Gauhati High Court
WP(C)/2017/2022 on 14 October, 2025
GAHC010056892022
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Principal Seat at Guwahati
Writ Petition No. 2017/2022.
Prof. Jyotirekha G. Handique,
D/o Late AghanaGogoi,
Syndsaicate Ecopolis,
Block - A, Unit - 6C,
Tripura Road, Jaynagar
Kamrup (M) at Guwahati, 781028.
...... Petitioner.
-Versus-
1. The Krishna KantaHandiqui State Open University,
represented by Registrar KKHSOU,
Patgaon, Rani Gate,
Guwahati - 781017, Assam.
2. Vice Chancellor,
Krishna KantaHandiqui State Open University,
Patgaon, Rani Gate,
Guwahati - 781017, Assam.
3. TheRegistrar,
Krishna KantaHandiqui State Open University,
Patgaon, Rani Gate,
Guwahati - 781017, Assam.
Page 1 of 32
4. The State of Assam,
Represented by Principal Secretary to the Government of Assam,
Education Department,
Dispur, Guwahati - 781006.
5. The Special Commissioner to the Government of Assam,
Education Department,
Dispur, Guwahati - 781006.
...... Respondents.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Advocate for the petitioner :- Mr. K.N. Choudhury, Sr. Adv.
Mr. N. Gautam.
Advocate for the respondent Nos. 1, 2 & 3:- Mr. D. Saikia, Adv. Gen.
Mr. B. Choudhury.
Advocate for the respondent Nos. 4 & 5 :- Mr. S. Bhuyan.
Date of Hearing :- 09.09.2025.
Date of Judgment & Order :- 14.10.2025.
JUDGEMENT & ORDER (CAV)
Heard Mr. K.N. Choudhury, learned Senior Counsel assisted by
Mr. N. Gautam, learned counsel for the petitioner. Also heard Mr. D.
Saikia, learned Advocate General-cum-Senior Counsel assisted by Mr.
B. Choudhury, learned counsel for the respondent Nos. 1, 2 & 3; and
Page 2 of 32
Mr. S. Bhuyan, learned Standing Counsel for the Education
Department, being respondent Nos. 4 & 5.
2. In this petition, under Article 226 of the Constitution of India, the
petitioner has challenged the office order, under reference No.
KKHSOU/PF/01/2021/28/1265, dated 16.03.2022, issued by the
Registrar of Krishna KantaHandiqui State Open University (KKHSOU
hereinafter), whereby the service of the petitioner was purportedly
withdrawn as professor in Hiranya Chandra Bhuyan School of Science
and Technology (HCBSST hereinafter) of KKHSOU.
Background Facts:-
3. The background facts, leading to filing of the present petition,
are adumbrated herein below:-
"The petitioner was serving as Professor in the Department of
Chemistry of Dibrugarh University for 27 years and pursuant to
an advertisement, issued by the Registrar of KKHSOU, for filling
up a vacant post, lying in the HCBSST under KKHSOU, out of
total four posts in altogether four different schools of studies, the
petitioner, being qualified for the same applied within the
stipulated period. Thereafter, call letter was issued to her to
appear in the interview and accordingly, she appeared in the
interview board and she got selected for the said post.
Thereafter, vide appointment letter dated 24.12.2020, she was
appointed and accordingly, she joined on 01.01.2021.
Thereafter, she was entrusted with various important works in
the University including the post of Director of HCBSST and she
had carried out all the entrusted works with discipline and
sincerity.
It is the pleaded case of the petitioner that while she was
serving, she came to know about one communication, bearing
No. AHE-490/2021/10, dated 03.12.2021, issued by the Special
Commissioner to the Government of Assam in the Education
Department addressed to the Vice Chancellor of KKHSOU, urging
to take necessary action as per the statues of the KKHSOU
regarding anomalies in recruitment in respect of her as professor
of HCBSST.
Thereafter, being aggrieved, the petitioner had preferred
one writ petition, being W.P.(C) No. 6604/2021 and an interim
protection was granted to her, vide order dated 08.12.2021.
Thereafter, the respondent authorities filed one interlocutory
application, being I.A.(C) No. 290/2022 and vide order dated
15.03.2022, a Co-ordinate Bench of this Court had vacated the
interim protection granted to the petitioner vide order dated
08.12.2021.
Thereafter, on 16.03.2022, the Registrar of KKHSOU
hadissued the impugned order (Annexure - T) withdrawing the
service of the petitioner as professor of HCBSST underKKHSOU.
Further pleaded case of the petitioner is that the said
impugned office order, dated 16.03.2022, is not in tune with
laws laid by Hon‟ble Supreme Court as well as the provisions of
KKHSOU Act, 2005 (as amended) and the
Statues/Ordinances/Rules framed thereof and the same violates
the constitutional and other legal rights of the petitioner and the
same is also not in tune with the true purports of the order dated
15.03.2022, passed in I.A.(C) No. 290/2022."
Being aggrieved, the petitioner has preferred this petition
challenging the impugned order dated 16.03.2022, issued by the
Registrar of KKHSOU.
