Tripura High Court
The Union Of India vs Sri Subhajit Deb on 5 August, 2024
Page 1 of 12
HIGH COURT OF TRIPURA
AGARTALA
WA No.58 of 2023
1. The Union of India, Represented by the Secretary, Ministry of Education,
Department of Higher Education, having his office at Shastri Bhawan, New
Delhi.
2. The Secretary, Ministry of Education, Department of Higher Education,
having his office at Shastri Bhawan, New Delhi.
3. The National Institute of Technology, Represented by its Director, having his
office at Shastri Bhawan, New Delhi.
4. The National Institute of Technology, Agartala, Represented by its Director,
having his office at Barjala, Jirania, West Tripura, Pin-799046.
5. The Registrar, National Institute of Technology, Agartala, having his office
at Barjala, Jirania, West Tripura, Pin-799046
6. The Dean (Faculty Welfare), National Institute of Technology, Agartala,
having his office at Barjala, Jirania, West Tripura, Pin-799046
.........Appellant(s);
Versus
1. Sri Subhajit Deb, Son of Lt. Susanta Deb, resident of Shibnagar College
Road Extension, P.O. Agartala College, P.S. East Agartala, Sub-Division-
Agartala, District-West Tripura, Pin-799004, holding the post of Assistant
Professor, Department of Civil Engineering, National Institute of Technology,
Agartala, West Tripura, Pin-799046,
2. Smt. Nabanita Bhowmik, Daughter of Lt. Nitya Gopal Bhowmik, resident of
Ramnagar Road No.6-7, T.G Road, P.O. Ramnagar, P.S. West Agartala, Sub-
Division-Agartala, District-West Tripura, Pin-799002, holding the post of
Assistant Professor, Department of Civil Engineering, National Institute of
Technology, Agartala, West Tripura, Pin-799046,
3. Sri Dhrubajyoti Bhowmik, Son of late Dilip Kumar Bhowmik, resident of
Badharghat, Matripalli, P.O. A.D. Nagar, P.S. Amtali, Sub-Division- Agartala,
District-West Tripura, Pin-799003, holding the post of Assistant Professor,
Department of Computer Science & Engineering, National Institute of
Technology, Agartala, West Tripura, Pin-799046,
4. Smt. Dipika Debnath, Daughter of Sri Haridhan Debnath, resident of
Dhaleswar Road No.7, P.O. Dhaleswar, P.S. East Agartala, Sub-Division-
Agartala, District-West Tripura, Pin-799007, holding the post of Assistant
Professor, Department of Civil Engineering, National Institute of Technology,
Agartala, West Tripura, Pin-799046
.........Respondent(s)
For Appellant(s) : Mr. Bidyut Majumder, Deputy SGI.
For Respondent(s) : Mr. Somik Deb, Sr. Advocate,
Mr. P. Chakraborty, Advocate,
Mr. Abir Baran, Advocate.
Page 2 of 12
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
HON'BLE MR. JUSTICE S.D. PURKAYASTHA
Date of hearing & Judgment: 05.08.2024
Whether Fit for Reporting: YES
JUDGMENT & ORDER (ORAL)
Heard Mr. Bidyut Majumder, learned Deputy SGI for the
appellants-Union of India and Mr. Somik Deb, learned senior counsel for the
writ petitioners/respondents herein.
