DR. SUSHIL KUMAR TRIPATHI versus JAGADGURU RAM BHADRACHARYA HANDICAPPED UNIVERSITY & ANR. on 29 October 2021

1. This appeal has been filed by the appellant being aggrieved bythe judgment dated 8[th ]February,2008, passed by the Division Bench ofthe High Court of Judicature at Allahabad in Civil Misc. Writ petitionNo. 20470 of 2007, by which the aforesaid writ petition was dismissed.

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2. Succinctly stated the facts of the case are that the respondent-University which was established in the year 2001 was included in theList of Universities eligible to receive assistance from the CentralGovernment under Section 12(b) of the University Grants CommissionAct, 1956 (‘UGC Act’ for short) and Rules framed there under, withHeffect from 20[th ]May, 2003.

3. The respondent-University framed Statutes in the year 2002providing for various faculties including Faculty of Social Science ofwhich Political Science is a Department.

4. In April, 2004, the University Grants Commission (‘UGC’ forthe sake of convenience) under its Tenth Plan issued grants to therespondent-University including the grant in respect of financial supportfor one lecturer in the Department of Political Science. On 3[rd ]July,2004, the respondent-University advertised inter-alia for filling up ofvacancy in the Department of Political Science. The appellant hereinapplied and was selected to the post of Assistant Professor and wasissued appointment letter dated 4[th ]December, 2004, in the grade payscale of Rs.8,000-13,500.

5. According to the appellant, every month he was forced to payRs.5,000 from his salary to the University as donation to which he objectedbut nevertheless continued to pay the amount to the University. Thereafter,the appellant wrote to the Vice-Chancellor of the University to granthim Ph.D. incentive as admissible under UGC grant. On 19[th ]July, 2006,the Registrar of the University replied that since his post was only forthe Tenth Plan which was going to expire on 31[st ]March, 2007, hisservices would be automatically terminated on the said date i.e. 31[st]March, 2007. The appellant received another communication, dated 1[st]March, 2007, from the Registrar of the University stating that his serviceswere no more required by the University with effect from 31[st ]March,2007, as his post was abolished.

6. The appellant being aggrieved by the abolition of the post andhis consequent removal, filed a Civil Misc. Writ Petition No.20470/2007before the Allahabad High Court. According to the appellant, on the onehand, the respondent-University had stated that his post had beenabolished while on the other hand, had requested respondent no.2 - UGCfor continuation of grant for all the posts under the Tenth Plan evenunder the Eleventh Plan by showing that the appellant was working inthe Department of Political Science as on 6[th ]April, 2007.

7. According to the appellant, the High Court listed his Writ Petitionon 2[nd ]November, 2007, and had directed that written arguments befiled on 5[th ]November, 2007. By impugned order dated 8[th ]February,2008, the Division Bench of the High Court held that there was neitherany illegality nor any infirmity in the orders of the respondent-Universityfor abolishing the post and therefore had rightly terminated the services A

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Aof the appellant and it dismissed the Writ Petition. Being aggrieved, specialleave petition was filed by the appellant herein in which leave was grantedvide order dated 7[th ]October, 2021.

8. We have heard Mr. Amit Anand Tiwari, learned counsel for theappellant, Mr. Jitendra Mohan Sharma, learned Senior Counsel forBrespondent no.1-University and Mr. Ravinder Agarwal, learned counselfor respondent no.2-UGC and perused the written submissions as wellas the material on record.

