Asha Gupta vs University Of Delhi & Anr
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Reserved on: 20 April, 2026.
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Pronounced on: 01 July, 2026.
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Uploaded on: 01 July, 2026.
+ W.P.(C) 1386/2017 & CM APPLs. 6405/2017, 52156/2019,
53029/2022, 4293/2025
ASHA GUPTA .....Petitioner
Through: Mr. Anil Nauriya, Ms. Sumita
Hazarika and Mr. Prakhar Gupta,
Advocates.
versus
UNIVERSITY OF DELHI & ANR .....Respondents
Through: Mr. Mohinder J.S. Rupal, Advocate
for University of Delhi.
Mr. Ravinder Agarwal, Mr. Manish
Kumar Singh and Mr. Vasu Agarwal,
Advocates for R-2.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT
SANJEEV NARULA, J.:
1. Dr. Asha Gupta challenges the University of Delhi’s retrospective
withdrawal of the protection granted to her by Executive Council Resolution
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No. 126 dated 27 December, 2007. That Resolution treated the post of
Director, Directorate of Hindi Medium Implementation, as a teaching post
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only for determining her retirement age. By Resolution No. 21 dated 28
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February/7 March, 2017 and communication dated 28 March, 2017, the
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University treated her as having superannuated on 30 April, 2012, re-
characterised her subsequent service, and proposed recovery or adjustment
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of amounts already paid. She also assails the UGC communication dated
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27 February, 2014 to the extent it was used for that action, and seeks
consequential relief in relation to salary, increments, retiral dues and
recovery.
The core controversy
2. The issue is narrow: after permitting the Petitioner to continue under
Executive Council Resolution No. 126, could the University years later
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withdraw that protection, deem her retired from 30 April, 2012, and
recover or adjust payments for service it had accepted?
Factual background
Petitioner’s academic service and appointment to DHMI
3. The Petitioner was appointed as Lecturer in Political Science at Bharati
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College, University of Delhi, on 21 July, 1973. After undergoing the
selection process, she was designated as Reader in Political Science with
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effect from 1 January, 1986. She also served, for a period, as Principal of
Bharati College.
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4. On 27 June, 2006, the University issued Advertisement No. Estab.
IV/194/2006 for several faculty positions, including Director, DHMI. The
qualifications were academic and administrative: a first or high second-class
Master’s degree with Ph.D. or equivalent published work, quality
publications on technical subjects, at least ten years’ teaching experience in
University classes, proficiency in English and Hindi, experience in
translation and vetting of scientific and technical texts, terminological and
lexicographical work, and administrative experience in running an academic
institution.
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5. The Petitioner applied for the post. By letter dated 27 June, 2007, the
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University informed her that she had been appointed as Director, DHMI, on
the recommendation of the Selection Committee, which had been approved
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by the Executive Council in its meeting held on 8 June, 2007. The
appointment carried the pay scale applicable to the post of
Professor/Director, together with allowances admissible under the
University rules.
Clarification on retirement age and grant of lien
6. Before joining DHMI, the Petitioner sought clarity on a critical service
condition: her age of superannuation. By then, the retirement age for holders
of regular sanctioned teaching posts had been enhanced from 62 to 65 years.
As a Reader in Bharati College, she would have retained that benefit had she
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continued there. She therefore wrote to the University on 3 July, 2007 and
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12 July, 2007 seeking clarification on the retirement age applicable to her
as Director.
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7. On 3 September, 2007, Bharati College granted the Petitioner lien for
one year with effect from that date, enabling her to join as Director, DHMI.
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The University thereafter issued Office Order No. 213 dated 17 September,
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2007, recording that she had joined as Director with effect from 3
September, 2007.
Executive Council Resolution No. 126
8. The question of the Petitioner’s retirement age was placed before the
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Executive Council. At its meeting held on 27 December, 2007, the
Executive Council passed Resolution No. 126 in the following terms:
“Resolved that the post of Director, Hindi Medium Implementation
(DHMI) be treated as a teaching post for the purpose of age of retirement,
since the present incumbent is from teaching fraternity.”
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9. Bharati College, by letter dated 23 May, 2008, informed the
Petitioner that its Governing Body had regularised the grant of extraordinary
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leave/lien to her for one year, up to 2 September, 2008, and that the lien
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could not be extended thereafter. Four days later, on 27 May, 2008, the
University conveyed to the Petitioner a copy of Executive Council
Resolution No. 126.
Reference to the UGC and ensuing disapproval
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10. On 12 September, 2013, the Registrar of the University wrote to the
University Grants Commission seeking ex post facto approval for treating
the post of Director, DHMI, as academic for the purpose of superannuation
at the age of 65 years. The University recorded that the Petitioner had been a
Reader in Bharati College before joining as Director, DHMI; that the
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Executive Council had passed Resolution No. 126 dated 27 December,
2007; and that, in terms of that Resolution, she had been allowed
superannuation at the age of 65 years. The communication further recorded
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that the Petitioner’s date of birth was 3 April, 1952 and that she would
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retire on 30 April, 2017.
