Gauhati High Court
WA/82/2022 on 22 March, 2022
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
Page No.# 1/39
GAHC010040092022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/82/2022
Dr. Biswajit Sarma,
Son of Late Dugdha Nath Sarmah,
Resident of Rajamaidam,
P.O. & P.S. Jorhat,
District- Jorhat, Assam,
PIN- 785001
......Appellant
-Versus-
1. The Gauhati University,
Represented by the Vice Chancellor,
Gopinath Bordoloi Nagar, Jalukbari,
Guwahati-781014.
2. The Registrar,
Gauhati University,
Gopinath Bordoloi Nagar, Jalukbari,
Guwahati-781014.
3. The Executive Council,
Represented by the Vice Chancellor and
Chairman, Executive Council,
Gauhati University,
Gopinath Bordoloi Nagar, Jalukbari,
Guwahati-781014.
......Respondents
4. The State of Assam,
Represented by the Commissioner and Secretary,
Education (Higher) Department,
Dispur, Guwahati-06.
...... Proforma Respondent
Page No.# 2/39
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE NANI TAGIA
For the Writ Appellant : Mr. U.K. Nair, Sr. Advocate.
: Mr. P. Saikia, Advocate.
: Ms. M. Das, Advocate.
For the Respondent Nos.1 -3 : Mr. K.N. Choudhury, Sr. Advocate.
: Mr. P.J. Phukan, Advocate.
For the Respondent No.4 : Mr. K. Gogoi, Standing Counsel,
Education (Higher) Department.
Dates of Hearing : 07.03.2022 & 14.03.2022.
Date of Judgment : 22.03.2022.
JUDGMENT AND ORDER (CAV)
[N. Kotiswar Singh, J.]
Heard Mr. U.K. Nair, learned senior counsel assisted by Mr. P. Saikia, learned counsel
for the appellant. Also heard Mr. K.N. Choudhury, learned senior counsel assisted by Mr. P.J.
Phukan, learned Standing Counsel, Gauhati University appearing for respondent Nos.1-3 and
Mr. K. Gogoi, learned Standing Counsel, Education (Higher) Department appearing for
respondent No.4.
Page No.# 3/39
THE ISSUE
2. The moot question to be decided in this writ appeal, arising out of the judgment and
order dated 25.02.2022 passed in WP(C) No.1447/2021 is, of the true nature of the
appointment of the appellant to the post of Director, College Development Council of the
Gauhati University.
The writ appellant contends that the appointment is of permanent nature and as such,
termination of his service by the University authorities by treating the post to be a tenure
post is ex-facie illegal.
On the other hand, the case of the respondent Gauhati University is that the said
appointment is a tenure one, restricted in time and thus, terminable on completion of 5 (five)
years period.
BRIEF FACTS
3. In order to appreciate the rival contentions and to understand the true nature of the
appointment of the appellant, it would be necessary to advert to certain basic background
facts.
4. An advertisement was issued by the Gauhati University for certain posts including one
post of Director, College Development Council vide Advertisement No.NTS-1/2013 by
specifying that it will be initially for a period of 5 (five) years. The advertisement reads as
follows:
"GAUHATI UNIVERSITY
GUWAHATI-781014
Page No.# 4/39
Advertisement No. NTS-1/13
1. Secretary, University Classes- 1(one) post (Permanent)
2. Controller of Examiantions-1(one) post (Permanent)
3. Director, College Development Council- 1 (one) post (Initially for a period of 5 years)
4. Research Officer - 1 (one) post (Temporary on contractual Basis) in G.U. Institute of North
East Studies (GUINES)
For Post No.1, 2 & 3 :
Minimum Educational Qualification and experience for the post of secretary, University Classes,
Controller of Examinations and Director, CDC.
A. A Master degree with at least 55% marks or its equivalent grade of B in the seven point
scale.
B. At least 15 years of experience as Assistant Professor/Lecturer with 8 years as Associate
Professor/Reader/Selection Grade Lecturer along with experience in educational administration.
OR
Comparable experience in a research establishment and/or other institutions of higher education.
OR
15 years of administrative experience of which 5 years as Deputy Registrar or equivalent grade.
Desirable: 1. Ph.D. degree shall be desirable but not an essential qualification.
2. For the post of pay of Controller of Examinations adequate experience in conducting
University level examinations is essential
Scale of Pay: UGC Scale of pay of Pay Band Rs.37,400-67,000/- (PB-4) with Grade Pay of Rs.10,000/-
with other allowances and benefits as admissible as per Gauhati University rules.
Age: Should not be below 45 years on 01.03.2013
..............................................
......................................"
5. Pursuant to the said advertisement, the selection process was held and on the basis of the recommendation of the Selection Committee, the appellant was appointed to the post of Director, College Development Council vide appointment order under Ref. No. GU/Estt/OCR/Advt. & App/Director, CDC/NTS-1-2013/1873 dated 11.06.2015.
6. While making the appointment, it was clearly mentioned in the appointment order that the post is permanent and the retiral benefits would be as per the provision of Gauhati Page No.# 5/39 University Pension Rules.
Relevant terms and conditions mentioned in the appointment order dated 11.06.2015 are as follows, "..........
...........
Dear Dr. Sarma, I am glad to inform you that you are selected for appointment to the post of Director, College Development Council, Gauhati University, under the general terms and conditions to be regulated by the Gauhati University Act 1947 as amended upto date , the statutes and Rules of the University in force from time to time and under the following terms and conditions:
1. Name of the Post : Director, College Development Council, G.U.
2. Nature of the post : The post is permanent
3. Pay Band & AGP : Rs.37,400-67,000/-+ Grade Pay Rs.10,000/-
4. Initial salary : As per G.U. Rules.
5. Leave and vacation : Leave and vacation will be governed by the rules in force at the University.
6. Duties and : As prescribed by G.U. authority of the responsibilities University from time to time.
7. Residential : Residential accommodation will be provided as Accommodation per the rules and regulations of the University.
8. Travelling allowance : No Travelling allowance will be provided for joining the post.
9. Retiral Benefits : As per provision of G.U. Pension rules.
10. Medical examination : You will required to submit a physical fitness from the Chief Medical Officer of the University within 10 days from the date of the joining. Till receipt of the fitness certificate your joining the University will be provisional.
If you are not medially fit for the post, this offer will be withdrawn.
10. Verification of : You will be required to produce your original Certificate degree and diploma and other certificates at the time of your joining along with a photocopy of certificate of HSLC/HS Examination in support of your age.
Page No.# 6/39 .......................................
............................................."
