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Supreme Court of India
Sushil Kumar Tripathi vs Jagadguru Ram Bhadracharya Handi … on 29 October, 2021Author: Hon’Ble Dr. Chandrachud
Bench: Hon’Ble Dr. Chandrachud, B.V. Nagarathna
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6255 OF 2021
(ARISING OUT OF SLP(C) NO.17893 OF 2008)
DR. SUSHIL KUMAR TRIPATHI ……..APPELLANT(S)
VS.
JAGADGURU RAM BHADRACHARYA ……RESPONDENT(S)
HANDICAPPED UNIVERSITY & ANR.
J U D G M E N T
NAGARATHNA J.
This appeal has been filed by the appellant being
aggrieved by the judgment dated 8th February,2008, passed by
the Division Bench of the High Court of Judicature at
Allahabad in Civil Misc. Writ petition No. 20470 of 2007, by
which the aforesaid writ petition was dismissed.
2. Succinctly stated the facts of the case are that the
Signature Not Verified
respondent-University which was established in the year 2001
Digitally signed by
Chetan Kumar
Date: 2021.10.29
16:05:30 IST
Reason:
was included in the List of Universities eligible to receive
assistance from the Central Government under Section 12(b) of
2
the University Grants Commission Act, 1956 (‘UGC Act’ for
short) and Rules framed thereunder, with effect from 20 th May,
2003.
3. The respondent-University framed Statutes in the year 2002
providing for various faculties including Faculty of Social
Science of which Political Science is a Department.
4. In April, 2004, the University Grants Commission (‘UGC’
for the sake of convenience) under its Tenth Plan issued
grants to the respondent-University including the grant in
respect of financial support for one lecturer in the
Department of Political Science. On 3rd July, 2004, the
respondent-University advertised inter-alia for filling up of
vacancy in the Department of Political Science. The appellant
herein applied and was selected to the post of Assistant
Professor and was issued appointment letter dated 4th
December, 2004, in the grade pay scale of Rs.8,000-13,500.
5. According to the appellant, every month he was forced to
pay Rs.5,000 from his salary to the University as donation to
which he objected but nevertheless continued to pay the
amount to the University. Thereafter, the appellant wrote to
the Vice-Chancellor of the University to grant him Ph.D.
incentive as admissible under UGC grant. On 19th July, 2006,
the Registrar of the University replied that since his post
was only for the Tenth Plan which was going to expire on 31 st
3
March, 2007, his services would be automatically terminated
on the said date i.e.31st March, 2007. The appellant received
another communication, dated 1st March, 2007, from the
Registrar of the University stating that his services were no
more required by the University with effect from 31st March,
2007, as his post was abolished.
6. The appellant being aggrieved by the abolition of the post
and his consequent removal, filed a Civil Misc. Writ Petition
No.20470/2007 before the Allahabad High Court. According to
the appellant, on the one hand, the respondent-University had
stated that his post had been abolished while on the other
hand, had requested respondent no.2 – UGC for continuation of
grant for all the posts under the Tenth Plan even under the
Eleventh Plan by showing that the appellant was working in
the Department of Political Science as on 6th April, 2007.
7. According to the appellant, the High Court listed his Writ
Petition on 2nd November, 2007, and had directed that written
arguments be filed on 5th November, 2007. By impugned order
dated 8th February, 2008, the Division Bench of the High Court
held that there was neither any illegality nor any infirmity
in the orders of the respondent-University for abolishing the
post and therefore had rightly terminated the services of the
appellant and it dismissed the Writ Petition. Being
aggrieved, special leave petition was filed by the appellant
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herein in which leave was granted vide order dated 7th
October, 2021.
8. We have heard Mr. Amit Anand Tiwari, learned counsel for
the appellant, Mr. Jitendra Mohan Sharma, learned Senior
Counsel for respondent no.1-University and Mr. Ravinder
Agarwal, learned counsel for respondent no.2-UGC and perused
the written submissions as well as the material on record.
