DR.UTTAMKUMAR SAMANTA vs KIIT UNIVERSITY
- Court
- Odisha High Court
THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.66 of 2017
CNR No. ODHC010225702017
(Arising out of the WP(C) No. 23250/2014 disposed of on 17.02.2017 by
)
the learned Single Judge
Dr. Uttam Kumar Samanta Appellant
…….
-Versus-
KIIT University and others Respondents
…….
For the Appellant : Appellant-in-person
Mr. Samir Kumar Mishra, Sr. Advocate
(Amicus Curiae)
For Respondent Nos.1 to 4 : Ms. Pami Rath, Senior Advocate
along with Mr. J.S. Mishra, Advocate
Mr. H. Mishra, Advocate
Ms. S. Mohanty, Advocate
For Respondent No.6 : Ms. Biswabara Dash, ASC
CORAM:
STICE
HON’ BLE THE CHIEF JU
AND
THE HON BLE MR. JUSTICE SIBO SANKAR MISHRA
’
Date of Hearing: 15.10.2026 : Date of Judgment: 05.11.2026
S.S. Mishra, J. The present Writ Appeal is directed against the
judgment dated 17.02.2017 passed by the learned Single Judge in
W.P.(C) No. 23250 of 2014, whereby the writ petition challenging the
termination of the employment of the appellant under KIIT University
was dismissed on the ground that appellant has been terminated from
service during his probation period as such no preceding disciplinary
enquiry was required.
2. Heard Mr. Samir Kumar Mishra, learned Senior Advocate,
appointed as Amicus Curiae, appearing for the appellant, Ms. Pami Rath,
learned Senior Advocate, appearing for respondent Nos.1 to 4 and Ms.
Biswabara Dash, learned Additional Standing Counsel for the State.
3. The prosecution case, as revealed from the materials placed on
record, is that the appellant was appointed as an Assistant Professor in
the School of Biotechnology of KIIT University pursuant to an offer
letter dated 12.05.2010 and an appointment letter dated 29.05.2010. He
joined the University. Clause-2 of the appointment letter stipulated a
probationary period of one year and provided that his services would be
Page 2 of 32
regularised upon satisfactory performance and successful completion of
probation. According to the appellant, after joining, he raised concerns
regarding certain practices in the institution which, according to him,
were inconsistent with the applicable rules and standards governing
higher education.
4. The appellant's first termination took place on 20.06.2011, before
the expiry of the stipulated period of probation. The termination was
challenged by him in W.P.(C) No. 17171 of 2011. By judgment dated
29.09.2014, the learned Single Judge of this Court set aside the
impugned termination, holding the University's action to be arbitrary and
illegal and finding that the manner in which the termination had been
effected was stigmatic and punitive. At the same time, the Court
expressly left it open to the University to pursue the allegations of
misconduct, if so advised, in accordance with law. The relevant part of
the aforesaid judgment is reproduced herein for ready reference:-
“26. Now coming to answer on point no.iii, I find that the
services of the petitioner was terminated by order dated
20.06.2011 as appearing at Annexure-4. Though the said
order did not attach any stigma but, while answering to the
pleadings of the petitioner the opposite party nos.1 to 4 in
their counter affidavit submitted that before the order of
termination vide Annexure-1 was passed the case of the
Page 3 of 32
petitioner was being examined by an in-house Enquiry
Committee, who have an unanimous opinion that the conduct
of Dr. Uttam Kumar Samanta, the petitioner has not been
satisfactory and is highly unbecoming of a responsible faculty
member of the university as clearly appearing at Annexure-
C/1. It is based on such report his service was terminated vide
Annexure-4. Thus, in my considered opinion even though the
order of termination did not attach any stigma yet in view of
finding of the Enquiry Committee as appearing at Annexure-
C/1 with the strengthening of Right to Information Act and
transparency in the actions the future of the petitioner is very
much likely to be jeopardized. As such after coming to the
above finding which finding was arrived at by an internal
enquiry committee held behind the back of the petitioner, law
minimum requires compliance of natural justice by at least
affording an opportunity to the petitioner before issuing the
terminal order vide Annexure-4 for this the termination order
vide Annexure-4 cannot be sustained in the eye of law. My
such view also gets the support of Hon’ble Apex Court
decision vide AIR 2000 S.C. 1080 where in para-7 the
at order of termination attaching
Hon’ble Apex Court held th
stigma needs compulsory compliance of principle of Natural
Justice. Under the circumstances, I answer point no.iii also in
favour of the petitioner and against the opposite parties.
