University Can't Act Arbitrarily, Must Explain Denial Of Legitimate Expectation : Supreme Court In Law Professor's Plea For Regularisation

While directing the Tripura University to decide the plea for regularization of an Assistant Professor (Law) engaged by it on "lien vacancy", the Supreme Court recently observed that a statutory body such as a University cannot act unfairly and arbitrarily in matters of regularization. The decision to regularize should not be based "on the whims of the decision-making authority"; rather, it should have good reasons to justify the exercise of its power. 

"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 Respondent-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 resolution of the Executive Council denying confirmation and preferring re-advertisement is delightfully vague and offers no justification", said the bench of Justices JK Maheshwari and KV Viswanathan.

Background

The matter pertained to 3 posts advertised for the post of Assistant Professor (Law) at the Tripura University. One was an unreserved regular vacancy. One was a lien vacancy in the Open category and one was a lien vacancy for OBC candidates. A note appended to the notification said that “Appointment made to the posts against LIEN vacancy are likely to be regularized subject to vacation of lien and satisfactory performance.” 

While another candidate was selected for the regular vacancy, the appellant was selected against the Unreserved lien vacancy. The appointment order issued to her mentioned that in case the lien was vacated, her service may be continued further with the approval of the Executive Council of the University.

Subsequently, the resignation of the incumbent person who held the substantive post was accepted and any lien that existed thereon was vacated. Though in terms of the employment notice, the appellant expected to be confirmed, the Executive Council decided against it and chose to re-advertise the post. She wrote to various authorities seeking the reasons behind the proposed discontinuance, however, no response was received.

Proceedings before the High Court

The appellant moved the Tripura High Court, challenging the resolution and order(s) regarding discontinuation of her service, as well as praying for confirmation on the post of Assistance Professor (Law) at the University.

The University took up a plea that it had the discretionary power to continue (or not) the appellant's services, even if the person holding the lien had vacated the lien. It was further averred that the issue about regularizing or re-advertising was in the larger interest of candidates who had not applied (as the post was under lien).

First, a Single Judge, and then, a Division Bench, decided against the appellant. Aggrieved, she moved the Supreme Court for relief.

Observations by the Supreme Court

Going through the material on record, the Supreme Court noted that nothing adverse about the appellant's performance was set out anywhere: "The performance has been satisfactory as nothing adverse had been pointed out and the Appellant is discharging the duties for more than seven years".

It was further of the view that the concerned employment notice gave legitimate expectation to the appellant that she would be regularized in case the lien was vacated (subject to approval by the Executive Council). Yet, her services were decided to be discontinued without any explanation, in the absence of any overriding public interest or material indicating unsatisfactory performance.

"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 regularized in the said post. The only condition was that it will need the approval of the Executive Council."

Insofar as the University's contention that the non-regularization was in the interest of persons who did not apply (as it was a lien post), the Court observed that all applicants competed for a regular post also (which went to another candidate, and not the appellant) and no one from the open market could have been prejudiced.

It was further considered that the appellant had undergone regular selection process. In this regard, the Court referred to the decision in Meher Fatima Hussain v. Jamia Milia Islamia & Ors., which followed Somesh Thapliyal & Anr. v. Vice Chancellor, H.N.B. Garhwal University & Anr., and held that where appointment is after undergoing a regular selection process and the incumbents possess the relevant qualification, they should be continued on the posts merged with the regular establishment of the University instead of adopting a fresh selection procedure.

Dealing with "legitimate expectation", the Court referred to the decision in Sivanandan C.T. and Others v. High Court of Kerala and Others, where it was held that public authorities have a duty to use their powers for the purpose of public good and the said duty raises a legitimate expectation on the part of the citizens to be treated in a fair and non- arbitrary manner. However, doctrine of legitimate expectation would cede to larger public interest.

On facts, it was 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 the facts of the present case, we find that the legitimate expectation was not outweighed by any overriding public interest", the Court said.

Conclusion

Ultimately, it was opined that just exercise of power required that the appellant be confirmed against the vacancy, as there was no longer a lien.

Accordingly, the Court set aside the orders of the High Court, as well as the University's resolution/order which stipulated that her services were being discontinued. A writ of mandamus was issued, directing the University to place the appellant's case for confirmation before the Executive Council.

A period of 4 weeks was given to the Executive Council and the University to pass appropriate resolution/order, in accordance with the judgment. Further, the appellant was directed to be given all consequential benefits. 

Case Title: MAITREYEE CHAKRABORTY VERSUS THE TRIPURA UNIVERSITY & ORS., SLP (CIVIL) NO. 16944 of 2022

Citation : 2024 LiveLaw (SC) 598

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