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11. The UGC responded by communication dated 27 February, 2014. It
referred to the Ministry of Human Resource Development communication
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dated 19 April, 2007, which stated that the enhancement of the age of
superannuation from 62 to 65 years was intended to address the shortage of
teachers and would apply only to teachers in centrally funded institutions of
higher and technical education who were actually engaged in teaching
classes, courses or programmes of study. Proceeding on that basis, the UGC
conveyed its disapproval of the proposal to enhance the age of
superannuation of the Director, DHMI, from 62 to 65 years.
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Impugned withdrawal and amendment of the writ petition
12. The dispute sharpened after the Petitioner filed the present writ
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petition on 9 February, 2017 and notice was issued. The University then
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issued the impugned communication dated 28 March, 2017, informing the
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Petitioner that the Executive Council, at its meeting held on 28 February,
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2017 and 7 March, 2017, had approved withdrawal of Executive Council
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Resolution No. 126 dated 27 December, 2007 in light of the UGC letter
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dated 27 February, 2014. The communication further stated that the
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Petitioner stood superannuated from 30 April, 2012; that her later period of
service would be treated as contractual engagement as per applicable rules;
and that she should submit a “No Dues Certificate” for settlement of
terminal benefits.
13. The Petitioner thereafter sought amendment of the writ petition. By
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order dated 23 August, 2017, the amendment was allowed, with liberty to
the Respondents to raise all objections on facts and law, including to the
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challenge against the UGC communication dated 27 February, 2014. The
amended petition accordingly impugned Executive Council Resolution No.
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21 dated 28 February, 2017/7 March, 2017, the University’s
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communication dated 28 March, 2017, and the UGC communication dated
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27 February, 2014.
University’s recovery claim and subsequent orders
14. The controversy did not end with the withdrawal communication. In
January 2019, during the pendency of the proceedings, the University filed
an additional affidavit stating that, in furtherance of Executive Council
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Resolution No. 21 dated 28 February, 2017/7 March, 2017, the
Petitioner’s case had been processed for fixation of “contractual fee” for the
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period from 2 May, 2012 to 28 March, 2017. The contractual fee was
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fixed at INR 52,732/- per month from 2 May, 2012 to 31 May, 2013 and
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INR 90,000/- per month from 1 June, 2013 to 28 March, 2017. On that
basis, the University asserted that INR 38,90,648/- was recoverable as
excess payment. After adjusting gratuity, provisional leave encashment and
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CPF subscription beyond 30 April, 2012 with interest, it claimed that INR
11,15,102/- remained recoverable. The Petitioner contests the entire
exercise.
15. Certain orders passed by the Court may also be noticed, as they show
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how the controversy remains unresolved. On 12 July, 2022, this Court
recorded the Petitioner’s contention that she had given up her lien in Bharati
College on the assurance contained in Executive Council Resolution No.
126, and that the University later sought to resile from that assurance on the
purported advice of the UGC. Since the Petitioner had admittedly served
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against payment of salary till 30 November, 2016, and claimed to have
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continued till 30 April, 2017 without salary, the Court asked the University
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whether it would consider counting her service at least till 30 November,
2016 for all purposes, including retiral benefits. Time was granted to obtain
instructions.
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16. On 24 August, 2022, counsel for the University informed the Court
that the University was not agreeable to treating the Petitioner’s service after
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30 April, 2012 as regular service, and that she could not be granted any
benefit for that period other than what she had already received. The Court
therefore directed that the matter be heard on merits. It was, however,
clarified that if the Petitioner approached the University for release of
terminal dues, the amount payable, including provident fund contributions
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made by her, would be released as per the University’s calculations, subject
to the outcome of the writ petition and without waiver of her rights.
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17. On 7 December, 2022, while dealing with the Petitioner’s
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application alleging non-compliance of the order dated 24 August, 2022,
the Court recorded the University’s stand that excess amount had already
been paid to the Petitioner and that such amount exceeded the terminal
benefits payable to her. The Petitioner disputed the correctness of that
position. The Court accordingly directed the University to furnish
calculations of the dues paid to the Petitioner and a break-up of the alleged
excess amount.
Contentions on behalf of the Petitioner
18. Mr. Anil Nauriya, counsel for the Petitioner, summarises his
submissions as follows:
18.1. The case turns on an assurance given by the University through its
Executive Council. The Petitioner had a long academic career within the
University system and was serving as a Reader in Bharati College, where
she was entitled to retire at the age of 65 years. Before joining DHMI, she
sought clarification regarding the retirement age applicable to her and joined
the Directorate only after obtaining lien from Bharati College. Thereafter,
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the Executive Council passed Resolution No. 126 dated 27 December,
2007, providing that the post of Director, DHMI, would be treated as a
teaching post for the purpose of age of retirement, since the incumbent was
from the teaching fraternity.
18.2. Resolution No. 126 was passed by the Executive Council, the
competent authority in University administration, and was formally
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communicated to the Petitioner on 27 May, 2008, while her lien in Bharati
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College was still alive. Acting on that assurance, she did not return to
Bharati College and allowed the lien to lapse. The University, having
induced that change of position, was estopped from withdrawing the
protection to her detriment. The rule that there can be no estoppel against
law is said to have no application because the Executive Council had power
to extend the protection granted under Resolution No. 126. Reliance is
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placed on Registrar, University of Delhi v. Ashok Kumar Chopra and
Somya Gupta & Ors. v. Guru Gobind Singh Indraprastha University &
2
Anr.
