Gauhati High Court
Dr. Dibyajyoti Mahanta vs Krishna Kanta Handique State Open ... on 19 January, 2024
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/14
GAHC010261472022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/8310/2022
DR. DIBYAJYOTI MAHANTA
S/O LATE LAKSHMI KANTA MAHANTA, R/O RAJA RAJESWAR SINGHA
PALACE, NEAR HOTEL RHINO (BLOCK B, 3RD FLOOR), SILPUKURI,
GUWAHATI, ASSAM, P.O.-SILPUKHURI, P.S.-CHANDMARI, DIST-KAMRUP
(M), PIN-781003
VERSUS
KRISHNA KANTA HANDIQUE STATE OPEN UNIVERSITY AND 2 ORS.
A STATUTORY BODY ESTABLISHED UNDER THE ASSAM ACT XXXVII,
2005, REPRESENTED BY ITS VICE CHANCELLOR, HAVING ITS HQ AT
KRISHNA KANTA HANDIQUI OPEN UNIVERSITY, RESHAM NAGAR,
KHANAPARA, NH-37, GUWAHATI, ASSAM-781022
2:THE REGISTRAR
KRISHNA KANTA HANDIQUI OPEN UNIVERSITY
RESHAM NAGAR
KHANAPARA
NH-37
GUWAHATI
ASSAM-781022
3:THE STATE OF ASSAM
REPRESENTED BY ITS COMMISSIONER AND SECRETARY TO THE HIGHER
EDUCATION
KAHILIPARA
GUWAHATI
ASSAM-78101
Advocate for the Petitioner : MR K K MAHANTA (Sr. Advocate)
Advocate for the Respondent : SC, HIGHER EDU
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BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
Date : 19-01-2024
JUDGMENT AND ORDER
(C.A.V.)
Heard Mr. K.K. Mahanta, learned senior counsel, assisted by Ms. N.
Begum, learned counsel for the petitioner. Also heard Mr. A.M. Bora, learned
senior counsel, assisted by Mr. J. Patowary, learned counsel for respondent nos.
1 and 2, as well as Mr. S. Bhuyan, learned standing counsel for Higher Education
Department, representing respondent no.3.
2. It may be mentioned herein that by an interim order dated
22.12.2022, this Court had directed that till the next returnable date, the parties
to this proceeding shall maintain status quo with regard to the post of Dean
(Study Centre) in Krishna Kanta Handiqui State Open University (hereinafter
referred to as 'KKHSOU" in short). The respondent nos. 1 and 2 had filed an
interlocutory application for vacating the said interim order, which has been
registered and numbered as I.A.(C) 510/2023. This Court by an order dated
16.06.2023, passed in the said interlocutory application had expressed that this
writ petition be disposed of instead of considering the said interlocutory
application. Accordingly, it was ordered that the said interlocutory application
would be treated as counter-affidavit. Thus, on the joint prayer made by all
sides, the writ petition has been heard.
3. In brief, the case of the petitioner is that he was holding a
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substantive post of Assistant Professor in Nowgong Girls' College, Nagaon.
Pursuant to an advertisement inviting applications for appointment to the post
of Dean (Study Centre), KKHSOU [also referred to in several places as Dean
(Study), KKHSOU], the petitioner had applied for being selected and appointed
to the said post. Vide appointment letter dated 06.10.2015, the petitioner was
appointed to the said post for a term of 5 (five) years from the date of joining.
Accordingly, the petitioner had joined in the said post on 03.11.2015.
Accordingly, it is projected that the tenure of the petitioner to the said post was
upto 02.11.2020. On 21.09.2020, the KKHSOU (respondent no. 1) had issued an
advertisement inviting applications for appointment to the said post of Dean
(Study Centre), KKHSOU for a period of 5 (five) years from 2020 till 2025 and
accordingly, the petitioner had applied for the said post. The petitioner was
again selected. However, as per the appointment letter dated 20.10.2020, the
tenure of the petitioner for the post of Dean (Study Centre) was made for 5
(five) years or till attaining the age of 60 years, whichever is earlier. The
petitioner claims that the capping of his tenure of service till the age of 60 years
was arbitrary, which was not altered despite bring it to the notice of the
competent authorities. In the meanwhile, the petitioner was served with a
notice dated 29.11.2022, informing him that his last working day would be
31.12.2022.