9. Mr. Tiwari, learned counsel appearing for the appellant,
contended that there has been wrongful termination of the
appellant as Assistant Professor in the Department of Political
Science by the respondent-University. In support of this
submission, reliance was placed on the recommendation of the
Expert Committee vide its Report dated 5th February, 2019, which
has been accepted by the UGC and there has been no objection
raised to the said recommendation by the respondent-University.
Elaborating the said contention, it was submitted that the
appellant was appointed as an Assistant professor pursuant to an
advertisement dated 3rd July, 2004 and though the same was under
the Tenth Five Year Plan and it was supported by the UGC,
appellant’s services were in fact continued even under the
Eleventh Five Year Plan. However, the services of the appellant
were wrongfully terminated on the lapse of the Tenth Five Year
Plan on 31st March, 2007, with an intention of discontinuing the
appellant as Assistant Professor in the respondent-University on
the ground that he had been appointed during the Tenth Five Year
Plan. But fact is that the respondent-University had communicated
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to the UGC, the requirement of a post in the Department of
Political Science even under the Eleventh Plan. This was the very
post held by the appellant herein. Therefore, the termination of
the appellant on the lapse of the Tenth Plan was illegal.
10. Learned counsel for the appellant drew our attention to the
fact that the Expert Committee constituted by the UGC initially
had submitted an adverse recommendation but subsequently when
another Expert Committee was constituted by the UGC a detailed
report was submitted with the recommendation to reinstate the
appellant as Assistant Professor of the respondent-University. The
same is supported by reasons given by the Expert Committee. It was
submitted that the Expert Committee had categorically stated that
the termination of the appellant as Assistant professor in
Department of Political Science was “perverse and incorrect”. In
the circumstances, the said recommendation may be accepted and the
appellant may be reinstated in service. It was contended that the
respondent-University had terminated the services of the appellant
as he had earlier protested against payment of Rs.5,000 per month
as donation to the University as said amount was deducted from his
salary without any justification. Hence, it was submitted that
relief may be granted to the appellant herein on the basis of the
recommendation made by the second Expert Committee of the UGC as
the respondent-University had not objected to the same.
11. Mr. Agarwal, learned counsel for the UGC, which was impleaded
as respondent no.2 in this appeal, also submitted that the
representation of the appellant dated 19th October, 2012, was
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considered by the Chairman of the UGC as the errors in the Report
of the earlier Expert Committee were pointed out and a second
Expert Committee was constituted to reconsider the grievances of
the appellant. The second Expert Committee took into account the
documents submitted by the appellant including those obtained
under the Right to Information Act (RTI Act) and it had observed
as under:
“In reply to the RTI application moved by the Peti-
tioner, University had admitted that all teachers ap-
pointed under the Xth plan were made permanent with ef-
fect from the date of their appointment and an order to
this effect was issued by the University on 27.03.2010.
Vide letter dated 28.07.2018 written by the University
to the UGC, it was stated that all the teachers ap-
pointed under the Xth Plan were appointed on a contract
for 5 years, but pursuant to order dated 27.03.2020,
the teachers appointed under the Xth Plan were treated
as permanent with effect from the date of their ap-
pointment.
Even after the abolition of the Department of Political
Science and Philosophy, the University, vide letter
dated 06.04.2007, had sought funds under the XIth Plan
from UGC. In their proposal the University had shown an
additional requirement of one post in Department of Po-
litical Science, and the existing working strength in
the said department was shown as 2.
In the letter dated 13.11.2008 written by the Vice
Chancellor to the Petitioner it was admitted that there
was nothing to show that the appointment of the Peti-
tioner was contractual.
The Vice Chancellor of the University in his letter
dated 05.12.2008, had admitted that even in case where
no students are enrolled, the Department may be abol-
ished by making a provision for merger/absorption of
the teachers in other department(s).
All other appointees under the Xth Plan were made per-
manent except the Petitioner.”