27. In view of my findings on point no.i vide paragraphs 22,
23 and 24, my findings on point no.ii at para-25 and my
findings on point no.iii at para-26 while allowing the writ
petition, I set aside the impugned orders at Annexure-4 of the
writ petition as well as the consequential order as appearing
at Annexure-6 of the writ petition, I further declare that the
petitioner whose services has been taken away by order
under Annexure-4 be deemed to be continuing in service for
the entire period but, since he has not worked for all these
period he may be paid 60% back wages. So far petitioner’s
prayer for direction to the opposite party no.4 for supply of
documents mentioned in Annexure-2, documents at internal
page-25 filed vide Annexure-12 series in the Supplementary
Affidavit at the instance of the petitioner it appears KIIT
University has already brought it under the Fold of Rights to
Information Act as Orissa Information Rules, 2005 and the
petitioner is at liberty to press into service the provisions of
the Right to Information Act, 2005 for the said purpose.
Page 4 of 32
However, this judgment shall not preclude opposite party
no.1 University to restart the proceeding against the
petitioner but to conclude lawfully. I also make it clear that
this Court has not expressed any opinion on the merit on
allegations against the petitioner.”
5. It is further relevant to note that, following the judgment dated
29.09.2014 passed in W.P.(C) No. 17171 of 2011, the appellant pursued
Review Petition No. 172 of 2014 and W.A. No. 405 of 2014, and also
Supreme Court by filing Special Leave Petition
approached the Hon’ble
(Civil) Diary No. 919 of 2021, seeking, inter alia, relief relating to
regularization and confirmation of his service besides claiming 100%
back wages. The said proceedings were dismissed affirming the 60%
back wages. The ancillary prayers made in the Review Petition as well as
Writ Appeal remained unadjudicated obviously because in the original
writ petition those issues were not raised by the appellant.
6. Following the aforesaid judgment, the appellant submitted his
rejoining report on 09.10.2014. The University accepted the report by
office order dated 16.10.2014, but stipulated that the probationary period
had been interrupted by the intervening period between 20.06.2011 and
the date of acceptance of his rejoining report. It consequently directed
him to complete the remaining period of one month and seven days of
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probation, scheduled to expire on 23.11.2014, while reserving its right to
initiate disciplinary proceedings in respect of the earlier allegations. The
appellant objected to the imposition of the remaining period of
probation, contending that the earlier judgment had restored continuity
of service and that the University could not place him again in the
position of a probationer after the lapse of several years.
7. By Office order dated 03.11.2014, the University alleged that the
appellant had not been attending the School of Biotechnology or
reporting to its Director for instructions and duties after submitting his
rejoining report. The University characterized the alleged absence as
abandonment of employment, gross dereliction of duty and indiscipline,
and called upon him to explain his conduct. The appellant disputes the
University's allegations and maintains that he was present in the
University but was not provided with the requisite assignment of duties,
facilities or a proper opportunity to resume his academic work. On
08.11.2014, an Appraisal Committee considered his case and, according
to the University's counter-affidavit, examined the brief of facts, papers
and records supplied by the Registrar. The Committee reportedly
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concluded that his case was not fit for regularization. A further office
order dated 15.11.2014 was also issued in the course of these
proceedings.
8. Ultimately, by office order dated 22.11.2014, the University
informed the appellant that his probation was due to expire on
23.11.2014 and that, upon assessment by an independent Appraisal
Committee, it had decided not to continue his employment beyond the
probationary period. His employment was accordingly brought to an end
with effect from 23.11.2014. Challenging the aforesaid action and the
connected office orders, the appellant instituted W.P.(C) No. 23250 of
2014. The learned Single Judge, by judgment dated 17.02.2017,
dismissed the writ petition. The relevant part of the aforesaid judgment is
reproduced herein for ready reference:-
“The above order appears to have been passed in relation to
and keeping confined to the satisfactory completion of
service of the petitioner as probationer which is said to have
been assessed by the Independent Appraisal Committee as
ultimately also coming to be accepted by the opposite party
no.1 without setting any different tone. There remains no
such hint to the objectionable or blameworthy conduct.
