University of Kashmir and Others v. Mohd. Yasin and Others

Judgment

The Judgment of the Court was delivered by KRISHNA !YER, J.-The University of Kashmir, the appellant, with a blurred sense of legality, issued a ukase by resolution of its Council, tern1innting the s::rvices of its Professor, the appellee. insuftit:iently aware of the kaleidoscopic legislative changes and crucial statutory consequences on the one hand and curiously indifferent to its own embarrassingly ambivalent dealings seemingly legitimising the permanent f.:tatus of the Profe~sor. This decision virtually dismissing lhe appeEcc was ,.uccessfu!l,v challei1ged as void in the High, Court, but th~ arpellant lJniYcrsit:y has come up in appeal. with a certificate of fitness seekinr to susrnin the validity of its action.

At the first blush. the law of n1aster and servant may apply to the present foct·situati0n bm the ft<1tu10:-y status of the employer substantially transforms Ihe chsrc::ctcr of the maste:, the con~equences of its ultra vlres ccts ns well as amenability to types of relief like re-instatement and the applicability or writ remedies, alien to the legal chemistry of breaches of contract. However, in the light of the factual-cum-legal conclusions which appeal to m thes·o thorny jurisprudential issues of deeper import in a socio-economic and cultural context where the State undertakes dynamic activiHes affecting citizens' rights an<l operates through KASHMIR UNIV. v. MOHD. YASIN (Krishna Tyer, l.) corporate and other effective instrumentalities may not fall for cflrcct decision. Enough unto the day is the evil thereof . .

A chronological narration of the principal facts and events and legislative shifts and their implications must precede consideration. of the legal contentions put forward by either side. The Jammu and Kashmir UniversiUy Act, 2005 (Samvat Year) created the University of Jammu and Kashmir. Several years later the. present respondent joined the University as a iecturer on contract baSis, the law that governed his servic·~s being the provisions of that Act and the statutes framed thereunder. Subsequently, the Jammu and 'Kashmir University Ac;t, 1965, was passed which, while repealing the previous Act, P"served and continued for the transitional period the rules and regulations and services of teachers and officers of the University (s. 52). Primarily, the 1965 Act imparted embryonic shape to the Jammu University and the Kashmir University by the creation of two Divisions. ( 1 ) J ammu Division, and ( 2) Kashmir Di visiou.

Anyway, the respondent who had .ioined in 1963 was ap· .Pointed as Reader in September 1965, a few months after the 1965 Act came into force. A couple of years later the respondent register· ed an advance in his career and became Professor in the Post- Graduate Department of the University in the Kashmir Division on terms and conditions contained in Jetter dated Januarv 8, 1968. While he was pur 9n probation for one year he was informed that im· mediately after his appointment he would have to enter into an agreement with the University in the form forwarded to him. This agreement bound the respondent to the statutes and regulations from time to· time in force in the University. It is significant to note,· as the High Court has pointed out in its judgment, that "the case of hoth the parties, however, is that the appointment of the petitioner as Pro· fesscr \Vas on contract basis". The one-year period of probation expired on December 14.

1968, but the Vice-Chancel:or extended it for one more year by order dated November 11, 1968. This exten· sion was confirmed by the meeting of the Central Council of the un;versity at its meeting dated June 26, 1969. But at the seme meeting it was resolved by the Central Council that the respondent be cha.rge-sheeted for certain alleged misconduct. An enquiry was held by an enquiry officer· appointed in this behalf, Shri J. N. Bhan, who submitted his report on September 5. 1969 holding the respo'1- dcnt guilty substantially. Bv accident it happens that on the same date, namely, September 5, 1969, the Jammu and Kashmir .ui;ivmity Ordina:ice. 1969. was promul.gated by the Governor estabh~hm~ two separate universities. one for· J ammu and the other for Kashmtr. How· ever, by S· 52 t)lereof, the rules and regulations a!1d. services of. ~m· ployees werz continued.

And then followed a s1gmficant prov1s1on which laid down that within 60 days from the commencement o! the Ordinance the services of teachers employed on contract basis were to cease unless otherwise ordered by tiie Chancellor. No such order was issued bv the Chanceltor extending the respondent's employment. However oblivious or heedless of the statutory cessation of the respondent'~ services, he was all?wed to function a,s Professor and his probation was agam extended for a year by the V1ce·Chanceltor under ( 1974 J 2 S.C.R. s. 13 ( 4) of the Ordinance (which had alread;y been rep)aced on November 10, 1969 by the Jammu and Kashmir Universities Act 1969) More inc.?ngruous with the appellant's present stand is the dircctio~ by the "1ce-Cn~ncellor to release the salary of the respondent and the request to him to serve on the Academic Council as an ex-officio mc1!Jber, being Prof~ssor ~nd H_ead of the Department of History..

