Though, two pleaded versions have surfaced as to whether the request of the Respondent N o.1 therefor was voluntary or induced, the fact remains that vide her letter dat ed 01.07.2009 six months time was sought for by her from 01.07.2009 so as to ena ble her to join the post on 01.01.2010. The Director of the Institute acceded t o the