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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.

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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-

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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

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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

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             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

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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