18.3. The Petitioner does not seek a declaration that the post of Director,
DHMI, is a teaching post for all purposes or for all future incumbents. Her
claim is confined to the protection extended to her under Resolution No.
126. The words “since the present incumbent is from teaching fraternity” are
relied upon to contend that the Resolution was intended specifically to
address her circumstances.
18.4. Reliance is placed on University’s subsequent conduct. The identity
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card issued to her recorded her date of retirement as 30 April, 2017.
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Further, in its letter dated 12 September, 2013 addressed to the UGC, the
University acknowledged that she had been allowed to superannuate at the
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age of 65 years pursuant to Resolution No. 126 and would retire on 30
April, 2017. These documents demonstrate the University’s own
understanding of the Resolution.
18.5. The University’s reference to the UGC in 2013 came nearly six years
after the Petitioner had joined DHMI and after her opportunity to return to
1
1967 SCC OnLine Del 154.
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2019:DHC:12.
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Bharati College had irrevocably lapsed. The University failed to disclose
material facts, including that she had sought clarification before joining
DHMI, held a lien in Bharati College, received the benefit of Resolution No.
126 before expiry of the lien, and had acted upon that assurance. The UGC’s
response, therefore, proceeded on an incomplete factual foundation.
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18.6. The communication dated 27 February, 2014 is, in any event, not a
decision of the UGC on the Petitioner’s case. Reliance is placed on minutes
obtained under the Right to Information Act to contend that the matter was
never placed before the Commission. The Petitioner also refers to the
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UGC’s RTI response dated 3 April, 2017, stating that uniform service
conditions for non-teaching staff of Central Universities had not been
notified by the UGC and that service conditions are governed by the
respective University’s statutes, ordinances, rules and applicable
Government norms.
18.7. The UGC communication could not have been used to visit her with
adverse civil consequences without notice or opportunity of hearing. Neither
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before issuance of the UGC communication dated 27 February, 2014, nor
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before the Executive Council Resolution dated 28 February, 2017/7
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March, 2017 and the consequential communication dated 28 March, 2017,
was she afforded an opportunity to present her case. The impugned actions
are, therefore, contrary to the principles of natural justice.
18.8. The University’s action was not a mere prospective withdrawal of a
benefit, but a retrospective nullification of nearly five years of service
already rendered and accepted. By treating her as having superannuated on
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30 April, 2012, the University sought to alter, with retrospective effect, the
legal character of her service. The later attempt to describe the period from
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2012 to 2017 as contractual engagement is assailed as artificial: no contract
was executed, no contractual terms were agreed upon, and the Petitioner
continued throughout to function as Director, DHMI, under the University’s
own administrative arrangement.
18.9. The proposed recovery is unsustainable. The payments made to the
Petitioner were not obtained by fraud, misrepresentation, suppression of
facts, or under any undertaking to refund. They were made by the University
under its own orders, while it continued to take work from her as Director,
DHMI. The recovery is founded only on the University’s subsequent attempt
to retrospectively alter her service status and remuneration. Such a course is
impermissible in law and contrary to the settled principles governing
recovery of alleged excess payments from retired employees.
18.10. The withholding of salary and increments is illegal. Salary for
services rendered could not be withheld without authority of law, nor could
increments be withheld without following the prescribed procedure.
Although the Petitioner was paid salary until November 2016, salary
thereafter was withheld despite her continuing to discharge her duties until
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30 April, 2017.
18.11. The plea of delay is misconceived. The writ petition was instituted
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on 9 February, 2017. The communication retrospectively treating the
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Petitioner as having superannuated on 30 April, 2012 was issued only on
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28 March, 2017, after notice had already been issued in the present
proceedings. The petition was amended thereafter with the Court’s
permission. The challenge, therefore, is neither belated nor barred by laches.
Contentions on behalf of the University of Delhi
19. Mr. Mohinder J.S. Rupal, counsel for the University of Delhi, submits
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as follows:
19.1. The Petitioner had no enforceable right to continue in service until the
age of 65 years. The post of Director, DHMI, is not a teaching post and the
staff of DHMI were not recognised by the UGC as teachers of the
University. The enhancement of the age of superannuation from 62 to 65
years was intended only for teachers engaged in teaching classes, courses or
programmes of study. As Director, DHMI, the Petitioner did not fall within
that category.
19.2. The University, being a statutory body, could not act contrary to
statutory provisions, binding policy decisions or UGC directives. There can
be no estoppel against law. Therefore, even if Executive Council Resolution
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No. 126 dated 27 December, 2007 extended the benefit of retirement at 65
years to the Petitioner, no enforceable right could arise if the Resolution was
contrary to the governing legal framework.
19.3. Upon seeking clarification from the UGC, the University was
informed that the enhanced age of superannuation was not applicable to the
post of Director, DHMI. The UGC, as the statutory body entrusted with
coordination and maintenance of standards in higher education, had
disapproved the extension of the retirement age from 62 to 65 years in
respect of that post. The Executive Council, therefore, withdrew Resolution
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No. 126 by Resolution No. 21 passed at its meeting held on 28 February,
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2017/7 March, 2017.
