Gauhati High Court
Dr. Dibyajyoti Mahanta vs Krishna Kanta Handiqui State Open ... on 9 May, 2024
Author: Suman Shyam
Bench: Chief Justice, Suman Shyam
Page No.# 1/14
GAHC010018352024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/35/2024
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 HANDIQUI 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
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BEFORE
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUMAN SHYAM
For the Appellants : Mr. K.K. Mahanta, Sr. Advocate
Ms. N. Begum, Advocate
For the Respondents : Mr. K.N. Choudhury, Sr. Advocate
Mr. P.J. Handique, Advocate
Mr. S. Das, SC, Higher Education
Date of Hearing : 2nd and 3rd May, 2024
Date of Judgment : 09-05-2024
Judgment and Order (CAV)
(Suman Shyam, J)
This intra-court appeal is directed against the judgment and order dated 19-01-2024
passed by the learned Single Judge in W.P.(C) No. 8310/2022, instituted by the writ appellant,
as petitioner, whereby the challenge made to the notice dated 29-11-2022 issued by the
Registrar of Krishna Kanta Handiqui State Open University (hereinafter referred to as
KKHSOU) i.e. the respondent No. 2, notifying the date of demitting office by the appellant/
writ petitioner on completion of his tenure in the post of Dean (Study Center) of the
university was rejected. The facts and circumstances of the case, giving rise to filing of the
writ appeal, are briefly narrated here-in-below :-
2. KKHSOU (hereinafter referred to as the "University") was established under the
Krishna Kanta Handiqui State Open University Act, 2005 (hereinafter referred to as the Act of
2005) inter-alia with the object to advance and disseminate learning and knowledge by a
diversity of means including the use of any communication technology so as to provide
opportunities for higher education to a larger section of population and to promote
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educational well being of the community in general. The Registrar of the University i.e. the
respondent No. 2 had earlier issued advertisement notice No. R-2/2015 dated 29-06-2015
inviting applications for filling up a number of vacant posts including one post of Dean (Study
Centre). The appellant, who was working as Assistant Professor in the Nagaon Girls College,
Nagaon, at that point of time, had applied for the post of Dean (Study Centre) and was
eventually selected. By the appointment order dated 06-10-2015, the appellant was
appointed as the Dean of the University for a term of 05 years. Accordingly, the appellant
served as Dean (Study Centre) from 03-11-2015 to 02-11-2020.
3. As the tenure of the appellant in the post of Dean (Study Centre) was coming to an
end, on 05-09-2020, another advertisement notice, bearing No. R-3/2020, was issued by the
University inviting fresh applications for the post of Dean (Study Centre). The said
advertisement notice had clearly mentioned that the age of the applicant should not be more
than 55 years on the date of application. However, the University reserved the right to relax
the upper age limit in case of deserving candidates.
4. Responding to the advertisement dated 05-09-2020 the appellant had applied for the
post of Dean (Study Centre) seeking a second term in office. After conclusion of the selection
process, the Board of Management of the University, in its meeting held on 19-10-2020, had
resolved to issue appointment order to the appellant, thus appointing him in the post of Dean
(Study Centre). As per the resolution of the Board, the appointment letter was required to be
issued as per the University Rules. Consequently, appointment letter dated 20-10-2020 was
issued to the appellant laying down the terms and conditions of his appointment.
5. In the appointment order dated 20-10-2020, in the column "nature of post", it was
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mentioned that "the term of the office of the Dean (Study Centre) will be of 05 years as per
first statute of the University (Section 3 of Chapter V) or till attainment of 60 years, whichever
is earlier". In Clause 6 of the appointment order dated 20-10-2020 pertaining to service
conditions, it was further mentioned that " on confirmation after the period of probation and
subject to satisfactory service thereafter, you will be retained in the services of the University
for a term period of 05 (five) years or up-to the age of 60 (sixty) years, whichever is earlier.
You will be required to execute a service agreement to this effect ".