Undoubtedly, no enquiry at any given point of time has been
conducted, specifically with regard to the facts stated under
Annexures 16 and 21, i.e. the office orders dated 03.11.2014
and 15.11.2014 respectively. The narrations in those office
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orders touching the duty of the petitioner are said to be
having their foundation and facts as available on official
record coming to be maintained in regular course. The tone
and tenor of lengthy response of the petitioner to the above
office orders, being cumulatively viewed go to indicate that it
is the petitioner who instead of keeping the matter confined
to the very subject has rather stated such other matters also
in raising issues unrelated to those narrations in the orders.
The opposite party no.1 having sought for the explanation
has not further proceeded in those matters by initiating any
proceeding and in causing enquiry for recording any finding
on those scores. So, here the ground for the termination now
is found to have been based on the performance of the
petitioner during the period having no such punitive flavour
in cause or consequence. Thus the present case falls short of
the tests as laid down with approval in Radhashyam Gupta’s
case (supra). There remains no material to indicate that the
same is based on satisfaction of any such misconduct. The
opposite party no.1 in any event has not adopted the course
of holding an enquiry and has also not proceeded to
terminate by recording the ground from any other
proceeding. It thus does not appear to be a case based on
misconduct being attached to the petitioner having live nexus
with the termination. Merely because this order of
termination under Annexure-25 has come out sometime after
rejoining of the petitioner being successful in the writ
application filed by him and by virtue of the order of this
Court which in the facts and circumstances and earlier
finding is obvious and not avoidable in view of order of
appointment stating for confirmation and regularization, no
such inference can be drawn that the present order of
termination is founded upon those allegations which rather
have been left at that stage without further investigation
touching the question of guilt or otherwise of the petitioner.
Further, this order of termination is found to have recorded
no such injurious reasons, so as to say that the petitioner has
consequentially been visited with any stigma getting so
attached to the rest of his career so as to lead this Court to
hold the order to be punitive.
In view of above discussion and reasons, the submission
of the learned Senior Counsel for the petitioner that the
impugned order being based on those allegations and
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relating to the misconduct on the part of the petitioner
squarely portraying him as blameworthy and as such
stigmatic is not acceptable.
27. In the wake of aforesaid, the writ application stands
dismissed. However, in the facts and circumstances, there
shall be no order as to cost.”
Aggrieved thereby, the appellant has approached this Court in the
present writ appeal.
9. Assailing the judgment under appeal, Mr. Mishra, learned Senior
Advocate appointed as Amicus Curiae to represent the appellant,
submitted that the learned Single Judge failed to appreciate the legal
effect of the earlier judgment dated 29.09.2014. He argued that the
direction that the appellant be deemed to be continuing in service for the
entire period could not be construed as a mere formal reinstatement
without consequences for his service status. According to the appellant,
once the termination dated 20.06.2011 had been set aside and continuity
of service had been directed, the intervening period could not be treated
as a fresh break in employment so as to revive an uncompleted period of
probation. The appellant relied upon Clause 2 of the appointment letter
and Regulation 11 of the UGC Regulations, 2010, particularly the
provisions concerning the period of probation, its extension and
Page 9 of 32
confirmation. It is contended that the University neither extended the
probation within the prescribed period nor issued any lawful order which
could sustain the imposition of a further period of probation in October
2014.
10. Learned Amicus Curiae further submitted that the learned Single
Judge failed to distinguish between a termination simpliciter and an
order which, though couched in terms of unsatisfactory performance
during probation, is founded upon allegations of misconduct. He argued
that the office orders dated 03.11.2014 and 15.11.2014 expressly referred
to abandonment of employment, gross dereliction of duty and
indiscipline. These allegations, according to the appellant, are not merely
expressions of dissatisfaction with academic performance but
imputations of misconduct capable of attaching stigma to his
professional reputation. The subsequent termination, when read together
with the allegations and the decision of the Appraisal Committee, is
therefore stated to be punitive in substance. It is contended that the
University could not rely upon an appraisal process as a substitute for a
Page 10 of 32
disciplinary enquiry if the allegations of misconduct constituted the
foundation of the decision to terminate his employment.