4. The respondent Nos. 2 & 3 filed their affidavit-in-opposition,
wherein a stand has been taken that on being approved, the petitioner
was offered the post of Professor in HCBSST, vide letter dated
24.12.2020, bearing No. KKHSOU/Apptt./04/2013/1700, on probation
for a term of one year in terms of KKHSOU Act, 2005 and the Rules of
the University as amended from time to time and in the said
appointment letter it has been mentioned that „Subject to the
provisions in the Statues, this appointment is made on probation for a
period of one year from the date of joining. However, the appointing
authority shall have the power to extend the period of probation. This
offer of appointment may be withdrawn at any time during the
probation period based on administrative reasons, which will be
binding to you.‟ Thereafter, the petitioner had joined the service on
01.01.2021, on lien for two years from Dibrugarh University and she
was entrusted with various internal affairs and responsibilities of the
University for its smooth functioning.
4.1 Another stand taken by the respondent KKHSOU is that HCBSST
has two disciplines, namely Mathematics and Computer Science, which
were duly approved and recognized by the University Grants
Commission (UGC hereinafter) for Open and Distance Learning and in
an earlier recruitment process initiated in the year 2019, applications
were called for from candidates of Mathematics and Computer Science
Stream only, but in the advertisement under reference and under the
leadership/control of the then Vice Chancellor Dr. Kandarpa Das, it was
made open to the Science Stream when the said school had no other
subject in offering other than Mathematics and Computer Science with
due approval/recognition from competent authority and it was found
that the present petitioner is of Chemistry Stream and the institution in
question neither has any approval for the subject Chemistry nor an
approved course for B.Sc. (General) till date and that the Chairman of
the Selection Committee, the then Vice Chancellor, had conducted the
entire process relating to the selection to the post of Professor of
HCBSST. Thereafter, from the Governor of Assam-cum-Chancellor of
the University, one communication dated 10.09.2021, was made to the
Chief Secretary to the Government of Assam to take necessary action
in the aforesaid situation. In the said letter, it was mentioned that
though in the meeting held on 18.12.2019, the recruitment of faculties
have to be circulated through local Assamese and English newspapers
as well as four numbers of National Newspapers, yet the same was not
followed in the instant case. Further, short listing of the candidates
was not done in terms of the UGC norms and eligible candidates,
namely Dr. Ujjal Sharma not called and ineligible candidates were
selected and the Governor was of the view that some vested interest
was involved in not rejecting the ineligible candidates and selecting
only the present petitioner, who is the wife of Vice Chancellor of
Gauhati University and the same remains in contention for the post
before the selection committee and in the light of the above
contention, the Government of Assam had called for explanation and
on getting response and after deliberation, the letter dated
03.12.2021, from the Special Commissioner to the Government of
Assam in the Education Department was communicated to the Vice
Chancellor of KKHSOU asking him to take necessary action as per the
Statues of the University regarding the anomalies in the recruitment of
the present petitioner.
4.2 Further, the Board of management of KKHSOU, in its 64th
meeting, held on 08.12.2021, after deliberation, resolved to comply
with the directives from the Government of Assam vide letter dated
03.12.2021 and also of the Governor of Assam-cum-Chancellor of
Universities and thereafter, the petitioner assailed the said
communication and vide order dated 08.12.2021, this Court while
issuing notice of motion, an interim order was passed stating that
there is no bar for the respondent authorities to take action against
the petitioner as per the statue, but no final order shall be passed until
further order from this Court. Thereafter, the respondent authorities
filed an interlocutory application, being I.A.(C) No. 290/2022 and vide
order dated 15.03.2022, this Court had lifted the embargo with regard
to passing of the final orders imposed by this Court vide order dated
08.12.2021.
4.3 It is further stated that after the appointment of the petitioner,
pursuant to a decision of the Academic Council dated 30.07.2020 and
19.06.2021, under the direction of the then Vice Chancellor of the
University, amongst others, submitted a proposal before the UGC on
31.07.2021, for offering Under-Graduate course in Science
(combination of 3 subjects including Chemistry i.e. General) under
HCBSST and subsequent thereto, submitted hardcopies of application
on 05.08.2021. Then, on 12.10.2021, in the portal of the UGC, it was
shown that the UGC has refused to approve B.Sc. courses due to Self
Learning Materials being not ready.
4.4 Further, the order dated 15.03.2022, passed in I.A.(C) No.
290/2022, was assailed in the instant writ petition wherein the interim
relief was refused and that the whole concept of probation is to judge
the suitability of the candidate appointed to a particular post and it is
well settled that generally a probationer does not acquire any
substantial right to the post and cannot complain if his service is
terminated at any time during the probationary period i.e. before
confirmation and a probationary appointment is by its very nature of a
transitory character and in the absence of any special contract or
specific rule regulating the condition of service, the implied term of
such appointment is that it is terminable at any time. It is also stated
that during the period, which an appointee has to be on probation is
normally provided by the service rules or the order of appointment and
in the instant case, the terms and conditions of probation service was
alluded in the appointment order dated 20.12.2020 and the petitioner
having accepted the same and allowing the period for which he was
appointed, to have lapsed either by efflux of time, Courts are not
permitted to turn back and say that the terms and conditions
stipulated in the order are not valid.
