Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
PRABHAKAR RAMAKRISHNA JODH
Vs.
RESPONDENT:
A. L. PANDE AND ANOTHER
DATE OF JUDGMENT:
12/01/1965
BENCH:
ACT:
University of Saugar Act, 1946--College Code (Ordinance 20)-
Affiliated College-Teacher’s pay scales and security of
tenure-Whether within statutory power, or contractual
relationship.
HEADNOTE:
The appellant was a teacher in a college, affiliated to the
University of Saugar, and managed by the Governing Body
established under cl. 3 of the ’College Code’ which is an
ordinance made under the provisions of the University of
Saugar Act. The Principal of the College served the
appellant a charge sheet and asked him to submit his
explanation. The appellants denied all the charges and
requested the particulars on which one of the charges was
based. The appellant alleged that this was not supplied and
the Governing Body terminated his services without holding
any enquiry. Thereafter the appellant moved the High Court
for a writ quashing the order of the Governing Body and
for his reinstatement; his case was that the Governing
Body had made the order of discharge in violation of the
provisions of the ’College Code,. The High Court rejected
the contention of the appellant on the groundthat the
conditions of service of the appellant were governed not by
the ’College Code’ but by the contract made between the
Governing Body and the appellant. The High Court also took
the view that provisions of ’College Code were merely
conditions prescribed for affiliation of Colleges and no
legal rights were -created by the ’College Code’ in favour
of the teachers of the affiliated colleges as against the
Governing Body. In appeal by special leave.
HELD : That the view taken by the High Court was erroneous.
The provisions of Ordinance 20, otherwise called the
"College Code" have the force of law. It confers legal
rights on the teachers of the affiliated colleges and it is
not a correct proposition to say that the "College Code"
merely regulates the legal relationship between the
affiliated Colleges and University alone. The provisions of
the " college Code" relating to the pay scale of teachers
and their security of tenure properly fall within the
statutory power of affiliation granted to the University
under the Act. (718 B-E]
Vedraj Bhawanidas Dua v. Damoh Arts College, 1961 M.P.L.J.
239, overruled.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 137 of 1964.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
Appeal by special leave from the judgment and order, dated
February 28, 1963, of the Madhya Pradesh High Court in Misc.
Petition No. 236 of 1960.
The appellant appeared in person.
S. N. Bhandari and Anand Prakash, for the respondent.
714
The Judgment of the Court was delivered by
Ramaswami J. This appeal is brought, by special leave,
against the judgment of the High Court of Judicature of
Madhya Pradesh dated February 28, 1962 dismissing the
petition of the appellant for grant of a writ under Art. 226
of the Constitution of India.
The appellant was appointed as a lecturer in Sanskrit in the
year 1955 in the S.B.R. College (Sheobhagwan Rameswarlal
Arts College), Bilaspur and he was confirmed in that post in
the year 1957. The College is affiliated to the University
of Saugar under the provisions of the University of Saugar
Act 1946 (hereinafter called the Act) and is managed by the
Governing Body established under Clause 3 of the ’College
Cod&’ which is an Ordinance made under the provisions of the
Act. The College is maintained out of the funds of
Sheobhagwan Rameswarlal Charitable Trust, Bilaspur and is
aided by the State Government. On June 2, 1960 the
Principal of the College served the appellant, by post, a
charge sheet consisting of three charges and the appellant
was asked to submit explanation within a week’s time. The
charges were as follows :-
"(1) That you have deliberately based your
representation dated 28-12-1959 on false facts
and -misstatements and have committed acts of
insubordination amounting to misconduct by
making counter-charges against the Governing
Body.
(2) That you have not been taking active
interest in the extra-curricular activities of
the College and have failed to cooperate with
the authorities as required by the conditions
of service.
(3) That you have deliberately avoided to
execute your service bond which every teacher
of the institution is required to do. This
non-fulfilment of the conditions of your
appointment order No. FC/56-57 dated 1-7-1956
amounts to breach of the service rules of the
college."
