Patna High Court
The Nalanda UniversityversusDr. Murari Kumar Jha
- Decided
- Disposal
- PARTLY ALLOWED (DISPOSAL)
Holding
The direction by the Single Judge that the Vice‑Chancellor should consider the petitioner’s track record for tenure‑track extension is unsustainable and is set aside, while the order directing the University to pay arrears of salary, DA and emoluments is upheld.
Summary
Nalanda University appointed Dr. Murari Kumar Jha as an Assistant Professor on a three‑year tenure‑track contract that was to be reviewed after the third year. While on a Harvard fellowship, the contract expired on 31‑12‑2018 and the University refused to extend it, issuing an order on 18‑02‑2019 without a formal tenure‑review or Governing Board approval. The petitioner sought a writ directing the Vice‑Chancellor to consider his performance and to extend the contract, while the University argued the appointment was probationary and the non‑extension was a lawful termination simpliciter. The Patna High Court examined whether the issues raised in the original writ could be re‑litigated in a Letters Patent Appeal, the nature of the non‑extension order, the authority to decide non‑extension, and the availability of an arbitration remedy under the Nalanda University Act. The Court held that the Single Judge’s direction to the Vice‑Chancellor to reconsider the extension was unsustainable, but affirmed the order to pay arrears. Consequently, the appeal was allowed in part, setting aside the improper direction while upholding the payment order.
Issues considered
- Whether the pleas expressly raised, considered and adjudicated by the learned Single Judge can be re‑agitated in the Letters Patent Appeal
- Whether the impugned order dated 18‑02‑2019 refusing extension of the contract is cryptic, punitive or stigmatic
- Whether non‑extension of the contract without a tenure‑review violates the contract agreement
- Whether the Vice‑Chancellor or the Governing Board is the proper authority to decide non‑extension of a contract appointed by the Board
- Whether the writ petition is maintainable despite the alternative arbitration remedy under Section 33(2) of the Nalanda University Act, 2010
Subjects
- tenure‑track
- contract extension
- probationary employment
- university governance
- arbitration
- Article 311
- natural justice
- higher education
- employment law
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.22 of 2025
In
Civil Writ Jurisdiction Case No.3979 of 2020
======================================================
1. The Nalanda University through Vice Chancellor, Rajgir, District-Nalanda,
Bihar-803116.
2. The Vice Chancellor, Nalanda University, Rajgir, District-Nalanda, Bihar-
803116.
3. The Registrar, Nalanda University, Rajgir, District-Nalanda, Bihar-803116.
... ... Appellant/s
Versus
1. Dr. Murari Kumar Jha son of Mr. Chandra Kumar Jha, Resident of Village
and P.O.-Kahua, Via Benipur, District-Darbhanga, Bihar-847103.
2. The Union of India through Secretary to the Government of India, Ministry
of External Affairs, South Block, Central Secretariat, New Delhi-110001.
3. The Secretary, Government of India, Ministry of External Affairs, South
Block Central Secretariat, New Delhi-110001.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Anjani Kumar, Sr. Adv. with
Mr. Amit Kumar Jha, Adv.
For the Respondent No. 1 : Ms. Sharukh Alam, Adv.
Mr. Shantanu Singh, Adv.
Mr. Kamaresh Singh, Adv.
=======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE HARISH KUMAR
C A V JUDGMENT
(Per: HONOURABLE MR. JUSTICE HARISH KUMAR)
Date : 10-04-2026
This Court has extensively heard Mr. Anjani Kumar,
learned Senior Advocate with Mr. Amit Kumar Jha, learned
Advocate for the appellants-Nalanda University and Ms.
Sharukh Alam, learned Advocate with Mr. Shantanu Singh,
learned Advocate for the petitioner-respondent no. 1 herein.
2. The present intra-court appeal has been preferred by
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the appellants against the judgment and order dated 10.12.2024
passed by the learned Single Judge of this Court in C.W.J.C. No.
3979 of 2020 holding as follows:-
“Having heard learned counsel for the parties,
considering the entire conspectus of the case and
after going through the case records available on
record, I am of the considered opinion that so far
as the question of extension of Tenure Track is
concerned, it is left to the wisdom of the Vice-
Chancellor of the University to consider it,
especially considering the entire track record and
excellent performance of the petitioner within a
period of two months, if the petitioner files an
application showing his eagerness to rejoin the
post. So far as the arrears of the increment, D.A.
and other emoluments, if any, are concerned, the
University is directed to calculate it in accordance
with law and the same is directed to be paid to the
petitioner within a period of three months from the
date of receipt/production of a copy of this order. If
the said payment is not made within the stipulated
period, the same shall be made with an interest at
the rate of 10% per annum from the date it is due
till its payment.”
3. The short facts, relevant for adjudication leading to
filing of the present appeal, are summarized herein below:-
(a) Nalanda University, an international university
of national importance under the aegis the Ministry
of External Affairs, Government of India, is created
under the Nalanda University Act, 2010, enacted by
the Parliament.
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(b) In pursuant to job advertisement dated
19.12.2013, inviting applications for various
positions at Nalanda University, including for
Tenure Track positions as Assistant Professor, the
writ petitioner, holding the requisite qualification,
applied for the post of Tenure Track position of
Assistant Professor in the School of Historical
Studies, Nalanda University, on 03.01.2014.
Having gone through the rigors of interview
process, the petitioner was declared successful and
vide offer letter dated 23.06.2014, he was invited to
join the University on the terms and conditions
mentioned therein which he accepted and
submitted his joining on 01.01.2015. An agreement
between the petitioner and the University was
reduced to writing in the form of a Faculty
Employment Contract on 24.11.2015, inter alia,
with the stipulation that the appointment is covered
and governed by the provisions of the Nalanda
University Act, 2010 along with Statutes,
Ordinances and Regulations thereunder with
further terms of employment that there will be
tenure review at the end of 3rd year. Following the
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review process, on completion of contract, the
services of the employee may be considered for
confirmation or termination. On 17.11.2017, the
Tenure Contract of the petitioner was extended
from 01.01.2018 to 31.12.2018 on the existing
terms and conditions.