7. According to the appellant, after receipt of the appointment order dated 11.06.2015 issued by the Registrar, Gauhati University, the appellant requested the Government of Assam, Higher (Education) Department to grant lien as he was earlier serving as an Associate Professor in Jorhat Engineering College, Jorhat, to enable him to join the post of Director, College Development Council, which was duly granted to him vide Notification No. ATE.29/2011/219-A dated 25.06.2015 for a period of 1(one) year with effect from the date of handing over charge on the condition that he must return to the parent Department on completion of the admissible lien period or resign from his post if he is permanently absorbed in the borrowing Department, failing which his lien will stand terminated.
8. After being released from Jorhat Engineering College on 26.06.2015, the appellant joined Gauhati University in the aforesaid post on 27.06.2015.
9. According to the appellant, he was discharging his duty as the Director, College Development Council, Gauhati University on regular basis and was also assigned additional responsibilities from time to time.
10. It was contended that while he was serving as the Director, College Development Council on 25.02.2021, he came to know that an emergent Executive Council meeting of the University was convened at 2:00 P.M. and was surprised to know the Agenda No.3 of the said Executive Council meeting which related to a "Report of the Committee constituted to look into the matter of tenure of service, treatment of appointment of Dr. Biswajit Sarma, Director, College Development Council, Gauhati University".
Page No.# 7/39
11. The appellant contended that he was kept in the dark about any such exercise being undertaken relating to his service. Accordingly, the appellant met the Vice Chancellor on 26.02.2021 to intervene in the matter and submitted a detailed representation, who then informed the appellant that because of certain complaints, a Committee was constituted to look into the matter of his appointment tenure and terms of his appointment. The appellant states that he somehow managed to get a copy of the Notification for constituting the said Committee which consisted of 5(five) Members including Professor M.P. Bezbaruah, Department of Economics and Professor B.P. Duarah, Department of Geological Science, Gauhati University as Members. According to the appellant, the said two Members of the Committee were biased against him as they had earlier questioned the appointment of the appellant in the University.
It is the case of the appellant that in the entire exercise, the appellant was kept in the dark and was not given any opportunity to put his point of view in complete violation of the principles of natural justice.
12. Subsequently, the appellant was released from the post of Director, College Development Council, Gauhati University with effect from 26.02.2021 (afternoon) purportedly on the basis of a resolution of the Executive Council held on 26.02.2021 which accepted the report of the Committee constituted to look into the matter of tenure of service and terms of his appointment as Director, College Development Council, Gauhati University, vide impugned release order dated 26.02.2021.
13. Being aggrieved by the said release order, the appellant filed a writ petition, being WP(C) No.1447/2021 challenging the Resolution of the Executive Council dated 26.02.2021 as Page No.# 8/39 well as the release order dated 26.02.2021.
DECISION OF THE LD. SINGLE JUDGE
14. Ld. Single Judge after hearing the parties, rejected the plea of the appellant by holding that the appellant/writ petitioner is not entitled to any relief and vacated the earlier interim order passed in his favour. However, while disposing of the writ petition, it was observed that the decision in the writ petition would not preclude the petitioner to seek appropriate remedy for any other relief which he may seek including the possibility to claim his service in Jorhat Engineering College, Jorhat.
15. Ld. Single Judge repelled the claim of the appellant/writ petitioner that he was appointed to a permanent post on permanent basis.
16. As regards the plea of the appellant that the report of the 5 (five) Member Committee constituted to look into the matter of tenure of service and terms of his appointment as Director, College Development Council, Gauhati University was prepared behind his back, the Ld. Single Judge observed that as it was not an adversarial proceeding, there was no need to hear the petitioner.
17. The Ld. Single Judge also held as provided under Rule 9(30-A) of the Fundamental Rules that even a tenure post is a permanent post and there is no dispute with the Advertisement No.NTS-1/2013 by which the post of Director, College Development Council was advertised, in which it was clearly indicated that the appointment was initially for a period of 5 years and there was no material on record to show that the tenure of the said post was made for an unlimited period.
Thus, it was held that if the appointment is to be made permanent then it would have Page No.# 9/39 to be made on completion of the period of 5(five) years.
Though two appointment orders were brought to the notice of the Ld. Single Judge at the time of hearing, one showing the post to be permanent and other indicating it to be a tenure post, Ld. Single Judge held that since the petitioner himself had applied to a post with a tenure of 5(five) years with eyes wide open, even if, any appointment order had been erroneously issued in his favour that it is a permanent appointment, it would be of no consequence.
18. According to the Ld. Single Judge, in view of the specific stipulation in the advertisement, the tenure of the appellant would end after expiry of 5(five) years service.
On that ground the Ld. Single Judge held that the petitioner has no legal right to continue beyond the period of 5(five) years and if the proposition of the petitioner that his appointment was of permanent nature in terms of the appointment order is to be accepted, it would amount to giving a seal of approval to an illegality committed by the Registrar of the Gauhati University in issuing such an appointment order on permanent basis.
Under the circumstances and for the aforesaid reasons, the Ld. Single Judge declined to go to the other issues raised, by holding that the petitioner is not entitled to any relief claimed and accordingly, dismissed the petition vide impugned order dated 25.02.2022.
19. It is this impugned order which is the subject matter of challenge before us in this writ appeal.
CONTENTIONS OF THE APPELLANT
20. The appellant has challenged the correctness of the finding arrived at by the Ld. Single Judge on various grounds which have been contested by the respondents and as such, Page No.# 10/39 we will briefly refer to their respective contentions.
21. Mr. U.K. Nair, learned senior counsel for the appellant submits that though the Gauhati University had issued the advertisement for 1(one) post of Director, College Development Council which was initially for a period of 5(five) years as mentioned in the advertisement, on being selected, he was offered appointment to the said post by making it specifically clear that the post is permanent and he will enjoy Pay Band & AGP of Rs.37,400-67,000/- + Grade Pay Rs.10,000/- and that he would be entitled to retiral benefits as per provisions of Gauhati University Pension Rules.
22. Mr. U.K. Nair, learned senior counsel has laid great emphasis on the terms and conditions of the appointment order, which according to him, unmistakenly mention that the appointment was of a permanent nature and not a tenure one.
He submits that it has been very clearly mentioned in the appointment order that the he would be entitled to retiral benefits as per provisions of Gauhati University Pension Rules which makes it abundantly clear that it is a permanent post, as otherwise he would not have been granted pensionary benifits.
23. Mr. Nair submits that the petitioner accepted the said terms and conditions which were knowingly offered by the Gauhati University and the said acceptance of the aforesaid terms and the conditions and appointment of the appellant as the Director, College Development Council (CDC) in terms of the said appointment was duly approved by the Executive Council, the highest authority of the University.
