Sushil Kumar Tripathi vs Jagadguru Ram Bhadracharya Handi … on 29 October, 2021


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Supreme Court of India

Sushil Kumar Tripathi vs Jagadguru Ram Bhadracharya Handi … on 29 October, 2021

Author: 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
4
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
5
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
6
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.”
7
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
8
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
9
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
10
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
11
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,
12
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
13
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
14
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.
15

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.

16

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:

17

(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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