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It was further submitted by learned counsel for the
respondent-UGC that the second Expert Committee recommended that
the termination of the services of the appellant was “perverse and
incorrect” and hence, he had to be reinstated as Assistant
Professor, Department of Political Science and in case the said
department had been abolished, absorbed in any other department or
faculty of the University.
12. Per contra, Mr. Sharma, learned senior counsel for the
respondent-University reiterated the reasoning of the Division
Bench of the High Court in the impugned judgment and contended
that the appointment of the appellant was under a scheme of the
UGC sanctioned under the Tenth Five Year Plan and the said
appointment was to come to an end on the expiry of the said plan
on 31st March, 2007. In the circumstances, the services of the
appellant were rightly terminated by the University as the post
held by the appellant stood abolished and the services of the
appellant were no longer required by the University. It was
contended that the appointment of the appellant was not on a
permanent basis but the post which the appellant held was under
the Tenth Plan and it was categorically mentioned in the letter of
appointment dated 4th December, 2004, issued to the appellant that
his appointment to the post was under the Tenth Plan and was
likely to be continued depending upon his performance and
availability of post. Since the Tenth Plan 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 terminated as his
appointment was a tenure based appointment and the post had been
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abolished. It was urged that in view of the aforesaid facts, the
High Court had correctly concluded that the services of the
appellant were rightly terminated on 31st March, 2007, having
regard to the nature of the appointment and the terms and
conditions thereof. Learned senior counsel for the respondent-
University submitted that there is no merit in this appeal and the
same may be dismissed.
13. The question that arises in this appeal is, whether, the
termination of the services of the appellant was legal and in
accordance with law or not.
14. It is noted that as per communication dated 29th May,
2004, by the UGC, to the Universities of all the States/UTs,
including the respondent-University herein, owing to the
financial difficulties faced by the Universities, the UGC had
decided to offer the following three options to the
Universities for filling up all the posts approved during the
Tenth Plan period to safeguard the interest of the students:
“(A) Assurance may be obtained from the State
Government for taking over the liability of these
posts after tenth plan period.
OR
(B) Assurance may be given by the University
through a resolution of the Executive Council to
bear the burden of these posts after Tenth Plan.
OR
(C) Appointment shall be made on contractual
basis.”
The University could opt for any of the above three
options for filling up all the posts by fulfilling the
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conditions regarding qualification, etc., of the posts as
prescribed under the UGC Regulations.
15. Accordingly, the respondent-University on 3rd July, 2004,
advertised for filling up, inter-alia, vacancy in the
Department of Political Science. Pursuant to the
advertisement, the appellant applied for the vacant post and
was appointed as Assistant professor in the Department of
Political Science, Faculty of Social Science. The Clause No.
7 of appointment letter dated 4th December, 2004, reads as
under ……….
“His appointment to the post is to be for X-Plan, but
likely to be continued depending upon the performance
of the candidate and availability of post.”
16. The pay scale of the appellant was Rs.8,000-13,500 and
the gross salary was Rs.13,095. According to the appellant,
Rs.5,000 per month 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 19th July, 2006, addressed to the Vice
Chancellor of the respondent-University, sought for grant of
benefit of Ph.D incentive and annual increment and for
payment of Dearness Allowance, etc., There was no response to
the aforesaid letter but on 1st March, 2007, the Registrar of
the respondent-University informed the appellant that he was
appointed in the Faculty of Social Science, Department of
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Political Science as Assistant professor under the Tenth Five
Year Plan which was coming to an end on 31 st March, 2007, and
therefore, his appointment was to automatically come to an
end on the said date and the requirement of his services
would depend entirely on the decision of the University. As a
sequel to the above, on 31st March, 2007, the Registrar
communicated to the appellant that as per the decision of the
University dated 28th March, 2007, the post held by the
appellant had been abolished and therefore, his services were
no more required by the University.