It has been submitted that in fact, the appellant had been treated throughout his tenure after his appointment as the Director, CDC as a regular employee of the University which is Page No.# 11/39 also clearly indicated in the "No Objection Certificate" (NOC) issued by the Gauhati University when he sought to apply for the post of Registrar in Cotton College State University. In the said NOC, it has been certified by the Registrar, Gauhati University that Dr. Biswajit Sarma, the appellant is a permanent employee of this University since 27.06.2015 holding the post of Director, College Development Council.
24. It has been submitted that similarly, in all the documents including the Identity Card issued by the Gauhati University, the appellant had been shown to be a regular employee of the University. In the Identity Card, it has been specifically mentioned that the appellant would retire on attaining the age of superannuation in the month of August, 2027.
It has been also submitted that apart from the appointment order and other documents which speak of the appointment of the appellant as permanent, the course of action undertaken by the authorities in seeking to relieve the appellant from the post of Director by treating it to be a tenure post without any notice is illegal.
25. According to Mr. Nair, learned counsel for the appellant, the release order was issued on the basis of a resolution of the Executive Council taken on 26.02.2021 based on certain biased report prepared by a Committee consisting of 5(five) Faculty Members of the University without giving any opportunity to the appellant of hearing, thereby giving no opportunity to explain his position. Thus, the resolution of the Executive Council as well as the report of the Committee were acted upon in complete violation of principles of natural justice.
26. It has been submitted that at no point of time the appellant was informed of the said exercise to change the nature of appointment of the appellant, contrary to the clear terms Page No.# 12/39 and conditions mentioned in the appointment order and as such, any such report prepared without hearing him and behind his back cannot be invoked to the prejudice of the appellant.
27. Mr. Nair submits that apart from the fact that the report was prepared by the Committee behind the appellant's back, some of the Members of the Committee were prejudiced and biased against him, thus vitiating the report.
28. It has been submitted that Professor Mr. B.P. Duarah, before he was made a Member of the Committee, had made a comment and posted in his Facebook account on 02.11.2020, though without naming the appellant but certainly indicating his appointment, stating that one officer in an institute was appointed against a 'term post' and somehow in the appointment letter issued, the condition was written as 'permanent appointment' and the officer still continues even after completion of 5(five) years period and as such, it is part of the corruption which was prevailing in the University.
Similarly, it has been alleged that Professor M.P. Bezbaruah, another Member of the Committee also had made certain complaints against the appellant before the Vice Chancellor without any basis. Thus, it was contended that the said report of the Committee is vitiated because of the presence of the highly biased and prejudiced members.
29. Mr. Nair, learned senior counsel in submitting that the appointment of the appellant is to a permanent post and not to a tenure post, has referred to an earlier decision of the Executive Council held in the year 2006 by which the Executive Council resolved that a regular post of Director, College Development Council be created.
30. Mr. Nair submits that the factual background for creation of the post of Director, College Development Council by the Executive Council would indicate that it was a permanent Page No.# 13/39 post. He submits that there was a discussion in the Academic Council meeting regarding creation of a full-fledged Director, College Development Council at Gauhati University.
Mr. Nair submits that in the note of the agenda before the Executive Council it was mentioned that there was a discussion in the Academic Council meeting regarding creation of a full-fledged post of Director, College Development Council in Gauhati University which was then placed before the Executive Council, for necessary approval. It has been submitted that the post of Director, College Development Council was created in the middle of eighties to look after the development matters of the affiliated colleges. It was mentioned in the note that the post continued for six years. But after the incumbent retired, the post was not filled up. Subsequently, the UGC was pressing hard for creation of a full-fledged post of the Director, College Development Council, to look after the development matters of all the colleges and suggestion was made by the NAAC team during the assessment of G.U. The note also mentioned that with the adoption of a new education policy by the Government of India and multifarious academic activities to be undertaken by all the institutions of the higher Education including the colleges, a full-fledged Director, College Development Council, in the University had become an urgent necessity and many Universities like Dibrugarh, NEHU etc. had already created such a post. It was also mentioned that the number of affiliated colleges of the University had gone up to around 250 and many colleges were receiving U.G.C. grants and some are yet to receive grants after getting registered under Section 2F or 12 B of the UGC Act.
31. Mr. Nair further submits that in the said note it was mentioned that the University already had a post of Inspector of Colleges and as per the Statute he was to inspect the colleges and help the colleges in getting U.G.C. assistance. As such the duties of Director, Page No.# 14/39 College Development Council were practically performed at that moment. Accordingly, it was proposed that the Executive Council may create the post of Director, College Development Council, keeping in view the post of Inspector of Colleges which was already in existence.
32. Accordingly, in view of the above requirement for the post of Director, College Development Council, the Executive Council resolved that the post of Director, College Development Council be created in Gauhati University.
33. Mr. Nair, learned senior counsel for the appellant further submits that the creation of the post of Director, College Development Council was done by abolishing the post of Inspector of Colleges and re-designating the same as Director of College Development Council as also clearly mentioned in the report of the Committee. It was thus submitted that if the substantive post of Director was created by re-designating/abolishing another regular post of Inspector of Colleges, there could be no doubt that the post of Director which was advertised was a regular post to which the appellant was subsequently appointed on regular basis as also clearly mentioned in the appointment order.
34. Mr. Nair accordingly submits that the appellant was appointed as the Director, College Development Council on regular basis as the post was created on regular basis.
35. Mr. Nair further submits that the fact that the said Committee was biased against the appellant is clearly evident from their own observation made in the report. He submits that though it has been mentioned in the report that the nature of the post of the Director is tenure and it is for a period of five years, which is contrary to the records as mentioned above, the Committee itself acknowledges that in both the appointment letters which were brought to the notice of the Ld. Single Judge, the conditions in both the appointment letters Page No.# 15/39 were same and the nature of the post has been written as "the post is permanent".
Thus, though the Committee members themselves found that in both the appointment letters, the post was shown to be permanent, the Committee made a startling finding that the post is of tenure nature.
36. Mr. Nair, learned senior counsel for the appellant has also raised serious objection to the issuance of the so-called second appointment letter which, according to him, was a manipulated document to change the nature of the appointment of the appellant as the Director, College Development Council behind his back.
37. Mr. Nair further submits referring to the recommendation of the Committee that the appellant ought to have sought clarification on the difference of the terms of the tenure service mentioned in the two appointment letters, where in one letter it was shown that the post is permanent and in the other, the post is shown to be initially for 5(five) years, the question of seeking any clarification does not arise inasmuch as it was very clear that the post is of permanent nature and it was the University authorities themselves which issued the appointment order which mentioned that the post is permanent and as such, no fault could be found with the appellant, more so when the second appointment letter was never issued to him.
