Vaish College (Society) Shamli and ors. Vs. Sri Lakshmi NaraIn and ors. - Court Judgment

Excerpt:
constitution - nature of employment - section 14 (1) (b) specific relief act, 1963, section 9 of code of civil procedure, 1908, sections 30 , 31, 38 and 50 (1) (a a ) of kanpur and meerut universities act, 1965, section 25 c of agra university act, 1926, statutes 29a and 30 of agra university statutes, section 31 of aligarh muslim university act, 1920 and article 226 and 245 of constitution of india - contract of personal service cannot be specifically enforced - writ petition is maintainable by an employee of an university on the ground that his service had been terminated or he had been reduced in rank in violation of the provisions. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v......asthana, j.1. the basic question, common to all these cases referred to a full bench, is whether the relationship between the parties was that of pure master and servant unregulated or uncontrolled by any statutory provision and the servant was not entitled to the relief of injunction or declaration of nullity of removal from service and his remedy lay in a suit for damages for breach of contract.second appeal no. 2973 of 19712. the first case referred is second appeal no. 2973 of 1971 which arises out of a suit for permanent injunction to restrain the defendant-appellants from interfering with the plaintiff-respondent in the discharge of his duty as principal including functioning as such for all intent and purposes of the vaish degree college, shamli, district muzaffarnagar, later on.....

Judgment:

Asthana, J.

1. The basic question, common to all these cases referred to a Full Bench, is whether the relationship between the parties was that of pure master and servant unregulated or uncontrolled by any statutory provision and the servant was not entitled to the relief of injunction or declaration of nullity of removal from service and his remedy lay in a suit for damages for breach of contract.

Second Appeal No. 2973 of 1971

2. The first case referred is Second Appeal No. 2973 of 1971 which arises out of a suit for permanent injunction to restrain the defendant-appellants from interfering with the plaintiff-respondent in the discharge of his duty as Principal including functioning as such for all intent and purposes of the Vaish Degree College, Shamli, District Muzaffarnagar, later on known as Vyparik Varg Degree College, Shamli, hereinafter referred to as Vaish College.

3. Admittedly Sri Laxmi Narain, the plaintiff-respondent, was the permanent Principal of the Vaish College. He was appointed as such on 17-5-1964. His appointment was duly approved by the Vice Chancellor of Agra University to which the college was then affiliated. The plaintiff-respondent joined his post with effect from 1.-7-1964. By a notice dated 24-10-1966 issued by the Management the plaintiff was directed not to discharge the functions and duties of the Principal of the College and not to obstruct the functioning of Sri K. K. Kaushik as acting Principal. By a resolution dated 27-10-1966 Sri K. K. Kaushik was appointed as the Principal, the Management having held that the plaintiff had abandoned the post. On 28-10-1966 the plaintiff instituted the suit for permanent injunction. While the suit was pending the Kanpur and Agra Meerut Universities Act, 1965 (U. P. Act XIII of 1965), hereinafter called the Meerut Act, was enforced with effect from 21-11-1966 and the Vaish College, Shamli. stood affiliated to the Meerut University under the said Act. On 12-3-1967 the Management passed a formal resolution terminating the services of the plaintiff but later on clarified it by a resolution dated 29-3-1967 terminating the services of the plaintiff as Principal with effect from 24-10-1966, as from that date according to the Management the plaintiff had absented himself from duty. The plaintiff got the plaint amended adding pleas questioning the legality and validity of the action taken by the Management subsequent to the filing of the suit. Inter alia, the plaintiff alleged that the termination of his services as confirmed Principal being in violation of the provisions of the Meerut Act and the statutes, was void and in any case the Management not having obtained the approval of the Vice-Chancellor of the Meerut University as required by the Meerut Act, the termination of the services of the plaintiff never took effect. The contesting defendants, inter alia, set up a plea that the terms and conditions of the service of the plaintiff as Principal were governed by an agreement between him and the Management and were not governed by the provisions of the Act or Statutes of the Agra University or of the Meerut University and the plaintiff was not entitled to the relief of injunction which was barred to him under the Specific Relief Act. It is not necessary to detail out all the other factual allegations of the parties averred in the pleadings as the same are not necessary for the purpose of disposing of this reference.

4. The trial Court took the view that as the plaintiff had not been appointed under any written agreement of contract as envisaged by the Statute of the Agra University, he was not entitled to the benefit of the Act and the Statutes and the fact that the resolution terminating the services of the plaintiff was not sent up for approval of the Vice Chancellor was, therefore, of no avail. On this main finding the suit of the plaintiff was dismissed. '

5. The lower appellate Court while affirming the finding that the plaintiff was not appointed under any written agreement of contract as required by the Statutes held that that would not disentitle the plaintiff to claim the benefits of the Act and the Statutes of Agra University as in the absence of the written contract the appointment of the plaintiff as Principal was not rendered invalid and as the services of the plaintiff were terminated by the Management without obtaining the approval of the Vice Chancellor of the Meerut University, the order of termination was illegal and void. Then relying upon the decision of the Division Bench of this Court in Meerut College v. Dr. Puri, 1969 All LJ 621 and of the Supreme Court in Prabhakar Ram Krishna Jodh v. A. L. Pande : [1965]2SCR713 the learned Judges held that the Statutes framed under the Agra University Act created legal rights in favour of the teachers of the affiliated colleges which could be enforced against the Management of an affiliated college and that the case of the plaintiff fell within the third exception laid down by the Supreme Court in S. R. Tewari v. District Board, Agra : (1964)ILLJ1SC affirming the principle that the courts are invested with the power to declare invalid the act of a statutory body, if by doing the act the body has acted in breach of a mandatory obligation imposed by statute. The appeal was allowed and the plaintiff's suit was decreed for a perpetual injunction restraining the contesting defendants from interfering in his functioning and discharging the duties as Principal of the Vaish College till his services were validly terminated in accordance with the provisions of Meerut Act and the statutes made thereunder.

6. When the Second Appeal filed by the contesting defendants was heard by our brother K. N. Srivastava, before him on behalf of the appellants reliance was placed on Executive Committee of State Warehousing Corporation v. Chandra Kiran Tyagi : (1970)ILLJ32SC and Indian Airlines Corporation v. Sukhdeo Rai : (1971)ILLJ496SC in support of the contention that the Division Bench decision of this Court in 1969 AH LJ 621 which supported the view taken by the Court below was no longer good law. Brother Srivastava doubted whether the plaintiff was entitled to the relief of injunction as prayed for and after framing the question 'Can the Civil Court grant the relief of injunction in view of the fact and circumstances of the present case?', directed that the case be referred to a Full Bench.

Special Appeal No. 516 of 1971

7. The second reference before the Full Bench has come up in Special Appeal No. 516 of 1971, the Board of Management of Dayanand Brijendra Swarup college, Dehradun v. Suresh Chandra Varma arising out of original writ No. 4035 of 1968. The Division Bench while admitting the Special Appeal passed an order directing the appeal to be heard by a Full Bench.

8. Suresh Chandra Varma, the petitioner, was a Geography teacher in Dayanand Brijendra Swarup Degree College, Dehradun, hereinafter referred to as Dayanand College. He entered in service as a probationer in 1963 and was confirmed in that post in 1966. On 7-6-1967 the petitioner was suspended and was served with certain charges. The petitioner submitted an explanation. Meanwhile the petitioner was found to have committed some other misconduct and a consolidated charge sheet dated 31-10-1967 was served upon him. The petitioner submitted his reply on 15-11-1967. The Management Committee of the Dayanand College appointed a Sub Committee which submitted its report on 16-6-1968. On the basis of the said report the Committee of Management passed a resolution terminating the services of the petitioner. This resolution was approved by the Vice-Chancellor and finally an order terminating the services of the petitioner was passed on 21-8-1968.

