Maitreyee Chakraborty vs The Tripura University

2024 INSC 616 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2024 [ARISING OUT OF SLP (CIVIL) NO. 16944 of 2022]

MAITREYEE CHAKRABORTY APPELLANT(s)

VERSUS

THE TRIPURA UNIVERSITY & ORS. RESPONDENT(s)

JUDGMENT

K.V. Viswanathan, J.

1. Leave granted.

2. The present appeal calls in question the correctness of the

judgment of the High Court of Tripura at Agartala dated 20.06.2022 in

W.A. No. 5 of 2020. By virtue of the said judgment, the Division Bench

of the High Court confirmed the judgment of the learned Single Judge

dated 04.12.2019 dismissing the writ petition of the Appellant. Signature Not Verified Digitally signed by Narendra Prasad Date: 2024.08.22 14:41:40 IST Reason: 1 Brief facts:

3. The facts lie in a narrow compass. One Dr. Praveen Kumar

Mishra was working as an Associate Professor in Law in the

Respondent-University. On 27.11.2015, the Executive Council of the

Respondent-University granted a lien for one year to Dr. Praveen

Kumar Mishra to enable him to join the post of Associate Professor in

Law in Sikkim University. On 02.12.2015, Dr. Praveen Kumar Mishra

joined Sikkim University.

4. On 05.05.2016, the Respondent-University issued an

advertisement through an employment notification for various posts by

inviting applications from suitable candidates. In the Department of

Law, for the post of Assistant Professor, three vacancies were

advertised. One was an unreserved regular vacancy. One was a lien

vacancy in the Open category and one was a lien vacancy for the OBC

candidates. The pay-scale was Rs.15600-39100 and the Grade Pay was

Rs.6,000/-. In the note appended in Clause 19, it was mentioned

“Appointment made to the posts against LIEN vacancy are likely to be

regularized subject to vacation of lien and satisfactory performance.”

Importantly, it was a common advertisement for all the three vacancies. 2 We say this, at the outset, because both the learned Single Judge and the

Division Bench proceeded on the basis that what was advertised was

only a lien vacancy. No doubt, two of the vacancies were lien

vacancies. However, there was one regular post also notified in the

Unreserved category and hence it will be too much to assume that

candidates would not have applied in full measure on the premise that

only lien vacancies were advertised.

5. On 05.09.2016, pursuant to the Appellant’s application for the

post of Assistant Professor in Law in the Unreserved category (UR), she

was asked to appear before the Selection Committee. On 09.09.2016,

a list of shortlisted candidates called for interview for the post of

Assistant Professor along with the date and time for the interview was

published. Insofar as the post of Assistant Professor (Law) was

concerned, the time fixed was 12.30 PM on 21.09.2016 and about 16

candidates including the Appellant and one Sri. Brij Mohan Pandey

were called for the interview.

6. On 20.11.2016, the 26th Meeting of the Executive Council of the

University was held and the Agenda for consideration of the panel and

names of persons recommended by the concerned Selection Committee 3 for various teaching posts was taken up and approved. Insofar as the

Assistant Professor in Law was concerned, the following was

mentioned.

4. Assistant 2-UR 21.09.2016 1. Brij Professor in Law (1 lien Vacancy) Mohan Pandey

2. Maitreyee Chakraborty

A note was appended below which reads as under:-

“N.B. Candidate at Serial No 2 against the post of Assistant Professor in Law shall be given the offer of appointment against Lien Vacancy. In case the candidate at Serial No 1 does not accept the offer of appointment given to him against regular/ substantive vacancy, the post shall go to the candidate at Serial No 2 and Candidate at Serial No 3 on the approved panel shall be given the offer of appointment against the Lien Vacancy.”

7. As would be clear, at Serial Number No.1 was Sri. Brij Mohan

Pandey and he was taken against the regular vacancy. The Appellant

was adjusted against the Unreserved lien vacancy. There was a clear

stipulation that in case Mr. Brij Mohan Pandey did not accept the offer

of appointment given to him against the regular/substantive vacancy,

the post was to go to the Appellant who was at Serial No.2. It is another

4 matter that Mr. Brij Mohan Pandey took up the appointment. However,

this is significant because this fact negates the reasoning of the

University, the learned Single Judge as well as the Division Bench that,

what was advertised was only a lien vacancy and, as such, many

meritorious candidates would not have applied.