38. Accordingly, Mr. Nair submits that in fact there is no contradiction in the appointment order with the advertisement. Rather, the appointment order issued in favour of the appellant shows that the post is permanent which is in accord with the records, which clearly show that the post of Director created was of a permanent nature.
39. Mr. Nair further submits that it was never the case of any one including the University Page No.# 16/39 that an error was committed when the first appointment order was issued, and the appellant was never made aware of such a second appointment order being issued subsequently. However, the Committee sought to change the terms of appointment without giving any opportunity to the appellant of being heard as regards the same.
40. Mr. Nair forcefully asserts that the terms and conditions of the appointment mentioned in the appointment order could not be varied to his disadvantage without hearing the appellant. To that extent, any such decision taken by the authorities by converting or changing the nature of appointment from permanent to tenure purportedly on the finding of the Committee is ex-facie illegal and liable to be set aside.
41. Mr. Nair also submits that before the appellant joined the post of Director, College Development Council, he was serving as an Associate Professor in Jorhat Engineering College, Jorhat on regular basis and upon joining the service as the Director, College Development Council, he was granted lien for a period of 1(one) year and the said lien has now expired as the appellant continued to serve more than 1(one) year on regular basis in the University in terms of the appointment order dated 11.06.2015. Thus, if the appellant is not restored to his service, he will have nowhere to go without his fault.
CONTENTIONS OF THE RESPONDENTS (UNIVERSITY)
42. Mr. K.N. Chouhury, learned senior counsel appearing for the respondent Gauhati University has vehemently opposed the pleas of Mr. U.K. Nair, learned senior counsel for the appellant. By supporting the conclusion of the Ld. Single Judge, Mr. Choudhury, learned senior counsel has submitted that the judgment and order rendered by the Ld. Single Judge does not warrant any interference from this Court as the appellant has no substantive right to Page No.# 17/39 continue to the post of Director, College Development Council beyond 5(five) years after completion of the tenure period of 5(five) years.
43. Mr. Choudhury, learned senior counsel submits that it will be very clear from the pleadings and records that there is no basis for the appellant to claim that he is a regular employee of the University except for merely referring to the appointment order, the NOC and the ID Card, without reference to the advertisement as well as the other relevant materials on record.
44. Mr. K.N. Choudhury, learned senior counsel submits that the post of Director, College Development Council was created sometime in the year 2006. However, there was no specific resolution of the Executive Council, which was taken on 19.06.2006 for creation of a permanent post. What the resolution merely states is for creation of the post of Director, College Development Council without mentioning whether it is a tenure or permanent post.
45. He contends that however, that it is a tenure post is clear from the fact that after the said post was created and the post was advertised in 2009, on the basis of the said advertisement, one Dr. Satyendra Kumar Choudhury, who was serving in the Department of Chemistry of Cotton College was recommended for appointment as the Director, College Development Council, Gauhati University for a period of 5(five) years or till attainment of 60 years of age, whichever was earlier. In the said appointment order, it was specifically mentioned that the appointment may be terminated by giving in writing one month's notice on either side and the appointing authority shall have the power to terminate the service without notice and without any cause being assigned. It has been submitted that it is a different matter that said Dr. Satyendra Kumar Choudhury did not join the said post of Page No.# 18/39 Director in terms of offer of appointment letter dated 25.05.2009. It however, clearly indicated that the post of Director is not a regular post but merely a tenure post. Since the said Dr. Satyendra Kumar Choudhury did not join the post, the post was offered to another person, namely, Professor Dipak Kumar Sharma vide appointment letter dated 12.08.2010 in which it was very clearly mentioned that his appointment was for a period of 5(five) years or till attainment of 60 (sixty) years whichever was earlier in the scale of Rs.16,400-450-20,900- 500-22,400/- (pre-revised) with usual allowances and with retirement benefits admissible under the University Rules on approval of the Executive Council vide its Resolution No.R/EC- 05/2010/100 dtd.30.07.2010 and his pay would be fixed as per the Gauhati University Rules. It was also mentioned that he would be subjected to the University Rules for leave, conditions of services, general conduct etc. in force from time to time and his duties and responsibilities would be as prescribed for the post by UGC and as may be prescribed by authority of the University from time to time.
46. It was accordingly submitted that from the above, it is very clear that the post of Director against which Professor Dipak Kr. Sharma was appointed is a tenure post. Thus, on completion of tenure period of 5(five) years by the said Professor Dipak Kr. Sharma, the said post was again advertised against which the appellant was appointed.
47. It has been submitted by Mr. Choudhury, learned senior counsel that in the minutes of the Selection Committee held on 21.10.2014, it has been very clearly mentioned that it is a tenure post and initially for a period of 5(five) years.
A copy of the minutes of the said proceedings of the minutes of the Selection Committee, though not part of the original pleadings, was produced during the time of Page No.# 19/39 hearing of the writ petition before the Ld. Single Judge of which a reference is to be found in the impugned judgment.
48. Mr. Choudhury has refuted the significance of the appointment order dated 11.06.2015 on which much emphasis was laid by the appellant to contend that the post is permanent. He submits that merely because it is mentioned as a permanent post in the appointment order, it does not necessarily mean that the petitioner has been appointed on a permanent basis.
In this regard, Mr. Choudhury, learned senior counsel has referred to Gauhati University Leave Rules, 1966 under which it has been mentioned under Rule 2(vii) that "Permanent employee" for the purpose of the Rules means an employee appointed substantively on probation to a permanent post and an employee appointed for a term under the provisions of the Gauhati University Act, 1947 as amended.
49. Accordingly, Mr. Choudhury submits that an employee can be appointed against a term post on regular basis also. Further, referring to F.R.9(13) wherein lien has been defined, he submits that it also includes the title of a Government servant to hold substantively not only a permanent post but also a tenure post to which post a person can be appointed substantively. Further referring to F.R.9(22) he submits that "Permanent post" means a post carrying a definite rate of pay sanctioned without limit of time. On the other hand, F.R.9(30) defines "Temporary post" as a post carrying a definite rate of pay sanctioned for a limited period and F.R.9(30-A) defines "Tenure post" as a permanent post which an individual Government servant may not hold for more than a limited period.
Mr. Choudhury accordingly, submits in the light of above provisions that the appointment of the appellant is to be read as appointment on a permanent basis but for a Page No.# 20/39 limited period of 5(five) years.
50. Mr. Choudhury further submits that the conduct of the appellant clearly indicates that he was fully aware that he was appointed to a tenure post. It was submitted that in his correspondence with the University on 20.06.2017 while seeking information regarding the agenda item on "matter related to the lien of Director, CDC, GU before placing it in the EC", the appellant expressed his surprise on how such a matter could be placed before the Executive Council when no discussion or communication was made to him, claiming that since lien is a matter between the person concerned and his parent department, it had nothing to do with the Gauhati University (his current employer) and he sought to know about the matter which was being placed before the Executive Council so that he could place his point of view.
