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 3

rd

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 45

th

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 3

rd

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

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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,

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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

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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.

Anjani/-

(Harish Kumar, J)

Sangam Kumar Sahoo, CJ: I agree.

(Sangam Kumar Sahoo, CJ)

AFR/NAFR AFR

CAV DATE 24.03.2026

Uploading Date 10.04.2026

Transmission Date N.A.