9. Mr. Tiwari, learned counsel appearing for the appellant,contended that there has been wrongful termination of the appellant asCAssistant Professor in the Department of Political Science by therespondent-University. In support of this submission, reliance was placedon the recommendation of the Expert Committee vide its Report dated5[th ]February, 2019, which has been accepted by the UGC and there hasbeen no objection raised to the said recommendation by the respondent-University. Elaborating the said contention, it was submitted that theDappellant was appointed as an Assistant professor pursuant to anadvertisement dated 3[rd ]July, 2004 and though the same was under theTenth Five Year Plan and it was supported by the UGC, appellant’sservices were in fact continued even under the Eleventh Five Year Plan.However, the services of the appellant were wrongfully terminated onEthe lapse of the Tenth Five Year Plan on 31[st ]March, 2007, with anintention of discontinuing the appellant as Assistant Professor in therespondent-University on the ground that he had been appointed duringthe Tenth Five Year Plan. But fact is that the respondent-University hadcommunicated to the UGC, the requirement of a post in the Departmentof Political Science even under the Eleventh Plan. This was the veryFpost held by the appellant herein. Therefore, the termination of theappellant on the lapse of the Tenth Plan was illegal.

10. Learned counsel for the appellant drew our attention to thefact that the Expert Committee constituted by the UGC initially hadsubmitted an adverse recommendation but subsequently when anotherGExpert Committee was constituted by the UGC a detailed report wassubmitted with the recommendation to reinstate the appellant as AssistantProfessor of the respondent-University. The same is supported by reasonsgiven by the Expert Committee. It was submitted that the ExpertCommittee had categorically stated that the termination of the appellantHas Assistant professor in Department of Political Science was “perverse

and incorrect”. In the circumstances, the said recommendation may beaccepted and the appellant may be reinstated in service. It was contendedthat the respondent-University had terminated the services of the appellantas he had earlier protested against payment of Rs.5,000 per month asdonation to the University as said amount was deducted from his salarywithout any justification. Hence, it was submitted that relief may begranted to the appellant herein on the basis of the recommendation madeby the second Expert Committee of the UGC as the respondent-Universityhad not objected to the same.

11. Mr. Agarwal, learned counsel for the UGC, which wasimpleaded as respondent no.2 in this appeal, also submitted that therepresentation of the appellant dated 19[th ]October, 2012, was consideredby the Chairman of the UGC as the errors in the Report of the earlierExpert Committee were pointed out and a second Expert Committeewas constituted to reconsider the grievances of the appellant. The secondExpert Committee took into account the documents submitted by theappellant including those obtained under the Right to Information Act(RTI Act) and it had observed as under:

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“In reply to the RTI application moved by the Petitioner, Universityhad admitted that all teachers appointed under the Xth plan weremade permanent with effect from the date of their appointmentand an order to this effect was issued by the University on27.03.2010.

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Vide letter dated 28.07.2018 written by the University to the UGC,it was stated that all the teachers appointed under the Xth Planwere appointed on a contract for 5 years, but pursuant to orderdated 27.03.2020, the teachers appointed under the Xth Plan weretreated as permanent with effect from the date of their ap-pointment.

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Even after the abolition of the Department of Political Scienceand Philosophy, the University, vide letter dated 06.04.2007, hadsought funds under the XIth Plan from UGC. In their proposal theUniversity had shown an additional requirement of one post in A

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Department of Political Science, and the existing working strengthin the said department was shown as 2.

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In the letter dated 13.11.2008 written by the Vice Chancellor tothe Petitioner it was admitted that there was nothing to show thatBthe appointment of the Petitioner was contractual.

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The Vice Chancellor of the University in his letter dated05.12.2008, had admitted that even in case where no students areCenrolled, the Department may be abolished by making a provisionfor merger/absorption of the teachers in other department(s).

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All other appointees under the Xth Plan were made per- manentexcept the Petitioner.”D

It was further submitted by learned counsel for the respondent-UGC that the second Expert Committee recommended that thetermination of the services of the appellant was “perverse and incorrect”and hence, he had to be reinstated as Assistant Professor, Departmentof Political Science and in case the said department had been abolished,Eabsorbed in any other department or faculty of the University.

