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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