6. Pursuant to the appointment order dated 20-10-2020, the appellant joined in the post
of Dean (Study Centre) on 03-11-2020 so as to serve the probation period. On successful
completion of the probation period, the appellant was retained in the post of Dean (Study
Centre) so as to complete his tenure.
7. While serving as Dean, the appellant had submitted a representation dated 30-12-
2021, addressed to the respondent No. 2, raising objection as to the service conditions
mentioned in the appointment order by stating that since it was a tenure post and the
appointment was for a period of 05 years, hence, the expression "till attainment of 60 years"
was an erroneous inclusion in the order of appointment. According to the appellant, he has a
right to continue in the office of Dean of the University for 05 years, i.e. till 02-11-2025. The
University, however, did not take any action on his representation. On the contrary, on 29-11-
2022, the Registrar of the University i.e. the respondent No. 2 had issued a notice informing
the appellant that his last working day as Dean of the University would fall on 31-12-2022
which was presumably the date on which the appellant would complete the age of 60 years.
The appellant was also informed that his representation was placed before the Board of
Management and the matter has been forwarded to the Chancellor of the University but
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response in respect thereof, is still awaited.
8. Aggrieved thereby, the appellant had approached this Court by filing W.P.(C) No.
8310/2022, assailing the notice dated 29-11-2022, inter-alia, praying for a writ of mandamus
directing the respondents to withdraw, rescind, revoke, cancel and forbear from giving effect
to the notice dated 29-11-2022. On the strength of an interim order dated 22-12-2022
passed in W.P.(C) No. 8310/2022 directing maintenance of status quo with regard to the post
of Dean (Study Centre) in KKHSOU, the appellant continued in service during the pendency of
the writ petition. Eventually, by the judgment and order dated 19-01-2024, the writ petition
was dismissed. Hence, this appeal.
9. By assailing the judgment and order dated 19-01-2024, Mr. K.K. Mahanta, learned Sr.
counsel appearing for the appellant has forcefully argued that as per the provisions of the
statute, the post of Dean (Study Centre) is a tenure post and an appointee was entitled to
hold the post for a term of 05 years. Under the circumstances, inclusion of an additional
condition laying down the date of retirement on attaining the age of 60 years in the
appointment letter dated 20-10-2022, according to the learned Sr. counsel, was not only
wholly uncalled for but was also in contravention of the provisions of the statute and the rules
governing the conditions of service of the employees. To drive home his above argument, Mr.
Mahanta has placed heavy reliance on Rules 3 and 9 of Chapter V of the First Statute of
KKHSOU framed under section 22 of the Act of 2005 to contend that the provisions of the
Statute, laying down the retirement age of the officers of the University to be 60 years, would
not apply in case of appellant since he was holding a tenure post and as such, the appellant
was entitled to continue in office till completion of the entire tenure of five years. Further
contending that even in case of contractual appointments, the terms and conditions of service
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of Government employees would always be governed by the provisions contained in the
statute/ rules, Mr. Mahanta has relied upon and referred to the decision of the Supreme Court
rendered in the case of UoI & Ors. Vs. Arun Kr. Roy reported in (1986) 1 SCC 675 as
well as another decision of the Division Bench of this Court rendered in the case of Tabong
Pasar Vs. State of A.P. & Ors. reported in 1999 (3) GLT 90 to contend that where there
are specific statutory rules governing the terms of a particular service, the same would have
to be scrupulously followed and the Government servant cannot be denied of any benefit
accrued to him under the service rules.
10. So as to dispel any doubt on the question of delay on the part of the appellant in
approaching the Court and the plea of waiver and estoppel, Mr. Mahanta has relied upon the
decision of the Supreme Court rendered in the case of Somesh Thapliyal & Anr. Vs. VC
H.N.B. Garhwal University & Ors. reported in (2021) 10 SCC 116 to submit that at the
time of joining the post, the appellant did not have any bargaining power against the
University and therefore, he was left with no option but to accept the appointment letter with
the terms and conditions mentioned therein. However, in view of the decision of the Supreme
Court, it was open for the petitioner to assail the terms and conditions in the appointment
letter at any subsequent stage, if the same is found to be contrary to the rules.