12. Per contra, Mr. Sharma, learned senior counsel for therespondent-University reiterated the reasoning of the Division Bench ofthe High Court in the impugned judgment and contended that theappointment of the appellant was under a scheme of the UGC sanctionedFunder the Tenth Five Year Plan and the said appointment was to come toan end on the expiry of the said plan on 31[st ]March, 2007. In thecircumstances, the services of the appellant were rightly terminated bythe University as the post held by the appellant stood abolished and theservices of the appellant were no longer required by the University. Itwas contended that the appointment of the appellant was not on aGpermanent basis but the post which the appellant held was under theTenth Plan and it was categorically mentioned in the letter of appointmentdated 4[th ]December, 2004, issued to the appellant that his appointmentto the post was under the Tenth Plan and was likely to be continueddepending upon his performance and availability of post. Since the TenthHPlan came to an end on 31[st ]March, 2007, the post held by the appellant ceased and therefore the services of the appellant were rightly terminatedas his appointment was a tenure based appointment and the post hadbeen abolished. It was urged that in view of the aforesaid facts, theHigh Court had correctly concluded that the services of the appellantwere rightly terminated on 31[st ]March, 2007, having regard to the natureof the appointment and the terms and conditions thereof. Learned seniorcounsel for the respondent- University submitted that there is no merit inthis appeal and the same may be dismissed.

13. The question that arises in this appeal is, whether, thetermination of the services of the appellant was legal and in accordancewith law or not.

14. It is noted that as per communication dated 29[th ]May, 2004,by the UGC, to the Universities of all the States/UTs, including therespondent-University herein, owing to the financial difficulties faced bythe Universities, the UGC had decided to offer the following three optionsto the Universities for filling up all the posts approved during the TenthPlan period to safeguard the interest of the students:

“(A) Assurance may be obtained from the State Government fortaking over the liability of these posts after tenth plan period.

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(B) Assurance may be given by the University through a resolutionof the Executive Council to bear the burden of these posts afterTenth Plan.

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(C) Appointment shall be made on contractual basis.”

The University could opt for any of the above three options forfilling up all the posts by fulfilling the conditions regarding qualification,etc., of the posts as prescribed under the UGC Regulations.

15. Accordingly, the respondent-University on 3[rd ]July, 2004,advertised for filling up, inter-alia, vacancy in the Department of PoliticalScience. Pursuant to the advertisement, the appellant applied for thevacant post and was appointed as Assistant professor in the Departmentof Political Science, Faculty of Social Science. The Clause No.7 ofappointment letter dated 4[th ]December, 2004, reads as under ……….

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A“His appointment to the post is to be for X-Plan, but likely to becontinued depending upon the performance of the candidate andavailability of post.”

16. The pay scale of the appellant was Rs.8,000-13,500 and thegross salary was Rs.13,095. According to the appellant, Rs.5,000 perBmonth was being deducted from the salary as donation which was 38.18%of his gross salary to which objection was raised by the appellant. Further,appellant by his letter dated 19[th ]July, 2006, addressed to the ViceChancellor of the respondent-University, sought for grant of benefit ofPh.D incentive and annual increment and for payment of DearnessAllowance, etc., There was no response to the aforesaid letter but onC1[st ]March, 2007, the Registrar of the respondent-University informedthe appellant that he was appointed in the Faculty of Social Science,Department of Political Science as Assistant professor under the TenthFive Year Plan which was coming to an end on 31[st ]March, 2007, andtherefore, his appointment was to automatically come to an end on theDsaid date and the requirement of his services would depend entirely onthe decision of the University. As a sequel to the above, on 31[st ]March,2007, the Registrar communicated to the appellant that as per the decisionof the University dated 28[th ]March, 2007, the post held by the appellanthad been abolished and therefore, his services were no more requiredby the University.E

17. Appellant has produced the communication dated 6[th ]April,2007, written by the University addressed to the Chairman, UGC,acknowledging the generous contribution from the UGC during the TenthPlan and the contribution to be made by the UGC to the Eleventh planproposal including the details of the strength in each faculty. AccordingFto the appellant, at the end of Tenth plan, the Department of PoliticalScience had not been abolished by the University nor could it be saidthere was no requirement of any lecturers, etc. in the said Department.