4.5 It is also stated that though the appointment of the petitioner on
probation was tainted with favoritism, withdrawal of her service on
probation was founded on grounds of administrative reasons post-
recruitment period arising due to rejection of proposal by UGC for the
proposed programme B.Sc. (General). Such right to withdrawal of
service was derived from the appointment letter of the petitioner.
Thus, the case of the present petitioner falls under the exceptions to
the principle of natural justice, as the withdrawal of service was based
on valid reason and it has clearly been stated that her probation
service conditions shall be governed by provisions in the Statues of the
University.
4.6 Further, in respect of the Krishna Kanta Handiqui State Open
University Employees (Academic and Non-Academic) Service
Conditions, Conduct and Appeal Rules, 2019 (KKHSOU Appeal Rules,
2019 hereinafter) indicates the same are in existence, but the same
are not in force and the earlier Vice Chancellor was of the view that
there were certain anomalies in the Rules, which need to be
addressed, but due to resignation of the Vice Chancellor, the said
Rules could not be given a final shape. Under such circumstances, it is
contended to dismiss the present petition.
5. The petitioner has filed her affidavit-in-reply denying the
statements and averments made in the affidavit-in-opposition filed by
the respondent Nos. 2 & 3 and stated that the impugned withdrawal
letter of her service is not in tune with the true purports of the order
dated 15.03.2022, passed in I.A.(C) No. 290/2022 and while the entire
matter is sub-judice, her service has been withdrawn in an undue
haste and that too at the clear end of one year period of probation
without following the procedures incorporated in the KKHSOU
Act/Statues and that she has not been given sufficient time to rejoin at
Dibrugarh University, which invites a discontinuity as well as negative
effect upon her professional career and progression.
5.1 The petitioner has further stated that the impugned order would
deprive her rights to continue her service at both Dibrugarh University
and KKHSOU which is in violation of the principles of natural justice
under Article 21 of the Constitution of India and the said order would
also likely to deprive her from her pensionary and other benefits.
5.2 It is also stated that the concept of probation, as put forwarded
by the respondent authorities is not relevant in the instant case and
self-contradictory and it is worthwhile to point out that while the
respondent authorities stated on one hand that though the
appointment of the petitioner was tainted with favoritism and
nepotism, withdrawal of her service on probation was founded on
grounds of administrative reasons post-recruitment period and on the
other hand, it is stated that the aforesaid withdrawal cannot be
considered stigmatic or punitive.
5.3 Further, the KKHSOU Appeal Rules 2019 have been adopted in
its 53th Board of Management (BoM hereinafter) Meeting, held on
26.12.2019 and it cannot be said that the same are not in force
though the Rules are in existence and that no authority in the KKHSOU
could override the decision regarding the said Rules as passed by the
BoM under the provisions of the KKHSOU Act and the Statues
concerned.
6. The respondent Nos. 1, 2 & 3 have filed their additional affidavit,
wherein it is stated that vide order dated 20.07.2023, the respondent
authorities were directed to indicate as to whether the KKHSOU Appeal
Rules, 2019 is in draft stage or have been adopted by the University
and it is replied that the same are in existence, but not in force as the
matter is under active consideration of the administration and the Vice
Chancellor is trying to identify the areas/anomalies that require
modification.
7. The petitioner has filed her reply to the said additional affidavit
enclosing the Resolution No. BM/53/5/2019, wherein it is stated that
the KKHSOU Appeal Rules, 2019 was approved by 53th BoM meeting
held on 26.12.2019 and the same was confirmed in the 55th BoM
meeting, held on 08.03.2020 and as such, it cannot be said legally by
the respondent authorities that the same are in existence but not in
force.
Submissions:-
8. Mr. Choudhury, learned Senior counsel, appearing for the
petitioner, submits that the impugned order of withdrawal of service of
the petitioner by the respondent authorities are illegal, arbitrary and
contrary to the Rules and the same violates the right granted to the
petitioner under Article 16 of the Constitution of India, i.e. equal
protection of law under the KKHSOU Appeal Rules 2019 and also the
right guaranteed under Article 14 of the Constitution of India.
8.1 Drawing attention of this Court to the said Rules, Mr. Choudhury
submits that the Rule 14(1) provides that an employee shall be a
temporary employee of the University until his service is confirmed in
the present post and Rule (2) provides that an employee, whose
service is confirmed in any permanent post, under the University shall
be a permanent employee of the University and Rule 15 provides that
the service of a temporary employee may be terminated by the
appointing authority, without assigning any reasons thereof and
service of an employee on probation may be terminated with prior
notice of one month or one month pay in lieu hereof.
8.2 Further, drawing attention to the impugned withdrawal order,
Mr. Choudhury submits that before withdrawing the service of the
petitioner, no notice of termination was issued to her or one month
salary was paid to her in lieu of such notice and on this count alone,
the impugned order is liable to be interfered with.