Whlle, thus, on the one Side qmet flowed the stream of service as professor, on the other turbid eddies of threat to terminate surfaced up. For, based on the enquiry report the Vice-Chancellor issued a 'show-cause' notice on Dec·:mber 22, 1969, which elicited the respondent's explanation on January 31, 1970. Together, all the materials were considered by the University Council at its meeting dated July 7, 1970, where th-: decision was taken to ·remove him paying one month's salary. Thereafter, of course, the present litigation started. The principal questions canvassed before us turn on the correct· ncss of the views taken by the High Court on (a) the respoi1dent's' right to continue in service even after the statutory explanation thereof, and (b) the validity of the reliance on the enquiry report in the termination order nnd the breach of statutony conditions subject to which alone the power of terminating the relationship could be exercised by the University Council.

In the opinion of the High Court, the facts and circumstances of the case clearly enabled the spelling out of a fresh appointment of the respondent as Professor and Head of the Department of History of the new University of Kashmir by an im· plied contract. Once this position is reached, it follows logically that !he termination has to be in terms of the statutory regulations. On this aspect of the case the Court took the view that the enquiry Jirect- ·cd under the 1965 Act lapsed when the 1969. Ordinance and the Act came into force, and could not furnish the basis for punitive action against the respondent. The irresistible conclusion the Court therefore reached was that the order of dismissal pa~sed by the Universi!Y Council being based on the report of the Enqmry Officer was bad m law. The Court directed re-instatement by a writ of mandamus.

The learned Additional Solicitor General, appearing for the appel· !ant University, built an argument the corner-stone o! which was that there was a statutory cessation of the contractual service of the respon· dent bv operation of s. 52(4) of the Ordinance and the Act of 1969. The statutes under the Act of 1965 contained a provision which ran thus : ''Procedure--conditions for appointment of University Teachers. STATUTES 1. .... 2. Every salaried teacher of the University shall have to execute a written contract with the University. The conditions of service of teachers appointed by the University shall be those embodied in the Agreement of service annexed hereto or, on Agreement substentially to like effect, and every teacher shali execute the Agreement before he enters upon his duties or as soon as possible thereafter." KASHMIR UNIV. v. MOHD. YASIN (Krishna Iyer, /.) 1 '73 It is also common case that respondent's employment was on a contractual basis. By s.

51 of the 1969 Ordinance "all the statutes and regulations made under the Jammu and Kashmir University Act of 1965 and in force immediately before the commencement of this Ordinance shall so ·far as may be consistent with the provisions of this Ordinance continue to be in force in each University after the commencement of this Ordinance." Thus we reach the position that, on a combirted. reading of Statute 2 framed under the 1965 Act (already extracted above) and s. 51 of the Ordinance of 1969, which is in identical terms with s. 59 of the Act which replaced the Ordinance, the respondent was an employee of the University serving under a contract. In fact neither party disputes this position. Our attention must now turn to a crucial provision in the 1969 Ordinance which is also reproduced in the ensuing Act. Section 52 thereof runs thus : "52.

Continuance of service of the existing employees and their allocation :-Notwithstanding anything contained in this Ordinance or any Statute or Regulation made thereunder or in any other law for the time being in force :- (2) all employees of the University of Jammu and Kashmir constituted under 'the Jamirtu & Kashmir University Act, 1965 (other than those serving on contract or on deputation in the University or those serving in the Publication Bureau of the Uni· versity) who, immediately before the the commencement of this Ordinance, were holding or discharging the duties of any post or office in connection wjth the affairs Qf the .s.aid .lJnivo:rsity shall, subject ta .the prli'yisiol\5 of sub-.sectio(l (2), continue in serv\ce .on the same terms. and conditions as regulated their service before. such commencement; the Chancellor may in consultation ·with the· Pro- Chancellor by order allocate the. employees of the University of Jammu '. and Kashmir (other than those serving on contract or deputation in the University or those serving in the Publication Division of the University) between the University of Kashmir and the University· of Jammu cdnstituted under this Ordinance in such manner as he mav· consider necessary and every such allocation shall be deemed to be an appointment, transfer . . . . as the case may be to the post or office by the competent authority under this Ordinance :