11. Resisting the arguments advanced by the appellant's counsel, Mr. K.N. Choudhury,
learned Sr. counsel appearing for the University has argued that the post of Dean (Study
Centre) is a tenure post and the appointment letter had clearly laid down the tenure of the
appellant in office, which he had accepted with open eyes. Having accepted the same, it was
not open for the appellant to question the service condition, as mentioned in the appointment
order, that too, years after joining in the office. Mr. Choudhury has further argued that the
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statute/ rules do not permit an employee/ officer of the University to continue in service
beyond 60 years unless specifically permitted by the Board of Management. In the present
case, no such permission/ approval to continue in service beyond 60 years was granted to the
appellant. Under the circumstances, submits Mr. Choudhury the appellant neither has any
right that is enforceable in the writ proceeding nor can it be said that the order of
appointment dated 20-10-2020 has, in any manner, contravened the provisions of the rules/
statute.
12. In his attempt to distinguish the law laid down by the Supreme Court in the case of
Somesh Thapliyal (Supra) relied upon by the appellant's counsel, Mr. K.N. Choudhury has
referred to a later decision of the Supreme Court rendered in the case of UoI & Ors. Vs. N.
Murugesan & Ors. reported in (2022) 2 SCC 25 to submit that the law laid down in the
case of Somesh Thapliyal (Supra) has been explained in the subsequent decision and as
per the observations made in N. Murugesan (Supra) the appellant would not be entitled to
avail any benefit of the law laid down in the case of Somesh Thapliyal (Supra).
13. We have considered the arguments advanced at the Bar and have also gone through
the materials available on record. At the very outset, we wish to point out herein that the writ
appellant had evidently attained the age of 60 years during the pendency of the writ petition
but, as noted above, in view of the interim order dated 22-12-2022 passed in the writ
petition, he had continued to serve in the post of Dean. After the dismissal of the writ petition
the appellant has preferred the present appeal wherein also, this Court had passed an interim
order dated 01-02-2024 directing that the appellant shall continue as Dean (Study Centre) of
the KKHSOU till the returnable dated and the said interim order had been extended from time
to time. As such, the appellant is continuing to serve as Dean (Study Centre) of KKHSOU till
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today on the strength of interim orders passed by this Court.
14. As has been noticed hereinabove, the core controversy involved in this proceeding is
pertaining to the question as to whether, notwithstanding the service conditions laid down in
the appointment order dated 20-10-2020 providing that the petitioner would hold office in the
post of Dean (Study Centre) for a term of "05 years or till he attains the age of 60 years,
whichever is earlier", whether the appellant/ writ petitioner would have any right to continue
in office beyond the age of 60 years , i.e. till completion of a fixed tenure of 05 years ? In
order to answer the aforesaid question, it would be necessary for this Court to examine the
various provisions contained in the First Statute as well as the ordinance of the University,
which have been relied upon by the appellant's counsel.
15. In exercise of powers conferred under Section 22(1) of the Act of 2005 the
Government of Assam had framed the First Statute of KKHSOU, 2009, which was published in
the Extra Ordinary Gazette on 30-05-2009. Chapter V of the First Statute deals with the
"manner of appointment of Registrar, Finance Officer, Deans and Directors of the University,
their emoluments, conditions of service, powers, functions and duties".
16. Clause 3 of Chapter V deals with term of office, which reads as follows:-
"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."
17. Clause 4 of Chapter V lays down the powers, function and duties of the officers coming
within the ambit the Chapter, which includes the post of Dean (Study Centre). As per Clause
5, the officers mentioned in the said Chapter shall be subject to such service conditions and
conduct rules, which the University may prescribe from time to time.