8.3 Referring to another decision of Hon‟ble Supreme Court in the
case of TATA Cellular vs. Union of India, reported in (1994) 6
SCC 651, Mr. Choudhury submits that judicial review is concerned with
the decision making process itself and further, not the merit of the
decision itself and the duty of the Court is to confine itself to the
question of legality and the concern should be (1) whether a decision
making authority exceeded its powers; (2) committed an error; (3)
committed a breach of the rules of natural justice; (4) reached a
decision which no reasonable tribunal would have reached or; (5)
abused its powers and that in the instant case, the respondent
authorities have committed an error of law by not giving one month
notice to the petitioner or one month salary in lieu of notice before
withdrawing her service.
8.4 Referring to two decisions of two Division Benches of this Court,
in the case of Tabong Pasar vs. State of Arunachal Pradesh
and Others, reported in 1999 (3) GLT 90 and in the case of R.K.
Angousana Singh vs. Sainik School Society and Others,
reported in 2006 (1) GLT 717, Mr. Choudhury submits that
undoubtedly, the termination of service of a probationer is a very
drastic measure taken by the concerned authority/employer, against
the probationer and according to well settled principle of law, when a
drastic power is to be exercised, it should be, save and except
according to prescribed procedure. And referring to another decision in
Hukam Chand ShyamLal vs. Union of India and Others,
reported in AIR 1976 SC 789, the Constitution Bench of Hon‟ble
Supreme Court has held that it is well settled that where a power is
required to be exercised by a certain authority in a certain way, it
should be exercised in that manner or not at all and all other modes of
performance are necessarily forbidden and where the power is of a
drastic nature and it exercises in a mode other than the one provided,
will be violative of the fundamental right and natural justice.
8.5 Referring to a decision of Hon‟ble Supreme Court in the case of
Mohinder Singh Gill and Another vs. The Chief Election
Commissioner, New Delhi and Others, reported in (1978) 1 SCC
405, Mr. Choudhury submits that in the impugned order, the
respondent authorities have mentioned the ground of withdrawing as
administrative reason. But, the administrative reason is vague and the
same has been explained in affidavit-in-opposition by stating that the
appointment of the petitioner is based on favoritism and nepotism and
due to non-recognition of the course, the service of the petitioner was
not required in the university and for which, her service was
withdrawn and as such, reason in the affidavit-in-opposition cannot be
taken into account in view of the aforesaid decision, wherein it is
stated that the validity of the order must be judged by the reasons so
mentioned and cannot be supplemented by fresh reasons in the shape
of affidavit or otherwise and an order bad in the beginning may, by the
time it comes to Court on account of a challenge, get validated by
additional grounds later brought out.
8.6 Mr. Choudhury further submits that the impugned termination
order is stigmatic and some allegations are leveled in the affidavit-in-
opposition filed by the respondent Nos. 2 & 3 and to ascertain the
same, no inquiry was conducted. He submits that the petitioner was
appointed while she was serving in Dibrugarh University in the
Chemistry Department with 27 years of experience with unblemished
record and vide impugned withdrawal order she has not been given
time to join in her erstwhile post and consequently, there will be break
in service, which will affect her service life and also her personal
liberty. Mr. Choudhury has also pointed out that though administrative
reason is cited in the impugned order and in the affidavit-in-opposition
it is stated that the application for granting approval for B.Sc. General
course in the HCBSST was rejected by the UGC, yet, it is a continuous
process and referring to an earlier instance of the UGC, Mr. Choudhury
has pointed out that in initiating theprogrammeof Mass Communication
in the University, the same was earlier rejected by the UGC, but,
subsequently, the same was granted and that in the case of opening
the B.Sc. general course, the approval was refused by the UGC on
account of non-availability of self learning material and the same has
to be prepared and it is the petitioner, who has to prepare the same
and that being the process is a continuous one, withdrawal of her
service, on that count, is also illegal and arbitrary exercise of power.
8.7 Mr. Choudhury has drawn attention of this Court in UGC
Regulation, especially to Clause 7(x), wherein it is provided that
complete information about „Self Learning Material‟ including name of
the faculty who prepared it, when was it prepared and last updated,
source of Self Learning Material, references of Self Learning Material,
etc. are to be made and the same is a continuous process.
8.8 Referring to another decision of Hon‟ble Supreme Court in the
case of the Manager, Government Branch Press and Another
vs. D.B. Belliappa, reported in (1979) 1 SCC 477, Mr.
Choudhury submits that it is well settled that the expression „matters
relating to employment‟ under Article 16(1) of the Constitution of India
is not confined to initial matters prior to the act of employment, but
comprehends all matters in relation to employment both prior and
subsequent, to the employment which are incidental to the
employment and form part of the terms and conditions of such
employment, such as provisions as to salary, increments, leave,
gratuity, pension, age of superannuation, promotion and even
termination of employment. It is further well established that Articles
14, 15(1) and 16(1) of the Constitution of India form part of the same
constitutional code of guarantees and supplement each other and if
any authority is needed for the above enunciation, reference may be
made to the observations made in the case of General Manager
Southern Railway vs. Rangachari, reported in (1962) 2 SCR
586.