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19.4. The Petitioner attained the age of 60 years on 30 April, 2012 and
must, therefore, be treated as having superannuated on that date. Any period
thereafter cannot be regarded as regular service under the University.
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19.5. To account for the period after 30 April, 2012, the University treated
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the Petitioner’s engagement as contractual and fixed remuneration
accordingly. The additional affidavit filed by the University states that
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contractual fee was payable at the rate of INR 52,732/- per month from 2
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May, 2012 to 31 May, 2013 and INR 90,000/- per month from 1 June,
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2013 to 28 March, 2017. On that basis, the University contends that excess
payments aggregating INR 38,90,648/- were made and that, after adjustment
of gratuity, provisional leave encashment and CPF subscription with
interest, a balance amount remains recoverable.
19.6. The University also relies upon the Petitioner’s failure to furnish a No
Dues Certificate and contends that, in the absence of such compliance, her
terminal benefits could not be finally processed.
19.7. The University further raises the plea of delay and laches. The UGC
communication is dated February 2014 and was referred to in the writ
petition itself. The challenge thereto, introduced by amendment only in
2017, is belated.
Contentions on behalf of the University Grants Commission
20. Mr. Ravinder Agarwal, counsel for the UGC, submits as follows:
20.1. The UGC acted within its statutory remit. Under the University
Grants Commission Act, 1956, and in light of policy directions issued by the
Central Government, the UGC is empowered to ensure that universities act
consistently with governing policy in matters relating to higher education
and service conditions connected therewith.
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20.2. The UGC relies on the communication dated 19 April, 2007 issued
by the Ministry of Human Resource Development. That communication
clarified that the enhancement of the age of superannuation from 62 to 65
years applied only to teachers in centrally funded institutions who were
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actually engaged in teaching classes, courses or programmes of study. It did
not extend to other categories of employees merely because their posts were
considered equivalent to teaching positions.
20.3. On that basis, the UGC contends that it correctly communicated its
view that the enhanced age of superannuation was not applicable to the post
of Director, DHMI. It denies that the communication was without authority
or otherwise non est , and also disputes the allegation that the principles of
natural justice were violated.
20.4. The petition is barred by the principles of delay and laches. The
impugned communication was issued in February 2014, whereas the writ
petition was instituted only in February 2017 and the challenge to that
communication was introduced subsequently by amendment.
20.5. It is further submitted that no substantive relief was originally sought
against the UGC and that its presence was not necessary for adjudicating the
dispute between the Petitioner and the University. The UGC states that it has
defended the communication only because the amended petition specifically
impugns it.
20.6. The petition is not maintainable in the present form due to non-joinder
of essential parties. The Ministry of Human Resource Development is a
necessary party, since the impugned communication is founded upon the
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Ministry’s policy clarification dated 19 April, 2007. Any challenge to the
consequential action taken by the UGC cannot be effectively adjudicated in
the absence of the Ministry.
Points for determination
21. On the pleadings, the record and the rival submissions, the following
questions arise for determination:
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(i) Whether the challenge to the UGC communication dated 27
February, 2014 and the University’s consequential action is liable to be
rejected on the grounds of delay, laches or non-joinder of necessary parties.
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(ii) Whether Executive Council Resolution No. 126 dated 27 December,
2007 operated as a case-specific protection in favour of the Petitioner in
respect of her age of retirement, having regard to her previous status as a
Reader in Bharati College, the clarification sought by her before joining
DHMI, and the fact that the Resolution was conveyed while her lien was
still subsisting.
(iii) Whether the University could withdraw the benefit of the 2007
Resolution without affording the Petitioner an opportunity of being heard,
particularly when the withdrawal carried adverse civil consequences.
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(iv) Whether Executive Council Resolution No. 21 dated 28 February,
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2017/7 March, 2017 and the University’s communication dated 28 March,
2017 are sustainable insofar as they retrospectively treat the Petitioner as
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having superannuated on 30 April, 2012 and re-characterise the subsequent
period as contractual engagement.
(v) Whether the University is entitled to recover or adjust any amount
from the Petitioner on the basis of its subsequent fixation of contractual fee
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for the period after 30 April, 2012.
(vi) If the impugned action is found unsustainable, what consequential
reliefs should follow in relation to salary, increments, retiral benefits,
interest and release of withheld dues.
Analysis and findings
22. The first objection is founded on delay and laches. The Respondents
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submit that the Petitioner was aware of the UGC communication dated 27
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February, 2014, yet chose to challenge it only by way of amendment in
2017. The objection, however, cannot be accepted in the broad form in
which it is urged.
23. The distinction is between a communication exchanged at the
institutional level and an adverse civil consequence imposed on an
employee. The UGC communication may have been issued in February
2014, but the record does not show that, at that stage, the Petitioner was
informed that the protection granted under Executive Council Resolution
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No. 126 dated 27 December, 2007 stood withdrawn; that she had already
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superannuated on 30 April, 2012; or that her service thereafter would be
treated as contractual. The actionable injury arose only when the University
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issued its communication dated 28 March, 2017. By then, the writ petition
had already been filed and notice had been issued.