11. It is also urged on behalf of the appellant that the Appraisal
Committee acted behind his back and that he was neither informed of the
material relied upon by it nor afforded an opportunity to explain his
position before the decision was taken. The appellant emphasizes that the
counter-affidavit filed by the University acknowledges that the
Committee considered a brief of facts, papers and records supplied by
the Registrar, but the materials forming the basis of its conclusion were
not adequately disclosed or examined in the proceedings before the
learned Single Judge. He placed reliance on the principles governing
judicial review of punitive termination, including the distinction between
the motive and the foundation of an order, and the requirement that an
employer cannot avoid the safeguards of a disciplinary proceeding
merely by describing an action as non-continuation of a probationer. It is
further contended that the earlier judgment of this Court was not
complied with in its true spirit and that the subsequent action was
Page 11 of 32
arbitrary, unreasonable and violative of Articles 14 and 16 of the
Constitution of India.
12. Per contra, Ms. Rath, learned Senior Advocate appearing for
respondents, submitted that the expression “deemed to be continuing in
service”, as used in paragraph 27 of the judgment dated 29.09.2014
passed in W.P.(C) No. 17171 of 2011, must be understood in the context
of the controversy adjudicated therein. It was contended that the earlier
writ proceeding concerned the legality of the appellant’s initial
termination and did not involve any determination as to confirmation or
regularization of his service. Neither the pleadings nor the grounds or
reliefs sought by the appellant in that proceeding required the Court to
decide whether he had successfully completed his probation or acquired
the status of a confirmed employee. The Court had also not interpreted
the probation clause in the appointment letter or the relevant provisions
of the UGC Regulations. Therefore, the direction regarding continuity of
service could not be construed as conferring deemed confirmation upon
the appellant. She placed reliance upon The State of Orissa v. Sudhansu
Sekhar Misra and Ors. , reported in 1968 AIR 647 , where it was held
Page 12 of 32
that a judgment is an authority for what it actually decides and not for
every inference that may be drawn from it. Learned Senior Counsel
submitted that the earlier judgment merely restore d the appellant’s
service status subject to the applicable terms and conditions.
13. Ms. Rath further submitted that neither the probation clause
contained in the appellant’s appointment letter nor Clauses-11.2 and 11.3
of the UGC Regulations contemplated automatic confirmation merely
upon the passage of time. According to her, the relevant provisions
envisaged an affirmative assessment of the probationer’s performance by
the University and the passing of an appropriate order of confirmation.
Since the appe llant’s initial termination had intervened before
completion of the stipulated probationary period, the question of
assessment and confirmation had not arisen in the ordinary course at that
stage. She argued that the earlier judgment did not deprive the University
of its authority to assess the appellant’s suitability for confirmation after
his rejoining, nor did it direct the University to regularise or confirm
him. Learned Senior Counsel also submitted that the appellant’s
subsequent challenge seeking such relief, including the proceedings
Page 13 of 32
referred to in the respondent’s note, did not result in an order granting
him confirmation.
14. With regard to the impugned office order dated 22.11.2014,
learned Senior Counsel contended that the same was a non-stigmatic
order of termination passed upon assessment of the appellant’s suitability
during the probationary period. She submitted that the order did not
record any finding of misconduct or guilt against the appellant and was
not founded upon any concluded determination of the allegations
referred to in the correspondence exchanged between the parties. The
respondents maintained that the University had acted within its authority
in deciding not to continue the appellant beyond the stipulated period of
probation, and that the mere existence of allegations or prior disputes
between the parties would not, by itself, transform an otherwise
innocuous order of termination into a punitive one. She placed reliance
on the decisions reported in (1999) 3 SCC 60, (2001) 3 SCC 117 and
(2013) 3 SCC 607 , in support of the distinction between termination
simpliciter during probation and an order of termination founded upon
misconduct.
Page 14 of 32
15. It was accordingly urged that the earlier judgment dated
29.09.2014 could not be read as conferring confirmed status upon the
appellant or as restricting the University’s power to assess his suitability
in accordance with the applicable service conditions. Ms. Rath submitted
that the impugned order was neither contrary to the earlier judgment nor
vitiated on the ground that it constituted a punitive termination. She
therefore prayed that the appeal be dismissed and that the order of the
learned Single Judge dismissing W.P.(C) No.23250 of 2014 be affirmed.