8.9 Under such circumstances, Mr. Choudhury has contended to set
aside the impugned order of withdrawal of service of the petitioner as
the same is arbitrary and illegal.
9. Per-contra, Mr. D. Saikia, learned Advocate General has
supported the impugned order, dated 16.03.2022, and pointed out
that the petitioner had earlier challenged the communication dated
03.12.2021, in W.P.(C) No. 6604/2021, which was addressed to the
Vice Chancellor of the KKHSOU and requested to take necessary action
with regard to the anomalies in recruitment in respect of the present
petitioner and the interim order dated 08.12.2021, providing that while
there is no bar for the respondent authorities to take action against
the petitioner as per the Statue, but no final order shall be passed until
further order. But in the interlocutory application, being I.A.(C) No.
290/2022, filed by the respondent authorities, the same was vacated
vide order dated 15.03.2022, allowing the prayer of the respondent
authorities. Mr. Saikia also submits that in the meantime, the proposal
sent to the UGC for approval of the course of Bachelor of Science and
the same was turned down because of non-availability of Self Learning
Material and because of this development, the petitioner being a
Professor of Chemistry, her services were not required by the
respondent authorities and on the basis of the said background, citing
the reasons of administrative exigency, the service of the petitioner
was withdrawn w.e.f. 16.03.2022.
9.1 Mr. Saikia further submits that the appointment of the petitioner
was initiated by the then Vice Chancellor, who was earlier in Gauhati
University and was under scrutiny for initiation of correspondence
course on subjects in Gauhati University not approved by UGC, and the
entire process of recruitment and appointment having been vitiated by
him and also has been subjected to various anomalies. As a result, the
impugned letter dated 03.12.2021, was issued requesting for
examination of the manner in which the appointment of the petitioner
had taken place and the appointment of the petitioner to the HCBSST
under KKHSOU was rather a design of the then Vice Chancellor to
accommodate the petitioner in Guwahati, who was working as a
Professor of Chemistry in Dibrugarh University at Dibrugarh since
1994.
9.2 Further submission of Mr. Saikia is that the appointment of the
petitioner was made without there being a subject/discipline of
Chemistry in the institution and from the UGC Expert Committee
Interface Meeting Assessment dated 12.10.2021, it came to know that
the course of Bachelor of Science was not approved by the UGC
assigning the reason that Self Learning Material is not ready for the
same and this is the primary reason for withdrawing her service.
9.3 Mr. Saikia further submits that the petitioner being appointed on
probation for a term of one year, her services could either have been
terminated or extended subject to the discretion and satisfaction of the
employer and that the situation being her service was no longer
required due to non-existence as well as non-approval of the course of
Bachelor of Science by the UGC, the respondent authorities had
decided to withdraw her appointment instead of dismissing her from
service or terminating her from service and as such, it shows that
there is no stigma in the order of withdrawal of service of the
petitioner dated 16.03.2022, as has been alleged by her and it means
that the same will not hamper any future professional prospect of the
petitioner.
9.4 Mr. Saikia also submits that the petitioner had joined on
01.01.2021 and the term of probation of one year was till 01.01.2022.
But, due to the interim order granted to the petitioner by this Court on
08.12.2021, the respondent authorities could not withdraw her from
service within the stipulated period. However, upon vacation of the
interim order, vide order dated 15.03.2022, the respondent authorities
had issued the impugned order dated 16.03.2022 and it has clearly
been given in Clause No. 5 of the terms and conditions in the
appointment letter itself that „Subject to the provisions in the Statues,
this appointment is made on probation for a period of one year from
the date of joining, however, the appointing authority shall have the
power to extend the period of probation. This offer of appointment
may be withdrawn at any time during the probation period based on
administrative reasons, which will be binding to you‟ and as such,
there is no infringement of the conditions of the service, as per the
appointment order dated 24.12.2020, and thereby it is rendered that
no fundamental right of the petitioner has been violated by the office
order dated 16.03.2022.
9.5 Referring to a decision of Hon‟ble Supreme Court in the case of
Oil and Natural Gas Commission and Others vs. S. Iskender
Ali, reported in (1980) 3 SCC 428, Mr. Saikia submits that therein it
is stated that it is well settled by a long course of decisions of Hon‟ble
Supreme Court that in the case of a probationer or a temporary
employee, who has no right to the post, such a termination of his
services is valid and does not attract the provisions of Article 311 of
the Constitution of India and even if misconduct, negligence,
inefficiency may be the motive or the inducing factor which influences
the employer to terminate the services of the employee, a power
which the appellants undoubtedly possessed, even so as under the
terms of appointment of the respondent, such a power flows from the
contract of service and it could not be termed as penalty or
punishment and the order of termination simpliciter without involving
any stigma and as such, the petitioner has no right to service and
thereafter, decided not to interfere with the termination order of
service.
9.6 Referring to another decision of Hon‟ble Supreme Court in the
case of Superintendent of Post Offices and Others vs. E.