9. The petitioner questioned the validity and legality of the termination of his service on the main ground that the Committee of Management of the College contravened Statute 30 of Chapter XVIII of the Agra University Statutes applicable to the Meerut University to which the college was affiliated. The learned Single Judge who heard the petitioner on merits relying on 1969 All LJ 621 (supra) repelled the contention of the respondents that the resolution passed by the Committee of Management even if wrongful and illegal, could not be questioned in a writ petition as the relationship between the petitioner and the college was governed by a contract of service and the remedy of the petitioner lay in damages for breach of contract. The learned Judge holding that the petitioner was not afforded adequate and reasonable opportunity as required by Statute 30, allowed the writ petition and quashed the resolution of the Committee of Management dated 16-6-1968 and the order dated 21-8-1968 terminating the service of the petitioner. On appeal by the Committee of Management, the Special Appeal Bench directed the special appeal to be referred to a Full Bench in view of the doubt as to the correctness of the Division Bench decision in Dr. Puri's case.

Writ Petition No. 858 of 1970

10. The third case referred is writ petition No. 858 of 1970 Ahmad Husain v. Aligarh Muslim University. The petitioner is a Head Clerk employed in the office of the Registrar of the Aligarh Muslim University. He was appointed as Assistant Registrar on probation. His probation was extended from time to time. Bv its resolution dated 13-2-1970 the Executive Council of the University decided not to confirm the petitioner in the post of Assistant Registrar and directed him to be reverted to his substantive post of Head Clerk. The petitioner challenged the legality and validity of this resolution of the Executive Council on the ground that the resolution was in breach of the relevant Regulations framed by the Executive Council of the University in exercise of its powers under Section 31 of the Aligarh Muslim University Act. On behalf of the respondent University it was contended that the reversion of the petitioner to his substantive post was not in breach of any Regulation and in the alternative it was contended that the Regulations framed by the Executive Council of the University in exercise of its powers under Section 31 of the Aligarh Muslim University Act have no statutory force and assuming the same were violated, it would not entitle the petitioner to a relief under Article 226 of the Constitution. Brother G. C. Mathur, who heard the petition, referred the following question to the Full Bench:--

'Whether a writ petition is maintainable by an employee of an University which is a statutory body on the ground that his services have been terminated or he had been reduced in rank in violation of the provisions of the Regulations framed by the University?'

Writ Petition No. 68 of 1971

11. The fourth case listed before us is writ petition No. 68 of 1971 Ramesh Chandra Bhudwar v. Vive Chancellor, Meerut University. Sri L. M. Pant, learned counsel for the petitioner stated that this case has been listed before the Full Bench only formally to enable him to address legal arguments if necessary, as in this case also similar questions which arise in the cases referred are involved. Sri Pant and Sri Bhatnagai appearing for opposite party specifically stated that the parties do not desire the Full Bench to consider the case with a view to express their opinion on the question involved. It is, therefore, not necessary to state the facts and the points arising in the fourth case.

12. From the above narration of the salient facts of the three cases referred, it is clear that the relationship between the contesting parties is that of master and servant. Involved in each case is a relief in some form or shape of reinstatement of the servant in his post of employment on the ground that the termination of his employment by the master was null and void. It is well settled that a contract of personal service cannot be specifically enforced. A declaration by a Court that the termination has no effect and the servant still continues in service and directing that he be reinstated ordinarily cannot be made as that will amount to enforcing a contract of personal service. This principle of law was accepted by the Supreme Court in Dr. S. Dutta v. University of Delhi : [1959]1SCR1236 . In the same case the Supreme Court noticed a decision of the Privy Council in the case of High Commr. for India v. I. M. Lall wherein the Judicial Committee accepted the principle that where a suit of the servant is founded on the claim that his dismissal by the master was void and of no effect as certain mandatory provisions of the law had not been complied, a declaration that the purported dismissal was void and inoperative and he remained in service will not amount to enforcing a contract of personal service. A declaration of a statutory invalidity of an act of the master is a thing entirely different from enforcing a contract of personal service. The principle of law that emerges from the decision of the Supreme Court in Dr. S. Dutt's case is that since the law prohibits the specific performance of a contract of personal service any wrongful termination of the service of the employee by his employer would not entitle the employee to a declaration that his status remained unaffected, he still continued in service and he be reinstated to his post of employment. But where the employee bases his claim on the breach of some statutory provision which governed and regulated the conditions of his service he will be entitled to a declaration that his status remains unaffected, he still continues in service and he be reinstated as in doing so the Court of law does not enforce a contract of personal service but the Court declares that the act of removal from service was statutorily invalid.

13. The problem with which we are faced in the cases before us is whether the employees concerned have founded their claim on the basis of the act of termination of their service by their respective employer in breach of some statutory provision and they can ask the Court to make a declaration of a statutory invalidity. In the first two cases referred, that is of the Principal of the Vaish College and the teacher of Dayanand College a claim has been made that the termination of their respective services by the Management of the colleges concerned was in violation of the provisions of the Acts and the statutes applicable to the University to which the colleges were affiliated. On the relevant dates when the termination orders were passed by the management of the respective colleges they stood affiliated to the Meerut University. In the case of 1969 All LJ 612 a Division Bench of this Court finding that the termination of the service of Dr. Puri was in derogation of the relevant Statutes declared the resolution and the order terminating the service of the petitioner as illegal. The Division Bench repelled the contention of the Management of the college that no declaration could be given as a servant cannot be forced on a master and there can be no specific performance of a contract relating to personal service with the following observations :

'It has been contended that a servant cannot be forced on a master and that there can be no specific performance of a contract relating to personal service. In our opinion this principle does not apply in the present case because we have already said that the matter is not purely contractual and in terminating the services of Dr. Puri, the management of the Meerut College has breached statutory provisions.'

14. It is not disputed by Sri S. N. Kacker appearing for the Management of the Vaish College and Sri Jagdish Swarup appearing for the Management of the Dayanand College that the provisions of the Act and the Statutes which applied to the Meerut College in the case of Dr. Puri governed the conditions of affiliation of the respective colleges also whom they represent and the Division Bench decision in Dr. Pun's case would have been conclusive against them had it been good law. The learned counsel for the Management of the colleges submitted that in view of the declaration of law made by the Supreme Court subsequent to the decision in Dr. Puri's case the decision of the Division Bench in that case will be deemed to have been overruled and no longer good law. In this connection a reference was made to Executive Committee of U. P. State Warehousing Corporation Lucknow v. Chandra Kiran Tyagi : (1970)ILLJ32SC ; Indian Airlines Corporation v. Sukhdeo Rai : (1971)ILLJ496SC ; Bank of Baroda Ltd. v. Jewan Lal Mehrotra, (1970) 2 Lab LJ 54 & Vidya Ram Misra v. The Managing Committee Shri Jai Narain College : (1972)ILLJ442SC . The argument was that the relationship between the teacher and the Management of the colleges, a private body, being purely contractual, assuming that the termination of service of the teacher by the Management was wrongful, the teacher was not entitled to declaration and reinstatement in his post of employment and his remedy lay in an action for damages for breach of contract. The arguments so raised involves consideration of the following propositions:

1. Whether the service of a teacher including the Principal of the affiliated colleges in question is purely contractual unregulated and uncontrolled by any provision having the force of law?

2. Whether the Management of the two colleges concerned acted as a statutory body or statutory functionary when it took action to terminate the service of the teacher? and

3. Whether the Committee of Management of the affiliated colleges when found to be bound to follow a procedure prescribed by law or bound to comply with some statutory requirement before the termination of the service could be effective, any termination of service of a teacher by it in violation of such statutory requirements will entitle the teacher to an injunction or a declaration of statutory invalidity of the action taken?