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24. The order dated 23 August, 2017, allowing the amendment, reflects
this very position. The Court permitted the Petitioner to challenge both the
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University communication dated 28 March, 2017 and the UGC
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communication dated 27 February, 2014, while expressly preserving the
Respondents’ objections on facts and law. Thus, the plea of delay remains
open for consideration, but it must be tested by reference to the date on
which the impugned decision was actually applied to the Petitioner. Judged
on that basis, the petition is not barred by delay or laches.
25. The objection of non-joinder of the Ministry of Human Resource
Development is equally without merit. The Ministry’s communication dated
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19 April, 2007 is not challenged as an independent cause of action. The
Petitioner’s grievance is directed against the manner in which the University
and the UGC applied that communication to her case, without considering
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the special circumstances in which she moved from Bharati College to
DHMI and without affording her an opportunity of hearing. The Ministry’s
presence is, therefore, not necessary for deciding whether the University
could withdraw its own 2007 Resolution in the Petitioner’s case, or whether
the consequential recovery action can be sustained.
26. The first point is accordingly answered in favour of the Petitioner: the
petition is not barred by delay or laches, and the objection of non-joinder of
the Ministry of Human Resource Development is rejected.
27. The second, and central, issue concerns the effect of Executive
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Council Resolution No. 126 dated 27 December, 2007. The Respondents
have approached the Resolution as though it effected a general and
impermissible conversion of the post of Director, DHMI, into a teaching
post. That is not what the Resolution says. Its language is carefully confined.
It treats the post of Director, DHMI, as a teaching post only “for the purpose
of age of retirement”, and explains the reason for doing so: “since the
present incumbent is from teaching fraternity.”
28. The expression “present incumbent” is central to the Resolution. It
identifies both the reason for the protection and the limit of its operation.
The Petitioner moved to DHMI from within the University system, after
serving as Reader in Bharati College, where she would have had the benefit
of the enhanced retirement age applicable to teachers. Before joining DHMI,
she sought clarification on the retirement age and obtained a one-year lien.
Resolution No. 126 was passed while that lien was alive and was
communicated to her before it expired. Acting on that assurance, she
remained in DHMI instead of returning to Bharati College.
29. These circumstances determine the legal effect of the Resolution. It
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was not a casual service concession, but a formal assurance by the
University, acting through its Executive Council, on which the Petitioner
altered her position. By permitting her lien to lapse, she gave up the
opportunity to return to a teaching post carrying retirement at 65 years.
Having thereafter treated Resolution No. 126 as governing her service for
years, the University could not later reduce it to a mere administrative
concession and withdraw it retrospectively.
30. Promissory estoppel in public law rests not on contract, but on
fairness in State action. Where a public authority makes a clear
representation within the field of its authority, and a person acts on it to her
prejudice, the authority cannot ordinarily resile merely because the
representation later appears inconvenient or mistaken. In UOI and Ors. v.
3
Indo Afghan Agencies Ltd. , the Supreme Court held the Government
bound by a representation under an export promotion scheme once the
citizen had acted upon it. In Motilal Padampat Sugar Mills Co. Ltd. v. State
4
of Uttar Pradesh , the Court held that a governmental promise intended to
be acted upon may be enforceable once the promisee alters position on its
strength. In Union of India and Ors. v. Godfrey Philips India Ltd. and
5
Ors. , the Court reaffirmed the doctrine, while recognising its limits: it
cannot compel an act prohibited by law and must yield to a clearly
established superior public interest.
31. The Respondents invoke that limitation and submit that there can be
no estoppel against statute. The principle is unexceptionable, but its
application is not automatic. The Court must first determine whether giving
3
1967 SCC OnLine 12.
4
(1979) 2 SCC 409.
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effect to the representation would violate any statutory provision. A public
authority cannot be compelled to do what the law forbids; however, in the
present case, the Respondents have identified no statutory provision
prohibiting the Executive Council from extending case-specific protection to
the Petitioner in respect of retirement age, especially when she moved from
a teaching post, sought clarification before joining DHMI, and acted upon
the assurance conveyed to her.
32. The UGC communication states the general position: DHMI staff had
not been recognised as teachers, and the enhanced superannuation age of 65
years was intended for teachers. That general proposition does not decide
this case.
33. The Petitioner does not seek a declaration that DHMI constitutes a
teaching cadre or that every Director of DHMI is entitled to retire at 65
years. Her claim is confined to enforcement of the case-specific protection
extended to her before she allowed her lien in Bharati College to lapse.
34. At this point, the legal distinction drawn in Registrar, University of
Delhi v. Ashok Kumar Chopra assumes direct relevance. In that judgment,
the Court explicitly held that the rule of ‘no estoppel against a statute’ does
not automatically render every administrative departure void. The Court
drew a clear line between acts completely prohibited by law ( ultra vires ) and
those that are merely ‘irregular.’ Specifically, it ruled that if a statute
provides the authority with the power to relax rules or grant exemptions, any
departure may be an irregular exercise of power within an area where it had
room to act. The Petitioner, herein, has invoked Rule 22 of the University
Non-Teaching Employees (Terms and Conditions of Service) Rules, 1971
5
(1985) 4 SCC 369.
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[since repealed by the University Non-Teaching Employees (Terms and
Conditions of Service) Rules, 2013, the corresponding provision being Rule
18 thereof], which confers a power of relaxation on the Executive Council.