2. The appellants-Union of India is aggrieved by the impugned
directions passed by the learned Writ Court at para-6 in WP(C) No.1067 of
2022 which reads as under:
"6. Conclusion:
For the reasons stated and discussed above on the relevant Acts and
Rules vis-à-vis the Principal Statues ["Statutes,2009"] qua the amended Statutes
["Statutes,2017"], this writ petition stands disposed with the following
directions:-
(i) The respondents are directed to restore the initial engagement or
original status of the petitioners as Assistant Professor (on contract)
within 7(seven) days from the date of receipt of the copy of this
judgment, revoking or rescinding the Memorandum dated 26.08.2022
[Annexure-8 to the writ petition];
(ii) the reduction of pay structures of the petitioners is declared as illegal
and arbitrary;
(iii) fresh engagements of the petitioners vide communications dated
14.07.2020 [Annexure-4 to the writ petition] determining their salary on
consolidated pay of Rs.50,000/- is hereby declared as void ab initio and
non est and the respondents are directed to restore their last pay
structures;
(iv) the salaries of the petitioners including arrears, if any, shall be
disbursed within 30 days from the date the petitioners place a copy of this
judgment to the Director, NIT, Agartala;
(v) the Memorandum dated 26.08.2022 [Annexure-8 to the writ petition]
putting their services against non-sanctioned post changing their
designation from Assistant Professor (on contract) to "Temporary
Faculty" or "Temporary Assistant Professor" stands set aside and
quashed; and
(vi) the respondents are at liberty to make fresh engagements/
appointments in terms of "Statutes, 2017" against the vacant posts
without disturbing engagements/appointments of the petitioners as
Assistant Professor (on contract) till regular appointments are made
against the posts of Assistant Professor.
AND
(vii) However, the prayer of the petitioners to pass a direction upon the
respondents for regularization of their services as Assistant Professor
with regular pay scales is hereby rejected."
3. The relevant undisputed service details of the petitioners regarding
their entry in service are at paragraphs 2 to 2.7 of the impugned judgment
which are being extracted into our order for the purposes of avoiding repetition:
"2. Factual Backgrounds:-
2.1. All the 4(four) petitioners were engaged to the post of Assistant
Professor (on contract) on consolidated pay under the National Institute of
Technology, Agartala, Tripura after their successful participation in the selection
process at different point of times in response to various advertisements issued
time to time by National Institute of Technology, Agartala, Tripura (for short,
"NIT, Agartala").
2.2. The petitioner, Sri Subhajit Deb was engaged in Civil Engineering
Department on a consolidated pay of Rs.29,000/- per month vide memorandum
dated 06.08.2010 with certain terms and conditions which are as under:-
"Memorandum
The Director, NIT Agartala, pleased to offer the contractual
engagement of Sri Subhajit Deb in Civil. Engg. On the following terms
and conditions to serve as Contractual Assistant Professor and other
works as and when assign to him by the competent authority.
TERMS AND CONDITIONS
1. He will receive a consolidated amount of Rs.29,000/- (Twenty nine
thousand) only p.m. may be paid subject to satisfactory appraisal report
from concerned Head of Deptt.
2. His contractual engagement is valid up to 3(Three) Months with effect
from date of joining.
3. He will entitle for TA/DA whenever he will be deputed for official
duties outside of his head quarter.
4. Since this is a contractual engagement the medical reimbursement
facility could not be allowed to him.
5. He will avail the normal holidays and C.L. as applicable to NIT
Agartala. Any other leave is not applicable to him "except no pay basis".
6. His letter of acceptance be submitted along with his joining report,
within 7 days from the date of this letter.
7. The allotment of subject/class will be decided by concerned Head of
Deptt.
8. The contract may be terminated by giving 30(thirty) days notice from
either side.
Sd/- illegible
(Dr. D. Bhattacharjee)
05.08.2010
Registrar"
2.3. The petitioner, Smt. Nabanita Bhowmik also was engaged against the
post of Assistant Professor (on contract) in Civil Engineering Department on a
consolidated pay of Rs.29,000/- per month vide order dated 04.12.2012 for a
period of almost 7(seven) months of similar terms and conditions as that of Sri
Subhajit Deb, the petitioner no.1. One of the added conditions is that "the future
extension can be provided depending upon the recommendation of the HOD/
Branch In-Charge/Section In-Charge and satisfactory performance."
2.4. Similarly, Mr. Dhrubajyoti Bhowmik and Smt. Dipika Debnath were
engaged against the posts of Assistant Professor (on contract) in the Department
of Computer Science & Civil Engineering respectively vide letters of engagement
dated 28.03.2013 and 30.09.2014 on consolidated pay of Rs.30,000/- per month
and Rs.35,000/- per month respectively.