According to Mr. Choudhury, the aforesaid communication dated 20.06.2017 to the Vice Chancellor clearly indicates that the appellant was fully aware that he was on lien and he could claim it on the basis of his earlier appointment with the parent department, i.e., the Jorhat Engineering College, and he would not have made the said claim if he considered himself to be a regular employee of the Gauhati University.
51. Mr. Choudhury has also laid great emphasis on the decision of the Executive Council to contend that the post is a tenure post.
Mr. Choudhury submits that the Executive Council in its meeting held on 26.02.2021 fully discussed the report of the Committee wherein it was clearly mentioned that the available documents establish that the post of Director, College Development Council is a tenure post for a period of 5(five) years. It was submitted that in all the documents issued till Page No.# 21/39 the appointment of the appellant, it was clearly mentioned that the appointment shall be made initially for a period of 5 (five) years and in the appointment letters issued to both Dr. Satyendra Kumar Choudhury and Dr. Dipak Kr. Sharma, the tenure was mentioned as for a period of 5 (five) years. Accordingly, the Executive Council after considering the findings of the Committee held that it is a tenure post.
52. Mr. Choudhury, submits that as per Section 13(F) of the Gauhati University Act, the Executive Committee is the final authority as far as matters relating to appointment, terms and conditions of teachers, librarians, proctor, clerical staff and other employees of the University are concerned, which includes the post of Director, College Development Council.
Section 13 of the Gauhati University Act reads as follows:
13. Powers and duties of the Executive Council. The Executive Council-
(a) shall hold, control and administer the property and funds of the University and shall appoint a Finance Committee to advise it on matters of finance consisting of six members of whom the Vice Chancellor shall be the Chairman, the Treasurer shall be the Secretary and the other four members shall be appointed as follows:
(i) ..................
(ii) ............................
....................................
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(f) shall appoint officers (other than the Chancellor, the Vice Chancellor and the Rector), Teachers, Librarian, the Protocor, the clerical staff and other employees of the University and shall define their duties and conditions of service and shall provide for the filling up of temporary vacancies;
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Page No.# 22/39 Provided that no action shall be taken by the Executive Council in respect of the members, qualifications or emoluments of Teachers, otherwise than in consultation with the Academic Council; and .............................................."
Thus, the Executive Council, being the highest authority of the University as regards the post of Director, College Development Council also, having decided that it is a tenure post, there is no scope for further argument that it is a permanent post as sought to be demonstrated by the appellant.
53. Mr. Choudhury, learned senior counsel, accordingly, submits that the finding arrived at by the Ld. Single Judge is based on the records. Thus, decision of the Executive Council and the finding by the Ld. Single Judge that any such terms and conditions of the recruitment could not have been altered by any authority of the University including the Registrar while issuing the appointment order, does not warrant any interference from this Court.
54. Mr. Choudhury, learned senior counsel accordingly submits that the mandamus as sought by the appellant if issued, would tantamount to converting the appointment of the appellant against a tenure post to a permanent appointment which would be against the rules and the decision of the Executive Council and as such, would be beyond the scope of the Court to do so.
55. Mr. Choudhury, learned senior counsel, in support of his contentions has relied on the following decisions:
1. Dr. L.M. Nath Vs. Dr. S.K. Kacher and Ors., (1996), 1 SCC 229.
2. Dr. S.K. Kacher Vs. All India Institute of Medical Sciences and Ors., (1996) 10 SCC 734.
Page No.# 23/39
3. Dr. L.P. Agarwal Vs. Union of India and Ors., (1992) 3 SCC 526.
4. K. Shekar Vs. V. Indiramma and Ors., (2002) 3 SCC 586.
5. Gadde Venkateswara Rao Vs. Govt. of Andhra Pradesh and Ors., (1966) 2 SCR 172 : AIR 1966 SC 828.
6. Tabong Pasar Vs. State of Arunachal Pradesh and Ors., (1999) 2 GauLJ 238 : (1999) 2 GauLR 550 : (1999) 3 GauLT 90.
7. Union of India and Ors. Vs. Arun Kumar Roy, (1986) 1 SCC 675.
56. Thus, from the above, the core issue which is to be determined is whether the appointment of the appellant to the post of Director, College Development Council is a regular appointment as claimed by the appellant or a tenure appointment as claimed by the University.
CONSIDERATION BY US
57. In our view, to properly understand the nature of the appointment, obviously, the appointment order must first be examined as it contains the terms and conditions of the appointment. However, the appointment order cannot be the sole basis and decisive as other relevant factors must also be examined if there is a dispute about the scope of the appointment order. After examining the appointment order, the terms and conditions in the advertisement must be examined as the appointment order is the consequential result of the action taken on the advertisement, as appointment takes its colour from the advertisement. Thereafter, to confirm the nature of the post, one should examine the relevant service rules under which the advertisement is issued. Afterall, it is the service rules which determine the nature of the post and the manner in which it is to be filled up and as such advertisement Page No.# 24/39 and appointment order must conform to the relevant service rules.
58. In the present case, it has been clearly mentioned in the initial appointment order dated 11.06.2015 that the post is permanent. Unless disputed, the appointment order should be basis for determining the nature of the post. However, in the present case, it is seriously disputed. Consequently, we have to refer to what the advertisement states. It is the advertisement which ordinarily and normally notifies the nature of the post and manner in which the appointment is to be made. In that context, it is important to understand the terms and conditions of the advertisement.
59. On close examination of the advertisement it is seen that the advertisement mentions 1 (one) post of Director, College Development Council to be appointed initially for a period of 5 (five) years. If a post has been advertised for appointment initially for a period of five years, such appointment is certainly limited by time. As to what will happen after the initial 5 (five) years, nothing is mentioned in the advertisement. Though the advertisement is silent about extension, one may say that it is implied that the appointment may or may not be extended after 5 (five) years. However, if it is to be extended, it would obviously be at the discretion of the employer. Thus, on reading of the advertisement, one may say that the person who will be appointed as the Director, College Development Council will be initially for a period of 5 (five) years which may or may not be extended at the discretion of the employer. In our view, the aforesaid description of the limited tenure of the post, which may or may not be extended at the discretion of the employer does not conform to the nature of a regular employment as a regular appointment will be without such time limitation except by the date of superannuation.