4. Therefore, the petitioner has filed this writ petition under Article
226 of the Constitution of India praying for, amongst others, a direction upon
the respondent authorities (1) to withdraw, rescind, revoke, cancel and forbear
from giving effect to the notice dated 29.11.2022, issued by the Registrar,
KKHSOU (respondent no.2); (2) to withdraw, rescind, revoke, cancel and
forbear from giving effect to the later part of the condition under the head of
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"Nature of Post" and "Service Condition" i.e. "or till attainment of 60 years
whichever is earlier" contained in the appointment letter dated 20.10.2020,
issued by the Registrar, KKHSOU (respondent no.2); (3) for quashing the herein
before referred notice dated 29.11.2022; and (4) to allow the petitioner to
complete his tenure as Dean (Study Centre), KKHSOU from 03.11.2020 to
02.11.2025.
Submissions on behalf of the petitioner:
5. The learned senior counsel for the petitioner had meticulously
referred to the pleadings and the documents annexed to the writ petition.
6. It was submitted that after the expiry of the first tenure of the
petitioner as Dean (Study Centre), KKHSOU from 03.11.2015 to 12.11.2020, the
subsequent appointment was a fresh appointment. Accordingly, it was submitted
that the petitioner's appointment as Dean (Study Centre), KKHSOU from
03.11.2020 to 12.11.2025 was not a renewal, but it was a re-appointment to
the tenure post, and that the said post carried a fixed tenure of 5 (five) years
from the date of taking over charge.
7. To support his submissions regarding 5 year tenure of the post of
Dean (Study Centre), KKHSOU, the learned senior counsel for the petitioner had
referred to the provisions of Rule 3 of Chapter-V of KKHSOU First Statute, 2009,
which also permitted re-appointment. The provisions of Rule 9 of Chapter-V of
the KKHSOU First Statute was also cited to show that though under the said
Rule the age of retirement was prescribed as 60 years, but the said Rule
specifically excluded persons holding 'tenure' post. Moreover, by referring to
Section 29(1) of the KKHSOU Act, 2005, it was submitted that the respondent
authorities were prohibited from imposing a condition in the contract of
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appointment, which was inconsistent with the provisions of KKHSOU Act, 2005
and KKHSOU First Statute, 2009.
8. Moreover, by referring to the provisions of Ordinance 7:
Ordinance on Appointment on Contract Basis or Fixed Tenure Contract Basis
framed under Section 23(1)(d) of the KKHSOU Act, it was submitted that under
Clause 3(iv) thereof it has been provided that the contractual appointment could
not be made beyond 65 years, which meant that it was permissible for a 'tenure'
appointee to render service upto the age of 65 years.
9. It was also submitted that prior to issuing the appointment letter
petitioner, a Meeting of the Board of Management of KKHSOU held on
19.10.2020, wherein it was decided that the appointment letters for the posts
mentioned therein be issued as per the terms of appointment under the
University Rules without waiting for confirmation of the proceeding.
10. Accordingly, it was also submitted that the term of appointment
of the petitioner as Dean (Study Centre) KKHSOU from 03.11.2020 was
restricted till attaining of 60 years, which was de hors the provisions of Section
3 of Chapter-V of the KKHSOU First Statute, 2009. It was submitted that the
restriction of employment upto the age of 60 years could not have been applied
in respect of the petitioner.
11. In support of his contention, the learned senior counsel for the
petitioner had cited the case of Union of India & Ors. v. Arun Kumar Roy, (1986)
1 SCC 675, and it was submitted that in the said case, the Supreme Court of
India had held that the contract cannot be contrary to the Rules. It was
submitted that the said decision was followed by the Division Bench of this
Court in the case of Tabong Pasar v. State of Arunachal Pradesh & Ors., 1999
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(3) GLT 90.
12. To counter the possible opposition to the writ petition on the
ground of delay, by citing the case of Somesh Thapliyal & Anr. v. Vice
Chancellor, H.N.B. Garhwal University & Anr., (2021) 10 SCC 116, it was
submitted that as the State had greater bargaining power, it was permissible for
the petitioner to challenge inconsistent condition in his appointment letter when
he is aggrieved.