17. Appellant has produced the communication dated 6th April,
2007, written by the University addressed to the Chairman,
UGC, acknowledging the generous contribution from the UGC
during the Tenth Plan and the contribution to be made by the
UGC to the Eleventh plan proposal including the details of
the strength in each faculty. According to the appellant, at
the end of Tenth plan, the Department of Political Science
had not been abolished by the University nor could it be said
there 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 was not on contractual basis but it was
categorically stated therein that the appointment was under
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Tenth Plan and it was likely to be continued depending upon
the performance of the candidate and the availability of the
post.
19. In fact, UGC was impleaded in this appeal by order dated
6th May, 2010 as respondent no.2 and was directed to consider
the representation of the appellant herein without being
influenced by any finding of the High Court.
20. According to the UGC, initially, the representation of
the appellant was placed before an Expert Committee, which
examined the grievances of the appellant and submitted its
report to the UGC. The UGC examined the representation of the
appellant in light of the report submitted by the Expert
Committee and by order dated 23rd December, 2011, had rejected
the representation. The appellant again addressed a
representation to Chairman of the UGC dated 19th October,
2012, pointing out the errors in the report of the Expert
Committee and requested for re-examination of his case. The
appellant had also obtained certain documents under Right to
Information Act for the consideration of the UGC and the
Expert Committee.
21. The UGC constituted another Expert Committee to look into
the grievances of the appellant afresh on the direction of
this Court and after deliberations held on 29 th January, 2019,
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and taking into consideration the material placed by the
appellant has observed and recommended as under:
“(I) As regards the terms of the appointment letter
dated 04.12.2004, it is observed that the appointment
letter was completely silent on the issue as to
whether the appointment was permanent or contractual.
It simply mentioned that his appointment to the post
was for X-Plan, but was likely to continue depending
upon the performance of the candidate and
availability of post. As per the Clause 10.21 of the
JRHU Regulations, 2002, all appointments of teachers
was to be made on probation for a period of 12 months
and in no manner it could be extended beyond 24
months. As per Clause 10.22, at the end of the
probation period, the incumbent was to be made
permanent on his appointment by the EC. This was also
admitted by the University in its reply under RTI to
Dr. Tripathi vide their reply dated 14.08.2013. It
was also mentioned in the said reply (Reply at 1/B)
that upon the completion of probation, all the
appointment would be treated as permanent. Moreover,
it was also stated in the said reply that the
teachers appointed under the X Plan were made
permanent w.e.f. the date of 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 has
been stated that the appointed teachers had also been
given annual increments w.e.f. the date of completion
of probation. It must be highlighted here that Dr.
Tripathi was also given annual increment.
These facts, obtained under RTI by the applicant-Dr.
Tripathi, were not placed before the UGC Committee
that had considered and disposed of the
representation of Dr. Tripathi in 2011.
Placed at Annexure-III
(II) Here reference may also be made to the letter
dated 28.07.2018 written by the University to the UGC
wherein it has been categorically stated that all the
teachers appointed under the X Plan were appointed on
contract for 5 years at the end of their term on
31.03.2007 but pursuant to the order dated 27.03.2010
and in compliance of the same, the teachers appointed
under X Plan were treated as permanent w.e.f. the
date of their appointment.
Placed at Annexure-IV
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This fact was also not placed before the UGC
Committee that had considered and disposed of the
representation of Dr. Tripathi in 2011 as this
information was provided by the University in its
response dated 28.07.2018 to a letter of UGC.
(III) As regards the stand taken by the University
vide their letter dated 25.04.2008 that the
appointment made in the X Plan was on contractual
basis, the same seems to be an afterthought as it is
made out from two communications of the University.
1st the EC meeting dated 28.03.2007 wherein it was
decided that all the other departments would continue
expert for the Political Science and Philosophy
departments that were decided to be closed down. But
ironically, the University in its letter dated
06.04.2007, written immediately thereafter and
addressed to the Chairman, UGC has mentioned in its
proposal for the XI Plan, about the additional
requirement of the post of Political Science (1) and
has shown in the column ”number of enrollment as on
31.03.2007” as 60 total. Working strength is also
shown to be as “2” in the Department of Political
Science.