15. It would be appropriate at this stage to examine the relevant Acts and Statutes which govern the affiliation of the colleges in the Meerut University. The Kanpur and Meerut Universities Act 1965 (U. P. Act XIII of 1965), came into force with effect from 21-11-1966. By Sub-section (3) of Section 4 of the Meerut Act all the colleges situate within the area of the Meerut University which at the commencement of the Meerut Act were affiliated to the Agra University and under the Agra University Act 1926 (hereinafter referred to as the Agra Act) from such date as the State Government may by notification in the Gazette appoint in this behalf would be deemed to be affiliated to the Meerut University. It is the common case of the parties that the Vaish College and Dayanand College are situate in the area of the Meerut University under the Meerut Act and before the commencement of the Meerut Act they were affiliated to the Agra University under the Agra Act and that the requisite notification was issued by the State Government under Sub-section (3) of Section 4 of the Meerut Act and they became affiliated to the Meerut University. Though the Meerut Act envisaged by its Section 31 that the first statutes shall be made by the State Government but it appears that no such statutes were made when the Meerut Act commenced. The Meerut Act by its Section 50 (1) (aa) enacts that the State Government may for the purposes of removing any difficulty in relation to the enforcement of the Act by order published in the Gazette direct that all or any of the Statutes or Ordinances made under the Agra University Act, 1926 shall, with such adaptations and modifications, whether by way of addition, amendment or omission, as it may deem to be necessary or expedient, apply in relation to the University for so long as the First Statutes in respect of the same subject-matter are not made under Sub-section (1) of Section 31. The State Government issued a notification dated November 18, 1966, by publication in the U. P. Government Extraordinary Gazette dated November 21, 1966, in exercise of its powers under Clause (aa) of Sub-section (1) of Section 50 of the Meerut Act directing that the Statutes and Ordinances of the Agra University as amended upto date shall apply to the Meerut University for so long as the First Statutes in respect of the same subject-matter were not made under Sub-section (1) of Section 31. Inter alia by the said notification the statutes relating to affiliation and recognition of colleges contained in Chapter XVIII of the Agra University Hand Book 1965-66 were applied.

16. It is further the common case of the parties that at the relevant time when the impugned action was taken by the Management of the respective colleges Statutes contained in Chapter XVIII of the Agra University relating to affiliation and recognition of colleges applied. It is further the common case of the parties that when Sri Laxmi Narain was appointed the Principal of the Vaish College and Sri Suresh Chandra was appointed teacher in the Dayanand College, those colleges stood affiliated to the Agra University and the provisions of the Agra Act and the Statutes framed thereunder were applicable.

17. Section 25-C of the Agra Act by its Sub-section (1) enacts that every teacher in an affiliated college shall be appointed under a written contract which will contain such terms and conditions as may be laid down by the Statutes. Sub-section (2) enacts that every decision by the Management of an affiliated college to dismiss or remove from service a teacher shall be reported forthwith to the Vice Chancellor and subject to provisions to be made by the Statutes shall not take effect until it has been approved by the Vice Chancellor. 'Teacher' as defined in Sub-section (2) (f) in the Agra Act means a teacher of the University or teacher of an affiliated college and includes a Principal. It is not disputed that the provisions of Section 25-C of the Agra Act also applied in the case of a Principal of an affiliated college of Agra University. In the Meerut Act also there are parallel provisions as contained in Section 25-C of the Agra Act, Sub-section (1) of Section 28 of the Meerut Act enacts that every teacher in an affiliated college shall be appointed under a written contract which shall contain such terms and conditions as may be prescribed. Sub-section (3) enacts that every decision by the Management of an affiliated college to dismiss or remove from service a teacher, shall be reported forthwith to the Vice Chancellor and, subject to the provisions contained in the Statutes shall not take effect unless it has been approved by the Vice Chancellor. Here at this stage it is proper to note that in 1964 when Sri Laxmi Narain was appointed permanent Principal of the Vaish College and his appointment was approved by the Vice Chancellor of the Agra University as found by the Courts below, no written contract as contemplated by Sub-section (1) of Section 25-C of the Agra Act was executed but before us the learned counsel for the parties proceeded on the basis that his appointment was in order as if he was appointed under a written contract. It is further important to note that the Vice Chancellor of Meerut University has not yet approved the decision taken by the Management of the Vaish College terminating the services of Sri Laxmi Narain as Principal. In the case of Sri Suresh Chandra, the Geography teacher of Dayanand College who duly executed a written contract, the Vice Chancellor of Meerut University had approved the decision of the Management of the college terminating his services.

18. Reverting to the relevant Statutes relating to affiliation and recognition of colleges contained in Chapter XVIII of the Agra University Statutes which admittedly applied in the two cases out of three before us, it will be found that conditions of service of teachers of affiliated colleges are contained in Statutes starting from Statute 28 and ending with Statute 42. Statute 29-A provides that the Principals and all other members of staff of the colleges shall be appointed on a definite written contract of service which shall embody the specified points mentioned therein and shall be in the form appended at the end of the Chapter. Eight points are enumerated. Clause 4 deals with the grounds on which services can be terminated and mentioned :

(a) Wilful neglect of duty;

(b) Misconduct including disobedience of the orders of the Principal;

(c) Breach of any of the terms of contract;

(d) Physical or mental unfitness;

(e) Incompetence, provided that the pleas of incompetence shall not be used against a teacher after two years of confirmation; and

(f) Abolition of the post with the prior approval of the Vice Chancellor,

and says that they shall be the only grounds on which services can be terminated. Clause 5 provides for three months' notice on either side for terminating the contract or in lieu of such notice the payment of three months' salary except when termination of service takes place under Sub-clause (a), (b) or (c) of Clause 4. It would be noticed that the points which are required to be embodied in the written contract as mentioned in Statute 29-A do not mention the procedure to be adopted for terminating the services of the teacher on the grounds enumerated in Clause 4. Such a provision is made by Statute 30, the material portions of which may now be quoted :--

30. 'Every decision by the Management of an affiliated college, other than a college maintained by Government, to dismiss or remove from service a teacher shall be subject to the provision's of this Statute.

(1) No order dismissing or removing from service a teacher shall be passed unless charge has been framed against the teacher and communicated to him/her with a statement of the grounds on which it is proposed to take action, and he/she has been given adequate opportunity :--

(i) of submitting a written statement of his/her defence;

(ii) of being heard in person, if he/she so chooses; and

(iii) of calling and examining such witnesses in his/her defence as he/she may wish; provided that the Committee of officer authorised by the Managing Committee to conduct the enquiry may, for sufficient reasons to be recorded in writing, refuses to call any witness.

(2) The Committee of Management may at any time, not exceeding two months from the date of the receipt of the teacher's explanation in respect of the charge or charges communicated to him/her, at a meeting convened under its rules pass a resolution dismissing or removing from service a teacher for any one or more of the following grounds:--

(i) Wilful neglect of duty;

(ii) Misconduct, including disobedience to the order of the Principal in the case of the teachers;

(iii) Breach of any of the terms of contract; or

(iv) Incompetence, provided that the plea of incompetence shall not be used against a teacher after two years of confirmation.

(3) The teacher may at any time within 15 days after the passing of such a resolution which shall contain the grounds of dismissal or removal, as the case may be, and which shall be communicated to him/her forthwith, apply to have the decision of the committee of Management reviewed by it at a subsequent meeting, and the Committee shall on receipt of such an application be summoned to a second meeting within one month of the receipt of such an application. At such a meeting the teacher may submit an additional statement of his/her case and shall, if he/she so desires, be allowed to appear before the Committee in person to state his/her case and to answer any question that may be put to him/her by any member present at the meeting. If the teacher does not apply to have the resolution of the Committee reviewed, or if the resolution is confirmed by the Committee at subsequent meeting by a two-thirds majority of the members present, further notice of dismissal or removal from service need not be given to the teacher but he/she shall be given a copy of the resolution passed at such a meeting.

(4) The Committee of Management may, instead of dismissing or removing from service the teacher, pass a resolution inflicting a lesser punishment by reducing the pay of the teacher for specified period or by stopping increments of his/her salary for a specified period and/or may deprive the teacher of his/her pay during the period, if any, of his/her suspension. The teacher in such a case also shall be entitled to apply to have the resolution of the Committee reviewed as provided above, and if he/she is not satisfied with the decision of the Committee, he/she may appeal to the Vice Chancellor for reconsideration of his/her case and the decision of the Vice Chancellor shall be final. The resolution of the Committee punishing the teacher shall operate only when and to the extent approved by the Vice Chancellor.