(c) In the meanwhile, in the month of April, 2018
the petitioner was offered a Post-Doctoral/Visiting
Fellowship at the Weatherhead Initiative on Global
History at Harvard University, USA for a period of
10 months beginning from August, 2018. On
25.04.2018, the petitioner submitted application for
grant of leave without pay from 01.08.2018 to
31.05.2019, copy of which is marked as R/4 to the
counter affidavit.
(d) Considering the request, for availing the
residential fellowship scheduled to be held with
effect from August 01, 2018 as visiting fellow at
Weatherhead Initiative on Global History at
Harvard University, the Registrar, Nalanda
University issued a ‘no objection’ in this regard on
03.08.2018 (Annexure-10) followed by office order
dated 23.08.2018 (Annexure-11 to the writ
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petition), permitting the same. The petitioner joined
his residential fellowship, meanwhile, the faculty
employment contract was about to complete and he
was unavailable in India for the Tenure Review,
vide his letter dated 22.10.2018 requested for
extension of his contractual job.
(e) The contract period expired on 31.12.2018;
however the petitioner had not received any formal
response from the University and he again, on
15.01.2019, requested for extension of his job and
thereafter sent a follow up reminder on 30.01.2019.
On 18.02.2019, the petitioner received office order
bearing no. NU/108/2014-15/83 issued under the
signature of the Registrar of the University
informing him that the term of the petitioner as
Faculty (Assistant Professor-on contract) in the
School of Historical Studies has come to a close on
December 31, 2018. Request for extension made by
the petitioner was duly considered. However, the
same has not been approved.
4. In the aforesaid factual background, the petitioner
has invoked the prerogative writ jurisdiction of the High Court
at Patna by filing C.W.J.C. No. 3979 of 2020 which came to be
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disposed off on 10.12.2024.
5. Being aggrieved, the Nalanda University and its
authorities challenged the same by filing the present intra-court
Letters Patent Appeal. While assailing the impugned office
order dated 18.02.2019 various submissions had been led by the
learned counsel for the petitioner, inter alia, it was submitted
that the petitioner was appointed as academic staff by the
Governing Board on the recommendation of the Selection
Committee constituted in accordance with the Nalanda
University Act, 2010, and that the Vice Chancellor has been
vested with the power to appoint administrative/ad hoc staff in
terms of Section 13 of the Statute, with the approval of the
Governing Board. In any event, a decision regarding non-
confirmation or non-renewal can be taken only by the
Governing Board, and that too only upon the requisite tenure
review having been conducted. However, the petitioner received
the first notice of non-confirmation on 18.02.2019 under the
signature of the Registrar, without the approval of the
Governing Board. It was also contended that in the case of the
petitioner, no Tenure Review has taken place around or after the
expiry of extended contract period, neither any other report nor
notice of non-confirmation was given to the petitioner within 45
days. Thus, considering the UGC regulation, the petitioner’s
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appointment stands confirmed on 45th day. Hence, the order of
non-confirmation or non-renewal of contract issued after 45
days on 18.02.2019 is unsustainable.
6. Learned Advocate for the petitioner also submitted
that as per the appointment letter/faculty employment contract
and UGC Regulation, the Tenure Review is inherent to the
contract and, as such, any contract cannot be determined
without adhering to the condition precedent to the review. A
crystallized right to Tenure Review cannot be defeated by the
efflux of time. The Vice Chancellor is said to be the competent
authority having been empowered to send the members of the
staff for training or for a course of instructions and such Clause
is also reiterated in para 2.1 of the Faculty Employment
Contract, besides there is UGC Regulation contemplating study
leave to avail the opportunity of scholarship/fellowships. It was
also contended that had there been any breach of contract,
consequential enquiry and disciplinary action could have been
undertaken by the appointing authority i.e., the Governing
Board, but the same has also not been carried out. It is also
argued that if the Court or Tribunal finds that the employer has
acted in gross violation of the statutory provisions and/or
principle of natural justice, the Court will be fully justified in
directing payment of full back wages.
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7. The afore-noted contention/arguments had been
vehemently confronted by the learned Senior Advocate Mr.
Anjani Kumar appearing for the University with the categorical
submission that the petitioner was under probation and the terms
of contract in probation could not be extended in his absentia,
therefore, it was not a case of termination, rather non-extension
of term along with leave in absentia. It was further submitted
that Clause 1.1 of Faculty Employment Contract clearly
stipulates that the entire period of contract shall be probationary,
hence the extension of one year given to the petitioner based
upon the existing term was also probationary. Moreover, the
petitioner has violated Clause 2.1 of the contract by applying for
10 months residential fellowship in Harvard University without
obtaining prior written permission of the University. There is no
provision for long leave/loss of pay in the contractual provision,
which is probationary. The University has considered the case of
the petitioner on individual merit basis as the said fellowship
was prestigious one and due to this, his contractual term was
relaxed and allowed to avail the fellowship till the date of initial
contract upto 31.12.2018. It is further submitted that in terms
with Section 33(ii) of the Nalanda University Act, 2010 any
dispute arising out of the contract between the University and
any employee shall be referred to an Arbitration Tribunal.
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8. The learned Single Judge after having given anxious
consideration to the submissions advanced by the learned Senior
Advocate/Advocates for the respective parties has been pleased
to dispose of the writ petition and opined that so far the question
of extension of Tenure Contract is concerned, it is left to the
wisdom of the Vice Chancellor of the University to consider it,
especially considering the entire contract record and excellent
performance of the petitioner within two months, if the
petitioner files an application showing his eagerness to join the
post. The learned Single Judge further directed that so far the
arrears of the increment, D.A. and other emoluments, if any, are
concerned, the University is directed to calculate it in
accordance with law and ensure payment within a period of
three months. In case of failure to do so, the same shall carry an
interest @ 10% per annum from the date it is due till its
payment.