8. Be that as it may, on 07.12.2016, an offer of appointment was

made offering the Appellant the post of Assistant Professor in Law (UR)

against lien vacancy. Paras 1 and 2 of the appointment letter are crucial

and reads as under:-

“In accordance with the decision of the 26th meeting of the Executive Council of the University held on 20th November, 2016, I am to inform you that you have been selected for appointment to the post of Assistant Professor in Law (UR) against Lien vacancy in the Pay Band of Rs. 15600-39100 plus Academic Grade Pay (AGP) of Rs. 6000 and other admissible allowances subject to the terms and conditions as set out herein and as amended from time to time.

2. Your appointment is against Lien vacancy and hence liable to be terminated with the joining of the incumbent concerned back to the substantive post held by him in this University. In case the lien is vacated, your service may be continued further with the approval of the Executive Council of the University.”

9. To summarize, the appointment order mentioned that a) the

appointment was against the lien vacancy; b) it was liable to be

5 terminated with the joining of the incumbent concerned back to the

substantive post and c) in case the lien is vacated, the Appellant’s

service may be continued further with the approval of the Executive

Council of the University.

10. The Appellant, after resigning her job from the Tripura

Government Law College, joined the University in the post of Assistant

Professor in Law with effect from 17.01.2017 (F/N) and has been

continuously working for the last seven years and six months.

11. On 08.03.2017, the lien granted to Dr. Praveen Kumar Mishra was

extended by six months with effect from 15.12.2016. When the matter

stood thus, in the 29th Meeting of the Executive Council of the

University held on 14.11.2017 vide Agenda 12/29/2017, the resignation

tendered by Dr. Praveen Kumar Mishra vide letter dated 18.09.2017

from the post of Assistant Professor, Department of Law, Tripura

University was accepted. The situation then was that Dr. Praveen

Kumar Mishra, who held the lien, forfeited any lien that may have

existed. Ordinarily, by virtue of Note 19 of the employment notice, the

Appellant was expecting her regularization since there was nothing

adverse in her performance. However, that was not to be. 6

12. In the 32nd Meeting of the Executive Council held on 13.12.2018,

vide Agenda 18/32/2018, while other teachers working in their

respective posts were confirmed, the Appellant was not confirmed and

the Executive Council resolved to re-advertise the post. On 28.12.2018,

the Appellant was informed by the Registrar as follows:-

“No.F.TU/REG/PF-T/201/17 Date 28.12.18 To Smt. Maitreyee Chakraborty, Assistant Professor, Department of LAW, Tripura University

Madam,

You have joined this University to the Post of Assistant Professor, Department of LAW against lien Vacancy on 17.01.2016.

As per resolution of 32nd Meeting of the Executive Council held on 13th December, 2018 your post has not been confirmed which will be re-advertised in time.

This is for your information and doing the needful.

(S.Debroy) Registrar (i/c)”

13. Here again, nothing was mentioned about any adverse

performance. On the same day, the Appellant wrote a letter asking for

the reasons and pointing out that the Minutes of the 32nd Executive

Council Meeting which was circulated in the official mail merely

7 mentioned: “as per rules not confirmed”. In the 32nd Meeting of the

Executive Council dated 13.12.2018, at Agenda 18/32/2018, the issue

was to consider the confirmation of services of the teachers of the

University to their respective posts which are mentioned in the table as

Annexure-II. The Resolution was :- “as per rules not confirmed”. Post

to be re-advertised.”

14. On 06.02.2019, the Appellant was informed that (in continuation

of the University’s letter of 28.12.2018) her continuation in the post

beyond 28.02.2019 was not possible and that the service against the lien

was to expire on 28.02.2019. She was also asked if she was interested

to work as a Guest Faculty and if so, she was asked to apply for the

same, after observing all the formalities.

15. The Appellant represented to the Registrar, Tripura University,

asking for reasons for the proposed discontinuance. The Appellant also

sought a response to her letter of 28.12.2018 and further letters to the

Vice-Chancellor and the Dean dated 24.01.2019. No reply was

forthcoming.

8 Proceedings before the High Court:

16. The Appellant filed a Writ Petition No. 302 of 2019 before the

High Court impugning the Resolution of the 32nd Meeting of the

Executive Council dated 13.12.2018 and the letter of the Registrar dated

06.02.2019 and prayed that she be confirmed in the post of Assistant

Professor in Law, Tripura University. An interim order of 28.02.2019

was passed suspending the Resolution of the 32nd Meeting of the

Executive Council and the letter dated 06.02.2019 of the Registrar.