X X X X(10) Every decision of the Management about the dismissal or removal from service of a teacher shall be reported forthwith, along with a complete report and all connected papers, to the Vice Chancellor who shall consider whether the provisions of the above Statutes have been complied with. If he is satisfied that the provisions of the Statute have not been complied with or that the grounds on which the teacher has been dismissed or removed from service are not adequate, he will disapprove of the decision of the Managing Committee. The decision of the Vice Chancellor shall be communicated to the Management within six weeks of the receipt of the proposal for compliance. If, however, the Vice Chancellor feels that any particular point needs clarification, he may call upon the Committee of the Management and the teacher concerned to give the necessary clarification before giving his decision. The decision of the Managing Committee will operate only if and when approved by the Vice Chancellor.'

19. Sri S. N. Kacker and Sri Jagdish Swarup on behalf of the Management of the respective colleges submitted that Subsection (2) of Section 25-C of the Agra Act and the parallel provision contained in subsection (3) of Section 28 of the Meerut Act and the Statute 30 of Chapter XVIII of Statutes of Agra University by themselves do not have the force-of law so as to regulate the relationship between the management and the teacher and do not confer upon the teacher any enforceable legal right until and unless they are incorporated in the terms of written contract between the teacher and the Management as envisaged by Sub-section (1) of Section 25-C of the Agra Act or Subsection (1) of Section 28 of the Meerut Act. It was their submission that those provisions being a part of the written contract any breach thereof by the Management would amount merely to a breach of contract and not to the breach of any statutory duty imposed by law. To put in different words breach of the said provisions by the Management will not amount to a breach of law making the action null and void entitling a teacher to a declaration or injunction. Reliance was placed mainly on a decision of the Supreme Court in the case of : (1972)ILLJ442SC in support of the submission that the; provisions of Statute 30 and Sub-section (2) of Section 25-C of the Agra Act or the parallel provisions of Meerut Act have pro-prio vigore no force of law, the relationship between the parties being purely contractual and the Management of the college not being a statutory body, the case of the teacher did not fall in any of the exceptions laid down by the Supreme Court in the case of : (1964)ILLJ1SC .

20. Sri Shanti Bhushan appearing for Laxmi Narain, Principal of Vaish College and Sri Raja Ram Agarwal, appearing for Suresh Chandra, the teacher of Dayanand College, contended in reply that in accordance with the law declared by the Supreme Court in the case of : [1965]2SCR713 despite the teacher of the affiliated college of the Meerut University having been appointed under a written contract the provisions of Statute 30 and of Sub-section (3) of Section 25-C of the Agra Act or Sub-section (3) of Section 28 of the Meerut Act will have the force of law and the relationship between the parties cannot be said to be purely contractual, the conditions of service being governed and regulated by law and the teacher would be entitled to a declaration or injunction as the Management constituted by the University Acts and the Statutes made thereunder functioning as a Statutory body in terminating the services of the Principal or the teacher violated those provisions thus the teacher's claim being based on breach of the Statute, the order of termination was liable to be declared null and void and the case squarely fell within the third exception formulated by the Supreme Court in S. R. Tewari's case.

21. Sri Shanti Bhushan advanced a further argument on behalf of Laxmi Narain, Principal of Vaish College, based on Subsection (2) of Section 25-C of the Agra Act and the parallel provisions contained in subsection (3) of Section 28 of the Meerut Act. He contended that the rule enacted in the said provisions was not a condition of service but a limitation imposed on the power of Management binding on it, therefore, the Vice Chancellor not having approved of the action taken by the Management, the termination never became effective, at any rate is not yet effective and the Principal was entitled to an injunction or a declaration to that effect. Sri Kacker for the Management refuted this contention, without prejudice to his main argument mentioned above and submitted that even without the approval of the Vice Chancellor the termination of the service by the Management factually brought to an end the relationship of master and servant between the parties and at worst it will be a wrongful act on the part of the Management and not a breach of law as the failure on the part of the Management to perform its duty to send for approval its resolution of termination to the Vice Chancellor would not give any enforceable right to the Principal and will only result in disaffiliation of the college at the discretion of the University. Learned counsel said that mere absence of approval by the Vice Chancellor will not make the actual termination of service non est as there was a de facto end of the relationship of master and servant when the Management passed the resolution terminating the service of the Principal and since then he was excluded from his office and did not do any work for the college as Principal. Two cases were cited in this connection -- S. N. Awasthi v. President, K. A. Degree College, 1971 All LJ 1105 = (1972 Lab IC 272) and Francis v. Municipal Councillors, (1962) 3 All ER 633.

22. In Awasthi's case, 1971 All LJ 1105 = (1972 Lab IC 272) the Higb Court considered the effect of Clause (d) of the First Statute 6.06 of the Kanpur University. It reads as follows:--

'The Management may, before or at the end of the period of probation (including the extended period, if any), terminate the services of a teacher of the College if his work or conduct is not considered satisfactory.Provided that prior permission of the Vice Chancellor shall be necessary.'

The probationary service of Awasthi, a teacher in the K. A. Degree College affiliated to Kanpur University were terminated by the Management of the College without obtaining the prior permission of the Vice Chancellor of the Kanpur University. It was held that the resolution of the Managing Committee in effect terminated the services of the teacher and the termination being without prior permission of the Vice Chancellor the resolution made in contravention of the Statutes 6.06 (d) was invalid. It was submitted by Sri Kacker that though the prior permission of the Vice Chancellor was necessary under the Statute yet it was held that the resolution of the Management effectively terminated the services. It is difficult to appreciate how the decision in Awasthi's case supports the proposition, as the High Court struck down the resolution holding it invalid. In fact the observations in paragraph 7 of the reported judgment at page 1109 relied upon by Sri Kacker were made to repel an argument on behalf of the Management that there was automatic cessation of the services of the teacher as his probation which was for two years was never extended and the so-called resolution was of no consequence.

23. In the case of (1962) 3 All ER 633 the Privy Council considered Section 16 (5) of an Ordinance empowering the President of the Municipal Council to remove persons from office appointed on a commencing salary of dollars 200 a month subject to the approval of the councillors. There is nothing in the decision of the Privy Council in the case cited which may be of any assistance to Sri Kacker as the decision turned on the finding that Francis was not removed from service by the President was entitled to damages as his services were actually put to an end by the councillor who were the employers by confirming the decision of the Establishment Committee who terminated the service of Francis. Sri Kacker attempted to draw assistance from the decision of the Privy Council in Francis's case on the ground that though termination of service was not in accordance with the law yet the termination was held effective as the Councillors who were the employers by confirming the decision of establishment Committee, a body not authorised to terminate the service, put an end to the relationship of master and servant. The submission was that the Management of the Vaish College being the employer passed a resolution terminating the service of the employee and no matter the requirement of the law was that the termination should receive the approval of the Vice Chancellor, it would still be effective and if found wrongful would only entitle the Principal to claim damages.

24. Sub-section (2) of Section 25-C of the Agra Act and the parallel provision in Sub-section (3) of Section 28 of the Meerut Act lay down that a decision by the Management of an affiliated college to dismiss or remove from service a teacher shall not take effect until it has been approved by the Vice Chancellor. In the cases cited by Sri Kacker the Courts had no occasion to consider any such provision of law. That a decision would be subject to the approval of some person or authority is not the same thing as saying that a decision shall not take effect until it has been approved by some person or authority. It cannot be doubted, assuming the abovesaid provisions of the Agra Act and the Meerut Act have force of law and apply independent of the written contract, the dismissal or removal from service of a teacher by the Management of an affiliated college will not take effect until the happening of an event indicated in the said provisions, that is, the approval by the Vice Chancellor. The question whether these provisions by themselves do not regulate the terms and conditions of service of a teacher of affiliated college and acquire vitality and force only when they become a part of service contract is yet to be determined.