9. Mr. Anjani Kumar, learned Senior Advocate
representing the appellants-University, while assailing the order
under challenge passed by the learned Single Judge, has
primarily taken this Court through the agreement executed
between the University and the writ petitioner and submitted
with all vehemence that the petitioner was appointed as
Assistant Professor as a Tenure Contract position under Faculty
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Employment Contract, which is a full time employment for 3
years with effect from 01.01.2015 to 01.01.2018. The entire
period of contract shall be probationary and there will be a
Tenure Review at the end of the 3 rd year in terms with Clause
1.1 of the agreement. Referring to Clause 2.1, it is further
contended that the employee was under obligation to devote his
time to the service of the University and shall not, without a
written permission of the University, engage in any other
work/any emoluments or honorarium is attached, except under
certain eventualities, including academic activity, with prior
permission of the Vice Chancellor, provided it is not against the
interest of the University. Referring to Clause 5 of the
agreement, he further submits that the same relates to
termination of the employee, in the event of violation of the
terms of the agreement by the employee in accordance with the
provisions contained under Nalanda University Act, 2010,
Statutes, Ordinance and Regulation governing the affairs of the
University, pursuant to disciplinary action against an employee
since the case at hand does not relate to termination on account
of misconduct leading to any disciplinary action, the same
would not be attracted. Referring to Clause 8, it has further been
clarified that the terms and conditions constituting the contract
cannot be modified without any written amendments to the
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contract.
10. Learned Senior Advocate further submitted that the
reliance of the petitioner-respondent over Annexures 10 and 11
is of no help as the same has been issued by the Registrar of the
University for the purposes of issuance of visa on the request of
the petitioner by relaxing contractual terms only to availing
fellowship till the end of the initial contract upto 31.12.2018.
Moreover, after completion of the terms of the petitioner as
faculty/Assistant Professor on contract, his request for his
extension was duly considered but the same has not been
approved. The aforesaid decision was taken and approved by the
competent authority; hence it cannot be said to be unsustainable.
Furthermore, since the non-renewal or non-extension of
contractual service does not, in any circumstance, constitute a
penal or stigmatic order, any interference or direction to the
University to consider the entire track record and performance
of the petitioner is unwarranted and, thus, liable to be set aside.
Had the petitioner been aggrieved with the impugned order in
not extending his contract, he should have availed the remedy
under Section 33 of the Nalanda University Act, 2010. He
further contended that in identical matter one Saurabh
Choudhary has approached this Court in C.W.J.C. No. 5351 of
2020 alleging modifying the contract of the petitioner to his
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disadvantage by shortening the extension granted to the
petitioner for 3 years. The learned Single Judge directed the writ
petitioner of C.W.J.C. No. 5351 of 2020 to approach before the
Tribunal of Arbitration as mentioned in Section 33 (ii) of the
Act, 2010. However, in the present case, a different view has
been taken and the writ petitioner has not been relegated to avail
the efficacious statutory alternative remedy.
11. Reliance has also been placed on decisions
rendered in the cases of Om Prakash Mann vs. Director of
Education (Basic) & Ors. [(2006) 7 SCC 558]; State Bank of
India & Ors vs. Palak Modi & Anr. [(2013) 3 SCC 607] and
Shamsher Singh & Anr. vs. State of Punjab [(1974) 2 SCC
831] to buttress his submission that a probationer has no right to
hold the post, and that his service can be terminated at any time
during or at the end of the probation period on account of
general unsuitability for the post held by him. However, in case
the competent authority holds an enquiry for judging the
suitability of the probationer or for his further continuance in
service or for confirmation, and such enquiry is the basis for
taking a decision to terminate his service, then action of the
competent authority cannot be characterized as punitive.
Conversely, if the allegation of misconduct constitutes the
foundation of the action taken, the ultimate decision of the
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competent authority may be nullified on the ground of violation
of the rules of natural justice. Since the case of the writ
petitioner does not involve an order of termination, but rather
the University’s decision not to extend the contractual period
any further, the impugned order is valid. The direction to the
Vice Chancellor of the University to consider the entire track
record and performance of the petitioner is, per se, illegal.
12. On the other hand, Ms. Sharukh Alam, learned
Advocate for the writ petitioner–respondent herein, dispelling
the aforesaid contention, submitted at the outset that a Letters
Patent Appeal is not a rehearing of the writ petition, and that
interference by the Division Bench is permissible only where
the judgment of the learned Single Judge is perverse, based on
no evidence, or suffers from a jurisdictional or legal error. The
grounds in the memorandum of appeal do not identify any such
perversity/infirmity. In substance, each of the principal
contentions relating to the contractual nature of the
appointment, absence of an enforceable right, discretionary
tenure review, characterization of the impugned order as a non-
extension, and the alleged breach by the respondent was
expressly raised, considered, and adjudicated in the impugned
judgment. Thus, the submission of the appellant-University
seeking re-appreciation of the same material is impermissible in
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the limited scope of the Letters Patent Appeal.
13. It is next submitted that where power is required to
be exercised by specified authority in a particular manner, it
must be so exercised or not at all. Referring to the decision
rendered by the learned Single Judge of this Court in
Prabhakar Sharma vs. Union of India & Ors. [C.W.J.C. No.
261 of 2023], it is further submitted that in an analogous context
concerning Nalanda University, the Court has held that the Vice
Chancellor cannot assume power of termination in absence of
contractual or statutory backing and the post facto approval by
the Governing Body does not cure such a defect. The impugned
order has been issued by the Registrar/Vice Chancellor without
any decision or approval of the Governing Body.