Page No.# 25/39
60. It is now well settled, as also mentioned in F.R.9(22), that "Permanent post" means a post carrying a definite rate of pay sanctioned without limit of time. Thus, a person appointed to a permanent post will hold the office without limit of time which may be circumscribed only by the date of superannuation as may be fixed as per Rules.
But in the present case, as per the advertisement, the tenure is limited by 5 (five) years initially, thus limiting the tenure by a specific time period.
61. As we proceed, it would be appropriate to mention a few aspects of the significance of an advertisement in a recruitment process. Advertisement is a public declaration of the intention of the employer to make certain appointment indicating the nature and requirements for the particular post advertised. Thus, the advertisement generally indicates the number of post to be filled up, the nature of the post and it may also indicate briefly the nature of the duties and functions, qualifications required and the manner in which the appointment is to be made. By advertisement, the nature of the post is made known to the public at large to enable the aspiring job seekers to apply for the same. Naturally, the number of applicants seeking appointment to such advertised post would depend on the kind and the nature of the job being offered. For example, if the post is offered as a permanent post, it would naturally attract more applicants who may even include job seekers who are already in service for a better job prospect. Correspondingly, if the post offered is of a temporary in nature, limited by time and period, it may attract comparatively less number of applicants, for the obvious reason that a temporary post will be less attractive than a regular/permanent post.
62. In the present context, it may not be necessary to go into the other attributes of an Page No.# 26/39 advertisement in respect of public employment, which are considered to be a sine qua non for filling up any public office, which is to offer opportunity to maximum number of eligible candidates and to avoid arbitrariness and to be in conformity with the equality clause under the Constitution of India.
63. As regards the law relating to the recruitment process, it is now well settled that if any public post is advertised, the recruitment process should conform to the manner and method including qualification as advertised. It is well settled that there cannot be any deviation or departure as regards qualifications, manner of appointment which have been already advertised. This is for the simple reason that once a post is advertised and put to public domain, rules for applying to the post and the nature of the post are made known to everybody who wish to take part in the recruitment process. Thus, the publicly notified attributes of the post cannot be changed. As such, any subsequent change regarding the nature of the post and other attributes mentioned in the appointment order contrary to the terms and conditions of the advertisement would be illegal as it would amount to changing the rules of the game, after it has started. Such is the importance of an advertisement as it indicates not only the nature of the post but also how a post is required to be filled up which are publicly notified.
64. In the present case, the post of Director, College Development Council was advertised along with 3 (three) other posts, one post of Secretary, University Classes, one post of Controller of Examinations and one Post of Research Officer. It has been clearly mentioned in the advertisement for the two posts of Secretary, University Classes and Controller of Examinations that these are permanent post. On the other hand, in respect of the post of one Research Officer advertised it is clearly mentioned that it is a contractual post.
Page No.# 27/39 As regards the single post of Director, College Development Council, the advertisement does not mention that it is a permanent post as in the case of aforesaid two posts, but it is clearly mentioned that it is initially for a period of 5 (five) years. Thus, this description of the post of Director, College Development Council in the advertisement put on public domain is indicative of the nature of the post which was sought to be filled up. Anybody who reads the advertisement would not consider it to be a permanent post but a tenure post. For this reason, many job seekers might not have applied for the same, thinking that it is only for a limited period and not regular one.
The fact that this post of Director, College Development Council was advertised to be filled up initially for a period of 5 (five) years clearly shows that there was no intention on the part of the University Authority to fill it up permanently but for a limited period of time of 5 (five) years initially. To that extent, it can be said that any person who is appointed to the said post would have a vested right to hold the post for 5 (five) years in terms of the advertisement. However, after completion of 5 (five) years he would no longer have any vested right but if continued beyond 5 (five) years, it would be at the discretion of the University which may or may not extend the term of appointment though the same is not mentioned in the advertisement but is implicit from the advertisement. Thus, if the University authorities do not extend the tenure beyond 5 (five) years, the incumbent would have no right to claim to continue beyond 5(five) years.
65. In the present case, the time limit for the post has been circumscribed with the outer limit of five years. Since the expression "initially for a period of 5 years" has been used in the advertisement, by implication though not specifically mentioned in the advertisement, such an appointment could be extended beyond five years at the option of the employer.
Page No.# 28/39
66. Under the circumstances, we are of the view that the post which was advertised vide Advertisement No.NTS-1/2013 cannot be said to be a regular or permanent post, to enable the appointee to remain in service till his date of retirement.
If the advertisement does not indicate that the post is a regular or permanent post but a post with certain time limit, obviously, the appointment order, which is the consequential result of the aforesaid advertisement is to be interpreted in the light of the advertisement. The appointment order, obviously, will take its colour from the advertisement as appointment order cannot alter the terms and conditions of the advertisement but must be in conformity with the terms and conditions of the advertisement.
In other words, the contour of appointment order will be shaped by the advertisement and the appointment order cannot contain any term and conditions beyond or which are contrary or does not conform to the advertisement.
67. Yet, as discussed above, if the nature of the post as mentioned in the advertisement is disputed, the service rules governing the post have to be examined. After all, advertisement is merely a public announcement of the intent of the employer to make recruitment in terms of the relevant service rules. Thus, it is the service rules, if existing, which will ultimately decide the nature of the post, if the nature of the post described in the advertisement and appointment order is disputed, as in the present case.
The appellant has contended that irrespective of the advertisement, the post created was a permanent one, hence, the appointment/ recruitment has to be made in that manner as a permanent post and not as a tenure post as no such tenure post of Director, College Development Council was created with which we do not agree.
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68. Having considered that the terms of the appointment order indicates that it is a permanent post but has been provided in the advertisement to the contrary that it is a tenure post, thus creating ambiguities about the real nature of the post, we have to examine the relevant service rules or statutory rules, for terms and conditions of the services of an employee are governed by the rules made under the statute [See Punjab State Warehousing Corp. Vs. Manmohan singh, (2007) 9 SCC 337, Sanjay Kumar Manjul Vs. UPSC, (2006) 8 SCC 42].
69. Unfortunately, in the present case, neither of the contesting parties have brought to our attention any such service rules for the said post of Director, College Development Council, which in our opinion would have clinched the issue. The service rules would have governed the advertisement, which in turn would govern the appointment order, thus clearly indicate the nature of the post as discussed above.
However, instead of any service rules, both the parties have referred to the decision of the Executive Council of the University for creating the said post. In our view, in absence of any service rules for the said post, the decision of the competent authority under the statutes in creating the post or any such related decisions would be relevant.
In the present case, in absence of the service rules the decisions by the Executive Council, the competent authority under the University Act and Rules would be highly relevant to examine the nature of the post. The Executive Council is the final authority as far as determining the terms and conditions of employment of various categories of employees including Director, College Development Council are concerned.