25. It was also suggested by the learned counsel for the Management of the colleges that the relationship between the Management and its teachers being wholly contractual the teachers did not enjoy any status as being occupant of any public office or the holder of any office protected by any provision of law. This argument was refuted by the learned counsel appearing for the teachers on the submission that under the scheme of the University Acts and the Statutes the teachers and the Principals are holders of office of status as such, as the provisions of the law protect their office and give them security of tenure.

26. The important question then arises for consideration is whether such terms and conditions of service of the teacher of an affiliated college as find mention in Statute 30 or Section 25-C (2) of Agra Act or Section 28 (3) of the Meerut Act have proprio yigore force of law. For the teachers, as said above, it was contended that to the nature and character of their employment under the scheme of the Act and the Statute applicable the ratio of Jodh's case : [1965]2SCR713 decided by the Supreme Court fully applied while on behalf of the Management it was contended that the ratio of Vidyaram Misra's case : (1972)ILLJ442SC applied. The learned counsel for the Management even went to the extent of submitting that the decision of the Supreme Court in Vidayaram Misra's case will be deemed to have overruled their earlier decision in Jodh's case, a proposition which is very difficult to accept. In Vidyaram Misra's case the learned Judges of the Supreme Court noticed their previous decision in Jodh's case and distinguished it but did not even remotely hint that Jodh's case was not correctly decided. It is not possible, therefore, to hold that the decision in Jodh's case stands overruled and the law declared therein is no longer good law and binding. Rather a perusal of the judgment of the Supreme Court in Vidyaram Misra's case clearly shows that the principle of law as formulated in Jodh's case was not disapproved but it was not found applicable to the facts in Vidyaram Misra's case as the scheme under the Lucknow University Act and the Statutes applicable to the Associate Colleges of Lucknow University was found to be different in comparison to the scheme under the University of Saugar Act and the Ordinances made thereunder.

In Jodh's case it was held by the Supreme Court that Clause 8 (vi) (a) of the College Code (Ordinance 20) framed by the University requiring the Governing Body of the College not to terminate the service of any teacher confirmed in the service of the college without following the procedure mentioned therein despite the fact that the teachers of the colleges were duly appointed on a written contract, conferred .a legal right on the teachers of the affiliated colleges. The argument that the college Code merely regulated the legal relationship between the affiliated colleges and the University and it imposed only contractual terms and conditions of service was repelled. In Vidyaram Misra's case the Supreme Court found that on a plain reading of Statute 151 of Lucknow University it was manifest That all the terms and conditions of service of a teacher must be incorporated in the contract to be entered into between the college and the teacher concerned and did not say that the terms and conditions have any legal force without being embodied in an agreement, therefore, without the contract they had no vitality or conferred any legal right. The learned Judges emphasised more than once in the course of their judgment that Statutes did not specify any procedure for removal of a teacher independently of the contract and the terms and conditions mentioned in Statute 151 had no efficacy unless they were incorporated in a contract. Thus two principles of law emerge from the decisions of the Supreme Court in, Jodh's case and Vidyaram Misra's case; (1) Where any provisions of an Act, Statute or Ordinance relating to the conditions of affiliation of colleges to a University on their own force, that is, proprio vigore are enforceable, no matter the teacher of the affiliated college is required to be appointed under a written contract he will have an enforceable right entitling him to declaration of statutory in validity of any action taken against him in violation of such provisions affecting his employment and; (2) Where the University Act, Statutes or Ordinances relating to affiliation of colleges to a University require certain specified terms and conditions to be incorporated in a written contract to be jentered into between the Management of the affiliated college and its teacher at the time of appointment, and nothing else remains affecting the conditions of service which is not wholly governed by the contract, then anything done by the Management of the affiliated college adversely affecting the teacher in respect of his employment would amount only to a breach of contract actionable in damages.

27. The problem, therefore, in the cases before us reduces to this: Whether Sub-section (1) of Section 25-C and the relevant Statutes contained in Chapter XVIII of the Statutes of Agra University relating to the terms and conditions of affiliation require the provisions of Statute 30 and the provisions of Sub-section (2) of Section 25-C of the Agra Act to be incorporated in the written contract? Do they indicate that the same would not have any legal force unless a written contract containing such terms and conditions was executed? That is to say, whether Statute 30 and Sub-section (2) of Section 25-C of the Agra Act have the same character as Clause 8 (vi) (a) of the College Code framed under the University of Saugar Act conferring an enforceable legal right on the teacher or are they merely in the nature of terms and conditions required to be incorporated in the written contract?

28. Before examining the above propositions an argument raised on behalf of the Management to the effect that the Statutes or Ordinances framed under the Meerut Act in regard to conditions for affiliation of colleges operate only in the field of relationship of the affiliated college with the University and any breach thereof by the Management of the affiliated college will only visit the affiliated college with ths penalty of disaffiliation at the discretion cf the University and will not give any right to a teacher which could be enforced before a Court of law though such breach by the affiliated college affects the teacher prejudicially, has to be considered. In Jodh's case the Supreme Court does not appear to have accepted the argument so 'widely as stated above. The learned Judges : [1965]2SCR713

'I! is not disputed on behalf of the respondents that the 'College Code' has been made by the University in exercise of iU Statutory power conferred by Section 32 and under Section 6 (6) of the Act. It is also conceded on behalf of the respondents that the College Code is not ultra vires of the powers of the University contained in Section 32 and Section 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 right on the teachers of affiliated colleges and it is not the correct proposition to say that the College Code merely regulates the legal relationship between the affiliated colleges and th 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 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 prov ides that all teachers of affiliated colleges shall be appointed on a written contract in the form prescribed Sd. 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 arc 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 teacher's 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.'

29. From what is quoted above it is manifest rhat the Supreme Court took the view that as Ordinance 20 was made by the University in exercise of the statutory power laying down the terms and conditions of services of the teachers relating to their pay and scale and security of tenure properly fell within the statutory power of affiliation granted to the University under the Act and, therefore, they had the force and effect of law. The Supreme Court deliberately rejected the proposition that Ordinance 20 merely regulated the legal relationship between the affiliated colleges and the University alone. They further did not agree with the High Court that the provisions of Ordinance 20 constituted power of management. They also repelled the contention that as Clause 7 of the Ordinance provided that all teachers of affiliated colleges shall be appointed on a written contract in the form prescribed the teachers had merely a contractual remedy against the governing body of the college.

30. Then relying upon the decisions of the Supreme Court in : (1970)ILLJ32SC and : (1971)ILLJ496SC it was argued by the learned counsel for the Management of the Colleges that though the statutes were framed under the Agra Act laying down the terms and conditions of relationship between the affiliated college and its teachers any order made in breach of such statutes would not amount to breach of any statutory obligation entitling the teacher to a declaration and at worst the resolution of termination passed by the Management of the college would only be a breach of contract making the management liable for damages. It is important to note that in the two cases, Warehousing Corporation : (1970)ILLJ32SC and Indian Airlines : (1971)ILLJ496SC the Supreme Court held that the relevant regulations framed by the Corporations had no statutory force. Since Jodh's case was not noticed in these cases, it cannot be said that the declaration of law in Jodh's case is no longer -good and binding. In the cases before us the teachers stand on a stronger footing. The Statutes under [Chapter XVIII of the Agra University Statutes which are applicable were not framed by the Meerut University. The Meerut Act by its Section 50 (1) (aa) enforced it. In fact these Statutes were substituted for the First Statutes of the University which up to that time had not been framed. It is not disputed on behalf of the Management that the First Statutes will always be a part of the Act and enforceable as such. It is difficult then to agree with the contention that the Statutes under Chapter XVIII of the Agra University Statutes will not have the same force as the provisions of the Act. Statutes under Chapter XVIII, therefore, bear no resemblance to the regulations made by the Warehousing Corporation or the Indian Air Lines Corporation.