17. A counter affidavit came to be filed by the Respondent-University.

A plea was set up that discretion lay with the authority about the

continuance of the Appellant, even if the candidate holding the lien had

vacated the lien. It was further averred that the issue about regularizing

or re-advertising was in the larger interest of the candidates who had

not applied (as the post was under lien). What is significant is that

nothing adverse about the appellant was set out anywhere in the counter.

By a judgment of 04.12.2019, a learned Single Judge, while rejecting

the contentions of the Appellant and dismissing the writ petition held as

follows:-

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“[9] The stand taken by the Tripura University one can find no fault.

It can be appreciated that when a temporary vacancy is advertised which vacancy is created on account of the substantive holder of the post not being available for a temporary period, many eligible interested candidates may be persuaded not to apply. If a person is holding a permanent post or even a semi-permanent engagement under some other organization, he may not want to join a temporary vacancy, resign from his permanent or semi-permanent engagement at the risk of being told sometime later and since the lien holder has returned back and is likely to join his original position he should vacate the post. In that view of the matter, the decision of the Executive Council to re-advertise the post once the post became permanently vacant stands to reason. The decision therefore must be upheld.”

18. Aggrieved by the order of the learned Single Judge, the Appellant

preferred a Writ Appeal No. 5 of 2020 before the Division Bench of the

High Court. The Division Bench of the High Court, by a judgment

dated 20.06.2022, affirmed the order of the learned Single Judge and

dismissed the Appeal.

Contentions:

19. We have heard Mr. Ghanshyam Joshi, learned counsel for the

Appellant and Mr. Sujeet Kumar, learned counsel for the Respondent-

University. We have also considered the written submissions filed by

the Appellant.

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20. Mr. Ghanshyam Joshi, learned counsel for the Appellant reiterated

the submissions made before the courts below and contended that the

decision of the Executive Council dated 13.12.2018 resolving not to

confirm the Appellant and to readvertise the post was illegal and that it

deserves to be quashed. Learned counsel also contended that the courts

below have erred in appreciating the true nature and character of the

advertisement issued. According to the learned counsel, the

employment notice issued insofar as the unreserved category was

concerned, advertised for two posts of Assistant Professor in Law.

According to learned counsel, one was a full regular vacancy and the

other was designated as a lien vacancy.

21. Learned counsel submits that it was an error to assume that all

eligible candidates desiring to apply would not have applied since the

vacancy was a lien vacancy as there was no separate method of applying

prescribed. Whoever applied was entitled to be considered for the

regular vacancy also and as such until the final selection there was no

way of knowing against which vacancy they would be selected.

According to learned counsel, this erroneous assumption formed the

11 basis of the judgment of the learned Single Judge and the Division

Bench.

22. Learned counsel further made reference to Clause 19 in the

employment notice as well as to the Minutes of the 26th meeting of the

Executive Council dated 20.11.2016 and to the letter of offer of

appointment, to contend that the absence of anything adverse being

noticed in the performance of the Appellant, she ought to have been

confirmed since she had undergone the normal process of selection.

Learned counsel relied upon the judgment in Somesh Thapliyal & Anr.

vs Vice Chancellor, H.N.B. Garhwal University & Anr., (2021) 10 SC

116 and the judgment in Meher Fatima Hussain vs. Jamia Milia

Islamia & Ors., 2024 INSC 303 in support of his submissions. Mr.

Sujeet Kumar supported the findings in the judgment of the courts

below and contended that there was no scope for interference with the

same.

Question for Consideration:

23. The question that arises for consideration is whether the

Respondent-University was justified in resolving on 13.12.2018 at the

12 32nd Meeting in Agenda No.18/32/2018, that the Appellant was not to

be confirmed and that the post was to be readvertised? If not, the further

question would be as to what relief should the Appellant be entitled to?

Reasoning and Conclusion:

24. As explained earlier, the reasoning that many interested eligible

candidates would not have been persuaded to apply is not correct

because what was advertised was one regular vacancy and two lien

vacancies, with one of the lien vacancies being unreserved. At least 16

candidates were shortlisted for the interview from the many applicants.