Submissions on behalf of the respondent nos. 1 and 2, i.e. the KKHSOU and its
Registrar:
13. The learned senior counsel for the respondent nos. 1 and 2 had
submitted that there is no dispute that the initial appointment of the petitioner
as Dean (Study Centre), KKHSOU was for a period of 5 (five) years. But on his
re-appointment, the condition of retirement at the age of 60 years was provided
in the petitioner's appointment letter, which was a condition that the petitioner
had willingly and voluntarily accepted without any demur. Thus, by referring to
the principle that one cannot be permitted to approbate and reprobate in the
same time, it was submitted that the petitioner is estopped from objecting to
one part of the appointment letter, having accepted the other part which was
favourable to him. In this regard, reliance was placed on the case of U.P. State
Road Transport Corporation v. Ram Singh & Anr., (2008) 17 SCC 627.
14. It is submitted that under the KKHSOU First Statute, 2009, the
age of superannuation is provided as 60 years and therefore, it was not
permissible for the respondent nos. 1 and 2 to extend the age of
superannuation in respect of the petitioner. In support of the said contention,
the learned senior counsel for the respondent nos. 1 and 2 has cited the case of
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Dr. L.P. Agarwal v. Union of India & Ors., (1992) 3 SCC 526.
Submissions on behalf of the respondent no.3:
15. The learned standing counsel for the respondent no.3 had fairly
submitted that the respondent no. 3 had not filed any affidavit-in-opposition.
However, it was submitted that he would support the stand of the respondent
nos. 1 and 2.
Reasons and decision:
16. At the outset, it would be relevant to extract the provisions of (i)
Section 2(e) of the KKHSOU Act, 2005; (ii) Section 2(k) of the KKHSOU Act,
2005; (iii) Clause (7) of Section 7 of the KKHSOU Act, 2005; (iv) Section 12 of
the KKHSOU Act, 2005; (v) Clause (7) of Sub-section 1 of Section 17 of the
KKHSOU Act, 2005; (vi) Clause (iv) of Sub-section 1 of Section 18 of the
KKHSOU Act, 2005; (vii) Section 21(d) of the KKHSOU Act, 2005; (viii) Section
23 of the KKHSOU Act, 2005; (ix) Section 29 of the KKHSOU Act, 2005; (x) Rule
3 of Chapter-V of the KKHSOU First Statute, 2009; (xi) Rule 9 of Chapter-V of
KKHSOU First Statute, 2009; (xii) Rule 12 of the Ordinance No.8. The said
provisions have been extracted in serial order.
2. In this Act, unless the context otherwise requires,-
(a) * * *
(e) "employee" means any person appointed by the University and includes
academic and nonacademic staff of the University.
* * *
(k) "Study Centre" means a centre established, maintained or recognized for
conducting examination and evaluation by the University and for the purpose
of advising, counseling or for rendering any other assistance required by the
students.
* * *
CHAPTER III
OFFICERS OF THE UNIVERSITY
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7. The Officers of the University.- The following shall be the officers of the
University:-
(1) * * *
(7) The Dean (Study Centre).
* * *
12. The Dean.- Every Dean shall be appointed in such manner, on such
emoluments and other conditions of services and shall exercise such power
and perform such functions as may be prescribed by the Statutes.
* * *
17. Board of Management.- (1) The Board of Management shall be the
principal executive body of the University consisting of the following members,
namely:-
(1) * * *
(7) The Dean (Study Centre).
18. The Academic Council.- (1) The Academic Council shall consist of the
following members, namely:
(1) * * *
(7) The Dean (Study Centre).
* * *
21. Statutes.- Subject to the provisions of this Act, the Statutes may provide for
all or any of the following matters, namely:
(a) * * *
(d) the appointment of teachers and other employees of the University, their
emoluments and their conditions of service.
* * *
23. Ordinances.- Subject to the provisions of this Act and the Statutes, the
Ordinances may provide for all or any of the following matters, namely:-
(1) * * *
(2) The First Ordinances shall be made by the Chancellor with the previous
approval of the State Government and the Ordinances so made may be
amended, repealed or added to at any time by the Board of Management in
the manner prescribed by the Statutes.
* * *
29. Conditions of service of employees.- (1) Every employee of University
shall be appointed under a written contract and such contract shall not be
inconsistent with the provisions of this Act, the Statutes and the Ordinances.
(2) * * *
* * *
KKHSOU FIRST STATUTE, 2009
CHAPTER-V
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Manner of appointment of Registrar, Finance Officer, Deans and
Directors of the University, their emoluments, conditions of service,
powers, functions and duties.
* * *
3. Term of Office.- The term of office of the Registrar, the Finance Officer, the
Deans and the Directors shall be five years but they may be eligible for re-
appointment.