Placed at Annexure- V & VI respectively
(IV) It is also pertinent to mention that UGC on the
basis of the letter dated 06.04.2007 of the
University, vide their letter dated 16.07.2007
released 1 st instalment of General Development
Assistance specifically mentioning therein that ‘the
Commission has decided to allow the Universities to
use this grant for purchase of books, journals and
equipments and X Plan posts”.
Placed at Annexure-VIII
(V) It is also pertinent to observe that the Vice
Chancellor of JRHU vide his letter dated 13.11.2008
addressed to Dr. Tripathi had stated categorically
that “the appointment of Dr. Shushil Kumar Tripathi
does not show any condition that he has been
appointed on contract basis and in fact he has been
shown as permanent employee in letter dated
22.01.2006, the Vice Chancellor of the University
wrote to Deputy Director, Distance Education Council,
Maidan Garhi, New Delhi.
I must mention here that the sanctioned and
financially supported post(s) by the UGC under 10 th
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Plan cannot be self-abolished at the end of the plan.
However, the University has the power to abolish any
department but not the post sanctioned under 10th Plan
by the UGC after giving assurance”.
The Committee also refers to letter dated 05.12.2008
written by the Vice-Chancellor, JRHU to Dr. Tripathi
wherein it is stated as below:
“It is clarified that any department cannot be
abolished in the event of the students are enrolled.
Even in the cases when are no students, only the
department may be abolished by making a provision 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 at Annexure-VIII.
(VI) This goes to demonstrate that the University,
for reasons best known to them, were not interested
in continuing with Dr. Tripathi only whereas all the
other appointees under the X Plan were made permanent
and were extended all other benefits.”
“In view of the above said facts and circumstances of
the matter and in supersession of the earlier order
dated 23/12/2011 of UGC bearing no. F 85-1/2013 (SU-
II), this Committee is of the considered opinion that
the abolition/termination of the post/services of Dr.
Sushil Kumar Tripathi as Assistant Professor,
Political Science was perverse and incorrect and thus,
this Committee recommends that the services of Dr.
Sushil Kumar Tripathi as Assistant Professor,
Department of Political Science in JRHU may be
continued as had been so done in the cases of
similarly placed appointees/teachers of X Plan. In
case the Department of Political Science has been
abolished by the University, the University may absorb
Dr. Sushil Kumar Tripathi in other Department/Faculty
of the University.”
A copy of the minutes of the Expert Committee dated 5 th
February, 2019 is annexed as Annexure R-1 by the UGC.
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22. The UGC by its order dated 28th February, 2019 on quoting
the aforesaid recommendation addressed to the Registrar of
the respondent-University as well as to the appellant herein
informed about the recommendation of the Expert Committee,
inviting objections, if any, to the same by the University
within a month from the date of the receipt of the said order
in the following terms:
“In view of the abovesaid facts and circumstances
of the matter and in supersession of the earlier
order dated 23/12/2011 of UGC bearing No.F.85-
1/2003(SU-II), this Committee is of the considered
opinion that the abolition/termination of the
post/services of Dr. Sushil Kumar Tripathi as
Assistant Professor, Political Science was
perverse and incorrect and thus, this Committee
recommends that services of Dr. Sushil Kumar
Tripathi as Assistant Professor, Department of
Political Science in JRHU may be continued as had
been so done in the cases of similarly placed
appointees/teachers of X Plan. In case, the
Department of Political Science has been abolished
by the University, the University may absorb Dr.
Sushil Kumar Tripathi in other Department/Faculty
of the University.”
There is no material placed on record to show that any
objection has been raised by the respondent-University to the
aforesaid order of the UGC.
23. It is evident that the aforesaid recommendation of the
Expert Committee constituted by the UGC order dated 8th
February, 2019, is contrary to the earlier order passed by
the UGC dated 23rd December, 2011, rejecting the
representation of the appellant.
