Dr. Naveen G H vs The Union Of India
2023 Latest Caselaw 2185 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.102 of 2023
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Dr. Naveen G H Son of Halappa G R, IDK 108/A, Ganesh Colony, resident of P.O.-Bhadravati, P.S.-Shimoga, State-Karnataka, Pin Code-577 301 ... ... Petitioner/s Versus

1. The Union of India through the Secreary, Ministry of External Affairs, New Delhi.

2. Nalanda University, Rajgir, District-Nalanda through its Registrar

3. Vice Chancellor, Nalanda University, Rajgir, District-Nalanda.

4. Registrar, Nalanda University, Rajgir, District-Nalanda.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Abhinav Srivastava Mr. Rudraksh Shivam Singh Mr. Arpit Anand Mr. Raushan Mr. Pushkar Bhardwaj For the Union of India : Mr. Anshuman Singh For Nalanda University : Mr. Anjani Kumar, Sr. Adv.

Mr. Amit Jha ====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA

JUDGMENT AND ORDER C.A.V.

Date : 08-05-2023

The petitioner, who was appointed on the post of

Senior Assistant Professor in the School of Public Health/School

of Buddhist Studies, Philosophy and Comparative Studies, at

Nalanda, (herein after referred to as 'the School'), under the

Nalanda University, on contract basis for a period of three years,

has approached this Court for quashing the Office Order, dated

06.12.2022, issued by the Registrar, Nalanda University, under

memo no. NU/ACAD/2021-22, by which the petitioner has been

informed that after due review of his performance, the further Patna High Court CWJC No.102 of 2023 dt.08-05-2023

extension of the contract period of the petitioner, under probation,

has not been considered and the petitioner was given one-month

notice to clear dues and submit 'No Dues Certificate'.

2. As per the terms of the contract agreement, executed

on 10.08.2021, between the petitioner and the Nalanda University

(herein after referred to as 'the University'), the entire period of

contract is on probation and is based on effectiveness of delivery,

accountability, conduct and deportment, scholarship and integrity.

The period of probation can be further extended. There will be a

review of the performance and conduct as per the decision of the

University.

3. The factual matrix of the case is that the University

has been incorporated under the Nalanda University Act, 2010 as

an international institution for pursuit of intellectual,

philosophical, historical and spiritual studies and the said Nalanda

University Act, 2010, has been enacted to implement the decision

arrived at the 2nd East Asia Summit, held on 15.01.2007, at

Philippines and subsequently, the 4th East Asia Summit, held on

25.10.20098, at Thailand.

4. As per Section 28 of the Nalanda University Act,

2010, the Governing Board of the University framed the Nalanda

University Statutes, 2012, which were subsequently amended by Patna High Court CWJC No.102 of 2023 dt.08-05-2023

the Nalanda (Amendment) Statutes, 2021, laying down the

provisions for the manner of appointment of different officers,

teachers and other employees of the University as well as their

emoluments and other conditions of service.

5. Through an advertisement, dated 31.03.2020, the

University published a rolling advertisement for faculty positions

inviting CV/expression of interest for teaching faculty from

qualified and meritorious candidates for the post of

Professor/Assistant Professor in the various Schools of the

University, including the School of Buddhist Studies, Philosophy

and Comparative Religions.

6. The petitioner, who possess qualification of M. Sc. in

Basic Sciences, Yoga Philosophy and Yoga Therapy as well as

Ph.D. in Yoga Therapy and Psychiatry and also possess the

qualification of NET in Yoga, submitted his CV along with the

required details through e-mail, dated 26.03.2021, and accordingly,

he was informed that his application had been shortlisted and he

was called for the interview, scheduled to be held on 30.06.2021,

at the Delhi Office of the University. The petitioner participated in

the interview held by the University and by letter, dated

12.07.2021 (Annexure-3), issued by the Registrar of the

University, the petitioner was informed that he has been appointed Patna High Court CWJC No.102 of 2023 dt.08-05-2023

against the post of Senior Assistant Professor in the School on a

three-years tenure track in the pay-scale of US $ 15000-25000 per

annum, along with other admissible allowances, subject to the

terms and conditions indicated in the letter, dated 12.07.2021.