The appellant submitted explanation denying all the charges
and requested the Governing Body to supply particulars on
which the first charge was based. The allegation of the
appellant is that be was not supplied with the required
particulars and that the Governing Body terminated the
services of the appellant with effect from July 1, 1960
without holding any enquiry The appeallant made a
representation to the Governing Body on July 5, 1960
requesting
715
it to reconsider the whole matter. The Governing Body
rejected this representation also. The appellant thereafter
moved the High Court of Judicature of Madhya Pradesh for
grant of a writ of certiorari under Art. 226 of the
Constitution of India to quash the order of the Governing
Body dated June 30, 1960 terminating the services of the
appellant, and also for the grant of a writ of mandamus
reinstating the appellant to his post as a confirmed
lecturer of the College. The case of the appellant was that
the Governing Body had made the order of discharge in viola-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
tion of the provisions of Clause 8 (vi) (a) of the ’College
Code’ and that the order of the Governing Body was,
therefore, ultra vires and illegal. The High Court rejected
the contention of the appellant on the ground that the
conditions of service of the appellant were governed not by
the "College Code" but by the contract made between the
Governing Body and the appellant. The High Court also took
the view that provisions of the "College Code" were merely
conditions prescribed for affiliation of colleges and no
legal rights were created by the "College Code" in favour of
lecturers of the affiliated colleges as against the
Governing Body. In taking this view the High Court followed
its previous decision in Vedraj Bhaivanidas Dua v. Damoh
Arts College(1) in which it was held that the "College Code"
being merely conditions prescribed for affiliating Colleges,
the University may at its option enforce or relax those
conditions and the only sanction for fulfilment of those
conditions is disaffiliation. The High Court accordingly
did not go into the question whether the Governing Body had
violated the procedure prescribed in Clause 8 (vi) (a) but
dismissed the application of the appellant for the grant of
writ on the ground that it was only breach of contract and
the proper recourse of the petitioner was to bring a suit in
the Civil Court for damages for wrongful breach of contract
and the appellant cannot avail himself of the extraordinary
remedy under Art. 226 of the Constitution.
The main question presented for determination in this case
is whether the High Court was right in taking the view that
the "College Code" merely prescribed conditions for
affiliation of colleges and no legal rights were created by
the "College Code" with regard to teachers of affiliated
colleges.
Section 2 (a) of the Act defines a "College" to mean an
institution maintained by or admitted to the privileges of
the University by or under the provisions of this Act."
Section 6 of the Act
(1) 1991 M.P. L.J. 239.
716
refers to the powers of the University and S. 6 (6) provides
that the University shall have the power "to admit colleges
to the privileges of the University and to recognise hostels
under conditions which may be prescribed in the Statutes or
Ordinances." Section 32 deals with Ordinances and is to the
following effect
.lm15
"32. Subject to the provisions of this Act and the Statutes
and in addition to all matters which, by this Act or the
Statutes, are to be provided for by the Ordinances, the
Ordinances may provide for all or any of the following
matters, namely :-
(a) the admission of students to the University;
(b) the courses of study to be laid down for all degrees
and diplomas of the University;
(c) the conditions under which students shall be admitted
to the degree or diploma courses and to the examinations of
the University and shall be eligible for degrees and
diplomas;
(d) the levying of fees for residence in hostels maintained
by the University;
(e) the fees to be charged for the enrolment of students,
for attending courses of teaching in the University, for
admission to the examinations, degrees and diplomas of the
University and for the registration of graduates;
(f) the conditions subject to which persons may be
recognised as qualified to give instruction in the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
University and colleges;
(g) the conduct of examinations;
(h) the term of office, duties and conditions of service of
officers and teachers of the University in so far as these
are, by or under this Act, subject to the Executive
Council."
Section 24(i) provides that the Executive Council shall
admit colleges to the privileges of the University subject
to the provisions of this Act and such conditions as may be
prescribed in the Statutes. The "College Code" is an
Ordinance made under the provisions of s. 32 of the Act read
with s. 6(6) of the Act and Clause 8 of the Ordinance deals
with conditions of service of teachers of affiliated
colleges. Clause 8 (vi) of the "College Code" reads as
follows
717
"8. (vi) The Governing Body of the College
shall not terminate the service or reduce the
pay of any teacher confirmed in the service of
the college :-
(a) Without holding a full enquiry into the
matter, the teacher concerned shall be given
in writing a statement of charges against him
and afforded every possible opportunity of
defending himself. His previous service and
character shall also be taken into
consideration;
(b) No decision for such termination of
service, or reduction of pay shall have any
effect unless passed by a majority of two-
thirds of the members of the Governing Body;
(c) At the request of the teacher concerned
any difference or dispute either arising out
of the contract, or, otherwise, shall be
referred to a Tribunal of Arbitration
consisting of the Vice-Chancellor, and two
other persons appointed by the Executive
Council of the University, one of whom shall
possess a status not lower than that of a
District Judge. The decision of this Tribunal
shall be final and binding on both the
parties."