14. The writ petitioner-respondent was appointed
Tenure Track Basis not as ad hoc or casual appointee hence a
Tenure Review was contractual contemplated but admittedly
never conducted. The writ petitioner proceeded on the Harvard
fellowship with the prior knowledge and permission of the
University and a copy of press release expressing petitioner’s
appreciation of the prestigious fellowship offered to him clearly
demonstrate the encouragement and support of the University
besides the invitation made by the University academic council
to the petitioner to attend the meeting to be held in the Delhi
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office also reinforced that the petitioner was formally granted
permission to take up the Post-Doctoral/Visiting Fellowship at
the Wheatherhead initiative on Global History at Harvard
University. The office order dated 18.02.2019 is apparently non-
speaking and assigns no reasons and for this reason alone it is
not enforceable in law is the contention of the learned Advocate
for the respondent.
15. Ms. Sharukh Alam, learned Advocate further
contended that a Tenure Track appointment is a structured
tenure progression model leading to tenured or confirmed
permanent employment. It presupposes one month evaluation
and not unfettered discretion to characterize the entire period as
probationary; simultaneously, a promised tenure review makes
the tenure track illusory. Acceptance of the Harvard fellowship
with the prior knowledge and permission of the University is
based on contemporaneous record including no objection letter
and official communication to the petitioner cannot be said to be
in breach of the contract. The learned Single Judge thus has
rightly not granted relief on the basis of leave entitlement but
has confined relief to arrears lawfully accrued.
16. Lastly Ms. Alam, learned Advocate for the
respondent referred the UGC Regulation dated 18.07.2018 in
relation to appointment of teachers and other academic staff in
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Universities and Colleges and submitted that the said
notification mandates minimum qualification for the post of
Senior Professor, Professors and Teachers and other Academic
Staff in the Universities and Colleges, wherein the following
three step process is recommended for carrying out assessment
for promotion under CAS at all levels. The minimum period of
probation of teachers shall be one year extendable by a
maximum period of one year in case of unsatisfactory
performance and the teacher on probation shall be confirmed at
the end of one year, unless extended by another year through a
specific order. However, it is obligatory on the part of the
University/the concerned institution to issue an order of
confirmation to the incumbent within 45 days of completion of
probation period after following the due process of verification
of satisfactory performance.
17. The National Education Policy, 2020 issued by the
Ministry of Human Resources Development, Government of
India also reinforced the motivated, energize and capable faculty
members which could be the important factor in the success of
higher education institution. Referring to a decision rendered by
the learned Division Bench of the High Court of Orissa at
Cuttak in Kunja Bihari Panda & Ors. vs. State of Odisha &
Ors. [2022 SCC OnLine Ori 440], it is strenuously contended
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that keeping with the vision of autonomous institution
empowered to drive excellence higher educational institutions
should have clearly defined independent and transparent process
and criteria for Faculty recruitment, whereas the current
recruitment process will be continued, and a Tenure Track i.e.,
“suitable probation period shall be put in place to further ensure
excellence.” The action of the appellant University is said to be
a classic example of vindictiveness and malice in law, and a
complete violation of the precious right to life; thus, no
interference with the impugned order is warranted. It is,
therefore, prayed that the Letters Patent Appeal be dismissed
and that the University be directed to implement the order
forthwith.
18. After giving anxious consideration to the
submissions advanced by the learned Senior Advocate for the
appellants as well as the learned Advocate for the respondent
no. 1 and perusing the order passed by the learned Single Judge,
the primal issues imperative for adjudication of this intra-court
appeal are formulated as follows:
(i) Whether the pleas expressly raised, considered
and adjudicated by the learned Single Judge in a
writ petition can be re-agitated in the Letters Patent
Appeal?
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(ii) Whether the impugned letter dated 18.02.2019
refusing the petitioner’s request for an extension of
contract as Faculty (Assistant Professor-on
contract) is cryptic, devoid of any reason and/or
punitive/stigmatic and/or termination simplicitor in
nature;
(iii) Whether non-extension of contract leading to
end of the probation without Tenure Contract
Review is violative of contract agreement and thus
vitiates in law, and
(iv) Whether the Vice Chancellor or the Governing
Board is the appropriate authority to take a decision
of non-extension of contract once the appointment
of the petitioner on the post of Assistant Professor
on contract was made after approval of the
Governing Board?
(v) Whether the writ petition was maintainable
despite the alternative remedy available under the
Nalanda University Act, 2010?
19. Issue no. I:- Whether the pleas expressly raised,
considered and adjudicated by the learned Single Judge in a
writ petition can be re-agitated in the Letters Patent Appeal?
19.1. An application under Clause 10 of Chapter IX of
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the Letters Patent Appeal of the Patna High Court Rules, 1916 is
an appeal conferred under Letters Patent by providing an
internal working of the High Court keeping in mind that such
intra-court appeal is not an appeal against an order of a
subordinate court, rather Letters Patent Bench sits as a “Court of
correction” corrects its own order in exercise of the same
jurisdiction as was vested in the Single Bench.
19.2. In Bihar Industrial Area Development & Ors. v.
Scope Sales Pvt. Ltd. [2026 SCC OnLine SC 112], the Hon’ble
Supreme Court while crystallizing the nature and extent of an
intra-court appellate Bench of a High Court has observed that
both Single Bench and Division Bench exercise the same
jurisdiction under Article 226 of the Constitution of India. The
exercise of intra-court appeal jurisdiction is warranted only
where the judgment or order under challenge is demonstrably
erroneous or suffers from perversity. Such jurisdiction ought not
to be invoked merely because another view is possible on the
same set of facts, particularly where the view adopted by the
Single Judge is a plausible and reasonable one. The Hon’ble
Court while explaining scope of Letters Patent Appeal took note
of various decisions including, one rendered in the case of
Baddula Lakshmaiah v. Sri Anjaneya Swami Temple [(1996) 3
SCC 52] where the Court held as follows:
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“2. Mr Ram Kumar, learned counsel for the
appellants, inter alia contends that the Letters
Patent Bench of the High Court could not have
upset a finding of fact recorded by a learned Single
Judge on fresh reconciliation of the two documents,
arriving at different results than those arrived at
earlier by the two courts aforementioned. Though
the argument sounds attractive, it does not bear
scrutiny. Against the orders of the trial court, first
appeal lay before the High Court, both on facts as
well as law. It is the internal working of the High
Court which splits it into different ‘Benches’ and
yet the court remains one. A letters patent appeal,
as permitted under the Letters Patent, is normally
an intra-court appeal whereunder the Letters
Patent Bench, sitting as a Court of Correction,
corrects its own orders in exercise of the same
jurisdiction as was vested in the Single Bench.