2.5. On satisfactory performance, the period of contractual engagements of
the petitioners were time to time extended with enhanced consolidated pay to the
extent of Rs.51,032/- along with additional increments.
2.6. Lastly, vide memorandum dated 26.08.2022, the engagements of the
petitioners were extended for a further period of 6(six) months on monthly
consolidated pay, but, under the following fresh terms and conditions:-
"1. The engagement is not against any sanctioned post.
2. The engagement will be subject to discontinuance at any point of time
without assigning any reason if exigency of service does not require it or
the interest of the institution is not served to the satisfaction of the
engaging authority and that engagement will not confer any right of
continuation or confirmation under any circumstances.
3. If anyone wants to leave the organization, he/she has to give one month
notice failing which he/she is required to pay one month's consolidated
amount to be drawn by him/her at the time of submission of such notice.
4. You will perform all other works as and when assigned by the
Competent Authority of NIT Agartala.
5. You will be entitled for TA/ DA whenever deputed for official duties
outside the Head Quarters, as applicable to NIT Agartala.
6. You will be entitled to avail the normal holidays and 04 days C.L. and
5 days Special Leave during the engagement period. Any other leave is
not admissible.
7. You will not be entitled to any Medical Reimbursement /LTC from NIT
Agartala.
8. If any dispute arises between an employee and the NITA, the decision
of Competent Authority, of NIT Agartala will be final and binding.
Sd/- illegible
26.08.2022
Dean(F/W)"
2.7. Under the aforesaid memorandum dated 26.08.2022 (Annexure-8 to the
writ petition), for the first time, the 2(two) of the petitioners have been designated
as "Temporary Asstt. Prof." and other 2(two) were designated as "Temporary
Faculty" with consolidated monthly salary of Rs.50,000/- per month."
4. The memorandum dated 26.08.2022 compelled the petitioners to
approach the Writ Court with two grievances - one relating to change of
designation from "Assistant Professor (on contract)" to "Temporary Assistant
Professor" and "Temporary Faculty" and the other relating to reduction of
consolidated monthly salary to Rs.50,000/- from Rs.51,032/- plus increments.
Learned Writ Court, upon hearing the parties and the pleadings on record, also
dealt with the provisions of the National Institute of Technology Act, 2007, the
notifications issued from time to time by the Ministry of Human Resource
Development (Department of Higher Education) [MHRD, for short], the Draft
Recruitment Rules, 2010, the Model Recruitment Rules, 2011, the NIT
Amendment Act, 2012, the Statutes of 2009 which is later called as "Statutes of
2017" amended with prior approval of the Visitor under sub-section (3) and
sub-section(4) of Section 26 of the Principal Act [29 of 2007] and proceeded to
hold that these petitioners were selected under various advertisements from
time to time and engaged on contract basis on the post of Assistant Professor in
various departments. Their contractual services were extended and they have
held their post continuously till their status was altered to "Temporary Faculty"
with simultaneous reduction in their pay structures. Their representation for
restoration of their status and salary were not addressed compelling them to
approach this Court.
5. The learned Writ Court, after scrutiny of the Statutes of 2017, held
that the requirement of prescribed qualification (Ph.D) required for
appointment of Assistant Professor (on contract) cannot be enforced against the
Assistant Professors who have already been holding the post of Assistant
Professor (on contract) under the Statutes of 2017. By virtue of the letter dated
31.01.2018 issued by the MHRD, such prescribed qualification of Ph.D is
applicable to "new entrants" in the NIT and cannot be given retrospective
effect. As such, the impugned notifications dated 14.07.2020 and 26.08.2022
altering the status of the petitioners with reduction of pay structures is wholly
illegal, arbitrary and inconsistent with that of the Statutes of 2017. The learned
Writ Court also held that the Statutes of 2017 is not in supersession or in
derogation of the provisions of the "First Statute, 2009" but only an
amendment. In that light, the learned Writ Court applied the principle that one
set of contractual employees cannot be replaced/substituted by another fresh set
of contractual employees on the ground that new qualification (Ph.D) is
required to be fulfilled by them. It also observed that the writ petitioners were
initially appointed upon fulfilling the essential educational qualifications as
prescribed under the advertisement. The Writ Court also negated the contention
of the Union of India that the writ petition suffered from principles of
constructive res judicata since in the earlier writ petition being WP(C) No.342
of 2018 and other connected matters though only one of the writ petitioners was
a party, but the challenge thereto was for setting aside an advertisement of
22.09.2017 and seeking regularization to the post of Assistant Professor. In the
instant petition, they have challenged the alteration of their status of
"Temporary Assistant Professor" or "Temporary Faculty" to their original post
of Assistant Professor (on contract) and as such, the cause of action is
independent and maintainable. Based on these analysis and findings, the
impugned directions were issued under para-6 of the impugned judgment which
have been copied hereinabove.