18. Further, on a reading of the appointment letter dated 4[th]December, 2004, it is evident that the appointment of the appellant wasGnot on contractual basis but it was categorically stated therein that theappointment was under Tenth Plan and it was likely to be continueddepending upon the performance of the candidate and the availability ofthe post.

19. In fact, UGC was impleaded in this appeal by order dated 6[th]HMay, 2010 as respondent no.2 and was directed to consider the representation of the appellant herein without being influenced by anyfinding of the High Court.

20. According to the UGC, initially, the representation of theappellant was placed before an Expert Committee, which examined thegrievances of the appellant and submitted its report to the UGC. TheUGC examined the representation of the appellant in light of the reportsubmitted by the Expert Committee and by order dated 23[rd ]December,2011, had rejected the representation. The appellant again addressed arepresentation to Chairman of the UGC dated 19[th ]October, 2012, pointingout the errors in the report of the Expert Committee and requested forre-examination of his case. The appellant had also obtained certaindocuments under Right to Information Act for the consideration of theUGC and the Expert Committee.

21. The UGC constituted another Expert Committee to look intothe grievances of the appellant afresh on the direction of this Court andafter deliberations held on 29[th ]January, 2019, and taking into considerationthe material placed by the appellant has observed and recommended asunder:

“(I) As regards the terms of the appointment letter dated04.12.2004, it is observed that the appointment letter wascompletely silent on the issue as to whether the appointment waspermanent or contractual. It simply mentioned that his appointmentto the post was for X-Plan, but was likely to continue dependingupon the performance of the candidate and availability of post.As per the Clause 10.21 of the JRHU Regulations, 2002, allappointments of teachers was to be made on probation for a periodof 12 months and in no manner it could be extended beyond 24months. As per Clause 10.22, at the end of the probation period,the incumbent was to be made permanent on his appointment bythe EC. This was also admitted by the University in its reply underRTI to Dr. Tripathi vide their reply dated 14.08.2013. It was alsomentioned in the said reply (Reply at 1/B) that upon the completionof probation, all the appointment would be treated as permanent.Moreover, it was also stated in the said reply that the teachersappointed under the X Plan were made permanent w.e.f. the dateof their appointment and the said order was issued on 27.03.2010(Reply at 3 of RTI reply). In the same reply under RTI, it hasbeen stated that the appointed teachers had also been given annual A

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increments w.e.f. the date of completion of probation. It must behighlighted here that Dr. Tripathi was also given annual increment.

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These facts, obtained under RTI by the applicant-Dr. Tripathi,were not placed before the UGC Committee that had consideredand disposed of the representation of Dr. Tripathi in 2011.

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Placed at Annexure-III

(II) Here reference may also be made to the letter dated 28.07.2018written by the University to the UGC wherein it has beencategorically stated that all theteachers appointed under the XPlan were appointed on contract for 5 years at the end of theirterm on 31.03.2007 but pursuant to the order dated 27.03.2010and in compliance of the same, the teachers appointed under XPlan were treated as permanent w.e.f. the date of theirappointment.

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Placed at Annexure-IV

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This fact was also not placed before the UGC Committee thathad considered and disposed of the representation of Dr. Tripathiin 2011 as this information was provided by the University in itsresponse dated 28.07.2018 to a letter of UGC.

(III) As regards the stand taken by the University vide their letterEdated 25.04.2008 that the appointment made in the X Plan was oncontractual basis, the same seems to be an afterthought as it ismade out from two communications of the University. 1[st ]the ECmeeting dated 28.03.2007wherein it was decided that all the otherdepartments would continue expert for the Political Science andFPhilosophy departments that were decided to be closed down.But ironically, the University in its letter dated 06.04.2007, writtenimmediately thereafter and addressed to the Chairman, UGC hasmentioned in its proposal for the XI Plan, about the additionalrequirement of the post of Political Science (1) and has shown inthe column “number of enrollment as on 31.03.2007” as 60 total.GWorking strength is also shown to be as “2” in the Department ofPolitical Science.