Such is not an appeal against an order of a
subordinate court. In such appellate jurisdiction
the High Court exercises the powers of a Court of
Error. So understood, the appellate power under
the Letters Patent is quite distinct, in contrast to
what is ordinarily understood in procedural
language. That apart the construction of the
aforementioned two documents involved, in the
very nature of their import, a mixed question of law
and fact, well within the powers of the Letters
Patent Bench to decide. The Bench was not
powerless in that regard.”
(emphasis ours)
19.3. This Court also takes note of the decision
rendered by the learned co-ordinate Bench of this Court in LPA
No. 649 of 2025 [Chanda Sinha vs. The State of Bihar] where
the Court has observed that the Division Bench in Letters Patent
Appeal should not disturb the finding of fact arrived at by the
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learned Single Judge of the Court unless it is shown to be based
on no evidence, perverse, palpably unreasonable or inconsistent
with any particular position of law. The scope of interference is
within a narrow compass. Appellate jurisdiction under the
Letters Patent is really a corrective jurisdiction and it is used
rarely only to correct the errors, if any, made.
19.4. Keeping in mind the aforesaid settled position
and responding to Issue no. I, this Court is of the opinion that
the pleas expressly raised, considered and adjudicated by the
learned Single Judge normally ought not to be re-adjudicated
merely because another view or better view is possible.
However, there is no bar to re-agitate such plea if the finding is
based on no evidence, perverse, palpably unreasonable or
inconsistent with any particular position of law. Further the
parties are always at liberty to raise a mixed question of facts
and law, besides any plea touching the jurisdiction of the
authority/court.
20. Issue no. II:- Whether the impugned letter dated
18.02.2019 refusing the petitioner’s extension of contract as
Faculty (Assistant Professor-on contract) is cryptic, devoid of
any reason; and/or punitive/stigmatic; and/or termination
simplicitor in nature?
20.1. Before responding to the issue formulated
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hereinabove, we deem it proper to recapitulate the significant
rulings of the Hon’ble Supreme Court, which, in the opinion of
this Court, has crystallized the position of a
probationer/contractual employee.
20.2. Well settled it is that the temporary government
servant or probationers are as much entitled to the protection of
Article 311(ii) of the Constitution as permanent employee,
despite the fact that they have no right to hold the post and their
services are liable to be terminated at any time by giving a
month’s notice in terms of the contract or service or under the
relevant statutory rules regulated the terms and conditions of
such service, if in any way not punitive and stigmatic in nature.
In the case of Parshotam Lal Dhingra vs Union of India [AIR
1958 SC 36], the Hon’ble Supreme Court summed up the issue
that the application of Article 311 of the Constitution even in the
case of probationer or temporary employee, any and every
termination of service is not a dismissal, removal or reduction in
rank. A termination of service brought about by the exercise of a
contractual right is not per se dismissal or removal. If the
termination of service is founded on the right flowing from
contract or the service rules then, prima facie, the termination is
not a punishment and carries with it no evil consequences and
so Article 311 is not attracted. But even if the Government has,
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by contract or under the rules, the right to terminate the
employment without going through the procedure prescribed for
inflicting the punishment of dismissal or removal or reduction in
rank, the Government may, nevertheless, choose to punish the
servant and if the termination of service is sought to be founded
on misconduct, negligence, inefficiency or other
disqualification, then it is a punishment and the requirements of
Article 311 must be complied with. The Hon’ble Supreme Court
further observed and crystallized that use of the expression
"terminate" or "discharge" is not conclusive. In spite of the use
of such innocuous expressions, the court has to see as to (1)
whether the servant had a right to the post or the rank or (2)
whether he has been visited with evil consequences. If the case
satisfies either of the two tests then it must be held that the
servant has been punished and the termination of a servant must
be taken as a dismissal or removal from service and if the
requirements of rules and Article 311, which grants protection to
Government servant have not been complied with, the
termination of the service or the reduction in rank must be held
to be wrongful and in violation of the constitutional right of the
servant.
20.3. In the case of Shamsher Singh (supra), the
Hon’ble Supreme Court has re-emphasized the position
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enunciated by the Hon’ble Supreme Court in the case of
Parshotam Lal Dhingra (supra) and held as follows:
“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
founded on misconduct it is objective and is
manifest.”
20.4. In the case of Palak Modi (supra) the Hon’ble
Supreme Court while reinforcing the afore-noted settled
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position has further clarified 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.”
20.5. In Anoop Jaiswal vs Government of India &
Anr. [(1984) 2 SCC 369], the Hon’ble Supreme Court
highlighting various previous decisions of the Court has
cautioned that where the form of the order is merely a
camouflage for an order of dismissal for misconduct, it is open
to the Court before which the order is challenged to go behind
the form and ascertain the true character of the order. If the
Court holds that the order though in the form is merely a
determination of employment is in reality a cloak for an order of
punishment, the Court would not be debarred, merely because
of the form of the order, in giving effect to the rights conferred
by law upon the employee.