6. We have heard learned Deputy SGI for the Union of India and
learned senior counsel for the writ petitioners at length. During course of
submission, learned counsel for the parties have drawn the attention of this
Court to the NIT Act, the Statutes, the MHRD letter and other documents
referred to by the learned Writ Court including their letters of initial
engagement and the impugned letters dated 14.07.2020 and 26.08.2022.
7. Upon hearing learned counsel for the parties and upon perusal of
the records, at the outset it needs to be indicated that the initial engagement of
the writ petitioners was through a walk-in interview for filling up of the posts
of Assistant Professor on contractual basis upon fulfillment of the prescribed
qualifications with desirable Ph.D. Therefore, Ph.D was not an essential
qualification. It is also true that these writ petitioners/respondents herein got
suitable extensions from time to time and continued on their contractual
engagement till issuance of the impugned letters. The letter of initial
engagement of one of the writ petitioners namely Sri Subhajit Deb dated
06.08.2010 is extracted hereunder:
National Institute of Technology Agartala
Agartala -799 055 (Tripura)
No. NITA-2(177-Estt)/2007/cont./3131-35 Dated:- 06/08/2010.
MEMORANDUM
The Director, NIT Agartala, pleased to offer the contractual engagement
of Sri Subhajit Deb in Civil. Engg. on the following terms and condition to
serve as Contractual Assistant Professor. and other works as and when assign to
him by the competent authority.
TERMS AND CONDITIONS
1. He will receive a consolidated amount of Rs.29,000/-(Twenty nine
thousand) only p.m may be paid subject to satisfactory appraisal report
from concerned Head of Deptt.
2. His contractual engagement is valid up to 3 (Three) Months with effect
from date of joining.
3. He will entitle for TA/DA whenever he will be deputed for official
duties outside of his head quarter.
4. Since this is a contractual engagement the medical re-imbursement
facility could not be allowed to him.
5. He will avail the normal holidays and C.L. as applicable to NIT
Agartala. Any other leave is not applicable to him "except no pay basis".
6. His letter of acceptance be submitted along with his joining report,
within 7 days from the date of this letter.
7. The allotment of subject/class will be decided by concerned Head of
Deptt.
8. The contract may be terminated by giving 30(thirty) days notice from
either side.
(Dr. D. Bhattacharjee)
Registrar
8. The impugned letter dated 14.07.2020 is also extracted hereunder:
National Institute Of Technology Agartala
AGARTALA-799046 (Tripura)
No.F.NITA.2(166-Estt)/Cont./Teaching/2020/14906-09 Date: 14/7/2020.
To,
Mr. Subhajit Deb, Asstt. Professor,
Department of Civil Engineering
NIT Agartala.
Subject: Engagement on Contractual basis.
Based on the recommendation of HOD and approval accorded by the Competent
Authority, you are hereby engaged as Assistant Professor, in the Department of
Civil Engineering at NIT Agartala on purely contractual basis for the period from
03-07-2020 to 30-06-2021 on the following terms and conditions:
1. You will be paid consolidated amount of Rs.50,000/- (Rupees fifty thousand)
only per month subject to satisfactory performance appraisal from the concerned
Head of the Department/Sectional Head.
2. You will be entitled for TA/DA whenever deputed for officials duties outside
the Head Quarters, as applicable to NIT Agartala.