7. Clause 3 (iii) of the appointment letter, dated

12.07.2021, stipulates that the appointment of the petitioner would

be on probation from the date of his joining the post in the

University, which can be extended at the discretion of the

Appointing Authority.

8. Pursuant to the aforesaid offer letter, the petitioner

submitted his joining as Senior Assistant Professor under the

University and accordingly, the employment contract, dated

10.08.2021 (Annexure-4), was executed between the petitioner and

the Registrar of the University. The appointment of the petitioner

was on contract basis for a period of three years and was

extendable, subject to satisfactory performance.

9. Clause 1.3 of the Contract says that the entire period

of contract shall be on probation and based on the review report,

the tenure track could be considered for tenured position, or

further extension of probation or exit.

10. Clause 4 of the Contract deals with termination of an

employee and stated that the employee, under this agreement, shall Patna High Court CWJC No.102 of 2023 dt.08-05-2023

be liable to be terminated in the events of violation of the terms of

this agreement or there is an allegation of misconduct or for

indulging in activities that are not in the interest of the University.

11. According to the petitioner, after his joining in the

capacity of Senior Assistant Professor, he started discharging his

duties with utmost dedication and sincerity and the petitioner

continued to discharge his duties to the best of his ability and there

had been no complaint(s) against him with respect to his

performance as a faculty in the services of the University.

12. The respondents-University filed a counter affidavit,

stating therein that the writ petition is not maintainable as the

petitioner was a faculty on probation and as per the terms of the

Contract, the entire period of contract is on probation. In the first

year of the contract, his performance was reviewed and his

probationary contract period was not extended. The petitioner has

never been terminated. The petitioner was well aware about the

fact that further extension and/or continuation on probation is

subject to good performance, scholarship, conduct and probity,

which was not adhered to by the petitioner despite him being

counselled by the Dean and the Competent Authority on several

occasions by keeping the principle of natural justice in mind. Patna High Court CWJC No.102 of 2023 dt.08-05-2023

13. During the probation of the contractual term of the

petitioner, he was given several opportunities to improve his

conduct, bring in work ethics and improve his scholarship and

performance with due respect for the international stature and

image of the University. He was counselled, advised and cautioned

several times not only by the Dean of the School, but by the

Competent Authority as well in a couple of meetings.

14. In view of the provisions as stated in Clauses 1, 1.1

and 1.3 of the Contract, a performance report was duly sought

from the respective Schools/Deans and his performance and

conduct was duly reviewed before taking a decision not to further

extend the contract period under probation. The petitioner was also

given one month notice, in advance, to clear his dues and submit a

'No Dues Certificate. A copy of the Review Reports and

certification by the Secretariat of the Vice Chancellor has been

annexed as Annexures R2/2 and R2/2A to the counter affidavit.

15. Learned Counsel for the petitioner, while assailing

the impugned order, submits that the impugned order does not

mention about any report, finding the conduct of the petitioner

unsatisfactory, on which his probation period was not extended.

No communication of his performance being below the mark was

ever made to the petitioner and the petitioner was not given any Patna High Court CWJC No.102 of 2023 dt.08-05-2023

opportunity to improve his performance and/or submit his

explanation before the Authority. Accordingly, the impugned order

is completely in violation of the principle of natural justice. The

petitioner was never informed/communicated that after due

enquiry, his probation period was not considered for further

extension and opportunity of being heard was also not granted to

the petitioner before passing the impugned order.

16. In support of his argument, learned Counsel for the

petitioner placed reliance on a decision of the Supreme Court, in

the case of Sumati P. Shere v. Union of India and Others,

reported in (1989) 3 SCC 311.

17. On the other hand, learned Senior Counsel,

appearing on behalf of the University, argued that the University is

an autonomous body, under Section 9 (2) of the 2010 Act and is

accountable to the Governing Board. The Union of India, through

the Secretary, Ministry of External Affairs, New Delhi, who has

been impleaded as respondent no. 1, does not manage/govern the

University. The petitioner was on probation and in the first year of

his probationary contractual term, a decision not to extend the

probation period was taken based upon the review of his

performance and discretion of the University, the impugned order

is neither an order of termination nor dismissal; rather, it is an Patna High Court CWJC No.102 of 2023 dt.08-05-2023

advance intimation of one-month of non-extension of contractual

and probationary term, where the entire period of contract, signed

by the petitioner, was probationary period. He further argued that

despite being counselled and advised on several occasions by the

Dean and the Competent Authority to the petitioner keeping in

mind the principles of natural justice, the petitioner could not

improve. In support of his argument, learned Senior Counsel relies

upon the review reports and dates of meetings of the petitioner for

counselling (Annexures R2/2 and R2/2A to the counter affidavit).