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20.6. Though there are series of decisions on the above
referred issues, which need not be recapitulated, however,
recently in the case of Pinki Meena v. High Court of
Judicature at Rajasthan [(2025) SCC OnLine SC 1214], the
Hon’ble Supreme Court held as follows:
“24. The services of a probationer could result
either in a confirmation in the post or ended by
way of termination simpliciter. However, if a
probationer is terminated from service owing to a
misconduct as a punishment, the termination would
cause a stigma on him. If a probationer is
unsuitable for a job and has been terminated then
such a case is non-stigmatic as it is a termination
simpliciter. Thus, the performance of a probationer
has to be considered in order to ascertain whether
it has been satisfactory or unsatisfactory. If the
performance of a probationer has been
unsatisfactory, he is liable to be terminated by the
employer without conducting any inquiry. No right
of hearing is also reserved with the probationer
and hence, there would be no violation of
principles of natural justice in such a case.
25. As noted, if a termination from service is not
visited with any stigma and neither are there any
civil consequences and nor is founded on
misconduct, then, it would be a case of termination
simpliciter. On the other hand, an assessment of
remarks pertaining to the discharge of duties
during the probationary period even without a
finding of misconduct and termination on the basis
of such remarks or assessment will be by way of
punishment because such remarks or assessment
would be stigmatic. According to the dictionary
meaning, stigma is indicative of a blemish,
disgrace indicating a deviation from a norm.
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Stigma might be inferred from the references
quoted in the termination order although the order
itself might not contain anything offensive. Where
there is a discharge from service after prescribed
probation period was completed and the discharge
order contain allegations against a probationer
and surrounding circumstances also showed that
discharge was not based solely on the assessment
of the employee’s work and conduct during
probation, the termination was held to be stigmatic
and punitive vide Jaswantsingh Pratapsingh
Jadeja vs. Rajkot Municipal Corporation, (2007)
10 SCC 71.”
Emphasis supplied
20.7. In the light of the rulings referred hereinabove,
coming to the case at hand, there is no dispute that the writ
petitioner had accepted the offer and entered into an agreement
for his appointment to the post of Faculty (Assistant Professor-
on contract) in School of Historical Studies for a period of 3
years between 01.01.2015 to 01.01.2018. The faculty
employment contract made it clear that the entire period of
contract shall be probationary and there will be a Tenure Review
at the end of 3rd year post which the services of the employee
may be considered for confirmation or termination. Clause 1
and 2.1 of the agreement clearly said that the petitioner was
appointed on full time employment with an expectation that he
shall devote full time to the service of the University and shall
not without the written permission of the University will indulge
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in any other academic activities without prior permission of the
Vice Chancellor, provided it is not against the interest of the
University. The University undoubtedly, on the request of the
petitioner, issued ‘No Objection’ on his visit to Harvard
University and there was approval of the competent authority as
it appeared from Annexures-10 and 11 to the writ petition. The
petitioner left the University in the month of August, 2018 for
his joining at Harvard University U.S.A. to do his 10 months
residential fellowship.
20.8. In the afore-noted factual position to answer the
second issue now we take up the reference of Gridco Limited &
Anr. Vs. Sadananda Doloi & Ors., 2011 (15) SCC 16, wherein,
the order of Division Bench of Orissa High Court came to be
challenged before the Hon’ble Supreme Court. The issue inter
alia was of that in contractual appointment the termination
thereof vitiated by any legal infirmity to call for interference
under Article 226 of the Constitution. Referring to various
decisions governing the field of pre-conditions for termination
of a contractual employment, the Hon’ble Apex Court held that
with the development of law relating to judicial review of
administrative actions, a writ Court can now examine the
validity of termination order passed by public authority and
determine whether there was any illegality, perversity,
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unreasonableness, unfairness or irrationality that would vitiate
the action, no matter the action is in the realm of contract. The
Court further observed that they cannot sit in the armchair of the
administrator to decide whether a more reasonable decision or
course of action could have been taken in the circumstances, as
long the action taken by the authority is not shown to be vitiated
by the infirmities referred above or is demonstrably in
outrageous defiance of logic. The Apex Court, setting aside the
Division Bench order, reinforced that the renewal of contract of
employment is depended upon the perception of the
management as to the usefulness of the respondent and the need
of an incumbent in the position held by him. Both these aspect
rested entirely in the discretion of the corporation. However, the
Courts can lift the veil of an innocuously worded order to look
at the real face of the order, to find out whether it is as innocent
as worded vide Parshotam Lal Dhingra (supra).
20.9. In view of the above discussions and
pronouncement of law, this Court has no slightest hesitation to
hold that a probationer ought to have been at least sounded
about his performance during the period of probation. The
services of a probationer must be seriously and properly
assessed. In case of any deficiency in his service, he must be
warned regarding such failure; merely because the employee is
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appointed on probation and as soon it is completed, he cannot be
thrown out of employment arbitrarily vide Krishnadevaraya
Education Trust & Anr. vs. L.A. Balakrishna, (2001) 9 SCC
319.
20.10. Notwithstanding the aforesaid settled position
of law, the facts of the case at hand clearly demonstrate that the
probation period of the writ petitioner was extended for a further
period of one year after the completion of initial contractual
period of three years, hence prima facie this Court is of the
opinion that the services rendered by the writ petitioner for three
years not persuaded the University to confirm his services and
accordingly, his contractual period was extended and treated to
be on probation, which has not been questioned at any point of
time. Since the petitioner left the University and accepted the
Post Doctoral/Visiting Fellowship in the month August 2018
itself, and the period of contract has further expired on
31.12.2018, the University has come out with the impugned
order dated 18.02.2019 and refused to accede the request of the
petitioner for an extension, which in the considered opinion of
this court could not be termed as termination order on account
of any deficiency, but the same has been taken in the interest of
the University as, there can’t be any tenure track review in his
prolonged absence. The Hon’ble Supreme Court, in Gridco Ltd.
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(supra) has reminded that in the modern commercial world,
executives are engaged on account of their expertise in a
particular field and those who are so employed are free to leave
or to be asked to leave by the employer. Contractual
appointment work only if the same are mutually beneficial to
both the contracting parties and not otherwise. The said
principle, now a days, applies in all the field aiming to
maximize growth/productivity, learning innovation and success.