3. You will not be entitled to any Medical Reimbursement /LTC from NIT
Agartala.
4. You will be entitled to avail the normal holidays and C.L. / Special Leave as
applicable to NIT Agartala. Any other leave is not admissible.
5. You will perform all other works as and when assigned by the Competent
Authority of NIT Agartala.
6. The engagement will be subject to discontinuance at any point of time without
assigning any reason if exigency of service does not require it or the interest of
the Institution is not served to the satisfaction of the appointing authority and that
engagement will not confer any right of continuation or confirmation under any
circumstances.
7. If you want to leave the organization, you have to give one month notice
failing which you are required to pay one month's consolidated amount to be
drawn by you at the time of submission of such notice.
8. Your continuance on the post is subject to satisfactory performance time to
time at NITA.
9. Your engagement is not against any sanctioned post.
10. If any dispute arises between employee and the NITA that will be settled
mutually, If the dispute is not settled mutually, the matter will be referred to the
Ministry of Human Resource & Development, GOI and the decision of the
MHRD shall be and binding.
Dean (FW)
9. By this letter, the consolidated pay of the petitioner was reduced to
Rs.50,000/-. By another impugned memorandum dated 26.08.2022, the status
of the petitioners were changed. The memorandum dated 26.08.2022 is also
extracted hereunder:
National Institute of Technology Agartala
AGARTALA-799046 (Tripura)
No.F.NITA. 2(166-Estt)/Cont/Teaching/2020/6008-12 Date 26/08/2022
MEMORANDUM
Sub : Engagement on contractual basis.
Based on the recommendation of the Moderation Committee and subsequent
approval of the Competent Authority, 74 (Seventy-four) No. of candidates are
hereby engaged in the respective department on purely contractual basis for a
period of 06 (Six) months with a monthly consolidated salary as shown against
each in the Annexure-l along with the following terms & conditions:
1. The engagement is not against any sanctioned post.
2. The engagement will be subject to discontinuance at any point of time
without assigning any reason if exigency of service does not require it or
the interest of the Institution is not served to the satisfaction of the
engaging authority and that engagement will not confer any right of
continuation or confirmation under any circumstances.
3. If anyone wants to leave the organization, he/she has to give one month
notice failing which he/she is required to pay one month's consolidated
amount to be drawn by him/her at the time of submission of such notice,
4. You will perform all other works as and when assigned by the
Competent Authority of NIT Agartala.
5. You will be entitled for TA/DA whenever deputed for official duties
outside the Head Quarters, as applicable to NIT Agartala
6. You will be entitled to avail the normal holidays and 04 days C.L. and
05 days Special Leave during the engagement period. Any other leave is
not admissible.
7. You will not be entitled to any Medical Reimbursement /LTC from
NIT Agartala
8. If any dispute arises between an employee and the NITA, the decision
of Competent Authority, of NIT Agartala will be final and binding.
Dean (F/W)
10. The names of these petitioners occur at serial numbers 3, 7, 9 & 11
in list attached to the said memorandum which shows them as "Temporary
Assistant Professor" or "Temporary Faculty". By the impugned judgment, the
learned Writ Court held that the reduction of their consolidated pay during the
period of extension of their contractual service and change in their
nomenclature was not proper in the eye of law. The other impugned directions
which also have offended the appellants-Union of India are contained at paras
6(v) and 6(vi) quoted above. The learned Writ Court, while quashing the
memorandum dated 26.08.2022, held that there services cannot be changed to
non-sanctioned posts while changing their designation. The learned Writ Court
while further granting liberty to the respondents-Union of India to make fresh
appointments in terms of Statutes of 2017 against vacant posts directed that the
engagements/appointments of the petitioners as Assistant Professor (on
contract) shall not be disturbed till regular appointments are made against the
post of Assistant Professor.
11. Mr. Bidyut Majumder, learned Deputy SGI for the Union of India,
submits that these petitioners were never appointed against sanctioned posts.