* * *
9. The officers mentioned above shall ordinarily retire at the age of 60 provided
that the Board of Management in the interest of the University may re-employ any
officer (except the holders of tenure post) beyond 60 years but not exceeding 63
years, if it is satisfied that such re-employment is absolutely necessary for the
interest of the university and that the officer is certified to be fit mentally and
physically by a Doctor of Medicine of a Medical College of Assam not below the
rank of Associate Professor. However, such re-employment shall not be made for
more than one year at a time.
* * *
ORDINANCE NO.8
Ordinance on Recruitment, Service Condition, Workload and Leave Rules
for Professors, Readers, Regional Directors, Lecturers, Assistant Regional
Directors and other officers of the University.
1. * * *
12. Superannuation and re-employment of teachers: Teachers, Officers and
other Employees will retire at the age of 60 years. The University can consider re-
employing a superannuated Teacher according to the existing guidelines framed by
the UGC.
* * *
17. The learned senior counsel for the petitioner had laid much stress
on the provision of Rule 9 of the KKHSOU First Statute, 2009, specifically on the
words "(except the holders of tenure post)". It was emphasized that (i) the
petitioner was given a fresh appointment to the post of Dean (Study Centre),
which cannot be considered as re-employment; and (ii) that the said words
"(except the holders of tenure post)" excluded tenure posts. The said contention
has been considered and would be answered later.
18. It may be mentioned that Annexure-3 to the writ petition is a
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photocopy of the advertisement no. R3/2020 inviting applications for the post of
Dean (Study Centre). Appended to the said Annexure-3 is a sheet containing
"qualifications and requirements" and in the paragraph relating to requirement
of age, it has been mentioned as follows - "Age: Should not be more than 55
years as on the date of application. However, the University reserves the right
to relax the upper age limit for deserving candidates."
19. From the herein before extracted provision of Section 23(2) of
KKHSOU Act, 2005 it can be seen that the KKHSOU First Statute, 2009 was
required to have been made by the Chancellor with the prior approval of the
State Government. The office of the Dean (Study Centre) is referred to in Rule 9
of Chapter-V of the KKHSOU First Statute, 2009. Accordingly, it appears that the
incumbent holding the office of the Dean (Study Centre) would ordinarily retire
at the age of 60. The said Rule also provides that the Board of Management, in
the interest of the University, may re-employ any officer (except the holders of
tenure post) beyond 60 years but not exceeding 63 years. Therefore, it prima
facie appears that the condition imposed in the appointment letter dated
20.10.2020, issued in favour of the petitioner by the Registrar of the KKHSOU
(respondent no.2), cannot be said to be inconsistent with Rule 9 of the KKHSOU
First Statute, 2009. Rule 12 of the Ordinance No. 8 also provides that the age of
superannuation of officers would be at the age of 60 years. The post of Dean
(Study Centre) is an "Officer" category post as per Section 7 of the KKHSOU
Act.
20. The Court is of the further opinion that Rule 3 of Chapter-V of the
KKHSOU First Statute, 2009 cannot be read in isolation of Rule 9 thereof. On a
conjoint reading of both the said provisions, which have been extracted
hereinbefore, it is seen that although Rule 3 of Chapter V provides that " The
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term of office of the Registrar, the Finance Officer, the Deans and the Directors
shall be five years but they may be eligible for re-appointment", but Rule 9
thereof permits re-employment of any officer (except the holders of tenure
post) beyond 60 years but not exceeding 63 years.
21. The KKHSOU Act, 2005 and KKHSOU First Statute, 2009 must be
read in harmony because as per the provision of Section 12 of the KKHSOU Act,
2005, it has been provided that "Every Dean shall be appointed in such manner,
on such emoluments and other conditions of services and shall exercise such
power and perform such functions as may be prescribed by the Statutes ."
22. Thus, from the provision of Section 12 of the KKHSOU Act, 2005,
it appears that the legislative intention was to give precedence to the Statute, in
so far it is related to the other conditions of services, which is inclusive of the
tenure of appointment. Therefore, as the condition contained in the petitioner's
appointment letter dated 20.10.2020, issued by the respondent no. 2 cannot be
said to be a condition that has arbitrarily imposed on the petitioner by unfair
and/or superior bargaining power of the University. Accordingly, the case of
Arun Kumar Roy (supra) and Tabong Pasar (supra), is found to have no
application in this case.
23. The Board of Management, in the proceedings of its 59th Meeting
held on 19.10.2020 did not specify the age of superannuation of the petitioner.
