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Synopsis

The Supreme Court has said that the Executive Council of a University, being a statutory authority, cannot exercise its power of discretion on whims and caprice, while setting aside a decision not to regularise an Assistant Professor (Law) in Tripura University, appointed against lien vacancy.

A bench of Justices J K Maheshwari and K V Vishwanathan issued a writ of mandamus directing the respondent-University to place the case of appellant Maitreyee Chakraborty for confirmation before the Executive Council which would pass appropriate resolution within four weeks in accordance with the findings given in the present judgment.

Having examined the Assistant Professor's plea, the bench said, "In the absence of any material indicating unsatisfactory performance, in the ordinary course of things, fair and just exercise of power would require that the appellant be confirmed against the vacancy.”

The court noted that the appellant had, after undergoing the regular selection process, been working since January 17, 2017, for the last seven years and approximately six months. Even in the impugned order, pending the proposed re advertisement, she was continued in service. 

"The representations in the employment notice, the Resolution of the Executive Council and the appointment order did give rise to a legitimate expectation to the appellant that in the event of the lien being vacated, the appellant would be continued in service and regularised in the said post. The only condition was that it will need the approval of the Executive Council," the bench said.

In May, 2016, the University issued an advertisement in the Department of Law, for the post of Assistant Professor to fill up three vacancies. One was an unreserved regular vacancy. One was a lien vacancy in the Open category and one was a lien vacancy for the OBC candidates. 

One Brij Mohan Pandey was taken against the regular vacancy. The appellant was adjusted against the Unreserved lien vacancy. 

The appellant, after resigning her job from the Tripura Government Law College, joined the University in the post of Assistant Professor in Law with effect from January 17, 2017 and had been continuously working for the last seven years.

In a meeting of Executive Council held on December 13, 2018, while other teachers working in their respective posts were confirmed, the appellant was not confirmed and the Executive Council resolved to re-advertise the post. 

The appellant approached the high court's single judge as well as division bench which rejected her plea.

Going by the facts of the matter and after hearing the counsel for the parties, the bench noted that at least 16 candidates were shortlisted for the interview from the many applicants. 

"In our view, it would not be correct to assume that because one of the unreserved vacancies was a lien vacancy many eligible candidates would not have applied. One vacancy advertised being a regular vacancy, it is fair to assume that the interested candidates would have definitely applied and as such no prejudice has been caused to any person," the bench opined.

It also noted that no reasons had been given by Executive Council as to why the appellant was not confirmed. 

"The liberty reserved in the appointment order cannot be exercised in an arbitrary manner. There was no case made out by the University to deny the appellant, her confirmation," the bench said.

The bench questioned whether the University was justified in denying the appellant's confirmation after she successfully passed the rigorous selection process, had the lien vacated, and demonstrated satisfactory performance, ultimately concluding, "We think not."

"The University cannot be heard to say:- ‘may be the lien is vacated, and your performance is satisfactory, but we do not want to confirm your service’," the bench added.

"The University, being a statutory body, any such conduct would tantamount to an arbitrary and unreasonable exercise of power, apart from being unfair. The discretion vested in the Executive Council should be exercised in a fair and non arbitrary manner. It cannot be based on the whim and caprice of the decision-making authority. If asked to justify, the Executive Council must have good reasons to defend the exercise of power. In this case, alas, there are none," the bench added.

The bench said resolution of the Executive Council denying confirmation and preferring re advertisement was delightfully vague and offered no justification. 

"The justification desperately attempted in the counter affidavit to defend the decision has, come a cropper," the bench added.

The bench pointed out the only explanation given in the counter affidavit of the State was that the University had a discretion and that the denial of regularisation and the decision to re-advertise was in the larger interest of the candidates who had not applied as the post was under lien. This explanation found favour with the high court. 

However, the top court said, "We have found that no prejudice to public interest could have been caused as eligible candidates desiring the appointment would have anyway applied to compete for the regular slot. In view of this, in the facts of the present case, we find that the legitimate expectation was not outweighed by any overriding public interest."

The court allowed the appeal and directed issuance of the order in terms of the judgment with all consequential benefits.

Case Title: Maitreyee Chakraborty Vs The Tripura University & Ors