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24. In fact, on perusal of the communication dated 13 th
November, 2008, sent by the Vice-Chancellor of the
respondent-University to the appellant herein, it was clearly
indicated that the appointment of the appellant was not on
contractual basis and in fact, the appellant was shown as
permanent employee in letter dated 22nd January, 2006, written
by Vice-Chancellor of the University to Deputy Director,
Distance Education Council. It further stated that the post
held by the appellant was sanctioned and financially
supported by the UGC under the Tenth Plan, and the same would
not have been automatically abolished at the end of the Plan.
25. Moreover, the respondent-University had the power to
abolish any department but not the post sanctioned under the
Tenth Plan by the UGC. Another letter of the Vice-Chancellor
of the respondent-University, dated 5th December, 2008,
addressed to the appellant, also stated that if the students
are enrolled in a department, the department could not be
abolished. Only when there are no students, the Department
could be abolished by making a provision for merger or
absorption of the employees and teachers of the department in
other departments or faculties of the University.
26. On a consideration of the material on record, the
following inferences would arise:
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(a) The appointment of the appellant was not contractual in
nature and he was being paid annual increments also. But,
since he protested regarding the deduction of Rs.5,000
from his salary every month, the increments were stopped
and later, his services were also terminated.
(b) Further, when a communication was addressed by the Vice
Chancellor of the respondent-University to the UGC for
sanctioning of grant for Eleventh Plan, there was no
mention regarding abolition of appellant’s post.
(c) There was also adequate strength of students for the
continuation of the Department of Political Science by
the University.
(d) The UGC had the funds to pay as grants for the post even
after the completion of the Tenth Five Year Plan insofar
as regular appointees are concerned and the appellant was
one such regular appointee who was appointed after
following the requisite procedure as prescribed under the
Statutes of the University.
(e) The University, represented to the UGC on the one hand
held out that the post of Assistant professor had been
abolished while on the other hand, it also stated that
the Department of Political Science was being continued
having adequate strength of students.
(f) The UGC by its communication dated 16th July, 2007, had
directed the respondent-University to continue the Tenth
18
Plan as Eleventh plan. The post held by the appellant
would correspondingly continue even under the Eleventh
Plan.
(g) There was no abolition of the post held by the appellant
herein and nor was the Department of Political Science
abolished by the respondent-University.
(h) It is in the aforesaid circumstances that the UGC, while
reconsidering the representation of the appellant
pursuant to the direction issued by this Court
recommended that the termination of the services of the
appellant was incorrect and therefore his services be
continued as has been so done in the case of similarly
placed appointees of the Tenth Plan. The UGC also
recommended that in case the Department of Political
Science has been abolished by the University then the
appellant be absorbed in the Social Science Faculty of
the University.
(i) There has been no objection raised to the aforesaid
recommendation of the UGC and order of the respondent-
University.
27. In view of the aforesaid discussion, we find that the
termination of the services of the appellant was illegal and
not in accordance with law. Consequently, we set aside the
impugned order passed by the High Court and allow the appeal.
In the circumstances, the respondent-University is directed
19
to reinstate the appellant as Assistant Professor in the
Department of Political Science and also grant him the
benefit of continuity of services only for the purpose of
pension and retiral benefits, if any. The appellant will not,
however, be entitled to any disbursement of salary for the
period from 31st March, 2007, till the date of reinstatement
as he has not worked for the said period on the principle of
“no work, no pay”. The appellant is, however, entitled to
notional fixation of salary and other benefits in the event
other persons similarly situated to the appellant, have been
extended such benefits by the University.
28. Pending interlocutory applications, if any, stand
disposed.
………………………………………………………………….J
[DR DHANANJAYA Y CHANDRACHUD]
..……………………………………….J
[VIKRAM NATH]
…………………………………………J
[B.V. NAGARATHNA]
NEW DELHI;
OCTOBER 29, 2021.
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