Placed at Annexure- V & VI respectively

(IV) It is also pertinent to mention that UGC on the basis of theletter dated 06.04.2007of the University, vide their letter dated H

16.07.2007released 1[st ]instalment of General DevelopmentAssistance specifically mentioning therein that ‘the Commissionhas decided to allow the Universities to use this grant for purchaseof books, journals and equipments and X Plan posts”.

Placed at Annexure-VIII

(V) It is also pertinent to observe that the Vice Chancellor ofJRHU vide his letter dated 13.11.2008 addressed to Dr. Tripathihad stated categorically that“the appointment of Dr. Shushil KumarTripathi does not show any condition that he has been appointedon contract basis and in fact he has beenshown as permanentemployee in letter dated 22.01.2006, the Vice Chancellor of theUniversity wrote to Deputy Director, Distance Education Council,Maidan Garhi, New Delhi.

I must mention here that the sanctioned and financially supportedpost(s) by the UGC under 10th Plan cannot be self-abolished atthe end of the plan. However, the University has the power toabolish any department but not the post sanctioned under 10[th]Plan by the UGC after giving assurance”.

The Committee also refers to letter dated 05.12.2008 written bythe Vice-Chancellor, JRHU to Dr. Tripathi wherein it is stated asbelow:

“It is clarified that any department cannot be abolished in theevent of the students are enrolled. Even in the cases when are nostudents, only thedepartment may be abolished by making aprovision for merger/absorption of the employee and teachers in”other department/faculty of the University.

Copy of letters dated 13.11.2008 & 05.12.2008 are placed atAnnexure-VIII.

(VI) This goes to demonstrate that the University, for reasonsbest known to them, were not interested in continuing with Dr.Tripathi only whereas all the other appointees under the X Planwere made permanent and were extended all other benefits.”

“In view of the above said facts and circumstances of the matterand in supersession of the earlier order dated 23/12/2011 of UGCbearing no. F 85-1/2013 (SU- II), this Committee is of the consideredopinion that the abolition/termination of the post/services of Dr.

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ASushil Kumar Tripathi as Assistant Professor, Political Sciencewas perverse and incorrect and thus, this Committee recommendsthat the services of Dr. Sushil Kumar Tripathi as AssistantProfessor, Department of Political Science in JRHU may becontinued as had been so done in the cases of similarly placedappointees/teachers of X Plan. In case the Department of PoliticalBScience has been abolished by the University, the University mayabsorb Dr. Sushil Kumar Tripathi in other Department/Faculty ofthe University.”

A copy of the minutes of the Expert Committee dated 5[th ]February,2019 is annexed as Annexure R-1 by the UGC.C

22. The UGC by its order dated 28[th ]February, 2019 on quotingthe aforesaid recommendation addressed to the Registrar of therespondent-University as well as to the appellant herein informed aboutthe recommendation of the Expert Committee, inviting objections, if any,to the same by the University within a month from the date of the receiptDof the said order in the following terms:

“In view of the abovesaid facts and circumstances of the matterand in supersession of the earlier order dated 23/12/2011 of UGCbearing No.F.85- 1/2003(SU-II), this Committee is of theconsidered opinion that the abolition/termination of the post/servicesEof Dr. Sushil Kumar Tripathi as Assistant Professor, PoliticalScience was perverse and incorrect and thus, this Committeerecommends that services of Dr. Sushil Kumar Tripathi as AssistantProfessor, Department of Political Science in JRHU may becontinued as had been so done in the cases of similarly placedFappointees/teachers of X Plan. In case, the Department of PoliticalScience has been abolished by the University, the University mayabsorb Dr. Sushil Kumar Tripathi in other Department/Faculty ofthe University.”

There is no material placed on record to show that any objectionGhas been raised by the respondent-University to the aforesaid order ofthe UGC.

