Full Judgment Text
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PETITIONER:
JAWAHARLAL NEHRU UNIVERSITY
Vs.
RESPONDENT:
DR. K.S. JAWATKAR & ORS.
DATE OF JUDGMENT12/05/1989
BENCH:
PATHAK, R.S. (CJ)
BENCH:
PATHAK, R.S. (CJ)
MUKHARJI, SABYASACHI (J)
CITATION:
1989 AIR 1577 1989 SCR (3) 273
1989 SCC Supl. (1) 679 JT 1989 (2) 538
1989 SCALE (1)1438
ACT:
Jawaharlal Nehru University Act 1966: Section 7--Univer-
sity-Establishing Centre of Post Graduate Studies at
Imphal--Whether a member of the teaching staff at Centre can
be transferred without his consent to the Manipur Universi-
ty.
HEADNOTE:
The appellant, Jawaharlal Nehru University, had set up a
Centre of Post-Graduate Studies at Imphal under s. 5(2) of
the University Act. The Respondent while he was working as a
temporary research Assistant in the School of International
Studies of the University was offered the post of Associate
Fellow at the Centre of Post-graduate Studies, Imphal, on ad
hoc basis which offer was accepted by him on 3 December,
1973. His term of appointment was extended from time to
time. On 21st March, 1979 the University offered him the
post of Assistant Professor in the Political Science Divi-
sion at the Centre at Imphal for a period of two years. The
respondent joined the post on 29 August, 1979. Later, he was
appointed as such on a regular basis from the date of his
initial appointment, and was confirmed with effect from the
same date.
The Centre of Post-graduate Studies at Imphal was to be
merged with the Manipur University as provided in the Mani-
pur University Act, 1980. On 3 February, 1981 the Syndicate
of the Jawaharlal Nehru University provided for the transfer
of the Centre to the Manipur University and resolved that
the members of the faculty employed by the Jawaharlal Nehru
University Centre of Post-graduate Studies, Imphal, immedi-
ately ’before its merger into the Manipur University would
on and from that date become members of the staff of the
Manipur University.
The respondent filed a writ petition in the Delhi High
Court praying for the quashing of the Resolution of the
Jawaharlal Nehru University whereby his services were trans-
ferred to the Manipur University. The learned Single Judge
allowed the writ petition holding that the respondent could
not be obliged to join the Manipur University, and that he
was confirmed as Assistant Professor in the employment of
the
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274
Jawaharlal Nehru University in its Imphal Centre and was
entitled to continue in service until he attained the age of
60 years.
In appeal, the Division Bench upheld the view that the
services of the respondent could not stand automatically
transferred with the transfer of the Centre at Imphal, from
the Jawaharlal Nehru University to the Manipur University.
Dismissing the appeal, this Court,
HELD: (1) The Centre of Post-graduate Studies was set up
at Imphal as an activity of the appellant--Jawaharlal Nehru
University. To give expression to that activity, the Univer-
sity set up and organised the Centre at Imphal and appointed
teaching and administrative staff to man it. Since the
Centre represented an activity of the University the teach-
ing and administrative staff must be understood as employees
of the University. [279H; 280A]
(2) The contract of service entered into by the respond-
ent was a contract with the appellant University and no law
can convert that contract into a contract between the re-
spondent and the Manipur University without automatically
making it, either expressly or by necessary implication,
subject to the respondent’s consent, notwithstanding any
statutory provision to that effect whether in the Manipur
University Act or otherwise. The position of law is clear
that no employee can be transferred, without his consent,
from one employer to another. The consent may be express or
implied. [280B-C, E]
(3) The transfer of the Centre of Post-graduate Studies
to the Manipur University may be regarded as resulting in
the abolition of the post held by the respondent in the
appellant University. In that event, if the post held by the
respondent is regarded as one of a number of posts in a
group, the principle "last come, first go" will apply, and
someone junior to the respondent must go. If the post held
by him constitutes a class by itself, it is possible to say
that he is surplus to the requirements of the appellant
University and is liable to be retrenched. Since. however,
the respondent has been adjusted against a suitable post in
the appellant University during the pendency of the litiga-
tion, the appellant cannot be permitted to retrench him.
[280F-H; 281A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2948 of
1984
275
From the Judgment and Order dated 20.1.1984 of the Delhi
High Court in L.P.A. No. 145 of 1982.
G. Ramaswami, Additional Solicitor General, S.C. Dhanda,
C.S. Vaidyanathan, P. Chowdhary and S.R. Sethia for the
Appellant.
Respondent No. 1 In-person, Girish Chandra, Ms. Sushma
Relan and P. Chowdhary for Respondents.