Kunhiraman Nair Muliyar, reported in (1998) 9 SCC 255, Mr.
Saikia submits that when the termination is on the administrative
ground and as per rule and in accordance with the respondents‟ terms
of appointment, such termination of service cannot be termed as
arbitrary. Under such circumstances, Mr. Saikia has contended to
dismiss the petition.
10. In reply, Mr. Choudhury, learned senior counsel for the
petitioner, submits that the Court has to examine the decision making
process, as to how the decision was taken and the Court is not
supposed to examine the merit of the order. Reiterating his earlier
submission that self learning material is not available, which are to be
prepared by the petitioner and it was a continuous process and the
same is a non-existence ground, Mr. Choudhury submits that earlier
the UGC has not given recognition to the Mass Communication
Programme, but subsequently, it was given and that there is no
instance of shaking a teacher on such ground. Mr. Choudhury has
further pointed out that though a stand has been taken that the
Conduct Rule is not in force, but since the same has not been
repealed, the respondent authorities are bound to follow the same.
Under such circumstances, Mr. Choudhury has contended to allow this
petition.
Issue before the Court:
11. In view of the rival submission of learned counsel for both the
parties and also in view of the contentions being made in the
pleadings, the issues to be decided by this Court are -
(i) Whether the impugned withdrawal order dated 16.03.2022
is arbitrary and illegal and violative of Article 14/16 of the
Constitution of India? and
(ii) Whether the petitioner has succeeded in establishing a
case for interference of this Court?
12. Having heard the submissions of learned counsel for both the
parties, I have carefully gone through the petition as well as the
documents placed on record and also perused the impugned order
dated 16.03.2022 (Annexure - T), at page No. 112 of the petition and
also gone through the decisions referred by learned counsel for both
the parties.
Discussion and Finding of this Court:-
13. The basic facts herein this case are not in dispute. The service of
the petitioner was withdrawn vide order dated 16.03.2022, and the
same is extracted herein below for ready reference and also to decide
the issue with greater precision:-
Office Order
In pursuance to the decision of the 64th meeting
of the Board of management held on 8th December,
2021 read with the provisions in the Clause B(vi
& vii) under Chapter VI of the First Statue of
the University and the terms and conditions of
appointment, the service of Dr. Jyotirekha G.
Handique on probation as professor in Hiranya
Chandra Bhuyan School of Science and Technology,
Krishna KantaHandiqui State Open University
(KKHSOU) is withdrawn with immediate effect
because of administrative reasons and rejection
of UGC to provide recognition to B.Sc. (General)
Programme vide letter dated 12/10/2021 in Hiranya
Chandra Bhuyan School of Science and Technology,
KKHSOU.
This is issued with the approval of the Vice
Chancellor.
Sd./
(Arupjyoti Choudhury)
Registrar
14. It is not in dispute that the petitioner joined in KKHSOU on
01.01.2021, and as per terms of appointment order dated 24.12.2020
(Annexure - F), she was under probation and terms and condition of
the appointment letter deals with probation, which reads as under:-
"Subject to the provisions in the Statutes, this
appointment is made on probation for a period of
one year from the date of joining. However, the
appointing authority shall have the power to extend
the period of probation. This offer of appointment
may be withdrawn at any time during the probation
period based on administrative reasons, which will
be binding to you."
15. It is also not in dispute that the service of the petitioner was
governed by KKHSOU Appeal Rules, 2019 and the said Rule has been
approved by the 53th BoM meeting held on 26.12.2019, which was
later confirmed by 55th BoM meeting held on 08.03.2020. And it also
appears that though the respondent authorities had taken a stand that
the same is in existence, but not in force as the matter is under active
consideration of the administration and Vice Chancellor is trying to
identify the areas/anomalies that require modification for better
governance of the matter relating to employee of the university, yet,
the said rule has not been kept in abeyance nor repealed and no such
order or notification has been placed before this Court and no such
material is placed on record in support of the same andas such, the
respondent authorities cannot be allowed to argue that the rule is not
in force.
16. That, perusal of the Rule 15 indicates that the service of a
temporary employee may be terminated by the appointing authority
without assigning any reasons thereof and service of an employee on
probation may be terminated with prior notice of one month or one
month pay in lieu thereof. But, in the instant case, though the word
termination is not mentioned in the impugned order, yet withdrawing
her service has the same effect of termination as it has the same
meaning and in order to take recourse of withdrawing her service or
terminating her service, the respondent authorities are bound to
comply with the provision of Rule 15 by issuing one month notice or
one month salary in lieu. But, the same has admittedly not been done
herein this case and in view of the decisions of two Division Benches of
this Court in the case of Tabong Pasar (Supra) and R.K.
Angousana Singh (Supra), wherein it has held that the termination
order being a very drastic measure and when such a drastic power is
to be exercised it should be save and except, according to prescribed
procedure. And in the instant case, the procedure is prescribed under
Rule 15 of the KKHSOU Appeal Rules, 2019, which has not been
followed and as such it is contrary to the Rule 15 of the KKHSOU
Appeal Rules, 2019 and on this count alone, the impugned order is
liable to the interfered with.