In our view, it would not be correct to assume that because one of the

unreserved vacancies was a lien vacancy many eligible candidates

would not have applied. One vacancy advertised being a regular

vacancy, it is fair to assume that the interested candidates would have

definitely applied and as such no prejudice has been caused to any

person. This fact is reinforced by a perusal of the 26 th Meeting of the

Executive Committee dated 25.11.2016 whereby while offering Mr.

Brij Mohan Pandey the regular vacancy, the Appellant at Serial No.2

was offered the lien vacancy which is for the Unreserved Category (UR)

with a note that, in case the candidate at Serial No.1 did not take the 13 regular vacancy, the Appellant was to be accommodated against the

same. No doubt Mr. Brij Mohan Pandey took the regular vacancy but

it could not be disputed that all the candidates were competing against

the regular vacancy also.

25. Quite apart from that, Note 19 to the employment notice also

indicated that, subject to satisfactory performance and on vacation of

lien by the candidate holding the lien the appointee is likely to be

regularized. No reasons have been given in the 32nd Meeting of the

Executive Council dated 13.12.2018 or in the letter dated 28.12.2018 as

to why the Appellant was not confirmed. The liberty reserved in the

appointment order cannot be exercised in an arbitrary manner. There

was no case made out by the University to deny the Appellant, her

confirmation.

26. The Appellant went through the normal process of selection. The

employment notice set out that appointments made to the posts against

LIEN vacancies are likely to be regularized subject to vacation of lien

and satisfactory performance. The lien admittedly got vacated. The

performance has been satisfactory as nothing adverse had been pointed

out and the Appellant is discharging the duties for more than seven 14 years. While approving the panel of names also it was clearly mentioned

that in case the candidate at Serial No.1 – Sri. Brij Mohan Pandey did

not accept the offer, the Appellant was to be accommodated against the

regular vacancy. This clearly demonstrates that all the applicants

competed for the regular post also and no one from the open market

could have been prejudiced. Most importantly, the offer of appointment

also stated that in case the lien was vacated, the Appellant’s service was

to be continued further with the approval of the Executive Council of

the University.

27. In this background, particularly when the Appellant was put through

the fire test of a regular selection, was the University justified in

denying her confirmation when all the contingencies were cleared with

the vacation of the lien and the performance being satisfactory? We

think not. The University cannot be heard to say:- ‘may be the lien is

vacated, and your performance is satisfactory, but we do not want to

confirm your service’. The Respondent-University, being a statutory

body, any such conduct would tantamount to an arbitrary and

unreasonable exercise of power, apart from being unfair. The discretion

vested in the Executive Council should be exercised in a fair and non- 15 arbitrary manner. It cannot be based on the whim and caprice of the

decision-making authority. If asked to justify, the Executive Council

must have good reasons to defend the exercise of power. In this case,

alas, there are none. The resolution of the Executive Council denying

confirmation and preferring readvertisement is delightfully vague and

offers no justification. The justification desperately attempted in the

counter affidavit to defend the decision has, as demonstrated above,

come a cropper.

28. In Somesh Thapliyal (supra) it was held as under:-

“49. In our considered view, once the Appellants have gone through the process of selection provided under the scheme of the 1973 Act regardless of the fact whether the post is temporary or permanent in nature, at least their appointment is substantive in character and could be made permanent as and when the post is permanently sanctioned by the competent authority.

50. In the instant case, after the teaching posts in the Department of Pharmaceutical Sciences have been duly sanctioned and approved by the University Grants Commission of which a detailed reference has been made, supported by the letter sent to the University Grants Commission dated 14-8-2020 indicating the fact that the present Appellants are working against the teaching posts of Associate Professor/Assistant Professor sanctioned in compliance of the norms of the AICTE/PCI and are appointed as per the requirements, qualifications and selection procedure in accordance with the 1973 Act and proposed by the University, such incumbents shall be treated to be appointed against the sanctioned posts for all practical purposes.”

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29. Mehar Fatima Hussain (supra), while following Somesh

Thapliyal (supra), held on the facts of that case that where appointment

was after undergoing a regular selection process and the incumbents

possess the relevant qualification, they should have been continued on

the posts merged with the regular establishment of the University

instead of adopting a fresh selection procedure. Further in that case the

University’s action of not continuing the incumbents and starting a fresh

selection process was held to be unjust, arbitrary and violative of Article

14 of the Constitution of India. Directions to continue the employment

were given. On the facts of the present case too we are inclined to adopt

a similar course.