The Judgment of the Court was delivered by
PATHAK, CJ. This is an appeal by special leave against a
judgment of a Division Bench of the High Court of Delhi in a
Letters Patent Appeal upholding the judgment of a Single
Judge of the High Court in a writ petition filed by the
first respondent for a declaration that he continues to be
in the service of the Jawaharlal Nehru University.
The Jawaharlal Nehru University Act, 1966 sets forth as
the objects of the Jawaharlal Nehru University "to dissemi-
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nate and advance knowledge, wisdom and understanding by
teaching and research and by the example and influence of
corporate life, and in particular the objects set out in the
first Schedule." The powers of the University extend to
establishing within the Union Territory of Delhi or outside
that territory such Special Centres as may be necessary for
the furtherance of its objects, to create such teaching,
administrative and other posts as the University may deem
necessary, and to make arrangements thereto, and to appoint
or recognise persons as Professors, Readers or Lecturers or
otherwise as teachers of the University. Section 7(b) of the
Act declares that where the University establishes and
maintains any institution or body outside the Union Territo-
ry of Delhi then the powers and jurisdiction of the Univer-
sity will extend to such institution or body subject to the
rules and regulations of the University within whose juris-
diction the institution or body is situate.
On 21 September, 1970 the Additional Secretary, Ministry
of Education and Youth Services wrote to the Vice-Chancellor
of the University informing him of the intention of the
Government of India, to establish a Central University at
Shillong to serve the needs of the North Eastern Region of
India, and that in August, 1969, the University Grants
Commission had approved the proposal of the Manipur Adminis-
tration to have a Post-graduate Centre at Imphal under the
auspices of the Gauhati University, and considering the fact
that the
276
proposed Central University for the Hill Areas was also
intended to cater to the needs of Manipur, it would be
appropriate, he said, that the Jawaharlal Nehru University
should establish a Centre at Imphal also which could later
be made over to the proposed new University to be estab-
lished by the Centre. On 3 October, 1970, a resolution was
passed by the Executive Council of the Jawaharlal Nehru
University agreeing with the proposal of the Ministry of
Education to set up an Institute of Post-graduate Studies at
Imphal. A committee was set up to study the problems con-
nected with the setting up of such an Institute and to
submit concrete proposals in that regard. On 12 June, 197 1,
the Executive Council of the University recorded their
agreement in principle to the proposal of the Ministry of
Education to set up an Institute of Post-graduate Studies at
Imphal and noted that the committee had submitted its re-
port. Then on 12 June, 197 1, the Executive Council passed a
resolution that a Centre of Post-graduate Studies be set up
at Imphal under s. 5(2) of the Jawaharlal Nehru University
Act.
On 27 January, 197 1, the appellant University informed
the respondent that he had been selected for the post of
Research Assistant in the Department of South Eastern Stud-
ies, School of International Studies of the University, that
the appointment would be temporary for a period of six
months and his services could be terminated on one month’s
notice on either side. On 25 April, 1973, the term of tempo-
rary appointment as Research Assistant in the School of
International Studies was extended by the appellant Univer-
sity for a further period of six months with effect from 4
June, 1973. Thereafter, by letter dated 29 November, 1973
the Vice-Chancellor of the appellant University offered the
respondent the post of Associate Fellow in the Post-graduate
Studies Centre of the University at Imphal for a period of
one year in the first instance, the appointment being made
on ad hoc basis, and his regular appointment at the Centre
of the Post-graduate Studies at Imphal or at the New Delhi
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campus of the University would be subject to the recommenda-
tions of the Selection Committee. It was stated that he was
expected to take part in the teaching and research pro-
grammes of the University. He was directed, in case he
accepted the offer, to join the Post-graduate Centre, Imphal
(Manipur) as early as possible. On the same date the re-
spondent accepted the offer of appointment as "Associate
Fellow", Centre of Post-graduate Studies, Imphal, under the
terms and conditions of the Vice-Chancellor’s letter of that
date. On 3 December. 1973 the respondent reiterated his
acceptance of the offer of appointment as "Associate Fellow"
at the Centre of Post-graduate Studies, Imphal, and stated
that he was reporting for duty to the Head of the Centre for
Political Studies, School
277
of Social Sciences, New Delhi with effect from 3 December,
1973 so that after necessary briefing at the Centre he would
proceed to Imphal as early as possible. Thereafter by Office
Order No. 2376 dated 24 August, 1974 the term of appointment
of the respondent as "Associate Fellow" at the Centre of
Post-graduate Studies, Imphal, was extended for a period of