16. The issue highlighted by learned counsel appearing for the parties
in their rival submissions, if tested on the anvil of the facts canvassed in
the present case, would call upon this Court to determine whether the
probation period of service of the appellant was still continuing by the
time the impugned order of termination dated 22.11.2014 was passed by
respondent No.3 against the appellant. If the probation period had
already lapsed by the time the termination order was passed, it was
undoubtedly obligatory on the part of the respondents to undertake the
rigors of a departmental enquiry preceding the order of termination. That
is precisely the issue which this Court is called upon to decide while
Page 15 of 32
testing the legal sustainability of the impugned judgment passed by the
learned Single Judge of this Court on 17.02.2017 in W.P.(C) No.23250
of 2014.
17. To decide the issue in lis, this Court has perspicuously evaluated
the facts and circumstances of the case. The essential facts relevant for
the purpose of deciding the issue have been culled out from the
voluminous documents placed before this Court. The following relevant
dates and events are, therefore, required to be set out for the purpose of
deciding the issue.
12.05.2010 The Selection Committee of KIIT University
conducted an online interview through Skype
and, considering the appellant's bright career,
assured him of appointment as a Professor, but
subsequently offered him the position of
Assistant Professor in the School of
Biotechnology.
29.05.2010 The appellant was appointed as Assistant
Professor in the School of Biotechnology.
Page 16 of 32
28.07.2010 Vide Office Order No. KIIT/HR/438/10 dated
28.07.2010, the appellant joined the post to
which he was appointed.
03.06.2011 An Enquiry Committee was constituted to go
into the allegation against the appellant and
report was submitted by the Committee inter
alia stating that the conduct of the appellant as
an Assistant Professor in the School of
Biotechnology has not been satisfactory and is
highly unbecoming of a responsible faculty
member of the University. Hence, it is
recommended that the probation period of the
appellant shall not be extended. On the same
day, a separate order was passed intimating the
appellant that his services have been terminated.
In the said letter, it is specifically indicated that
Please note that your probation period is not
“
yet completed”.
Page 17 of 32
It hardly needs to be stated that, since the appellant was terminated
from service before the expiry of the stipulated one-year probationary
period, the respondents neither conducted any departmental enquiry nor
afforded him an opportunity of being heard.
24.06.2011 The appellant filed writ petition being W.P.(C)
No.17171 of 2011 challenging the termination.
29.09.2014 The learned Single Judge of this Court
allowed the writ petition, declaring that the
entire period from the date of termination till
the date of the judgment shall be treated as
deemed continuation of the appellant's service.
However, considering that the appellant had
not actually worked during the said period, the
learned Single Judge awarded 60% of the back
wages. The relevant portion of the said
judgment reads as under:-
“27. In view of my findings on point no.i vide paragraphs
22, 23 and 24, my findings on point no.ii at para-25 and
my findings on point no.iii at para-26 while allowing the
writ petition, I set aside the impugned orders at Annexure-
Page 18 of 32
4 of the writ petition as well as the consequential order as
appearing at Annexure-6 of the writ petition, I further
declare that the petitioner whose services has been taken
away by order under Annexure-4 be deemed to be
continuing in service for the entire period but, since he
has not worked for all these period he may be paid 60%
back wages. So far petitioner's prayer for direction to the
opposite party no.4 for supply of documents mentioned in
Annexure-2, documents at internal page-25 filed vide
Annexure-12 series in the Supplementary Affidavit at the
instance of the petitioner it appears KIIT University has
already brought it under the Fold of Rights to Information
Act as Orissa Information Rules, 2005 and the petitioner
is at liberty to press into service the provisions of the
Right to Information Act, 2005 for the said purpose.
However, this judgment shall not preclude opposite party
no.1 University to restart the proceeding against the
petitioner but to conclude lawfully. I also make it clear
that this Court has not expressed any opinion on the merit
on allegations against the petitioner.”
28.10.2014 The respondent-University calculated 60% of the
back wages for the period from 20.06.2011 (the
date of termination) to 29.09.2014 (the date of the
judgment passed by the learned Single Judge) and
paid the same to the appellant.