20.11. Moreover, the learned Single Judge has not
interfered with the impugned order dated 18.02.2019 and once
the impugned order having not been set aside by the learned
Single Judge, which was put to challenge before him or held to
be bad in the eyes of law; any direction that so far the question
of extension of ‘Tenure Track’ is concerned, it is left to the
wisdom of the Vice Chancellor of the University to consider it,
especially considering the entire track record and performance
of the petitioner within a stipulated period is unwarranted and
cause an incongruous and an anomalous position for the
University. Hence, this Court finds the order dated 18.02.2019,
is neither punitive/ stigmatic nor the petitioner has been
discontinued on account of his deficiency, rather it is only an
order simplicitor, not extending the contractual period after
termination of the period of contract. The issue no. II answered
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accordingly.
21. Issue no. III:- Whether non-extension of contract
leading to end of the probation without Tenure Contract
Review is violative of contract agreement and thus vitiates in
law?
21.1. So far the issue no. III formulated by this Court,
the Hon’ble Supreme Court has underscored that the services of
every probationer must be seriously and properly assessed, as
the probationer is a new entrant in the career and at the very
threshold, he cannot be scuttled from rise of the career. Thus,
there should be an effort of the employer to assess the services
or the work performance of the probationer.
21.2. In the case of Abhujit Gupta vs. S.N. B.
National Centre, Basic Sciences & Ors. [(2006) 4 SCC 469],
the Hon’ble Supreme Court placing reliance upon the decision
in Dr. Mrs. Sumati P. Shere vs. Union Of India & Ors. [(1989)
3 SCC 311] has observed that it is the duty of the employer to
inform the employee on probation about his deficiency from
time to time so that the employee may improve himself. It
would be worth benefiting to quote para-9 of the said decision.
“9. In Sumati P. Shere (Dr.) v. Union of India
[(1989) 3 SCC 311 : 1989 SCC (L&S) 471 : (1989)
11 ATC 127] this Court pointed out that an
employee on probation should be subjected to
assessment of work and should be made aware of
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the defects in his work and deficiencies in his
performance. The Court observed:
“Defects or deficiencies, indifference or
indiscretion may be with the employee by
inadvertence and not by incapacity to work.
Timely communication of the assessment of
work in such cases may put the employee on
the right track. Without any such
communication, … it would be arbitrary to
give a movement order to the employee on
the ground of unsuitability.”
It is the duty of the employer to inform the
employee about his deficiencies from time to time
so that the employee may improve himself.”
21.3. It is also worth noting here that in the case of
State of U.P. vs. Akbar Ali Khan, AIR 1966 SC 1842, it has
been observed that in case an employee is allowed to continue
in the post even after the period of probation without passing an
order of confirmation, the only possible view to take is that by
implication the period of probation was extended.
21.4. In Shri Kedar Nath Bahl vs. State of Punjab &
Ors. reported in (1974) 3 SCC 21 the Supreme Court has been
pleased to lay down that:-
“where a person is appointed as a
probationer in any post and a period of
probation is specified it does not follow that
at the end of the said specified period of
probation he obtains confirmation
automatically even if no order is passed in
that behalf. Unless the terms of appointment
clearly indicate that confirmation would
automatically follow at the end of specified
period or there is a specific service rule to
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that effect, the expiration of probationary
period does not necessarily lead to
confirmation. At the end of the period of
probation an order confirming the officer is
required to be passed and if no such order is
passed and he is not reverted to his
substantive post the result merely is that he
continues in his post as a probationer.”
21.5. No doubt the probation period of an
employee is the period of trial extending opportunity to the
employee to perform to the best of his ability and to the
employer to observe his performance and to make up his mind
regarding his confirmation. Since in the case at hand, the
petitioner before completion of his probation period, post the
permission of the competent authority of the University,
accepted the prestigious Fellowship; admittedly he was not
present in the University for ten months period till June, 2019.
In absence of the petitioner, irrespective of the fact the
agreement entered into by the petitioner, the University
prescribed that there will be a tenure review at the end of the
contractual period, the same could not have been possible as the
petitioner had left the University in the month of August, 2018
itself and the period of contract has finally expired on
31.12.2018. There is no doubt regarding academic prowess of
the writ petitioner, but any University or the institution is
concerned with the worthiness and usefulness of a faculty
Patna High Court L.P.A No.22 of 2025 dt.10-04-2026
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member, whose presence is required to impart education to the
students who takes admission in the University with an
expectation to get best teaching from an expert faculty member.
In view of the aforesaid facts, even though this Court held that,
in terms with the agreement, the Nalanda University Act, 2010
and the statutes, tenure review was required, but in the facts of
the present case, in a prolonged absence of the petitioner, the
same could not be done and for which the University cannot be
blamed.
22. Issue no. IV:- Whether the Vice Chancellor
or the Governing Board is the appropriate authority to take a
decision of non-extension of contract once the appointment of
the petitioner on the post of Assistant Professor on contract
was made after approval of the Governing Board?