one year from 3 December, 1974 to 2 December, 1975. By
Office Order No. 2440 dated 23 September, 1974 the respond-
ent’s term of appointment in the same capacity at the said
Centre was now enlarged from 3 December, 1974 to 2 December,
1976. His existing scale of Rs.400-40-800-50-950 was revised
to Rs.700-40-1100-50-1600 by Office Order No. 295 dated 21
June, 1975 with effect from 1 January, 1973. It appears that
the temporary appointment of Associate Professor in Politi-
cal Science at the Centre of Post-graduate Studies, Imphal,
was extended upto 3 August, 1987 or until the post was
filled on a regular basis whichever is earlier. Thereafter
on 23 December, 1977 an advertisement was issued by the
Jawaharlal Nehru University, Centre of Post-graduate Stud-
ies, Imphal (Manipur) for appointment to, inter alia, the
posts of Associate Professor/Fellow and Assistant
Professor/Assistant Fellow in the Political Science. The
respondent applied for the post of Associate Professor but
the Selection Committee did not find him suitable for that
post and recommended him for the lower post of Assistant
Professor. By letter dated 29 April, 1978 the Jawaharlal
Nehru University offered him the appointment of Assistant
Professor in Political Science on an ad hoc basis in the
Centre of Post-graduate Studies, Imphal, for a period of one
year or until his services were required by the Centre,
whichever was earlier. The respondent, however, wrote back
on 2 May, 1978 stating that he had not applied for the post
of Assistant Professor in Political Science and that he
deserved to be appointed as Associate Professor at the
Imphal Centre. By letter dated 21 March, 1979 the Jawaharlal
Nehru University offered the respondent the post of Assist-
ant Professor in the Political Science Division at the
Centre of Post-graduate Studies of the University at Imphal
for a period of two years. He was informed that in all
matters relating to leave and other conditions of service he
would be required to enter into an agreement with the Centre
of Post-graduate Studies, Imphal. This agreement was never
executed. On 29 August, 1979 the respondent joined as As-
sistant Professor in accordance with the terms mentioned in
the University’s letter dated 21 March, 1979. Thereafter the
respondent was appointed as Assistant Professor by a Resolu-
tion of the Jawaharlal Nehru University dated 29 October,
1979 on a regular basis with effect from the date of his
initial appointment dated 29 August, 1979 and he was con-
firmed with effect from that date.
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278
In 1980 proceedings were taken to transfer the Imphal
Centre from the Jawaharlal Nehru University to the Manipur
University. To effectuate this the Syndicate of the Manipur
University passed a Resolution on 19 December, 1980 detail-
ing the terms for the transfer of the Centre to the Manipur
University, and the Manipur University and the Manipur
Government requested the Jawaharlal Nehru University for
transferring the Centre accordingly. The Jawaharlal Nehru
University by its Resolution dated 3 February, 1981 accepted
the proposal and authorised the Vice-Chancellor to transfer
the Centre to the Manipur University. The date for transfer
was fixed as 1 April, 1981. Meanwhile, the Manipur Legisla-
ture passed the Manipur University Act, 1980, which was
assented to by the Governor on 28 May, 1980. Section 1(4) of
the Act provided that on and from the date on which the Act
came into force in respect of post-graduate education and
research, the Jawaharlal Nehru University would cease to
exercise jurisdiction over the Centre of Post-graduate
Studies in Imphal, and that the State Government of Manipur
may make provision for the transfer of employees from the
Jawaharlal Nehru University, Centre of Post-graduate Stud-
ies, Imphal to the Manipur University. Thereafter an order
dated 31 March, 1981 was made by the Governor of Manipur
providing that the members of the faculties of the Jawahar-
lal Nehru University, Centre of Post-graduate Studies,
Imphal, immediately before its merger into the Manipur
University would, on and from the 1 April, 1981, become
members of the staff of the Manipur University on the same
terms and conditions of service as they were entitled to
immediately before that day. Meanwhile on 3 February, 1981,
the Syndicate of the Jawaharlal Nehru University provided
for the transfer of the Centre to the Manipur University. It
was resolved that the said Jawaharlal Nehru University for
Post-graduate Studies would cease to exist as such and the
Divisions of the Centre would become the Divisions of the
Manipur University and function accordingly. It was further
resolved that the members of the faculty employed by the
Jawaharlal Nehru University, Centre of Postgraduate Studies,
Imphal, immediately before its merger into the University
would on and from that date. become members of the staff of
the Manipur University.
The respondent filed a writ petition in this Court on 27
March, 1981 challenging his transfer from the Jawaharlal
Nehru University to the Manipur University, and that peti-
tion was dismissed as withdrawn on 21 September, 198 1.
Thereafter the respondent filed a writ petition on 22 May,
1982 in the Delhi High Court praying for the quashing of the
Resolution of the Jawaharlal Nehru University on 3 February,
198 1 transferring his services to the Manipur University.