19.04.2017 Being dissatisfied with the award of only 60% of
the back wages, the appellant assailed the order of
the learned Single Judge dated 29.09.2014 by
filing Writ Appeal No. 405 of 2014. However, the
Page 19 of 32
Division Bench of this Court, vide a detailed
judgment dated 19.04.2017, dismissed the writ
appeal, observing that by the time the judgment
was delivered, the appellant had already received
the back wages pursuant to the judgment of the
learned Single Judge. The Division Bench was,
therefore, of the view that the appellant could not,
having already received the back wages, turn
around and challenge the same by filing an appeal
as a fence-sitter.
In regard to the observation made by the learned Single Judge
concerning the continuity of the appellant's service, the Division Bench of
this Court, in its judgment dated 19.04.2017, observed as follows:-
“ From the aforesaid observations, it is clear that the
order of termination was illegal because of violation of the
principles of natural justice and the appellant is deemed
to be continued in service for the entire period . While
awarding 60% of back wages for the entire period, the
appellant was terminated from service but no reasons has
been assigned in the impugned judgment as to why the full
back wages has not been granted.”
Page 20 of 32
18.
The appellant has unsuccessfully taken the matter to the Hon’ble
Supreme Court. The filing of the Review Petition, Contempt Petition and
other allied proceedings by the appellant before different judicial forums is
not elaborately discussed herein for the sake of brevity, but suffice it to say
that the appellant's attempt to challenge the findings of the learned Single
Judge regarding the grant of 60% back wages did not find favour with any
judicial forum. It is further relevant to mention that, at different stages, the
appellant has made additional prayer of regularisation of his services besides
the claim for 100% back wages.
19. When the matter stood thus, the appellant sought to join the
University in accordance with the judgment of learned Single Judge;
however, the University allegedly declined to assign him the post to which
he had been appointed. This gave rise to allegations and counter-allegations
between the appellant and the University, followed by an exchange of
several communications. Since those communications are not germane to the
controversy involved in the present appeal, it is unnecessary to advert to
them in detail.
Page 21 of 32
20. From the record, the genesis of the second round of litigation can
be traced to the letter dated 22.11.2014 issued by the respondent-University,
intimating the appellant that his probationary period would expire on
23.11.2014 and that his services would stand terminated with effect from the
afternoon of that date. Thus, the appellant was subjected to a second order of
termination of his services just one day before the completion of the
probation period.
It is the case of the respondent-University that the conduct of the
appellant during the period of probation was not found satisfactory by the
competent authority. Accordingly, without initiating any regular
departmental enquiry, the University proceeded to terminate his services on
the premise that the appellant was continuing as a probationer and that his
period of probation had not been extended.
21. Being aggrieved by the aforesaid action of the respondent-
University, the appellant approached this Court by filing W.P.(C) No. 23250
of 2014. The learned Single Judge, however, vide order dated 17.02.2017
dismissed the writ petition, inter alia, holding that the appellant continued to
remain on probation and that, in view of the employer's dissatisfaction with
Page 22 of 32
his performance, his probation was not extended and his services were
consequently brought to an end.
The reasoning adopted by the learned Single Judge is substantially
reflected in the following paragraphs of the impugned judgment, which are
extracted herein below:-
“So the question now arises that when by this order the
petitioner has been declared as deemed to be continuing
in service, whether the period of probation would get
covered therein or the service of the petitioner would
relegate back to the same stage where he was prior to the
passing of earlier order of dismissal or termination. In
other words to be more specific, if the balance period of
probation has to be reckoned from the date of his joining
pursuant to the order of this Court or the order of deemed
continuance of this Court would go to mean that the
petitioner has to be deemed to have completed the period
of probation during this intervening period despite the
condition in the order of appointment that there shall be
probation period of one year and the services would stand
to be regularized based on performance and successful
completion of the probationary period. (emphasis
supplied) The direction is undoubtedly to deem the
petitioner to be continuing in service which obviously
means that the petitioner is reinstated in service as he was
enjoining on the date of termination/dismissal which had
been held to be bad in law.
When we look at the factum satisfactory performance
during the probation period as mandated in the order of
appointment, it undeniably goes to say that there has to be
actual performance and discharge of duty as ordained and
those cannot thus also be deemed to have been so done or
performed which certainly requires some assessment so as
to arrive at a satisfaction. Thus in my considered view, the
petitioner would go back to the same stage where he was
Page 23 of 32
prior to the order of termination and the balance period is
to commence and run from that rejoining after the order.”