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18. Clause 9 of Chapter V deals with the age of retirement of the officers, which would be
relevant for the purpose of this case and therefore, Clause 9 is being extracted here-in-below
for ready reference:-
"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 and 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."
19. Apart from the above provisions of the First Statute, Ordinance No. 7, which deals with
provisions of appointment on contract basis or fixed tenure contract basis (under Section
23(1)(d) of the Act of 2005) lays down the tenure of appointment. Clause 2 of the Ordinance
No. 7 reads as follows:-
"2. Tenure of Appointments: The tenure of appointment on contract basis shall
generally be five years or as may be decided by the Board of Management/ Vice-
Chancellor."
20. As has been noted hereinabove, there is no dispute about the fact that the post of
Dean (Study Centre), in respect of which the appellant was appointed, is a tenure post.
Fundamental Rule 9 (30) defines a tenure post as hereunder:-
"(30A) "Tenure Post", means a permanent post which an individual Government
servant may not hold for more than a limited period."
21. A bare reading of the order of appointment dated 20-10-2020 leaves no room for
doubt that the appellant/ writ petitioner was not only appointed against the tenure post of
Dean but the nature of appointment was also one which can be referred to as tenure
appointment. Although the appellant has not brought any contract agreement signed by him
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on record, yet, from the order of appointment dated 20-10-2020, it is apparent that the
appointment of the appellant was contractual and for a fixed tenure.
22. From a careful analysis of the materials available before the Court it is apparent that
the post of Dean (Study Centre) is a permanent post. However, the said post was filled up by
the University by way of tenure appointment. As such, the procedure of appointment of the
appellant to the post of Dean would come within the ambit of Clause 2 of Ordinance No 7.
23. Clause 3 of Chapter V mentions of a fixed tenure of 05 years for different posts
including the post of Dean. However, the said Chapter, in our opinion deals with regular
appointments in the post of Dean and the other officers named therein and not in respect of
a tenure appointment. The aforesaid position is clear from Clause 9 of Chapter V which
provides that the age of retirement of officers mentioned in the Chapter would be 60 years.
Clause 2 of the Ordinance No. 7, however, does not lay down any rigid or inflexible term of
office in case of tenure appointment nor does it prescribe any age of retirement. Rather, as
per Clause 2, the term in office in a tenure post would be five years or what is decided by the
Board of Management/ Vice-Chancellor, thus permitting the Board to fix the tenure as desired
by it.
24. The term of office of the appellant, as laid down in the appointment letter dated 20-
10-2020 is "five years or till attainment of the age of 60 years" which in our opinion, lays
down a clear and fixed term in office. There is no dispute about the fact that the said term
has the approval of the Board of Management/ Vice-Chancellor. As such, the appellant can
continue in office for the said term and would be deemed to have vacated the office of Dean
on the expiry of the tenure fixed in the order of appointment. If that be so, the question of
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allowing the appellant to continue in the office of Dean (Study Centre) beyond the fixed
period prescribed in the appointment order would not arise in the eyes of law.
25. In the case of Dr. L.P. Agarwal Vs. UoI & Ors. reported in (1992) 3 SCC 526, the
Supreme Court has observed that once a person is appointed to a tenure post his
appointment to the said office would begin when he joins and it would come to an end on the
completion of the tenure unless curtailed on justifiable ground. Such a person does not
superannuate, he only goes out of office on completion of his tenure.