The learned
279
Single Judge of the High Court held that the respondent
could not be obliged to join the Manipur University, that he
was confirmed as Assistant Professor in the employment of
the Jawaharlal Nehru University in its Imphal Centre and was
entitled to continue in service until he attained the age of
60 years and that the services had not been specifically
terminated. Accordingly, the writ petition was allowed and
the respondent was deemed to continue, in the service of the
Jawaharlal Nehru University and if no equivalent post was
available for him in 1981 in the Jawaharlal Nehru University
had he had become surplus, the said University was at liber-
ty to dispense with his services. In appeal, the Division
Bench of the High Court upheld the view that the services of
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the respondent could not stand automatically transferred
from the Jawaharlal Nehru University to the Manipur Univer-
sity with effect from 1 April, 1981 by operation of law and
that the order dated 31 March, 1981 transferring the employ-
ees at the Imphal Centre to the Manipur must be considered
as implying or assuming that the concerned employee had
exercised an option to join the Manipur University. The
learned Judges also rejected the contention of the appellant
that there was an automatic termination of the respondent’s
service without notice or order or discharge or dismissal.
They held further that the Centre at Imphal was commenced
and conducted as part and parcel of the Jawaharlal Nehru
University that the respondent must be regarded as an em-
ployee continuing with the Jawaharlal Nehru University even
upon the transfer of the Centre from that University. They
further observed that if, in the result, the strength of the
staff should be surplus, the principle of "last come first
go" had to be applied, and that the application of the
principle was to be effected with reference to the cadre to
which the respondent belonged and also to the discipline in
which he was competent. In the event of it being found that
he constitutes a class by himself, his services could be
absorbed in some suitable post in the Jawaharlal Nehru
University.
In this appeal the main contention of the appellant is
that the respondent was appointed at the Centre of Post-
graduate Studies, Imphal, and when the Centre was trans-
ferred to the Manipur University, his services were automat-
ically transferred to that University, and consequently he
could not claim to be an employee of the appellant Universi-
ty. The argument proceeds on the assumption that the Centre
of Post-graduate Studies at Imphal was an independent entity
which existed by itself and was not a department of the
appellant University. The submission proceeds on a fallacy.
The Centre of Postgraduate Studies was set up at Imphal as
an activity of the appellant University. To give expression
to that activity the appellant University set up and orga-
nised the Centre at Imphal and appointed a teaching
280
and administrative staff to man it. Since the Centre repre-
sented an activity of the appellant University the teaching
and administrative staff must be understood as employees of
the appellant University. In the case of the respondent,
there can be no doubt whatever that he was, and continues to
be, an employee of the appellant University. There is also
no doubt that his employment could not be transferred by the
appellant University to the Manipur University without his
consent, notwithstanding any statutory provision to that
effect whether in the Manipur University Act or elsewhere.
The contract of service entered into by the respondent was a
contract with the appellant University and no law can con-
vert that contract into a contract between the respondent
and the Manipur University without simultaneously making it,
either expressly or by necessary implication, subject to the
respondent’s consent. When the Manipur University Act pro-
vides for the transfer of the services of the staff working
at the Centre of Postgraduate Studies, Imphal, to employment
in the Manipur University, it must be construed as a provi-
sion enabling such transfer of employment but only on the
assumption that the employee concerned is a consenting party
to such transfer. It makes no difference that the respondent
was not shown in the list of Assistant Professors of the
appellant University or that the provision was not indicated
in its budget; that must be regarded as proceeding from an
erroneous conception of the status of the respondent. The
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position in law in clear, that no employee can be trans-
ferred, without his consent, from one employer to another.
The consent may be express or implied. We do not find it
necessary to refer to any case law in support of this con-
clusion.
Inasmuch as the transfer of the Centre of Post-graduate
Studies from the appellant University to the Manipur univer-
sity could not result in a transfer of the employment of the
respondent from the one to the other, it must be concluded
that the respondent continues in the employment of the
appellant University. The transfer of the Centre of Post-
graduate Studies to the Manipur University may be regarded
as resulting in the abolition of post held by the respondent
in the appellant University. In that event, if the post held
by the respondent is regarded as one of a number of posts in
a group, the principle "last come, first go" will apply, and
someone junior to the respondent must go. If the post held
by him constitutes a class by itself, it is possible to say
that he is surplus to the requirements of the appellant
University and is liable to be retrenched. But it appears
that the respondent has been adjusted against a suitable
post in the appellant University and has been working there
without break during the pendency of this
281
litigation, and we cannot, therefore, permit the appellant
University to retrench him.
In the result, the appeal fails and is dismissed with
costs.
R.S.S. Appeal dis-
missed.
282