The aforementioned judgment of the learned Single Judge is
called in question in the present proceeding by the appellant.
22. In the backdrop of the foregoing discussion, the central issue that
falls for determination in the present proceeding is whether, on the date
of issuance of the order of termination, the appellant continued to be on
probation. Resolution of this issue necessarily calls for an examination of
the relevant provisions of the UGC (Minimum Qualifications for
Appointment of Teachers and Other Academic Staff in Universities and
Colleges and Measures for Maintenance of Standards in Higher
Education) Regulations, 2010 (for short, the "UGC Regulations, 2010"),
which govern the conditions relating to probation. The relevant
provisions are extracted hereinbelow:-
- PERIOD OF PROBATION AND
“11.0
CONFIRMATION
11.1 The minimum period of probation shall be one year
extendable by a maximum period of one more year in case
of unsatisfactory performance.
11.2 The confirmation at the end of one year shall be
automatic, unless extended for another year by a specific
order, before expiry of the first year.
Page 24 of 32
11.3 Subject to this Clause 11, it is obligatory on the part
of the university/the concerned institution to issue an
order of confirmation to the incumbents within 45 days of
completion of probationary period after due process of
verification of satisfactory performance.
11.4 Probation and confirmation rules are applicable only
at the initial stage of recruitment, issued from time to time
by Central Government.
11.5 All other Central Government rules on probation and
confirmation shall be applicable mutatis mutandis.”
Clause 11.1 prescribes the minimum period of probation as one
year, which is extendable by a further period not exceeding one year.
Thus, the maximum permissible period of probation of an academic staff
member is two years. Such extension of the initial period of probation is
permissible only where the competent authority is not satisfied with the
performance of the incumbent.
Clause 11.2 envisages automatic confirmation of service upon
completion of the initial period of probation of one year, unless an
express order extending the probation for a further period of one year is
issued before the expiry of the initial probationary period.
Clause 11.3, in turn, casts a positive obligation upon the employer
to issue an order of confirmation at least forty-five days prior to the
Page 25 of 32
completion of the probationary period, upon due verification of the
satisfactory performance of the incumbent.
23. A conjoint reading of the aforesaid provisions of the UGC
Regulations makes it abundantly clear that the period of probation
cannot extend beyond two years. The power to extend the initial period
of probation by a further year is not unfettered but is contingent upon the
competent authority arriving at a conclusion that the performance of the
incumbent is unsatisfactory. In other words, the Regulations do not
envisage an indefinite continuation of an employee on probation. The
respondent-University conspicuously have not invoked any of the
aforementioned Regulation in the present case.
24. Examination of the sequence of event unfolded in the present case
reveals that the appellant was initially visited with an order of
termination on 20.06.2011, evidently on account of the respondent-
University's dissatisfaction with his performance. However, the learned
Single Judge, upon judicial scrutiny, set aside the said order of
termination, holding that the same had been passed in violation of the
principles of natural justice, particularly in view of the stigmatic nature
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of the allegations leveled against the appellant. Consequently, the
learned Single Judge directed that the appellant's service be treated as
continuous up to the date of pronouncement of the judgment.
The continuity of service was understood by the respondent-
University to mean continuity in service from the date of termination,
i.e., 20.06.2011, till the date of judgment, i.e., 29.09.2014, passed by the
learned Single Judge. Accordingly, 60% of the back wages was
calculated and paid to the appellant for that entire period. Therefore,
deemed to be
there is no ambiguity in understanding the expression “
continuing in service for the entire period The aforesaid position was
”.
further clarified by the Division Bench of this Court, which categorically
held that the appellant was deemed to have continued in service
throughout the intervening period, for which he was held entitled to 60%
of the back wages. This finding of the learned Single Judge was
subsequently a ffirmed by the Hon’ble Supreme Court as well.