The Respondents have not pointed to any provision divesting the Executive
Council of the power to extend a case-specific protection to an employee
transitioning from a teaching post within the University system, nor have
they furnished any persuasive response to the Petitioner’s reliance on the
power of relaxation.
35. The Court, therefore, need not decide the status of the post of
Director, DHMI, for every purpose or future incumbent. On the facts of this
case, Resolution No. 126 operated as a personal protection in respect of the
Petitioner’s age of retirement. It was passed while her lien in Bharati
College was subsisting, conveyed before that lien expired, and acted upon
by the Petitioner in continuing with DHMI.
36. The University’s subsequent conduct confirms how it understood
Resolution No. 126 until the dispute was later reopened. Had the Resolution
been void from inception, the University would not have allowed the
Petitioner to continue in service for years, paid her salary on that footing,
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issued an identity card recording her date of retirement as 30 April, 2017,
or informed the UGC in September 2013 that she would retire on that date.
Having treated the Resolution as operative for nearly a decade, the
University cannot later dismiss it as a legal nullity merely because its
consequences have become inconvenient.
37. The second point is accordingly answered by holding that Executive
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Council Resolution No. 126 dated 27 December, 2007 conferred an
enforceable, case-specific protection on the Petitioner in relation to her age
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of retirement. Whether that protection could thereafter be withdrawn, and if
so by what process and with what effect, is the next question.
38. The third and fourth points may conveniently be considered together.
They concern the procedure adopted before the benefit of the 2007
Resolution was withdrawn and the legality of giving that withdrawal
retrospective effect.
39. As noted above, the Petitioner’s claim did not rest on any assertion
that DHMI, as a cadre, should be treated as a teaching cadre. It rested on a
specific assurance extended to her by the University before her lien in
Bharati College expired.
40. This distinction was material, but the record does not show that it was
adequately placed before the UGC. Although the University’s letter dated
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12 September, 2013 referred to Resolution No. 126 and the Petitioner’s
earlier position as Reader, it did not place before the UGC the material
circumstances noted above: that the Resolution was sought, granted and
acted upon while the Petitioner’s lien in Bharati College was still subsisting.
Consequently, the issue presented to the UGC was whether the post of
Director, DHMI, could be treated as a teaching post for purposes of
superannuation at 65 years, rather than whether the University could honour
the protection already extended to the Petitioner.
41. More importantly, the Petitioner was not heard before the UGC
communication was acted upon to her prejudice, nor before the Executive
th th
Council passed Resolution No. 21 dated 28 February, 2017/7 March, 2017
withdrawing the earlier protection. The consequence was severe: in March
2017, she was told not merely that she would retire prospectively, but that
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she had already retired on 30 April, 2012, almost five years earlier; service
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rendered and accepted by the University was then re-described as
contractual engagement.
42. The law does not permit such a consequence to be imposed without
6
fair procedure. In State of Orissa v. Dr. Binapani Dei , the Supreme Court
held that even an administrative order involving civil consequences must
conform to the rules of natural justice. The principle was carried further in
7
A.K. Kraipak v. Union of India , where the Court recognised that the
dividing line between administrative and quasi-judicial action becomes thin
when rights are affected.
43. The expression “civil consequences” is not confined to dismissal from
service or deprivation of property. It includes consequences which affect
service status, salary, pension, accrued benefits and the security attached to
completed service. A decision which retrospectively treats an employee as
having retired five years earlier, and then converts the intervening period
into contractual service, plainly carries civil consequences. It alters not only
the Petitioner’s terminal date but the character of the service she had already
rendered.
44. The Respondents contend that once the UGC clarified the position,
the University had no option but to withdraw Resolution No. 126. The
submission cannot be accepted. The UGC communication was an
administrative response to a reference made by the University. It did not
examine the Petitioner’s case in its full factual setting, including the
circumstance that she had acted upon the University’s assurance while her
lien in Bharati College was still subsisting. Nor did it consider whether the
6
1967 SCC OnLine 15.
7
(1969) 2 SCC 262.
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Executive Council could, in those circumstances, honour a case-specific
protection already extended to her. The communication could not, by itself,
extinguish a protection created by the University’s own Resolution and
acted upon by the Petitioner for years.
45. The University’s action also suffers from a further infirmity: its
retrospective sweep. Resolution No. 21 did not merely withdraw a benefit
for the future. It sought to rewrite a completed period of service by
declaring, in March 2017, that the Petitioner had stood superannuated on
th
30 April, 2012. Yet, from May 2012 until November 2016, the University
took work from her as Director and paid her salary on that footing. The
th
Petitioner also asserts that she continued to discharge functions until 30
April, 2017, though without salary thereafter. The later attempt to describe
the intervening period as contractual engagement was not the
implementation of any contract made at the relevant time; it was a post facto
re-characterisation of service already rendered.
46. A public authority cannot settle service tenure by hindsight. If the
University considered that the Petitioner was required to retire on attaining
the age of 60 years, it had to say so before that date, or at least when that
date arrived, after giving her a fair opportunity to meet the proposed action.
47. What it could not do was accept the Petitioner’s service for years, pay
her as Director, and then retrospectively deny that the same period counted
as regular service. That course ignored her reliance on Resolution No. 126,
recast completed service by hindsight, and was manifestly arbitrary. It
therefore offended Article 14.