The Board had merely directed that the appointment letters be issued as per the
terms of the appointment under the University Rules. Thus, the Registrar,
KKHSOU (respondent no. 2) had issued the appointment letter dated
20.10.2020, prescribing therein that the age of superannuation would be 60
years.
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24. It is reiterated at the cost of repetition that the provisions of Rule
9 of Chapter-V of the KKHSOU First Statute, 2009 as well as Rule 12 of the
Ordinance No. 8 prescribe the age of superannuation of "Officers", which include
the post of "Dean (Study Centre)", to be 60 years. Therefore, the condition
contained in the appointment letter dated 20.10.2020 that the petitioner would
superannuate on attaining the age of 60 years cannot be said to be inconsistent
and/or contrary to the KKHSOU First Statute.
25. Therefore, in light of the discussions above, the first issue raised
by the learned senior counsel for the petitioner emphasizing that the petitioner
was given a fresh appointment to the post of Dean (Study Centre), which
cannot be considered as re-employment is answered by holding that
notwithstanding that appointment of the petitioner for the second term would
be a circumstances which is nothing but "re-employment" of the petitioner.
26. The second issue raised by the learned senior counsel for the
petitioner as to whether the words "(except the holders of tenure post)"
appearing in Rule 9 of the KKHSOU First Statute excluded "tenure posts" is
answered by holding that the provisions of Rule 9 of Chapter-V of the KKHSOU
First Statute, 2009 read in harmony with Rule 12 of Ordinance No. 8, makes it
clear that the age of superannuation of Officers, which includes the post of
"Dean (Study Centre)" is 60 years with further prescription that the age of
superannuation cannot exceed 63 years. Thus, the condition contained in the
appointment letter dated 20.10.2020 to the effect that the petitioner would
superannuate on attaining the age of 60 years cannot be said to be inconsistent
or contrary to the (i) KKHSOU Act, 2005, (ii) KKHSOU First Statute, 2009, and
(iii) Ordinance No. 8, being "Ordinance on Recruitment, Service Condition,
Workload and Leave Rules for Professors, Readers, Regional Directors,
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Lecturers, Assistant Regional Directors and other officers of the University."
27. Moreover, as per document appended to Annexure-3 to the writ
petition (pp.31), the age of the applicant was required to be 55 years, which
means that the age of superannuation was envisaged at 60 years. By the said
document, the KKHSOU had reserved the right to relax the upper age for
applying for the post of Dean (Study Centre). Therefore, the indelible
impression of the Court is that in this case, the KKHSOU had taken a conscious
decision to accept the candidature of the petitioner and as per the legal
requirement, discussed herein before, prescribed the age of superannuation of
the petitioner on his attaining the age of 60 years. Thus, the condition
contained in the appointment letter dated 20.10.2020 is not found to be
arbitrary or inconsistent with the prescription of age contained in the said
document appended to the advertisement (Annexure-3 to the writ petition).
28. In terms of the decision of the Supreme Court of India in the case
of Somesh Thapliyal & Anr. (supra), the Court is not inclined to dismiss the writ
petition on the ground of delay on part of the petitioner to assail the conditions
contained in his appointment letter dated 20.10.2020. As per the facts of this
case, the delay on part of the petitioner in approaching the Court would not be
fatal.
29. Nonetheless, in light of the discussions above, the Court is of the
unhesitant opinion that the condition no. 2 contained in the appointment letter
of the petitioner bearing Ref. KKHSOU/ Recruit/53/2013/PT/3177 dated 20 th
October, 2020, prescribing the term and/or tenure of appointment to the office
of the Dean (Study Centre) for 5 (five) years or till attainment of 60 years,
whichever is earlier, is consistent and/or in consonance with (i) KKHSOU Act,
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2005, (ii) KKHSOU First Statute, 2009, and (iii) Ordinance No. 8, being
"Ordinance on Recruitment, Service Condition, Workload and Leave Rules for
Professors, Readers, Regional Directors, Lecturers, Assistant Regional Directors
and other officers of the University."
30. Therefore, in the light of the discussions above, the Court is
inclined to pass the following -
ORDER
a. The petitioner is not found to be entitled to any relief(s) as prayed for.
b. Accordingly, this writ petition stands dismissed.
c. The interim order passed on 22.12.2022 stands vacated.
d. The parties are left to bear their own cost.
Comparing Assistant