18. Learned Senior Counsel also argued that the

impugned order is not stigmatic in nature. He further argued that

the petitioner is the signatory to the Contract, therefore, he cannot

state his ignorance on the conduct and performance review in

compliance of the provisions of the Contract. He next argued that

the petitioner has himself accepted the terms of the Contract,

implying his consent to the given terms and conditions.

19. In support of his argument, learned Senior Counsel

relies on the decisions of the Supreme Court, in the cases of Om

Prakash Mann v. Director of Education (Basic) and Others,

reported in (2006) 7 SCC 558, State Bank Of India and Others

v. Palak Modi and Others, reported in (2013) 3 SCC 607, and Patna High Court CWJC No.102 of 2023 dt.08-05-2023

Samsher Singh v. State of Punjab and Another, reported in

(1974) 2 SCC 831.

20. I have heard learned Counsel for the parties

concerned and have gone through the materials on record,

including the case laws, cited by them.

21. In the case of Sumati P. Shere (supra), relied upon

by learned Counsel for the petitioner, the Supreme Court has held,

in paragraph 7, as follows:-

"7. There cannot be any dispute about this proposition. We are not laying down the rule that there should be a regular enquiry in this case. All that we wish to state is that if she is to be discontinued it is proper and necessary that she should be told in advance that her work and performance are not up to the mark."

22. The Supreme Court, in the backdrop of the facts and

decision relied upon in the cases of (i) Champaklal Chimanlal

Shah v. Union of India [AIR 1964 SC 1854 : (1964) 5 SCR 190 :

(1964) 1 LLJ 752] and (ii) Oil & Natural Gas Commission v.

Dr. M.D.S. Iskender Ali [(1980) 3 SCC 428 : 1980 SCC (L&S)

446], observed that there cannot be any dispute about this

proposition that the termination of service, in the case of

probationer, on the ground of unsuitability for the post does not

attract Article 311(2) of the Constitution of India. The Supreme Patna High Court CWJC No.102 of 2023 dt.08-05-2023

Court has further held that we are not laying down the rule that

there should be a regular enquiry in this case and all that we wish

to state is that if she is to be discontinued, it is proper and

necessary that she should be told in advance that her work and

performance are not up to the mark.

23. In the case of Palak Modi (supra), the Supreme

Court has held, in paragraph 25, as follows:-

"25. The ratio of the abovenoted judgments is that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice."

24. In the case of Samsher Singh (supra), the Supreme

Court has held, in paragraph 62, as follows:-

Patna High Court CWJC No.102 of 2023 dt.08-05-2023

"62. The position of a probationer was considered by this Court in Purshottam Lal Dhingra v. Union of India [AIR 1958 SC 36 :

1958 SCR 828 : 1958 SCJ 217]. Das, C.J.

speaking for the Court said that where a person is appointed to a permanent post in Government service on probation the termination of his service during or at the end of the period of probation will not ordinarily and by itself be a punishment because the Government servant so appointed has no right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to do so. Such a termination does not operate as a forfeiture of any right of a servant to hold the post, for he has no such right. Obviously such a termination cannot be a dismissal, removal or reduction in rank by way of punishment. There are, however, two important observations of Das, C.J. in Dhingra case. One is that if a right exists under a contract or Service Rules to terminate the service the motive operating on the mind of the Government is wholly irrelevant. The other is that if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and violates Article 311 of the Constitution. The reasoning why motive is said to be irrelevant is that it inheres in the state of mind which is not discernible. On the other hand, if termination is Patna High Court CWJC No.102 of 2023 dt.08-05-2023

founded on misconduct it is objective and is manifest."