31. To surmount the above formidable difficulty Sri Kacker for the Management of the Vaish College went so far as to submit that the provisions of Section 50 (1) (aa) of the Meerut Act were ultra vires as they suffered from the vice of excessive delegation of legislative power to the Executive. There is hardly any tenability in this contention. What was provided by Clause (aa) of Sub-section (1) of Section 50 of the Meerut Act was that the State Government may, for the purposes of removing any difficulty in relation to enforcement of the Act direct that all or any of the Statutes or Ordinances made under the Agra University Act, 1926 shall with such adaptation and modifications whether by way of addition, amendment or omission as it may be deemed to be necessary or expedient, apply in relation to the University for so long as the First Statutes in respect of the same subject-matter are not made under Sub-section (1) of Section 31. Sri Kacker submitted that it has been left to the sweet-will and unguided discretion of the State Government to apply any Statute or Ordinance under the Agra Act with any kind of addition, amendment or omission as the State Government thought necessary or expedient and that amounted to excessive delegation of legislative power. Reference was made to Jalan Trading Co. v. Mill Mazdoor Sabha : (1966)IILLJ546SC , wherein the Supreme Court struck down Section 37 of Payment of Bonus Act, 1965 on the ground that it exceeded the permissible limit of delegation of legislative authority. It was found that the section authorised the Government to determine for itself what the purposes of the Act were and to make provisions for removal of doubts and difficulties which was the function of the Legislature and the power to remove the doubts and difficulty by altering the provisions of the Act would in substance amount to exercise of legislative function which could not be delegated to an Executive Authority. There is no analogy between the invalid Section 37 of the Payment of Bonus Act, 1965 and Clause (aa) of Sub-section (1) of Section 50 of the Meerut Act. Here the difficulty is indicated by the Legislature itself, that is, non-framing of the First Statutes of the University. The State Government is not empowered to amend or modify the provisions of the Meerut Act after forming an opinion what the purpose of the Act was and what difficulty was to be surmounted. Here the difficulty indicated is obvious. The Meerut Act could not be worked out unless the First Statute had been framed along with it. That was the difficulty. The Statute and Ordinances under the Agra Act were already known and any of them were only left for mechanical application with the necessary adaptations and modifications. No doubt some choice was left with the State Government as to what addition, amendment or omission is to be resorted to for adapting the Statutes of Agra University but that would not amount to excessive delegation of legislative authority. See Re: The Delhi Laws Act, AIR 1951 SC 332. The attack on the vires of Clause (aa) of Sub-section (1) of Section 50 thus fails. The Statutes of Chapter XVIII of the Agra University cannot, therefore, be equated with the regulations made by the Warehousing Corporation or the Indian Airlines Corporation.

32. For the Management the argument that even if the Statutes under Chapter XVIII of Agra University be deemed to be part of the Meerut Act still they will operate only in the field of affiliation was again reiterated. Reference was made to two Supreme Court decisions (1) Km. Re-gina v. St. Alloysius High School : AIR1971SC1920 and (2) Dr. Rampal Chaturvedi v. University of Rajasthan : [1970]2SCR559 . In Km. Regina's case the Supreme Court found that part II, Rules relied upon by Km. Regina as binding on the respondent School having not been framed under Section 56 of the Madras Elementary Education Act, 1920 had no statutory force and then held that nothing in those rules conferred upon an aggrieved employee of a school any right enforceable at law in the event of the Management of an Elementary School refusing to comply with those rules which, inter alia, enjoined upon a school, to abide by the directions given thereunder by the Education Officers of the Government named therein. The ratio of the decision in Km. Regina's case is, therefore, not attracted in the circumstances of the case before us. In the case of (1970) 1 SCC 75 the decision of the Supreme Court turned on the fact that mere appointment of some Professors and Principal in the Faculty of Medicine of the University ignoring the provisions of Ordinance 65 framed by the University laying down minimum qualifying experience in service cculd not render the appointments invalid as those appointments were validly made under the rules framed by the Governor under Article 309 of the Constitution and Dr. Rampal Chaturvedi had no right to approach the High Court by means of a petition for a writ of quo warranto. The ratio of this case also does not, therefore, help the Management of the colleges.

33. In both the above cases cited on behalf of the Management certain observations were made that the provisions on which the petitioners relied pertain to the sphere of recognition and affiliation but that circumstance was not made the basis of the decision. In Km. Regina's case : AIR1971SC1920 the specific rule relied upon by the petilioner was not found to have any force of law on an examination of the entire scheme of the Madras Education Act. In Dr. Rampal Chaturvedi's case the Supreme Court did not examine the true nature of Ordinance 65 framed by the Rajasthan University, as it found the impugned appointments justified under the rules framed by the Governor under Article 309 of the Constitution, which had an overriding effect.

34. Reverting to the main argument, it was next contended on behalf of the Management of the colleges that even though the Statutes in Chapter XVIII of the Agra University Statutes may have derived their force from Section 50 (1) (aa) of the Meerut Act yet they will not confer any enforceable right on the teacher or the Principal as Statute 29-A has the effect of making the conditions of service of teacher of affiliated colleges contractual. It was submitted that Section 25-C(1) of the Agra Act required a written contract which will contain such terms and conditions as may be laid down by the Statutes, so all those provisions in Chapter XVIII which answer to the definition of terms and conditions of service will form a part of the written contract. It was further emphasised that the duty imposed on the Management and the power of approval to be exercised by the Vice Chancellor under Sub-section (2) of Section 25-C of the Agra Act have been subjected to provisions to be made by the Statutes hence it is the Statutes which will prevail over the section and since the matter of approval by the Vice Chancellor also comprises one of the terms and conditions of service, it will also become a part of the contract. In other words, the submission was that no matter pertaining to terms and conditions of service of a teacher or Principal of an affiliated college is left to be governed and regulated by the provisions of the Act or the Statutes independently of the contract as every term and condition of service has to be reduced into a contract.

35. Sub-section (1) of Section 25-C of the Agra Act says that every teacher in an affiliated college shall be appointed under a written contract which will contain such terms and conditions as may be laid down by the Statute. The plain meaning of the language used is that whatever terms and conditions which the Statutes lay down f' being embodied in the written contract will form the part of the written contract undei which the teacher in an affiliated college would be appointed. The statutes have to be seen for finding out the terms and conditions that shall form part of the written contract. It is not possible to give the meaning to the language of Sub-section (1) that, whatever pertains to terms and conditions of service of a teacher in the Statutes shall form part of the written contract. It is only those terms and conditions of service which the Statutes requires to be embodied in the written contract that will form part of the contract As akeady pointed out above, Statute 29-A of Chapter XVIII specifies the points pertaining to the condition of service of teachers of affiliated colleges for being reduced into a definite written contract of service and the model form of such written contract is also prescribed. Once a document pertaining to the permanent service is executed embodying the points specified under Statute 29-A it will answer the requirements of Sub-section (1) of Section 25-C of The Agra Act. Eight points have been enumerated in Statute 29-A of Chapter XVIII. None of the eight points mentioned as terms or conditions of service cover the conditions found in Sub-section (2) of Section 25-C or Statute 30 of Chapter XVIII. Thus the Statute 29-A does not lay down that what is contained in Sub-section (2) of Section 25-C and Statute 30 must form part of the written contract.

36. The form of agreement appended at the end of Chapter XVIII which is required to he followed for members of the staff other than the Principal in an affilated college does not contain any clause in the nature of the provisions found in Statute 30 though there is a Clause (11) to the effect that the decision of the college Management to dismiss the teacher shall not take effect unless it has been approved by the Vice Chancellor in accordance with the provisions of Section 25-C (2) of the Act. In the form of agreement with the Principals of the affiliated colleges appended at the end of Chapter XVIII. Clauses 11, 12 and 13 are relevant. They are reproduced for convenience of reference:--

'11. That the services of the Principal shall not be terminated except by a resolution of the Managing Committee passed in a meeting of the Committee expressly called for the purpose and attended by at least two-thirds of the total membership and such resolution to be effective must be passed by two thirds majority of the members present.

12. That before such a resolution is passed, the Principal shall be acquainted in writing with the grounds on which it is proposed to remove him and he shall be given enough time (not less than 15 days) to submit his explanation which shall be duly considered by the Managing Committee before the decision of removal is taken. The Principal shall also have the right to be personally present at the meeting of the Managing Committee to explain his case but he shall withdraw from the meeting when the vote is taken.