22.1. Now coming to the issue no. IV after going
through the Nalanda University Act 2010; Section 7 thereof
provides for formation of a governing body consisting of (a)
The Chancellor; (b) The Vice Chancellor; (c) Five members
from amongst the members States which provides maximum
financial assistance during a period of three years to be
nominated by the member States; (d) One member not below
the rank of Secretary in the Ministry of External Affairs to be
nominated by the Central Government; (e) Two members
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representing the State Government of Bihar to be nominated by
the State Government; (f) one member not below the rank of
Additional Secretary in the Ministry of Human Resource
Development, to be nominated by the Central Government; and
(g) three members from amongst the persons being renowned
academician or educationist to be nominated by the Central
Government. Section 8 provides the powers and functions of the
Governing Board. Section 10 deals with the power of University
and Clause XXI under Section 10 provides one of the power to
regulate and enforce discipline among the employees and
students to take such disciplinary measure in this regard, as may
be deemed by the University to be necessary. Further the
Nalanda University Statutes 2012, especially Statute 3 provides
power and functions of the Governing Board, which prescribes
under Statute 3(j) that the Governing Body shall appoint
Professor, Associate Professor and Assistant Professor on the
recommendation of the Selection Committee constituted for the
purpose and fix or alter the salaries and service condition of the
employees of the University. Statute 12 prescribe for
appointment of Vice Chancellor and Statute 13 provides the
power of the Vice Chancellor. The Vice Chancellor shall in
terms with statute 13(f) with the approval of the Governing
Board have the power to appoint employees, consultant,
Patna High Court L.P.A No.22 of 2025 dt.10-04-2026
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retainers and fix their remuneration commensurate to the nature
of services offered. Further Statute 13(g) clearly prescribes that
the Vice Chancellor with the approval of the Governing Board
have the power to create academic and non-academic posts and
make appointments to such posts on contract basis (including on
ad-hoc and temporary basis), wherein from one year to three
years subject to the terms and conditions of any statutes,
ordinances or regulations, as may be applicable from time to
time.
22.2. A bare perusal of the office order pertaining
to appointment of the petitioner as an Assistant Professor on
contract, it is manifest that the same was issued in pursuance of
the approval of the Governing Board of Nalanda University who
is said to be the competent authority to extend the appointment
on the post of Assistant Professor, even on contractual basis, as
per the terms of the statutes referred hereinabove. Further, the
office order dated 17.11.2017, whereby the Tenure Track
position of petitioner was extended for a period of one year
from 01.01.2018 to 31.12.2018, had also been issued with the
approval of the competent authority, duly signed by the
officiating Registrar. Similarly, coming to the impugned order
dated 18.02.2019, the same is also found to be issued with the
approval of the competent authority. It is trite law that the
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presumption is always in favour of the bonafide of the order
unless it is contradicted by acceptable materials [Vide Kiran
Gupta & Ors. vs. State of U.P. & Ors., (2000) 7 SCC 719]. In
absence of any material shown by the petitioner that the same
has not been issued by the approval of the Governing Board, the
Court cannot adjudicate the issue by accepting the argument of
the writ petitioner as gospel truth, once the order says otherwise
that it has been issued by the approval of the competent
authority. Hence, in the opinion of this Court, the impugned
order dated 18.02.2019 is found to be issued after getting the
approval of the competent authority which in the opinion of this
Court in terms with the Rules, 2010 and the Statute, 2012 is the
Governing Board. The issue number IV is answered
accordingly.
23. Issue no. V:- Whether the writ petition was
maintainable despite the alternative remedy available under
the Nalanda University Act, 2010?
23.1. Coming to the issue number V, pertaining to
the entertainment of the writ petition despite having efficacious
remedy available under Section 33(2) of the Nalanda University
Act, 2010, suffice it to observe that bare reading of the same it is
evident that the dispute arising out of the contract between the
University and any employee shall be referred to the Tribunal of
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Arbitration at the request of the employee, only whereupon
Tribunal of Arbitration shall consist of one member appointed
by the Governing Board, one member nominated by the
employee concerned and an umpire appointed by the visitor.
The learned Single Judge has rightly come to the conclusion that
section will come into play only when the writ petitioner/
concerned employee expresses his desire to refer the matter to
an Arbitration Tribunal.
23.2. Express desire and volition of the employee
has been accorded prominence; as consent, either express or
implied, is sine qua non for arbitration. Notwithstanding the
aforesaid position, it is well settled that rule of exclusion of writ
jurisdiction in case of alternative remedy is rule of discretion
and not a rule of compulsion. The access to High Court by way
of a writ petition under Article 226 of the Constitution is not a
constitutional right, but also a part of the basic structure. The
power to issue prerogative writ under Article 226 of the
Constitution is plenary in nature and the same is not limited by
any provision of the Constitution and cannot be restricted or
circumscribed by a statute. Reference may be taken to a
decision rendered by the Hon’ble Supreme Court in the case of
Tamil Nadu Cements Corporation Limited vs. Micro and
Small Enterprises Facilitation Council and Anr., (2025) 4
Patna High Court L.P.A No.22 of 2025 dt.10-04-2026
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SCC 1.
24. Having answered all the issues hereinabove,
this Court is of the opinion that the learned Single Judge despite
having not interfered with the impugned order dated 18.02.2019
or held it to be unsustainable in law as well as on facts acceded
its jurisdiction to direct the University to consider the entire
track record and performance of the petitioner within a period of
two months by leaving it to the wisdom of the Vice Chancellor
of the University in relation to answer the question of extension
of Tenure Track. Consequently, the order of the learned Single
Judge dated 10.12.2024 to the extent whereby the learned Single
Judge has opined that so far as the question of extension of
Tenure Track is concerned, it is left to the wisdom of the Vice
Chancellor of the University to consider it, especially
considering the entire track record and excellent performance of
the petitioner within a period of two months, if the petitioner
files an application showing his eagerness to rejoin the post, is
held to be unsustainable in law as well as on facts and
accordingly, set aside to the extent afore-noted.
25. So far as the direction of the learned Single
Judge to the extent the University is directed to calculate the
arrears of increment, DA and other emoluments are concerned,
this Court does not find any reason to interfere with the same
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and accordingly direct the University to ensure the compliance
of such order as directed by the learned Single Judge instantly,
without any further delay, in accordance with law.
26. The present intra-court appeal stands allowed
partly, to the extent indicated hereinabove.
27. No order as to cost.
(Harish Kumar, J)
Sangam Kumar Sahoo, CJ: I agree.
(Sangam Kumar Sahoo, CJ)
Anjani/-
AFR/NAFR AFR
CAV DATE 24.03.2026
Uploading Date 10.04.2026
Transmission Date N.A.
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