Clause 7 of the "College Code" states that all teachers of
the colleges shall be appointed on a written contract in the
form prescribed in Schedule A except in the case of teachers
appointed temporarily for a period of one year or less.
Para 9 of agreement mentioned in Sch. A provides as follows
:-
"9. After confirmation, the services of the
party of the first part can be terminated only
on the following grounds :-
a. Wilful and persistant neglect of duty,
b. Misconduct,
c. Breach of any of the terms of contract,
d. Physical or mental unfitness,
e. Incompetence,
f. Abolition of the posts
Provided firstly, that the plea of
incompetence shall not be used against the
party of the first part after he has served
the party of the second part for five years or
more
L4Sup./65-12
718
Provided, secondly, the services of the party
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
of the first part shall not be terminated
under clause (c) or (f) without the previous
approval of Saugar University."
It is not disputed on behalf of the respondents that the
"’College Code" has been made by the University in exercise
of statutory power conferred by s. 32 and under s. 6(6) of
the Act. It is also conceded on behalf of the respondents
that the "College Code" is intra vires of the powers of the
University contained in s. 32 read with s. 6(6) of the Act.
In our opinion, the provisions of Ordinance 20, otherwise
called the "College Code’ have the force of law. It confers
legal rights on the teachers of the affiliated colleges and
it is not a correct proposition to say that the "College
Code" merely regulates the legal relationship between the
affiliated colleges and the University alone. We do not
agree with the High Court that the provisions of the
"College Code" constitute power of management. On the
contrary we are of the view that the provisions of the
"College Code" relating to the pay scale of teachers and
their security of tenure properly fall within the statutory
power of affiliation granted to the University under the
Act. It is true that Clause 7 of the Ordinance provides
that all teachers of affiliated colleges shall be appointed
on a written contract in the form prescribed in Sch. A but
that does not mean that teachers have merely a contractual
remedy against the Governing Body of the College. On the
other hand, we are of opinion that the provisions of Clause
8 of the Ordinance relating to security of the tenure of
teachers are part and parcel of the teachers service
conditions and, as we have already pointed out, the
provisions of the "College Code" in this regard are validly
made by the University in exercise of the statutory power
and have, therefore, the force and effect of law. It
follows, therefore, that the "College Code" creates legal
rights in favour of teachers ,of affiliated colleges and the
view taken by the High Court is erroneous.
It was urged on behalf of the appellant in the next place
that there was violation of the procedure prescribed in
Clause 8 (vi) (a) of the "College Code’ and the order of the
Governing Body dated June 30, 1960 terminating the
appellant’s services was illegal and ultra vires and must be
quashed by grant of writ in the nature of certiorari.
Counsel for the respondents contended that there was no
violation of the Procedure prescribed under ’Clause 8(vi)
(a) of the "College Code" and that the order of the
Governing Body, dated June 30, 1960 was not defective in
law. Since the
719
question has not been investigated by the High Court we
consider that it is necessary that this case should go back
on remand to the High Court for deciding the question
whether there was a violation of the procedure prescribed
under Clause 8 (vi) (a) of the "College Code" and whether
the order of the Governing Body, dated June 30, 1960 is
consequently illegal and ultra vires and whether the
appellant is entitled to the grant of a writ under Art. 226
of the Constitution.
We should like to add that Counsel for the respondent raised
two preliminary objections in the course of argument. The
argument was stressed in the first place that the appellant
had an alternative remedy under Clause 8 (vi) (c) of the
"College Code’ which provides that the aggrieved teacher may
request for a reference of the dispute to a Tribunal of
Arbitration consisting of the Vice-Chancellor and two other
persons appointed by the Executive Council of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
University. It was contended on behalf of the respondents
in the second place that the Governing Body of the College
was not a statutory body performing public duties and no
writ in the nature of mandamus may, therefore, be issued to
the Governing Body of the College. On behalf of the respon-
dents it was conceded that these objections were not pressed
before the High Court. We are, therefore, unable to
entertain these preliminary arguments at this stage and they
must be over-ruled.
For the reasons already expressed, we allow this appeal, set
aside the judgment of the High Court, dated February 28,
1962 and order that the case should be remanded to the High
Court for investigating the question whether there was a
violation of the procedure contained in Clause 8 (vi) (a) of
the "College Code’ and for final determination of the case
in accordance with law. Parties will bear their own costs
in this Court as well as in the High Court up to this stage.
Appeal allowed.
720