13. That the resolution of the Managing Committee removing the Principal shall operate only when approved by the Vice-Chancellor'.

37. Statute 30 says that every decision of the Management of an affiliated College to dismiss or remove from service a teacher shall be subject to the provision of that Statute. It is not disputed that Principal is included within the word 'teacher' in the said Statute. Worded as it is the Statute has an overriding effect. An order of dismissal or removal from service of a teacher by the Management of an affiliated college cannot be made unless the provisions of the said Statute have been complied with. The provisions contained in Statute 30 are not a part of the contract of a teacher. Neither Statute 29-A provides for it nor the appended model form. Non-compliance with the provisions of Statute 30 by the Management would not amount to a breach of contract as the provisions of the Statute 30 are not the terms and conditions of the written contract. The question is whether Clause (12) mentioned above in the form of agreement with the principals of colleges excludes the Principal from taking benefit of the provisions of Statute 30 in the matter of his removal from service. A comparison of Clause (12) with Statute 30 will show that while Clause (12) of the agreement does not give the principal the right of cross-examining witnesses if he so chooses and of calling and examining such witnesses in his defence as he may wish and the right of review and asking the Management to inflict a lesser punishment and so on, while Statute 30 confers all these benefits. If in the case of a Principal Statute 30 is held to be superimposed by Clause (12) of the agreement, then the Managing Committee even without affording an opportunity to the Principal of cross-examining the witnesses and of calling and examining the witnesses in his defence, may terminate the services of the Principal after meeting the requirements of Clause (12) and the Principal will have no remedy. Thus the Principal will have lesser protection than a teacher. For the same reason the mere inclusion of clauses in the agreement of the Principal and the teacher that the dismissal will not take effect till approved by the Vice Chancellor will not mean that the provisions of Sub-section (2) of Section 25-C of the Agra Act will lose their efficacy as a rule of law and become contractual. To the phrase 'subject to the provisions to be made by the Statute' occurring in Sub-section (2) of Section 25-C it is not possible to give the meaning that merely because Statute 29-A required a definite written agreement embodying specific points, the contract superimposes itself and Sub-section (2) of Section 25-C of the Agra Act no longer remains operative proprio vigore. The position that emerges out, therefore, is that despite the requirements of a teacher of an affiliated college being appointed under a written contract containing such terms and conditions as may be laid down by the Statutes the provisions of Sub-section (2) of Section 25-C of the Agra Act and Statute 30 of Chapter XVIII continue to govern and regulate the terms and conditions of service of the teacher in the matter of termination of his services by the Management of the affiliated college and any breach of the provisions thereof will be a breach of law and not merely a breach of contract. The present cases, therefore, fall within the rule of law of Jodh's case and Vidyaram Misra's case will have no application, inasmuch as in the case of Lucknow University the relevant provisions of the Act and the Statutes did not leave out anything pertaining to terms and conditions of a teacher of an associated college which was not required to be reduced in the form of a contract. In the case of teachers of the associated college of Lucknow University as found by the Supreme Court the right of a teacher was purely a contractual right unprotected, unregulated and uncontrolled by any provision of law independent of the contract.

38. Having held above that the provisions of Statute 30 of Chapter XVIII and Sub-section (2) of Section 25-C of the Agra Act control and regulate the service conditions of the teacher of the affiliated college independently of written contract, the answer to the question whether the relationship between a teacher and the Management of an affiliated college is that of pure master and servant, that is to say, wholly contractual will be obvious. As pointed out by the Supreme Court in Jodh's case such provisions are made by the University in exercise of its powers of affiliation granted by law to the University and are made with the object of affording protection to the teachers of the affiliated college against any arbitrariness of the Management in the interest of efficiency in the field of education. When a college is admitted to the privilege of affiliation or association with the University, its Management is bound by the conditions of affiliation imposed by the University under the Act incorporating such University and the Management cannot be heard to say with impunity that though it has not complied with the conditions thus imposed and at its sweet-will has put an end to the service of the teacher, will pay damages to him if the termination is found to be wrongful. The law declared by the Supreme Court in Jodh's case clearly lays down that where the services of a teacher are terminated in the breach of the provisions of the Act or the Statutes of the University which proprio vigore can be enforced independent of the contract the teacher will have an enforceable right. In Vidyaram Misra's case it has been held that where the provisions of the Act or Statutes of the University themselves provide that all that pertains to the terms and conditions of service will be reduced into a written contract, then the only remedy of the teacher is by way of suit for damages as the termination of his service in the breach of the terms and conditions of his service would merely amount to breach of contract. To that extent the rule of law laid down by this Court in the case of Dr. Puri v. Meerut University is no longer good law as the Supreme Court has not recognised the doctrine whereby parties are required to enter compulsorily into a contract embodying the terms and conditions laid down by that law, then the relationship is not that of pure master and servant and any breach of the terms and conditions of service would amount to a breach of law.

39. The matter can be examined from another angle. It was argued by Sri Shanti Bhushan for the Principal of the Shamli College that the right flowing from Section 25-C (2) of the Agra Act and the parallel provisions of Section 28 (3) of the Meerut Act in favour of the teacher is a legal right independent of the rights flowing from the written contract. He further submitted that the same is the position with regard to the rights conferred by Statute 30 of Chapter XVIII of the Agra University Statutes. Submission was that the teacher enjoys an immunity or a protection and no decision of the Managing Committee dismissing or removing him can be taken without complying with Statute 30 and it will be effective only when approved by the Vice Chancellor. The object, the fulfilment of which the said provisions manifest, is that the disruption of the relationship of employer and the employee between the Management and the teacher cannot take place without first fulfilling the duty imposed on the employer and further only when a third party that is, the Vice Chancellor assents to it. The act of assent or approval by the Vice Chancellor is not and cannot be part of the contract between the employer and the employee but it is a super-imposition by law outside the contract. There appears to be great tenability in this contention. On behalf of the Management it was, however, submitted as pointed out above that dismissal or removal from service of a teacher by the Management of an affiliated college no doubt shall not take effect until it has been approved by the Vice Chancellor but this section makes it subject to the provisions to be made by the Statutes and since the Statutes prescribe for the terms and conditions of service to be embodied in a written contract, the act of the approval by the Vice Chancellor in order to give effect to the dismissal or removal of teacher becomes a part of the contract of service. It is difficult to agree with this submission. No statute can reduce the necessity of approval by the Vice Chancellor to a mere contract between the Management and the teacher as that would imply that the parties can contract themselves out of it and render the Act nugatory. Such a term in the contract will be illegal.

40. The phrase 'subject to provisions to be made by the Statute' occurring in Section 25-C (2) will only mean that the manner of reporting of the decision by the Management of an affiliated college to dismiss or remove from service a teacher and the manner of approval by the Vice Chancellor is to be regulated and con trolled by the Statute. Clause (10) of Statute 30 of Chapter XVIII lays down the manner and the procedure in this respect. It provides that the decision of the Management about dismissal or removal from service of a teacher shall be reported forthwith along with a complete report and all connected papers to the Vice Chancellor who shall consider whether the provisions of the above Statutes have been complied with. It is significant to note here that the Vice Chancellor is enjoined to consider whether the provisions of the Statute are complied with and not whether the terms of the written contract have been complied with. If the Vice Chancellor is satisfied that the provisions of the Statute have not been complied with and the grounds on which a teacher has been dismissed or removed from service are not adequate he will disapprove the decision of the Managing Committee. The decision of the Vice Chancellor shall be communicated to the Management within six weeks of the receipt of the proposal for compliance. If, however, the Vice Chancellor feels that any particular point needs clarification, he will call upon the Committee of the Management and the teacher concerned to give the necessary clarification before giving his decision. The decision of the Managing Committee will operate only if and when approved by the Vice Chancellor. Thus Clause (10) of Statute 30 which as held above is not an essential part of the written contract contemplated by Statute 29 (A), when it says that the resolution of the Committee punishing the teacher shall operate only when and to the extent approved by the Vice Chancellor reinforces what is provided by the Act. The Committee of Management and the Vice Chancellor have to act within the ambit of the said Clause and this is what is meant by subjecting the taking of effect of the decision on the approval of the Vice Chancellor to the Statute and nothing more.