48. The Respondents’ emphasis on the Petitioner not being a teacher for
all purposes does not advance their case. That contention may answer a
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claim for general cadre parity; it does not answer a claim founded on a
specific assurance extended before her lien expired.
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49. Executive Council Resolution No. 21 dated 28 February, 2017/7
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March, 2017 and the University’s communication dated 28 March, 2017
are, therefore, unsustainable to the extent they operate against the Petitioner.
50. This conclusion does not require the Court to invalidate the UGC
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communication dated 27 February, 2014 in its entirety. Insofar as that
communication records the general policy that the enhanced age of
superannuation is not available to non-teaching staff, it may stand. What is
unsustainable is its application to the Petitioner. The communication dated
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27 February, 2014 is, therefore, held inapplicable to the Petitioner to the
extent it was used to retrospectively defeat the case-specific protection
granted to her under Executive Council Resolution No. 126.
Recovery and adjustment
51. The University’s recovery claim rests on the retrospective premise
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already rejected: that the Petitioner superannuated on 30 April, 2012 and
that her later service could be treated as contractual. In 2019, the University
fixed a notional “contractual fee” for that completed period and, by
comparing it with salary already paid, claimed an excess payment of INR
38,90,648/-, subject to adjustments.
52. That approach fails at the threshold. A contractual engagement cannot
be created retrospectively by a unilateral office order after the service period
has ended. The Petitioner was not offered contractual engagement in 2012,
did not accept contractual remuneration, and worked without any
contemporaneous fixation of a monthly fee. The University cannot, in 2019,
impose a contractual character on service rendered between 2012 and 2017
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and use that post facto characterisation to create a monetary liability.
53. Nor was the Petitioner’s service during this period unauthorised in any
real sense. She worked under the University’s own administrative
arrangement, was paid by it, and was treated as Director, DHMI. The
University cannot convert that course of conduct into a charge of excess
payment against the employee who acted under it.
54. There is, moreover, no allegation of fraud, misrepresentation or
suppression against the Petitioner. This is not a case where an employee
secured payment by concealing facts or furnishing false particulars. All
material facts were within the University’s knowledge. The University itself
passed Resolution No. 126 in 2007, conveyed it to the Petitioner, paid her
salary for years, and, in 2013, informed the UGC that she would retire on
th
30 April, 2017 in terms of the Executive Council Resolution.
8
55. In State of Punjab v. Rafiq Masih , the Supreme Court held that
recovery of excess payment would be impermissible in situations where it
would be harsh, inequitable or arbitrary, including recovery from retired
employees, recovery from employees who are due to retire shortly, and
recovery where the excess payment had continued for a long period without
fault of the employee. The Court did not treat recovery as a matter of mere
arithmetic. It recognised that when payment is received in good faith and the
employee is not at fault, recovery after years may itself become unjust.
9
56. In Syed Abdul Qadir v. State of Bihar , the Supreme Court restrained
recovery where the excess payment was not attributable to fraud or
misrepresentation by the employees and recovery after a long lapse of time
8
(2015) 4 SCC 334.
9
(2009) 3 SCC 475.
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10
would cause hardship. In Thomas Daniel v. State of Kerala , the Court
again interfered with recovery from a retired employee where the payment
had been made by the employer on its own understanding of the applicable
rules and not because of any misrepresentation by the employee. The
principle applies with greater force here, because the alleged excess payment
is not the result of an erroneous calculation alone. It is the product of a
retrospective re-description of service which this Court has already found
unsustainable.
57. The University cannot derive support for its recovery claim from the
th th th
orders dated 24 August, 2022 and 7 December, 2022. The order dated 24
August, 2022 merely permitted release of terminal dues, including provident
fund contributions, as per the University’s calculations, expressly subject to
the outcome of the writ petition and without waiver of the Petitioner’s rights.
th
It did not approve those calculations. Similarly, the order dated 7
December, 2022 did not accept the University’s claim of excess payment. It
only required the University to furnish the computation of dues and the
break-up of the alleged excess amount. The legality of recovery, therefore,
remained fully open and is answered by this judgment.
58. The objection based on non-submission of a “No Dues Certificate” is
of limited relevance. Such a certificate may ordinarily be required for
processing retiral papers. It cannot, however, be used to withhold the
Petitioner’s own CPF contributions, to support a retrospective declaration
that she had retired nearly five years earlier, or to sustain a recovery founded
on the impermissible re-characterisation of her past service as contractual
engagement.
10
2022 SCC OnLine SC 536.
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59. The recovery was claimed after the Petitioner had reached retirement
age and after the alleged excess payment had continued for years. In the
absence of fraud, misrepresentation, or any binding undertaking to refund,
recovery from retiral benefits would be impermissible under the principles
stated in the decisions noted above.
60. The fifth point is accordingly answered in favour of the Petitioner.
The University is not entitled to recover or adjust any amount from her on
the basis of the 2019 contractual fee fixation, the alleged excess payment, or
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the premise that she stood superannuated on 30 April, 2012.