17. It is well settled that "there can be 'no islands of insubordination
to the rule of law". And that discretion to disobey the mandate of the
law does not belong even to university organs or other authorities.
Reference in this context can be made to a decision of Hon‟ble
Supreme Court in the case of J.P. Kulshrestha (Dr.) vs.
Allahabad University,reported in(1980) 3 SCC 418, wherein it
has been held as under:-
"Once we recognise the basic yet simple proposition
that no islands of insubordination to the rule of
law exist in our Republic and that discretion to
disobey the mandate of the law does not belong even
to university organs or other authorities, the
retreat of the court at the sight of an academic
body, as has happened here, cannot be approved.
........"
17.1 The aforesaid proposition is reiterated again in the case of K.
Sekher vs. Indiramma & Others, reported in (2002) 3 SCC 586.
18. Further, from the affidavit-in-opposition and also from the
submissions of learned counsel for the respondent authorities, it
appears that the selection and appointment of the petitioner is tuned
with nepotism and favoritism and eligible candidate, namely, Dr. Ujjal
Sharma, was rejected on the basis of biasness and behest of the
husband of the petitioner, who was working as Vice Chancellor of
Gauhati University at the relevant point of time. But, no enquiry was
also conducted to substantiate the same. And if this is also one of the
reason of withdrawal of the service of the petitioner, as stated in the
counter affidavit, and on such count, the impugned order appears to
be stigmatic and since no opportunity of being heard to the petitioner
was given before passing the said impugned order, the same violates
the principles of natural justice and Article 16 of the Constitution of
India and Mr. Choudhury, learned senior counsel for the petitioner has
rightly pointed out this at the time of his argument and the decision of
Hon‟ble Supreme Court in Rangacharia (supra), so referred by him
also strengthened his submission.
19. It also appears that another ground is being taken in the
affidavit-in-opposition filed by the respondent Nos. 2 & 3 that the
proposal for opening B.Sc. General course in the HCBSST of KKHSOU,
the said proposal was rejected by the UGC in its meeting held on
12.10.2021, due to non-availability of self-learning material. But it
appears thatthe process of granting recognition is a continuous one
and it is being pointed out by Mr. Choudhury, the learned counsel for
the petitioner that initially recognition was not given to the programme
of mass communication, but, subsequently, the same was given and
the self learning material for opening B.Sc. Course has to be prepared
and to prepare the same, the service of the petitioner being a
Professor in Chemistry is required and there is no instance of shaking a
professor on this ground and as such, the ground so mentioned in the
impugned order seems to be a non-existent ground.
20. Thus, the whole exercise of the respondent authorities suffers
from the vice of arbitrariness and as such, it is violative of Article 14 of
the Constitution. It is worth mentioning in this context that in the case
of S.G. Jaisinghani vs. Union of India [AIR 1967 SC 1427],
a Constitution Bench of Hon‟ble Supreme Court has observed as
under:-
"14. ... absence of arbitrary power is the first
essential of the rule of law upon which our
whole constitutional system is based. ... the
rule of law from this point of view means that
decisions should be made by the application of
known principles and rules and, in general,
such decisions should be predictable and the
citizen should know where he is. If a decision
is taken without any principle or without any
rule it is unpredictable and such a decision is
the antithesis of a decision taken in
accordance with the rule of law."
20.1 It is to be noted here that while dealing with the issue of
arbitrariness, Hon‟ble Supreme Court in the case of State of Orissa
v. Mamata Mohanty, reported in (2011) 3 SCC 436, held as
under:-
"59. The rule of law inhibits arbitrary action and
also makes it liable to be invalidated. Every
action of the State or its instrumentalities
should not only be fair, legitimate and above
board but should be without any affection or
aversion. It should neither be suggestive of
discrimination nor even give an impression of
bias, favouritism and nepotism. Procedural
fairness is an implied mandatory requirement to
protect against arbitrary action where statute
confers wide power coupled with wide discretion
on an authority. If the procedure adopted by an
authority offends the fundamental fairness or
established ethos or shocks the conscience, the
order stands vitiated. The decision-making
process remains bad."
20.2 It is to be noted here that the impugned withdrawal order dated
16.03.2022 (Annexure - T) of the petition, is being challenged on
account of the same being arbitrary, under Article 14 of the
Constitution of India. And in that view of the matter, the impugned
withdrawal order dated 16.03.2022, (Annexure - T) has to be tested
by applying the Wednesbury principle, in view of the decision of
Hon‟ble Supreme Court in the case of Om Kumar vs. Union of
India, reported in (2001) 2 SCC 386,where in it has been held as
under:-
"68. Thus, when administrative action is attacked as
discriminatory under Article 14, the principle
of primary review is for the courts by applying
proportionality. However, where administrative
action is questioned as "arbitrary" under
Article 14, the principle of secondary review
based on Wednesbury Principles applies."