Their appointment letters and the impugned letters all clearly show that their
engagements were on contractual posts extendable from time to time. As such,
that part of the impugned direction is also incorrect and not tenable on facts and
in law. He further submits that direction of the learned Writ Court to continue
the services of these petitioners on contract basis till regular appointments are
made against the post of Assistant Professor under the Statutes of 2017 is not
tenable in law as the writ petitioners have not been engaged on sanctioned
permanent posts. Their engagement being on non-sanctioned posts on contract
basis, recruitment exercise to fill up permanent posts and continuation of the
writ petitioners on contractual posts both cannot be mixed together.
12. We find substance in the submission of learned Deputy SGI for the
Union of India as is evident from the nature and terms & conditions of the
appointment of these petitioners. Apart from that sub clause (ii) of Clause 24 of
the Procedure for Selection of Faculty in NIT System to the Recruitment Rules
for Faculty positions in NIT [Page-146 to 153 of the memo of appeal]
prescribes the period of contract initially for three years extendable by two
more years only on recommendation of a valid Selection Committee. Sub-
Clause (iv) thereof further provides that if during contract period, an incumbent
shows poor progress on his Ph.D work or dereliction of duty in teaching, the
contract may be terminated prematurely after an enquiry by the ACoFAR, with
at least one external expert. The tenure being contractual in nature would also
be terminated without further extension as the nature of such tenure based
contractual appointment provides for. Therefore, the learned Writ Court while
holding that the conversion of their designation from Assistant Professor (on
contract) to "Temporary Faculty" or "Temporary Assistant Professor" was not
proper, while further holding that their services were against sanctioned posts.
Its observation that changing their status to non-sanctioned posts was not
warranted on facts and in view of the terms of engagement of these petitioners.
The engagement of these petitioners on contract basis did not confer a right of
regularization as it was for a tenure extendable upon satisfactory performance
for certain period. The National Institute of Technology has extended their
services considering the fact that the teaching may not suffer in the absence of a
faculty, but that cannot clothe a contractual employee with the legal right of
being regularized in service. If the engagement of the writ petitioners were on
contractual basis and not against any sanctioned posts which are separately
provided under the NIT statute and the Schedule annexed to the Recruitment
Rules, the NIT could not be restrained from disengaging the contractual
employees like the writ petitioners till regular appointment of Assistant
Professor is made against the sanctioned vacant posts. As observed
hereinabove, their engagements could be brought to an end on completion of
their tenure or could also be terminated by the employer on poor and
unsatisfactory performance.
13. Having held so, we are however in agreement with the findings of
the learned Writ Court so far as the change of status of the writ petitioners from
Assistant Professor (on contract) to "Temporary Faculty" or "Temporary
Assistant Professor" has been occasioned since under the relevant Rules and the
notifications brought on record, "Temporary Faculty" as conceived under
Annexure-VI of the same Recruitment Rules for Faculty Position in the NIT
stipulate different conditions under which the Director can recruit Temporary
Faculty against sanctioned post to tide over serious shortage of faculty to handle
UG and PG teaching load. The faculty on contract is separately provided under
the said Annexure-VI relating to adjunct, honorary, chair, emeritus, contractual,
visiting, ad-hoc and temporary faculty. The reduction in their consolidated pay
was also unsustainable as that would have amounted to change in the
contractual terms of service in a unilateral manner. Therefore, on both these
counts, this Court is in agreement with the findings of the learned Writ Court.
Those directions, therefore, do not need any interference. However, as held
hereinabove, the impugned directions at paragraphs 6(v) and 6(vi) are interfered
in the matter indicated hereinabove. Those directions at para 6(v) and 6(vi) are
accordingly set aside.
14. With these observations, the instant appeal stands disposed of. Let
it be indicated that the status of the writ petitioners were restored during
pendency of this appeal. In case any arrears of remuneration remained pending
for the period of their contractual engagement, the same should be paid within a
reasonable period of four weeks.
Pending application(s), if any, shall stand disposed of.
(S.D. PURKAYASTHA), J (APARESH KUMAR SINGH), CJ
Pijush/
MUNNA SAHA Digitally signed by MUNNA SAHA
Date: 2024.08.16 15:44:14 +05'30'