Provided that in making such allocations the conditions of service of · employment of such empl6yees shall not be varied to their disadvantage : (3) "" ( 4) all persons who immediately befo~e the C?mmen~e­ ment of this Ordinance were holdmg or d1schargmg [ 1974) 2 S.C.R. the duties of any post or office in connection with the affairs of the University of J ammu and Kashmir on contract basis or by virtue of thir occupation to such posts or offices from other services in the State, unless otherwise ordered by the Chancellor after consulting the Pro-Chancellor, shall cease to hold such posts or to discharge such duties after 60 days from the commencement of this Ordinance and all such contracts with or deputations to the Universitv of Jammu and Kashmir shall stand terminated wiih effect from the expiry of the said period of 60 days."

If we may condense the effect of this provision to the extent relevant to the present case, it means that teachers employed on contract basis "unless otherwise ordered by the Chancellor after cbnsultirtg the Pro-Chancellor shall cease to hold such posts or to discharge such duties after 60 days from the commencement of this Ordinance" or the Act, as the case may be. To add emphasis, as it were, to the cessation of such tenure the further part of the section re-iterates that "all such contracts with .... the University of Jammu and Kashmir shall stand terminated with effect from the expiry of the said period of 60 days." Thus, by the inexorable operation of the calendar, on November 5, 1969, the respondent made a statutory exit from the employment of the Kashmir University. This much even the respondent has reconciled himself to, and the High Court has accepted.

To retrieve the situation thereafter, the respondent had recourse to a plea which found favour with the learned Judges, that the actings and dealings of the higher functionaries of the University vis-a-vis the respondent eloquently testified to the claim of implied employment of the respondent subsequent to the statutory cessation. It is true that de facto the respondent functioned as Professor. drew salary as such, became a member of the Academic Council in that capacity and was treated as on extended probation by the Vice Chancellor. In view of these habiliments of professoriate the High Court assumed the premise that the respondent was "admittedly in the employment of the University of Kashmir on the relevant date", and proc~ded to essay the next problem which it posed in these words : "The main question in this cause is whether the employment of the petitioner was validly terminated under the impugned resolution."

We are dealing with a statutory body, the University, and its powers and duties and the canalisation thereof. The functionaries under it and the contours of their authority are delineated by the Act. If any body created by a statute went beyond the area of its powers, the act was ultra vires and of no effect. Ordinance 10 of 1969 and the subsequent Act which replaced it have vested in the .II KAS!JMIR UNIV. v. MOHD. YASIN (Krishna [~er, J.) University Council certain powers regarding the appointment of the teaching staff. Section 22 reads : "22. Powers and functions of the University Council :- The University Council of a University shall be the supreme authority of the University and shall have the following powers, namely :- (f) save as otherwise provided in this Ordinance; to appoint officers of. the status of Joint Registrar, Deputy Librarian and above and teachers of the status of Readers and above and to define their duties.

Provided that no officer or teacher shall be appointed by a University Council until provision has been made for his salary i11 the approved budget of the University concerned : Provided further that all appointments (Permanent or temporary) to the posts of Officers or teachers referred to in this section shall be made by the University Council on the recommendation of the Selection Committee constituted for the purpose in accordance with the provisions of Section 36 of this Ordinance, and on such terms and conditions as may be pre.scribed by tbe Statutes :

Provided also that the Vice-Chancellor may make appointments of teachers referred to in this Section as a tc111porary measure for a period not exceeding six 1nonths to carry on the work· and if the recommendations of the Selection Committee are not received within a period of six months, the Vice Chancellor may extend the appointment, if any made by him, for the duration of the academic session with the approval of the University Council; ... " Thus, the only bcdy competent to appoint a professor, like the respondent, is the University Council, and even the Council shall make such appointments only on the recommendation of the Selection Committee created by s. 36. There is no case that the Selection Committee ever considered or recommended the respondent for appointment and there is no suggestion that the University CounCJl appointed the respondent as professor.