30. Considering the facts obtaining in the present case, we are

inclined to hold that, in the absence of any material indicating

unsatisfactory performance, in the ordinary course of things, fair and

just exercise of power would require that the Appellant be confirmed

against the vacancy since there was no more a lien being exercised by

Dr. Praveen Kumar Mishra. The reasoning given by the learned Single

Judge and of the Division Bench, as demonstrated above, are fallacious.

The Appellant has, after undergoing the regular selection process, been 17 working since 17.01.2017, for the last seven years and approximately

six months. Even in the impugned order, pending the proposed re-

advertisement, she was continued in service.

31. The representations in the employment notice, the Resolution of

the Executive Council and the appointment order did give rise to a

legitimate expectation to the Appellant that in the event of the lien being

vacated, the appellant would be continued in service and regularized in

the said post. The only condition was that it will need the approval of

the Executive Council.

32. In Ram Pravesh Singh and Others vs. State of Bihar and Others,

(2006) 8 SCC 381, this Court observed that the repository of the

legitimate expectation is entitled to an explanation as to the cause for

denial of the expected benefit flowing from the representation held out. Ram Pravesh Singh (supra) was recently followed by the Constitution

Bench in Sivanandan C.T. and Others vs. High Court of Kerala and

Others, (2024) 3 SCC 799. Chief Justice D.Y. Chandrachud, speaking

for the Constitution Bench, after felicitously tracing the entire history

of the development of the doctrine of legitimate expectation, held in

para 18 as under:-

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"18. The basis of the doctrine of legitimate expectation in public law is founded on the principles of fairness and non-arbitrariness in Government dealings with individuals. It recognises that a public authority's promise or past conduct will give rise to a legitimate expectation. The doctrine is premised on the notion that public authorities, while performing their public duties, ought to honour their promises or past practices. The legitimacy of an expectation can be inferred if it is rooted in law, custom, or established procedure."

33. In the said judgment of the Constitution Bench, it was further held

following Food Corporation of India vs. M/s Kamdhenu Cattle Feed

Industries, (1993) 1 SCC 71 that public authorities have a duty to use

their powers for the purpose of public good and that the said duty raises

a legitimate expectation on the part of the citizens to be treated in a fair

and non- arbitrary manner. One of the exceptions recognized in the

above judgment is that the doctrine of legitimate expectation will cede

to larger public interest.

34. In the present case, the only explanation given in the counter

affidavit of the State was that the University had a discretion and that

the denial of regularization and the decision to re-advertise was in the

larger interest of the candidates who had not applied as the post was

under lien. This explanation found favour with the High Court.

However, we have in our discussion above, demonstrated that one of

19 the post of the Assistant Professor (Law) was clearly a regular post in

the Unreserved Category. We have found that no prejudice to public

interest could have been caused as eligible candidates desiring the

appointment would have anyway applied to compete for the regular

slot. In view of this, in the facts of the present case, we find that the

legitimate expectation was not outweighed by any overriding public

interest.

35. The mandate of Ram Pravesh Singh (supra) as reiterated in

Sivanandan C.T. (supra) that the appellant was entitled to an

acceptable explanation for the denial of the expectation remains

unfulfilled. This is an additional ground on which the appellant should

succeed.

36. In view of the aforesaid, we set aside the judgment of the learned

Single Judge dated 04.12.2019 and of the Division Bench dated

20.06.2022. We also set aside the Resolution in Agenda No.18/32/2018

of the 32nd Meeting of the Executive Council held on 13.12.2018 insofar

as it records that the Appellant is not confirmed in service and that the

post should be readvertised. We also set aside the letter of the Registrar

dated 06.02.2019 directing that her services will not be continued 20 beyond 28.02.2019. We further issue a writ of mandamus directing the

Respondent-University to place the Appellant’s case for confirmation

before the Executive Council and that the Executive Council and the

Respondent-University shall pass appropriate resolution/order(s), in

accordance with the findings given in the present judgment. The said

exercise is to be carried out within four weeks’ time. The Appellant

should also be given all consequential benefits.

37. The appeal stands allowed in the above terms. There shall be no

order as to costs.

………........................J. [J.K. MAHESHWARI]

……….........................J. [K. V. VISWANATHAN]

New Delhi;

22nd August, 2024.

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