26. In Dr. L.P. Agarwal (Supra) the petitioner was appointed in the post of Director of
AIIMS on the basis of direct recruitment. It was also a tenure post and the appointment of
the petitioner was with effect from 18-02-1979. The appointment letter had laid down the
conditions of service which included the tenure i.e. " a fixed tenure of 5 years or till the
petitioner attained the age of 62 years, whichever expired earlier ". On completion of the usual
probation period the petitioner continued in the post of Director. However, taking note of
Regulation 30 of All India Institute of Medical Science Regulations 1958, which inter-alia laid
down that the age of superannuation of the employees would be 58 years with the further
provision of granting extension of service or re-employment upto maximum of 60 years, in
very special circumstances, the Managing Body of the Institute took a decision on 24-11-1980
to send the petitioner on compulsory retirement before completion of his fixed tenure in the
office of the Director of All India Institute of Medical Sciences (AIIMS). The Delhi High Court
had dismissed the writ petition filed by the petitioner challenging the said decision of the
AIIMS authorities and that is how, the matter went upto the Supreme Court. The prayer of
the petitioner was allowed by the Hon'ble Supreme Court by holding that since the
appointment order gave a clear tenure to the petitioner the concept of superannuation would
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be alien to such tenure appointment. Accordingly, the impugned resolution of the Board was
interfered with. The Apex Court has, however, emphasized that a tenure appointment would
have a fixed life span and the concept of age of superannuation would not have any bearing
in such cases.
27. From the above decision of the Supreme Court, what follows is that in case of tenure
appointment, the term in office is a condition of appointment and therefore, regardless of the
age of superannuation prescribed by the Rules/ Regulations, the appointee would have a
fixed tenure in office, as prescribed by the terms and conditions of appointment.
28. It is no doubt correct that Clause 9 of the First Statute confers power on the Board of
Management to extend the service or to re-employ the officers of the University beyond the
age of 60 years upon fulfillment of the terms and conditions laid down therein. However, it is
to be noted herein that Clause 9 also excludes the holders of "tenure post" from application
of the said provision. Therefore, the case of the appellant would not be covered under Clause
9. Being an appointee in a tenure post, the age of superannuation, as prescribed by the Rules
also may not be attracted the case of the appellant. To such extent, we find force in the
submission of Mr. Mahanta that the normal age of superannuation, as prescribed by the
Statute/ Rules, will not be applicable in case of his client. However, for the reasons stated
here-in-above, such arguments of Mr. Mahanta cannot also be extended to hold that the
appellant has a right to continue in office beyond the tenure fixed by the order of
appointment nor can it be held that the conditions laid down in the appointment order dated
20-10-2020 contravenes the provisions of the Statue/Rules in any manner.
29. What is beyond any controversy in this case is that the appointment letter dated 20-
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10-2020 did mention a fixed tenure in office for the appellant. On the date of his
appointment, the appellant was not only aware of the fact that his appointment was for a
fixed tenure but he also had personal knowledge of his age. Therefore, appellant was fully
aware of his exact tenure in office. Having accepted the order of appointment with the terms
and conditions laid down therein, it would not be open for the appellant to enforce any claim
which is contrary to the express terms and conditions of the order of appointment. In view of
the above discussions, the decisions relied upon by Mr. Mahanta rendered in the case of
Arun Kr. Roy (Supra) and Tabong Pasar (Supra), in our view, would not have any
relevance in the facts and circumstances of the present case.
30. Upon a threadbare analysis of the various provisions of the Statute/ Rules, the learned
Single Judge has held that the appellant/ writ petitioner was not entitled to any relief in the
writ petition. We find ourselves in agreement with the above conclusion drawn by the learned
Single Judge. Since we have rejected the appellant's case on merit, it would not be necessary
for this court to go into the question of waiver, estoppel or delay in approaching the Court by
the appellant, as raised by the learned counsel appearing for the University.
31. For the reason stated above, this writ appeal is found to be devoid of any merit and
the same is accordingly dismissed.
Before parting with the record, we deem it appropriate to observe herein that since the
appellant has continued in the post of Dean (Study Centre) beyond the age of 60 years, on
the strength of an interim order(s) passed by the Court, hence, there would be no recovery of
salary and allowances paid to the appellant for serving in the post of Dean (Study Centre),
during the above period, i.e. the period during which, the interim order(s) passed by the
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Court were in force.
With the above observation, this writ appeal stands disposed of.
Parties to bear their own cost.
JUDGE CHIEF JUSTICE
GS
Comparing Assistant