25. On a careful scrutiny of the terms of the contract, I

find that Clause 1.1 of the Contract relates to the service condition

and stipulates that the services of the Employee can be

ceased/discontinued without assigning any reason thereof on or

before completion of the term. In the event of the employee

deciding to resign from her/his engagement during the service

period, she/he shall give one month notice or one month salary in

lieu thereof during the period of probation. After completion of the

probation period, the employee concerned will be required to serve

the notice for a period of three months or three month salary in

lieu thereof.

26. Clause 1.3 of the Contract deals with probation and

says that the entire period of contract shall be on probation and

based on effectiveness of delivery, accountability, conduct and

deportment, scholarship and integrity, her/his probationary period

may further be extended. There will be a review of the

performance and conduct as per the decision of the University.

Based on the review report, the tenure track may be considered for

tenured position or further extension of probation or exit. Patna High Court CWJC No.102 of 2023 dt.08-05-2023

27. Clause 1.4 of the Contract deals with the salary,

which says that the employee shall receive such salary/

emoluments as per the University Rules/Stipulations, subject to

any modifications by the nodal Ministry, Government of India,

provided that whenever there is any change in the nature of

appointment or the emolument, the change shall be recorded.

28. Upon perusal of the terms of the Contract, it is clear

that the extension of probation or exit is depended upon review of

the performance of the employee and the termination of the

Contract is depended upon the violation of the terms of the

agreement by the employee and also when there is allegation of

misconduct or in indulging in the activities that are not in the

interest of the University.

29. From perusal of the impugned order, dated

06.12.2022, it is apparent that the same is not the order of

termination, but the University has decided not to extend further

the contract period of the petitioner under probation. Accordingly,

the impugned order is not stigmatic and is an order simplicitor not

to extend the period of probation after due review of the

performance of the petitioner.

30. The respondents-University, in paragraph 20 and 23

of its counter affidavit, has specifically stated that keeping the Patna High Court CWJC No.102 of 2023 dt.08-05-2023

principle of natural justice in mind, the petitioner was counselled

several times advising him to improve his conduct, performance

and accountability, and despite several counselling sessions and

after being given ample time and opportunities and after taking

into consideration the review report on the performance of the

petitioner in the academic programme submitted by the Dean, the

petitioner did not pay heed to the counselling to improve his

performance, scholarship, effectiveness of delivery, conduct and

accountability.

31. In support of the submission, the University has

annexed the review report submitted by the Dean of the School

and the document showing several meetings, held on different

dates, between the petitioner and the Authorities of the university

for his counselling. The petitioner has not denied the statement

made in the aforesaid paragraphs as well as the documents,

annexed at Annexure R2/2.

32. Upon perusal of the review report (Annexure R2/2),

it transpires that the Dean and the Chair Scholarship Committee, in

the review report on the performance of the petitioner, has stated

that as the Dean, I have several faculty teachings under me in two

Masters programs and I frequently interact with students and when

they bring up certain issues, I try and address them immediately Patna High Court CWJC No.102 of 2023 dt.08-05-2023

keeping with the vision and image of the university. The report

further states that Dr. Halappa (the petitioner), who claimed to be

an expert on Yoga was assigned to teach a course "Patanjali Yoga-

sutras-Theory and Practice" to the students of Second semester

MA Hindu studies. The students have orally complained several

times that he was not able to teach the course properly and I also

received complaints on his lack of scholarship on Yoga or Yoga

philosophy. In short, not only Yoga- sutras, he has no expertise to

teach any of the courses in the School. Despite being advised to

improve his scholarship, effectiveness of delivery and

accountability to teaching and deportment, he kept arguing and

misleading by telling lies. The Dean further states that he was

worried about assigning him any work pertaining to the school.

33. Another report of Sri Abhay Kumar Singh, Dean-in-

Charge of the School, is also on record relating to the work of the

petitioner based upon the feedback received from faculty

members/students/employees, it has been stated that lack of

knowledge of the subject matter is evident in the teaching work of

Dr. Naveen G. Halappa. The teaching courses in the School was

allotted to him, but he failed to deliver in his teaching obligations,

solely due to his lack of knowledge of the fundamentals and

theoretical part of the subject, which affected the level of studies Patna High Court CWJC No.102 of 2023 dt.08-05-2023

of international and Indian students in the School. Students often

complained about this. Another course on "Wellness and Healing

Traditions from India" also suffered and was not opted by students,

due to his ineffectiveness. The report further states that Several

meetings, where Dean was also present, in which counselling by

Hon'ble Vice-Chancellor was given, and the petitioner was offered

ample opportunity and guidance to improve and deliver, but he has

denied any accountability for himself and also failed to improve

his conduct and teaching.