23. It is evident that the aforesaid recommendation of the ExpertCommittee constituted by the UGC order dated 8[th ]February, 2019, iscontrary to the earlier order passed by the UGC dated 23[rd ]December,2011, rejecting the representation of the appellant.H

24. In fact, on perusal of the communication dated 13[th ]November,2008, sent by the Vice-Chancellor of the respondent-University to theappellant herein, it was clearly indicated that the appointment of theappellant was not on contractual basis and in fact, the appellant wasshown as permanent employee in letter dated 22[nd ]January, 2006, writtenby Vice-Chancellor of the University to Deputy Director, DistanceEducation Council. It further stated that the post held by the appellantwas sanctioned and financially supported by the UGC under the TenthPlan, and the same would not have been automatically abolished at theend of the Plan.

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25. Moreover, the respondent-University had the power to abolishany department but not the post sanctioned under the Tenth Plan by theUGC. Another letter of the Vice-Chancellor of the respondent-University,dated 5[th ]December, 2008, addressed to the appellant, also stated that ifthe students are enrolled in a department, the department could not beabolished. Only when there are no students, the Department could beabolished by making a provision for merger or absorption of the employeesand teachers of the department in other departments or faculties of theUniversity.

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26. On a consideration of the material on record, the followinginferences would arise:

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(a) The appointment of the appellant was not contractual innature and he was being paid annual increments also. But,since he protested regarding the deduction of Rs.5,000 fromhis salary every month, the increments were stopped andlater, his services were also terminated.

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(b) Further, when a communication was addressed by the ViceChancellor of the respondent-University to the UGC forsanctioning of grant for Eleventh Plan, there was no mentionregarding abolition of appellant’s post.

(c) There was also adequate strength of students for thecontinuation of the Department of Political Science by theUniversity.

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(d) The UGC had the funds to pay as grants for the post evenafter the completion of the Tenth Five Year Plan insofar asregular appointees are concerned and the appellant wasone such regular appointee who was appointed afterH

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following the requisite procedure as prescribed under theStatutes of the University.

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(e) The University, represented to the UGC on the one handheld out that the post of Assistant professor had beenabolished while on the other hand, it also stated that theBDepartment of Political Science was being continued havingadequate strength of students.

(f) The UGC by its communication dated 16[th ]July, 2007, haddirected the respondent-University to continue the TenthPlan as Eleventh plan. The post held by the appellant wouldcorrespondingly continue even under the Eleventh Plan.

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(g) There was no abolition of the post held by the appellantherein and nor was the Department of Political Scienceabolished by the respondent-University.

(h) It is in the aforesaid circumstances that the UGC, whileDreconsidering the representation of the appellant pursuantto the direction issued by this Court recommended that thetermination of the services of the appellant was incorrectand therefore his services be continued as has been so donein the case of similarly placed appointees of the Tenth Plan.EThe UGC also recommended that in case the Departmentof Political Science has been abolished by the Universitythen the appellant be absorbed in the Social Science Facultyof the University.

(i) There has been no objection raised to the aforesaidFrecommendation of the UGC and order of the respondent-University.

27. In view of the aforesaid discussion, we find that the terminationof the services of the appellant was illegal and not in accordance withlaw. Consequently, we set aside the impugned order passed by the HighCourt and allow the appeal. In the circumstances, the respondent-GUniversity is directed to reinstate the appellant as Assistant Professor inthe Department of Political Science and also grant him the benefit ofcontinuity of services only for the purpose of pension and retiral benefits,if any. The appellant will not, however, be entitled to any disbursementof salary for the period from 31[st ]March, 2007, till the date ofHreinstatement as he has not worked for the said period on the principle of “no work, no pay”. The appellant is, however, entitled to notionalfixation of salary and other benefits in the event other persons similarlysituated to the appellant, have been extended such benefits by theUniversity.

28. Pending interlocutory applications, if any, stand disposed.

Divya Pandey

Appeal allowed.

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