The Patna High Court has held that non-extension of a contractual, probationary tenure-track appointment upon expiry of the contractual term, in circumstances where the employee was on prolonged absence and tenure review could not be undertaken, does not amount to a punitive or stigmatic termination, but is an order simpliciter of non-extension, provided it is issued with approval of the competent authority. In such a case, once the non-extension order itself is not set aside, the writ court cannot still direct reconsideration of extension of tenure track, though accrued arrears of increment, D.A. and other emoluments may validly be directed to be paid in accordance with law.
The Court also laid down that, in a Letters Patent Appeal, findings of the Single Judge are not to be reopened merely because another view is possible, but may be interfered with where they are perverse, based on no evidence, palpably unreasonable, inconsistent with law, or involve jurisdictional or mixed questions of fact and law. Further, availability of arbitration under Section 33(2) of the Nalanda University Act, 2010 does not bar exercise of writ jurisdiction where reference to arbitration depends upon the employee’s request and volition.
The division Bench comprising the Chief Justice Sangam Kumar Sahoo and Justice Harish Kumar observed that an intra-court appeal is a corrective jurisdiction and pleas already raised, considered and adjudicated by the Single Judge ought not ordinarily to be re-adjudicated merely because another view is possible. However, such pleas may still be re-agitated where the findings are based on no evidence, are perverse, palpably unreasonable, inconsistent with law, or involve mixed questions of fact and law or jurisdictional issues.
On the nature of the impugned order dated February 18, 2019, the Bench held that the respondent’s appointment was contractual and probationary in terms of the Faculty Employment Contract, and the order refusing further extension after expiry of the contractual term was not punitive, stigmatic, or founded on misconduct. The Bench noted that the University had granted no-objection for the Harvard fellowship, but since the respondent remained away during the relevant period and the contract expired on December 31, 2018, the decision not to further extend the contract was treated as an order simpliciter of non-extension and not a termination on account of deficiency or misconduct.
On the absence of tenure review, the Bench observed that, as a general principle, services of a probationer should be properly assessed and deficiencies should be communicated. The Bench also accepted that, under the agreement, the Act and statutes, tenure review was contemplated. However, in the peculiar facts of the case, since the respondent had proceeded on a 10-month fellowship with permission of the University and remained absent when the extended contractual period expired, the tenure review could not have been undertaken in his prolonged absence, and for that reason the University could not be blamed for non-conduct of such review.
On the competence of the authority, the Bench examined the Nalanda University Act, 2010 and the Nalanda University Statutes, 2012, and held that appointments to the post of Assistant Professor were made with approval of the Governing Board. The Bench further found that the original appointment order, the extension order dated November 17, 2017, and the impugned order dated February 18, 2019 were all stated to have been issued with approval of the competent authority. In the absence of material to rebut that position, the Bench held that the impugned order was issued after approval of the competent authority, namely the Governing Board.
On maintainability, the Bench held that although Section 33(2) of the Nalanda University Act, 2010 provided for reference of contractual disputes to a Tribunal of Arbitration at the request of the employee, such remedy would arise only if the employee desired to invoke it. The Bench reiterated that exclusion of writ jurisdiction on account of alternative remedy is a rule of discretion and not compulsion, and therefore the writ petition was maintainable.
The Bench found that the Single Judge had not set aside the impugned order dated February 18, 2019, yet had directed reconsideration of extension of tenure track by the Vice-Chancellor. This, according to the Division Bench, created an incongruous and anomalous position, because once the impugned non-extension order had not been held bad in law, a further direction to reconsider extension on the basis of track record and performance was unwarranted.
Briefly, Nalanda University, an international university of national importance under the aegis of the Ministry of External Affairs, was created under the Nalanda University Act, 2010. Pursuant to the advertisement dated December 19, 2013, the respondent applied for the Tenure Track post of Assistant Professor in the School of Historical Studies on January 03, 2014, was selected, received an offer letter dated June 23, 2014, joined on January 01, 2015, and executed a Faculty Employment Contract on November 24, 2015. The contract provided that the appointment would be governed by the Nalanda University Act, 2010, statutes, ordinances and regulations, that the entire contractual period would be probationary, and that there would be a tenure review at the end of the third year, after which his services could be considered for confirmation or termination. His tenure contract was thereafter extended from January 01, 2018 to December 31, 2018 on the existing terms and conditions.
In April 2018, the petitioner was offered a 10-month Post-Doctoral/Visiting Fellowship at Harvard University and sought leave without pay from August 01, 2018 to May 31, 2019. The University issued a no-objection on August 03, 2018 and an office order dated August 23, 2018 permitting the same. As his contractual period was nearing expiry and he was unavailable in India for the tenure review, he requested extension of his contractual employment on October 22, 2018, again on January 15, 2019, and by reminder on January 30, 2019. By office order dated February 18, 2019, issued by the Registrar, he was informed that his term as Faculty (Assistant Professor-on contract) had come to a close on December 31, 2018 and that his request for extension, though considered, had not been approved.
The matter reached the High Court, where the Single Judge left the question of extension of tenure track to the wisdom of the Vice-Chancellor, subject to the petitioner applying to rejoin, and directed the University to calculate and pay arrears of increment, D.A. and other emoluments, if any, with 10% interest in case of delay.
Appearances:
Senior Advocate Anjani Kumar and Advocate Amit Kumar Jha, for the Appellant
Advocates Sharukh Alam, Shantanu Singh, and Kamaresh Singh, for the Respondent