34. The main plank of the argument of learned Counsel

for the petitioner is that the petitioner was not given any

opportunity to improve his performance and he was not told in

advance that his work and performance was not up to the mark.

35. In view of the factual position discussed herein

above and on the basis of unconverted facts stated by the

University in the counter affidavit, the veracity of the same cannot

be doubted by this Court, I come to the conclusion that the

decision, relied upon by the petitioner, is not applicable in the facts

and circumstances of the present case inasmuch as there is a

specific statement, supported by the documents, that upon review

of the performance of the petitioner, an opportunity was given to

the petitioner to improve his academic performance, but the Patna High Court CWJC No.102 of 2023 dt.08-05-2023

petitioner failed to deliver his teaching obligations, due to lack of

knowledge of the fundamentals and theoretical part of the subject.

The University, in terms of the Contract, decided not to extend the

probation period of the petitioner. I also come to the conclusion

that the University had given opportunity to the petitioner at the

counselling on various occasions to improve his performance and

ability. Accordingly, the University, based on the review reports

and in terms of Clause 1.3 of the Contract, which deals with the

Probation, rightly decided not to extend the probationary period of

the petitioner any further.

36. The Supreme Court, in the case of Om Prakash

Mann (supra) has held that By now, it is well-settled principle of

law that the doctrines of principle of natural justice are not

embodied rules and they cannot be applied in a straitjacket

formula. It is well-settled principle of law that if the probationer is

dismissed/terminated during the period of probation, no

opportunity is required to be given and, therefore, the question of

violation of principle of natural justice does not arise.

37. In the case of Palak Modi (supra), the Supreme

Court has held that the probationer has no right to hold the post

and his service can be terminated at any time during or at the end

of the period of probation on account of general unsuitability for Patna High Court CWJC No.102 of 2023 dt.08-05-2023

the post held by him. If the competent authority holds an inquiry

for judging the suitability of the probationer or for his further

continuance in service or for confirmation and such inquiry is the

basis for taking decision to terminate his service, then the action of

the competent authority cannot be castigated as punitive.

38. As I have already come to the finding that the

impugned order is not stigmatic and punitive, the principle of

natural justice, stricto senso, is not applicable in the facts of the

case. However, from the documents available on record, it emerges

that the petitioner was given adequate opportunity to improve his

performance by the Dean on various occasions, including the

counselling by the Vice Chancellor and other authorities of the

University in several meetings held between them and the

petitioner.

39. The Supreme Court, in the case of Samsher Singh

(supra), while discussing the decision rendered by it, in the case of

Purshottam Lal Dhingra v. Union of India [AIR 1958 SC 36:

1958 SCR 828: 1958 SCJ 217], has noted that there are, however,

two important observations of Das, C.J. in Dhingra's case. One is

that if a right exists under a contract or Service Rules to terminate

the service the motive operating on the mind of the Government is

wholly irrelevant. The other is that if the termination of service is Patna High Court CWJC No.102 of 2023 dt.08-05-2023

sought to be founded on misconduct, negligence, inefficiency or

other disqualification, then it is a punishment and violates Article

311 of the Constitution. The reasoning why motive is said to be

irrelevant is that it inheres in the state of mind which is not

discernible. On the other hand, if termination is founded on

misconduct it is objective and is manifest.

40. In the present case, the respondent-University in

exercise of its right, under the terms of the Contract, has passed an

innocuous order of not extending the probation period of the

petitioner, based upon the review report of his performance. The

impugned order is not founded on the allegation of misconduct and

is not punitive.

41. As discussed herein above, on facts as well as on

law, in my considered opinion, the impugned order does not

require any interference by this Court.

42. In the result, the present writ application is

dismissed.

43. There shall be no order as to costs.

(Anil Kumar Sinha, J.) Prabhakar Anand/-

AFR/NAFR                         AFR
CAV DATE                      23-03-2023
Uploading Date                08-05-2023
Transmission Date                N/A