25. The submission of Ms. Rath, learned Senior Counsel for the
University, that the Regulations entitle the employer to assess the
performance of an incumbent before confirmation of his service, may not
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hold any water, because the maximum period of probation provided
under the UGC Regulations, 2010, is only two years. After the judgment
of the learned Single Judge in the first round, continuity of service
having been directed by a judicial determination and upheld by the
Hon’ble Supreme Court, the University cannot turn around and contend
that, even after paying 60% of the back wages for the period from
20.06.2011 to 29.09.2014, the said period would not be counted towards
the appellant's service and that he would still be treated as continuing on
probation. In the light of the foregoing discussion, the subsequent order
of termination dated 22.11.2014, predicated on the alleged unsatisfactory
performance of the appellant, does not withstand the scrutiny of law. The
learned Single Judge, while adjudicating the writ petition, proceeded on
the premise that the appellant continued to remain on probation as on the
date of issuance of the said order of termination. Such an assumption,
however, is contrary to the legal position emerging from the preceding
discussion, particularly in the backdrop of the judicial determination
rendered in the earlier round of litigation. The impugned judgment, to
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the extent it proceeds on such an assumption, is, therefore, unsustainable
in law.
26. Adverting to the allegations levelled against the appellant at
various stages, as highlighted by Ms. Rath, learned Senior Counsel, it is
necessary to observe that the respondent-University is not precluded
from taking appropriate action against the appellant, provided the same
is undertaken in accordance with the due process of law. It appears that
several allegations were levelled against the appellant from time to time,
pursuant to which the respondents also constituted a Committee, which
submitted its findings against the appellant. It further emerges from the
record that, following the judgment dated 29.09.2014, whereby the
learned Single Judge allowed the writ petition, the appellant, though
submitted his joining report, does not appear to have acted in conformity
with the directions issued by the employer. On the contrary, he appears
to have questioned and resisted such directions by submitting various
representations and raising a series of claims and counter-claims. In the
backdrop of such developments, the employer issued an Office Order
Page 29 of 32
dated 03.11.2014, calling upon the appellant to explain his conduct. The
appellant, in response thereto, submitted a detailed explanation.
27. We are not inclined to embark upon an examination of the
allegations and counter-allegations levelled against the appellant, as the
same are matters which can appropriately be gone into in proceedings
instituted in accordance with law. Our consideration is confined to the
legality and validity of the order of termination passed by the
respondent-University. On an examination of the relevant provisions of
the UGC Regulations, we are of the considered view that the impugned
order of termination is contrary to the statutory framework governing the
appellant's service conditions and also against judgment of the Learned
Single judge in the first round of litigation, therefore, cannot be sustained
the scrutiny of law.
28. We, accordingly, hold that the appellant's probationary period had
already come to an end after the expiry of maximum period of two years
in view of Regulation 11.2 of UGC Regulation and his services are
deemed to be confirmed particularly in the absence of expressly
communicating the extension of probation after one year. Accordingly,
Page 30 of 32
the appellant had acquired the status of confirmed employment,
particularly in the backdrop of the specific direction issued by the
learned Single Judge on 29.09.2014, whereby continuity of his service
had been directed.
Insofar as the allegations and counter-allegations levelled
against the appellant are concerned, which appear to be serious in nature
and raise issues touching upon his conduct and performance as an
Assistant Professor, we leave it open to the respondent-University to
initiate appropriate departmental proceedings against him, if so advised,
strictly in accordance with law. Needless to observe, any such
proceedings shall be considered independently on their own merits,
uninfluenced by any observation made herein. Insofar as entitlement to
back wages is concerned, we are persuaded to pass an order for grant of
60% of the back wages as the appellant has not worked during that entire
period. In the earlier proceeding, this Court, by judgment dated
29.09.2014 passed in W.P.(C) No. 17171 of 2011, had awarded 60% of
the back wages to the appellant. The grant of 60% back wages was thus
not disturbed in the subsequent appellate proceedings. In the facts and
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circumstances of the present case, we find no justification to adopt a
different measure while determining the appellant's entitlement to back
wages for the subsequent period. Hence, the appellant shall be entitled to
60% of the back wages.
29. Accordingly, the Writ Appeal is allowed by setting aside the
judgment dated 17.02.2017 passed by the learned Single Judge in
W.P.(C) No. 23250 of 2014.
I agree.
(Harish Tandon)
Chief Justice
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
th
Dated the 5 November, 2026/ Swarna
Signature Not Verified
Digitally Signed
Signed by: SWARNAPRAVA DASH
Reason: Authentication
Location: High Court of Orissa
Date: 05-Nov-2026 19:31:11
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