70. While examining the decision of the Executive Council of the Gauhati University in Page No.# 30/39 approving the creation of the post of Director, College Development Council in the year 2006, what we have noted is that certainly a desire was expressed by the University authorities for creation of a full-fledged post of Director, College Development Council to look after the development matter of all the colleges. From the Resolution of the Executive Council of 2006, it clearly appears that it was decided to create a full-fledged post of Director, College Development Council. However, it does not indicate in what manner the said post is to be filled up, either on regular or on tenure basis.
In other words, no decision was taken by the Executive Council that the post is to be filled up on a permanent/regular basis or on a tenure basis. Thus, it appears that the manner the post is to be filled up, either on permanent basis or on tenure basis, was left to the wisdom of the competent authority of the University. Consequently, if the said post is sought to be filled up on tenure basis, it cannot be said to be contrary to the decision of the Executive Council while creating such a post. Whether the post is to be filled up on regular basis or by way of tenure basis is a matter of policy decision of the authorities which does not necessarily co-relate to the decision for creation of such post as can be seen from the proceedings of the Executive Council. Creation of post is one thing and how it is to be filled up is another thing and these are two different and independent aspects. Thus, in our view in the absence of any clear-cut decision by the Executive Council on the manner of appointment while approving creation of the post of Director, College Development Council on 19.08.2006, it would be difficult to accept the plea of the appellant that the post was created to be filled up on regular basis only and not on tenure basis. To that extent, there is substance in the submission advanced on behalf of the Gauhati University that it has been the consistent practice of the Gauhati University to fill up the said post as a tenure post and not as a regular Page No.# 31/39 post as indicated in the earlier appointment orders issued prior to appointment of the present appellant. If the University had intended to fill it up on permanent basis, they could have done it by clearly mentioning in the advertisement, which is the public declaration of the intent, that the post is to be filed up on permanent basis, as had been done in respect of two posts of Secretary, University Classes and Controller of Examinations.
71. Thus, to sum up, in our view in order to ascertain the true nature of a post, one can start with by examining the terms and conditions of the appointment order and if the said terms and conditions of the appointment orders are disputed, one must refer to the terms of the advertisement which would ordinarily decide the nature of the post. However, in the event, there is still dispute about the nature of the post as in the present case even after referring to the advertisement, resort must be taken to the service rules for the post which will ultimately decide the issue. However, in the absence of service rules, the decisions of the competent authority in connection with the creation and appointment of the said post would be relevant. In that regard, the past practices and other attending circumstances relating to the appointment of the post by the competent authority can be also looked into.
72. Having made our observations as above, we would like to consider various submissions advanced by the appellant in support of his claim that the appellant was appointed to a regular post on permanent basis.
73. Mr. Nair, learned senior counsel for the appellant has laid great emphasis on the appointment order that it is a regular appointment.
74. As per the appointment order, without referring to the second appointment order which was apparently brought to the notice of the Ld. Single Judge in course of hearing, the Page No.# 32/39 appointment certainly appears to be a regular one. However, as discussed above, the appointment order takes its colour from the advertisement and if there be any condition which is contrary to or not in conformity with the advertisement, such a condition cannot prevail over the advertisement. To that extent, as the advertisement does not mention the post to be a regular appointment/post, the petitioner cannot claim any right beyond the terms and conditions mentioned in the advertisement. The appointment order cannot change the character and nature of the post advertised. If there be any difference in the terms and conditions mentioned in the appointment order with the advertisement, in our view, the terms and conditions mentioned in the advertisement would prevail. However, as discussed above, the terms and conditions in the advertisement must also conform to the relevant service rules or the statutory provisions relating the said post, for there cannot be any advertisement contrary to the relevant statutory service rules.
In this regard, one may refer to the decision in Somesh Thapliyal Vs. HNB Garhwal University, (2021) 10 SCC 116, wherein the Hon'ble Supreme Court disapproved of the act of the H.N.B. Garhwal University in changing the nature of appointment by inserting terms in the appointment letter which were not in conformity with statutory requirements and prescribed procedure. In the said case, the posts were advertised for regular appointment and selection process was made for regular appointment and there was no mention in the advertisement that appointments would be contractual in nature but at the time of appointment, it was mentioned in the appointment letters that it would be contractual for a period of three years. The Supreme Court held it to be illegal and directed for regular appointment against the sanctioned posts.
In the present case, though the post was advertised to be a tenure post, initially for 5 Page No.# 33/39 (five) years, the appointment order was issued purportedly on permanent basis, which would be impermissible as it was contrary to the advertisement.
75. It is also the case of the appellant that the advertisement is to be read in the context of the decision of the competent authority of the University while approving creation of the said post of Director, College Development Council that, it is of a permanent nature and not a tenure post. However, as discussed above, the post creation decision does not mention specifically that the post is to be filled up on permanent basis and not on tenure basis, thus giving scope to the University to resort to either of the methods of appointment.
76. Mr. Nair, learned senior counsel for the appellant has laid great emphasis on the terms of the appointment issued in favour of the appellant, stating that it is clearly mentioned in the appointment order that the post is of a permanent nature and the appellant will be entitled to pensionary benefits by contending that unless a person is appointed on regular basis, the question of enjoyment of pension does not arise. Therefore, according to Mr. Nair, the fact that the appointment order clearly mentions of grant of pensionary benefits as per G.U. Pension Rules as retirement benefit clearly indicates that upon retirement on attaining the age of superannuation, the incumbent would enjoy all the retiral benefits, which in turn indicates that it is a permanent appointment. Though normally and ordinarily, pension is given to employees who are on regular employment, it is not a sine qua non that pension still be granted only to regular employees. Pension can be granted to employees other than regular employees also but depending upon the scheme of pension.
77. Further, merely because it is mentioned that the appointee would be entitled to retiral benefits as per the G.U. Pension Rules does not ipso facto lead to the conclusion that it is a Page No.# 34/39 regular employment. As also contended by the Mr. Choudhury, learned Senior Counsel appearing for the Gauhati University, it can also mean that the service rendered by the appellant as the Director, College Development Council for 5(five) years will be counted towards his pensionary benefits upon retirement. Thus, in our view, merely because it is mentioned that the pensionary benefits would be granted, does not lead to the irreversible conclusion that it is a regular appointment.
78. As regards the issue raised about bias of some of the Members of the Committee which examined the terms and conditions of the employment of the appellant and also the subsequent Executive Council Resolution which took the resolution that the post is a tenure post, we find some subsistence with the submission advanced by the learned counsel for the appellant. Though it is true that the terms and conditions mentioned in the appointment order should conform to the terms and conditions mentioned in the advertisement, yet, once, for any reason a defective appointment order was issued changing the terms and conditions mentioned in the advertisement, the said appointment order can be rectified by giving due notice to the incumbent. It was a rectifiable irregularity and not a fatal illegality. Nothing prevented the Gauhati University authorities from changing the terms and conditions of the appointment order in tune with the terms and conditions mentioned in the advertisement subsequently, but it must be done after giving an opportunity of being heard to the incumbent of the intention and reasons for doing so.