20.3 However, when administrative action is challenged for being
arbitrary, it only „indirectly‟ violates the right to equality under Article
14. It is to be noted here that arbitrariness was established as a
ground of challenge by Hon‟ble Supreme Court in the case of E.P.
Royappa vs. State of T.N, reported in AIR 1974 SC 555, by
giving Article 14 an expansive interpretation. In the said case, it was
observed that „from a positivistic point of view, equality is antithetic to
arbitrariness and where an act is arbitrary, it is implicit in it that it is
unequal both according to political logic and constitutional law,
therefore violating Article 14.‟
20.4 Therefore, when an administrative action is challenged on
grounds of arbitrariness, the courts play a secondary role in examining
whether the administrators in discharging their primary role as
adjudicators have adhered to the standards laid down in the
Wednesbury test. The courts cannot apply the more intrusive
proportionality test in such cases, limiting their intervention to judging
the reasonableness of the decision-making process on the basis of the
Wednesbury test.
20.5 It is to be noted here in the case of Associated Provincial
Picture House Limited vs. Wednesbury Corporation, reported
in (1947) 2 AII ER 680, the United Kingdom, Court of Appeal held
that the action of the administrative authorities would be declared
unconstitutional is it meets the following circumstances:-
1. Consideration of irrelevant and extraneous factors.
2. Neglect of relevant factors.
3. Decision is irrational to a reasonable person and no
reasonable person in their wildest of dream would reach
that particular conclusion.
21. It is well settled that the impugned order has to be decided not
on its merit, but examine the process of making the same and as held
by Hon‟ble Supreme Court in the case of TATA Cellular (Supra),
the Court has to examine (1) whether a decision making authority
exceeded its powers; (2) committed an error of law; (3) committed a
breach of the rules of natural justice; (4) reached a decision which no
reasonable tribunal would have reached, or; (5) abused its powers and
in the instant case, the respondent authorities have committed an
error of law in passing the impugned order by not giving one month
notice to the petitioner or one month salary in lieu before withdrawing
her service, as provided in Rule 15 of the KKHSOU Appeal Rules, 2019.
22. Further, in the impugned order the reason has been assigned
that only for administrative reasons the appointment of the petitioner
has been withdrawn, but the reason mentioned in the affidavit-in-
opposition that the appointment of the petitioner is tainted with
nepotism and favoritism is another reason of withdrawal of service of
the petitioner, has not been mentioned in the impugned order. It is
well settled in the case of Mohinder Singh Gill (Supra), that
validity of the impugned order has to be judged by the reason so
mentioned in the order itself and cannot be supplemented by fresh
reasons in the shape of affidavit or otherwise.
23. I have carefully considered the submissions of Mr. Saikia, learned
Advocate General appearing for the respondent Nos. 1, 2 & 3 and also
gone through the decisions referred by him. But, in view of the
discussion made herein above, this Court is unable to agree with his
submission. Notably, in the case of E. Kunhiraman Nair Muliar
(supra), it is stated that if the termination is on administrative
ground and as per rule and in accordance with the terms and condition
of the appointment, then such termination cannot be termed as
arbitrary. But, in the instant case, the withdrawal of service of the
petitioner, though appears to be in terms of appointment, yet, it
appears to be not in accordance with Rule 15 of the KKHSOU Appeal
Rules, 2019. That being so, the ratio laid down in the said case would
not come into his assistance. Further, this Court finds that the other
decisions, referred by him proceeds on their own facts and not
applicable in all force to the given facts and circumstances herein this
case. Therefore, reference to all those decisions are found to be not
necessary herein this case.
Conclusion:-
24. In view of the discussion and finding above, both the issues, so
formulated herein above, have to be answered in affirmative and
accordingly, the same stands answered.
25. To recapitulate, on the following grounds the impugned
withdrawal order, dated 16.03.2022, fails to withstand the legal
scrutiny:-
(i) It was passed in contravention of the Rule 15 of the
KKHSOU Appeal Rules, 2019, as notice of one month or
salary of one month in lieu thereof, has not been given to
the petitioner, and being a drastic step is taken by
exercising drastic power, it should be, save and except,
according to prescribed procedure as held in the case of
Tabong Pasar (Supra) and R.K. Angousana Singh
(Supra) and E. Kunhiraman Nair Muliar (supra).
(ii) The ground mentioned in the impugned withdrawal order is
a non-existent ground, in view of the fact that recognition
of the new course is a continuous process and the
recognition of B.Sc. (General) Course in HCBSST, under
KKHSOU, was rejected on the ground of absence of non-
availability of self-learning material and that it may be
granted when the materials are made available, as is
apparent from the instance of Mass Communication
Programme of KKHSOU.
(iii) The impugned order dated 16.03.2022, so issued by the
respondent KKHSOU, suffers from the vice of arbitrariness,
and thus, it is violative of Article 14 and 16 of the
Constitution of India.
26. In the result, this Court finds sufficient merit in this petition and
accordingly, the same stands allowed. The impugned order dated
16.03.2022, stands set aside and quashed. Consequently, the
petitioner shall be reinstated in her service.
JUDGE
Comparing Assistant