It follows that the only statutory authority empowered in this behalf has not appointed the respondent to the post claimed by him. There is an interim power vested in the Vice-Chancellor hedged in with limitations, as is· contained in the third proviso to s. 22(1). · He may make appointments of teachers as a temporary measure for periods not exceeding six months to carry on the work, and if the Selection Committee's re· commendation is not received within that time he may extend the appointment for the duration of the -academic session with ·the approval of the University Council. There has been no exercise of the narrow power of the Vice-Chancellor under this proviso and the conclusion is ·irresistible that the continuance of the respondent on the expiration of the statutory two months' period cannot be legitimated by law. Of course, he remained to teach and. was paid for [ 1974] 2 s.c.a. his work.

He did many other things which a legally appointed professor would do, with the full knowledge and even at the request of the Vice-Chancellor. May-be, he, the Vice-Chancellor and others in the University were perhaps not keeping themselves abreast of the law. But the fatal fact remains that the Chancellor did not extend the services of the respondent as contemplated bys. 52(4), and this failure finishes the plea of continuance in office of the professor. We are not concerned with tbe administrative fall-out from this finding although the salary of the teacher app;ars to have been sanctioned by the Vice-Chancellor-a piece of coaduct which may b, understandable en equitable grounds. The circumstance that the rec.pendent functioned in the University does not vest in him the legal status of a validly appointed employee with al\ the protection 'that tho Act and the relevant statutes give to such a person.

In this view of the factsituation, without more, the respondent's work on the University campus can be brought to a close. No case of statutory termination of service is called for, the basis of statutory employment being absen~. The ad hoc arrangement by which he remained to teach did not ac· quire legal validity merely bccauso the Vice-Chanoelor went thro:Ugh the irregular exercises of extending his probation. etc. We have to hold that the curtain fell on the office held by the respondent when, at the end of 60 days after the Act, the sands of time ran out. The ground urged successfully, as it were, before the High Court, of an implied engagement cannot, in our view, be sustained.

When a s\atute creates a body and vests it with authority and circumscribes its powers· by specifying li1nitations, the doctrine of implied engagement de !tors the provisions and powers under the Act would be sub· versive of the statutory scheme regarding appointments of officers and cannot be countenanced bv the Court. · P6Wer ·in this case has been vested in the Universi!J Council only and the manner _of. its exercise has been carefully regulated. Therefore, the appointment of the respondent could be made only by the · Cou·nci!· and only in the mode r.rescribed by the statute. If a- Vice-Chancellor by administrative dnft allows such emplpyment it cannot be validated on any theory of fact111n vafet. 'v'le cannot countenance the alleged continuance of the respondent in the University can1pus as tantamount to regular service under the Universitv \Vith the sanction of la\v. In short, the respondent has no presentable case l\gainst the direction to quit.

Even so. there are certain disquieting features in this case. The Additional Solicitor-General fairly concedes that there was no pro· vision in the 1969 Act which would continue or validate the enquiry · commenced against the respondent by Jammu and Kashmir Univer· sity created by the 1965 Act. If so, the enquiry report falls to the ground vis-a-vis the respondent. The fact that he responded to . a show-cause notice cannot clothe the enquiry with legality and ·the report is impermissible material to injure the respondent with a punitive termination. The reliance on the enquiry report by the University to take a hostile decision on July 7. 1970 is illegal. The Uni-· versity Council could not act to his prejudice on the strength of a damaging report which had no force. \Ve are. therefore, clear in our ininds that the ·termination of the se-rvices of the respondent was stricken by the vice of statutory violation. The respondent is per- KASHMIR UNIV. v. MOHD.

YASIN (Krishna Iyer, J.) fectly tight in contending that he has been considerably damuified in his standing and reputation by this order of the University. We are, therefore, inclined to the view that while the respondent has no tight to continue in the University, the termination of his services, as per annexure A, is invalid. It is no use the University contending that its order is innocuous. It is clear that its annexure A carries a stigma with it since it expresses "the unanimous conclusion that the .... charges have been established against him" .and the tennination itself is founded on the guilt so made out: We, therefore declare that Annexure A is void but further _hold that the resgondent has no right to continue in service and the direction to him that he should leave his post as Professor and Head of the Post-Graduate History Department is good. The High Court's order of re-instatement is quashed.

There is much in the circumstances of the case to show that both sides have been indifferent to the provisions of the law which changed from time to time and both sides have acted under misapprehensions, which warrant our direction that parties will bear their own costs throughout. The appeal is allowed subject to the above order as to costs, K.B.N. Appeal allowed. 13-IA47Sup. C. I./74