79. In the present case, what we have found is that unfortunately, there is nothing on record to show that the appellant was informed that Gauhati University intended to change the initial terms and conditions mentioned in the appointment order in which it was mentioned as a permanent post, subsequently, in conformity with the advertisement.
Page No.# 35/39 Even if a second appointment order was issued to the appellant as claimed by the University in which the appointment has been alleged to have been shown as a tenure one, yet without superseding the first appointment (which according to the University was erroneously issued) by giving an opportunity of being heard, the second appointment order could not have been issued, as otherwise, it would be violative of the principles of natural justice. The appellant had a right to know why the terms and conditions of his appointment would be required to be changed.
80. We are of the view that though the Committee was constituted by the University to look into the terms and conditions it was incumbent upon the Committee to at least have heard the view of the appellant which, however, having not been done, we are of the opinion that such a finding of the Committee would be vitiated as violative of the principles of natural justice.
81. As to whether the Executive Council, which ultimately took the decision to declare the said post to be of tenure basis was required to hear the incumbent, we are also of the view that, even if, the Executive Committee is the ultimate authority to decide the character and nature of the appointment, it ought to have heard the appellant, as he was already enjoying certain benefits in terms of the appointment order, even if, these were were held to be defective by the Gauhati University. The appointment order was issued by the University authority. To that extent, we are also of the view that the decision taken by the Executive Council without hearing the appellant is vitiated as it violated the principles of natural justice.
82. For the above reasons, we are unable to share the view of the Ld. Single Judge Page No.# 36/39 that there was no need to hear the petitioner as it was not an adversarial proceeding when the 5 (five) man Committee examined the matter relating tenure of service and terms of appointment of the service to the post of Director, College Development Council and the Executive Council took the decision. The said decisions of the Committee as well as the Executive Council are prejudicial to the interest of the appellant. It is a fundamental principle of law that if any decision is taken which deprives or prejudices certain existing right even if erroneously granted, the person ought to have been heard.
83. While holding that there was violation of the principles of natural justice in issuing the release order to the appellant, we have also kept in mind that the appellant joined his post of Director, College Development Council on 27.06.2015 in terms of the appointment order and as such, the initial 5 (five) years period stood lapsed on 26.06.2020. However, he was allowed to continue in the said post of Director, College Development Council without any murmur from the University authorities but subsequently, he was released from the post on 26.02.2021 i.e. after about 6 (six) months of the lapse of the initial 5 (five) years period. It is not the case that the release order was issued soon after the completion of 5 (five) years tenure period. It is the stand of the University that the appointment of the appellant was only for a period of 5 (five) years and as such, it stood lapsed on 26.06.2020. But, the appellant was allowed to continue in the post for about 6 (six) months of the completion of the tenure period of 5 (five) years. As such, in terms of the advertisement, the appellant would have been entitled to a notice from the University authorities that his service is no more required on completion of tenure period of 5 (five) years. But it was not done, but the appellant was abruptly relieved from service on Page No.# 37/39 26.02.2021 without giving any opportunity of being heard. This act of the University, certainly, in our view, amounts to violation of principles of natural justice.
84. However, under the facts and circumstances of the case, even if, we declare the finding and the recommendation of the Committee as well as the decision of the Executive Council holding the post to be a tenure post to be detriment to the appellant and violative of the principles of natural justice, we cannot grant any benefit to the appellant inasmuch as the fact remains that the appointment of the appellant has to be in conformity with the terms and conditions of the advertisement and as such, if the appellant had been granted certain benefit erroneously by the appointment order, the appellant has no vested right to continue to remain in the office. The appellant cannot make any claim or any right or benefit which was not initially offered when the post was advertised. By an erroneous subsequent act of the employer while issuing the appointment order, he could not have given any additional benefit which was not in contemplation when the post was advertised. Therefore, we are of the view that even if we hold that the recommendation and the finding of the Committee as well as the decision of the Executive Council were detrimental to the interest of the appellant and even though such decisions were taken in violation of the principles of natural justice, unfortunately, no relief as claimed by the appellant can be granted at this stage for the reasons discussed above as the term of tenure of 5 (five) years has already expired. Thus, even if the appellant is directed to be heard now, it would be a futile exercise as the appellant could not be restored to the earlier position of Director, College Development Council, after the expiry of 5 (five) years, as it would plainly be contrary to Page No.# 38/39 the terms of advertisement.
85. Under the circumstances, we are constrained to hold that the action of the Gauhati University in relieving the appellant from service cannot be held to be illegal, but the manner in which it was implemented cannot be approved of, as the appellant ought to have been heard in conformity with the principles of natural justice. However, as discussed above, under the present circumstances, affording the appellant an opportunity to be heard will be a futile exercise as no effective relief can be granted to the appellant as regards restoration to his earlier post since the initial period of 5 (five) years has already lapsed. But the fact remains that the Gauhati University has not conducted itself in the most appropriate manner by adhering to the principles of natural justice and as such we are constrained to impose a cost of Rs.10,000/- (Rupees ten thousand) only to the Gauhati University for issuing the release order of the appellant without hearing him in complete violation of the principles of natural justice. We have also kept in mind that it was the Gauhati University which itself had issued the appointment order by clearly stating that the post is a permanent post, thus, inducing the appellant to believe that he has been appointed to a permanent post in spite of the term of the advertisement. Therefore, to that extent, the Gauhati University also cannot be said to be blameless in its conduct towards the appellant in the matter of appointment and release. If the University had been careful in issuing the correct appointment order, the issue which has confronted us now would not have arisen. There is nothing to show on record that the appellant had any role to play in the issuance of the aforesaid defective appointment order.
Accordingly, for the reasons discussed above, we impose the aforesaid cost of Page No.# 39/39 Rs.10,000/- (Rupees ten thousand) only on the Gauhati University to be paid to the appellant.
86. Under the circumstances, we are not inclined to dwell into the other issues raised and submissions advanced as we are of the view that the decision we have taken as above would suffice to dispose of this writ appeal.
87. Accordingly, for the reasons discussed above, we are not inclined to entertain this writ appeal and consequently dismiss the same. However, as held by the Ld. Single Judge, the appellant would be at liberty to approach the competent authority for any other relief which the appellant may seek to claim.
JUDGE JUDGE Comparing Assistant