Relief
61. The Petitioner seeks salary, increments and retiral benefits on the
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footing that she retired on 30 April, 2017. Once the withdrawal of the 2007
protection is held unsustainable, consequential relief must follow. She is
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entitled to be treated as having continued in service till 30 April, 2017 for
purposes of pay, increments, terminal pay fixation and retiral benefits.
th
62. The University emphasises that salary was paid only up to 30
November, 2016 and disputes the Petitioner’s claim for the period thereafter.
That objection cannot defeat the relief. The Petitioner has placed on record
th
communications asserting that she continued till 30 April, 2017 and handed
over charge at the end of that period. The University’s communication dated
th th
28 March, 2017 also proceeded on the footing that the service after 30
April, 2012 had to be accounted for, though it wrongly described the period
as contractual engagement. Once that description is rejected, and the
th
Petitioner’s retirement date is held to be 30 April, 2017, the University
cannot withhold salary and consequential benefits for the remaining period
merely because it stopped payment from December 2016. The entitlement
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shall, however, be computed after giving due credit for amounts already paid
and after verifying any purely ministerial particulars necessary for
calculation.
63. Salary is not a bounty, and pension is not an act of grace. In D.S.
11
Nakara v. Union of India , the Supreme Court recognised pension as a
measure of socio-economic justice and as deferred compensation for past
service. The Petitioner’s terminal benefits must therefore be recomputed on
th
the footing that she retired on 30 April, 2017, subject only to deductions, if
any, that are otherwise lawful and wholly unrelated to the impugned
recovery exercise.
64. Interest must also be considered. The Petitioner has remained
deprived of salary, increments and terminal dues for a substantial period. At
the same time, the dispute did involve an issue between the University and
the UGC concerning the treatment of the post and the effect of the 2007
Resolution. A punitive rate would therefore be inappropriate. Equally, denial
of interest altogether would fail to compensate the Petitioner for the time
value of money that ought to have been released to her.
65. In the facts of the present case, interest at 9% per annum would meet
the ends of justice. The rate is compensatory, not punitive. If the amounts
are not released within the time granted by this Court, the unpaid amount
shall carry interest at 12% per annum for the period of default.
66. One clarification is necessary. This judgment does not declare that all
Directors of DHMI, or all academic or non-teaching staff of the Directorate,
are entitled to retire at 65 years. That question is not decided. Relief is
confined to the Petitioner because Executive Council Resolution No. 126
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was case-specific and because she altered her position on its strength. Nor
does this judgment prevent the University or the UGC from regulating future
service conditions in accordance with law. It only holds that the case-
specific protection granted to this Petitioner could not be retrospectively
withdrawn in the manner attempted here.
Directions
67. For the reasons stated above, the writ petition is allowed in the
following terms:
th th
(i) Executive Council Resolution No. 21 dated 28 February, 2017/7
th
March, 2017 and the University’s communication dated 28 March, 2017
are quashed to the extent they: withdraw, in the Petitioner’s case, the benefit
th
of Executive Council Resolution No. 126 dated 27 December, 2007; treat
th
her as having superannuated with effect from 30 April, 2012; and describe
her service thereafter as contractual engagement.
th
(ii) The UGC communication dated 27 February, 2014 shall not be acted
upon against the Petitioner so as to defeat the case-specific protection
th
granted to her under Executive Council Resolution No. 126 dated 27
December, 2007. This direction is confined to the Petitioner’s case.
(iii) The Petitioner shall be treated as having continued in service as
Director, Directorate of Hindi Medium Implementation, University of Delhi,
th
till 30 April, 2017 for all consequential purposes, including salary,
increments, terminal pay fixation, leave encashment, provident fund,
pensionary/retiral benefits and other service benefits.
(iv) The University shall compute and release all unpaid salary,
th
increments and consequential dues payable to the Petitioner up to 30 April,
11
(1983) 1 SCC 305.
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2017, after giving due credit for amounts already paid.
(v) The University shall recompute the Petitioner’s retiral benefits on the
th th
footing that her date of retirement was 30 April, 2017, and not 30 April,
2012.
(vi) The University shall not recover or adjust any amount from the
Petitioner on the basis of the 2019 contractual fee fixation, the alleged
excess payment of INR 38,90,648/-, or any calculation founded on the
th
premise that she stood superannuated on 30 April, 2012.
(vii) If any amount has already been adjusted, withheld or appropriated
from the Petitioner’s gratuity, leave encashment, CPF, pensionary dues or
any other terminal benefit on the premise set aside by this judgment, the
same shall be restored and paid to her.
(viii) The amounts payable under this judgment shall carry interest at 9%
per annum from the date on which each component became due until the
date of payment. If the amounts are not released within six weeks from
today, the unpaid amount shall carry interest at 12% per annum for the
period of default.
(ix) The Petitioner shall complete all ministerial formalities, including
submission of forms reasonably required for release of dues, within four
weeks. The University shall not insist on any “No Dues Certificate” in a
manner that defeats or delays release of the Petitioner’s own contributions or
the benefits directed to be paid under this judgment. If the University claims
any specific institutional dues wholly unrelated to the impugned recovery
claim, it shall communicate those dues to the Petitioner within four weeks,
with particulars and supporting material. Only such dues as are otherwise
lawful may be adjusted.
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68. The writ petition is disposed of in the above terms. Pending
applications, if any, also stand disposed of.
SANJEEV NARULA, J
JULY 01, 2026
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