41. The provisions of Statute 30 appear to be basically founded on the well established principles of natural justice for affording adequate and reasonable opportunity to the teacher accused of misconduct. There appears to be force in the submission of the learned counsel appearing for the teachers that it could not have been the intention of the framers of the Act and the Statutes that any breach of the rules of natural justice as embodied in Statute 30 would be merely a breach of contract. This reinforces the conclusion that Statute 30 was not intended to be merely an essential ingredient of the terms and conditions of the contract.

42. To sum up this part of the case it is clear that Section 25-C (2) of the Agra Act, (parallel Section 28 (3) of the Meerut Act) and the Statute 30 of Chapter XVIII of the Agra University Act are proprio vigore enforceable and any breach of any terms thereof will be breach of Statute and not a breach of contract.

43. The next important question that remains to be considered is the nature and status of the Committee of Management or the colleges concerned. Relying on : (1972)ILLJ442SC (supra) the learned counsel for the Colleges contended that the Committee of Management of the Colleges concerned is merely a private body and not a Statutory body. Paragraph 13 at page 1455 of the report : (1972)ILLJ442SC was referred. The Supreme Court observed :--

'Besides, in order that the third exception to the general rule that no writ will lie to quash an order terminating a contract of service, albeit illegally, as stated in : (1964)ILLJ1SC might apply, it is necessary that the order must be the order of a statutory body acting in breach of a mandatory obligation imposed by a Statute. The college, or the Managing Committee in question, is not a statutory body and so the argument of Mr. Setalvad that the case in hand will fall under the third exception cannot be accepted. The contention of counsel that this Court has subsilentio sanctioned the issue of a writ under Article 226 to quash an order terminating services of a teacher passed by a college similarly situate in : [1965]2SCR713 and, therefore, the fact that the college or the managing committee was not a statutory body was no hindrance to the High Court issuing the writ prayed for by the appellant has no merit and this Court expressly stated in the judgment that no such contention was raised in the High Court and so it cannot be allowed to be raised in this Court.' (Underlining is mine).

44. A reading of the above quoted extract would show that no question was raised in Vidyaram Misra's case : (1972)ILLJ442SC that the Managing Committee of S. N. I. College was a Statutory body. An argument was advanced on the footing that though it was not a statutory body yet in Jodh's case that fact that the Managing Committee of the College being a non-statutory body was not considered as hindrance to the High Court issuing a writ, therefore, the Supreme Court would be deemed to have subsilentio sanctioned an issuance of a writ against a non-statutory body. This argument was repelled. Can it be said then that the observation of the Supreme Court 'the college, or the Managing Committee in question, is not a statutory body', in a declaration of law to the effect that the Managing Committee of the Colleges affiliated to all the Universities are non-statutory bodies? No legal principle or doctrine can be evolved from the said observation of the Supreme Court. It is at best a declaration of fact that the Managing Committee of the S. N. J. College was not a statutory body. Since it is only a declaration of law which is binding on all courts under Article 141 of the Constitution and not a declaration of fact, the learned counsel for the Management cannot press into service Article 141 of the Constitution. The said observation also cannot be binding as a precedent inasmuch as the question was not raised before the Supreme Court that the Managing Committee of the S. N. J. College was a statutory body. Therefore, the decision of the Supreme Court in : (1972)ILLJ442SC (supra) does not hinder the examination of the question whether the Managing Committee of the colleges concerned in the case before us can be said to be a statutory body within the meaning of the third exception laid down by the Supreme Court in Sri Nath Tiwari's case : (1964)ILLJ1SC .

45. It is admitted that the Shamli College is owned by a Registered Society. Similarly the Dayanand College, Dehradun is owned by a Registered Society. The Governing Body of either of the two institutions certainly will not be a statutory body. It was urged that the Governing Body of each of the two colleges or any smaller body appointed by it under its registered rules to manage the college will also not be a statutory body as a statutory body is that body which is created by a Statute. For the teachers it was submitted that the Committee of Management of an affiliated college in its constitution, composition and functions is not a body of persons coming into existence under the rules of the Registered Society but is a body of persons having a separate composition and is constituted by the University Act and the Statutes.

46. Statute 14 of Chapter XVIII of the Agra University Statutes by its Clause (c) lays down that a college applying for affiliation to the University in any faculty shall be required to satisfy the Vice Chancellor with regard to that it is suitably organised, is under proper Management and the constitution of the Managing Committee provides (1) for the Principal of the College to be an ex-officio member of the Managing Committee of the college; (2) for the representation of the teacher on the Managing Committee, one teacher who is to be head of his Department to be chosen on the Managing Committee in order of seniority in the college by rotation for one academic season. Statute 7.03 of the First Statute of the Meerut University by its Clause (d) requires the satisfaction of the Vice Chancellor as to the constitution of the Management of the proposed college to be so broad-based as to include members from different interested groups who can be relied upon to take an enlightened interest in the affairs of the college and it further provides for representation on the Management of (1) the Principal of the college, an ex-officio member (2) the senior most teacher (judged by length of service as a teacher in the college concerned) (3) two persona nominated by the Executive Council for a term of five years. Then by Clauses (e), (f) and (g) placed certain limitations as to its membership and constitution. For the purpose of the cases referred it is the Statute 14 of Chapter XVIII of the Agra University Statutes which applies vide Section 50 (J) (aa) of the Meerut Act.

47. Under Section 5 (ii) of the Meerut Act a power has been conferred on the University to admit to the privileges of affiliation under the prescribed conditions any college situate within the area of that University. Section 2 (a) of the said Act defines an affiliated college as being an institution affiliated to the University in accordance with the provisions of the Act and the Statutes of the University. In Clause (i) of Section 2 of the Meerut Act the Management 'means' the Managing Committee or body charged with managing the affairs of an affiliated college. Chapter XVIII of the Agra University Statutes prescribes the conditions for admitting any college to the privileges of an affiliation to the University. One of the conditions prescribed in Chapter XVIII of the Statutes as mentioned in Statute 14, stated above, is that the College is suitably organised, is under proper management, and the constitution of the Managing Committee conforms to the provisions therein. Once the managing committee of an affiliated college is constituted and composed in accordance with the Statute 14, it becomes the 'Management' as defined in Clause (i) of Section 2 of the Meerut Act. It is not disputed that the two colleges concerned are affiliated colleges of the Meerut University as defined under Section 2 (a) of the Meerut Act. It is further not disputed that the Managing Committee of each of the two colleges is constituted and composed in accordance with the Statutes. The Managing Committee of the colleges then becomes the 'Management' as defined under the Meerut Act. It is not possible to accept the submission of the learned counsel for the Management that the Managing Committee of the colleges is a body constituted under the rules of the Registered Society, which owns those colleges. Now a Managing Committee of an affiliated college is to be constituted as laid down by the Statutes relating to affiliation and its constitution and composition is not left to the free will of the members of the Registered Society. It may be that the very personnel of the managing body constituted under the rules of the Registered Society even enblock become a part of the personnel of the Managing Committee of the affiliated college but the fact that along with them are introduced as members the Principal of the college and a representative of the teachers by rotation as enjoined by the Statute of affiliation, the Managing Committee so constituted could not be the same as the original committee constituted under the rules of the Registered Society. The Meerut Act and the Statutes introduce a foreign element into the Management consisting of persons who may not be the members of the Registered Society. Thus the Management of an affiliated college is a creation, of the Meerut Act and the Statutes and performs such duties and functions as are imposed upon it by the Meerut Act and the Statutes. It is, therefore, not possible to accept the argument that the Management of an affiliated college is created by a non-statutory agency, that is, the Registered Society. Here is a case where under the scheme of the Meerut Act and the Statutes a certain proposition of the members constituting the Managing Committee of the College be in majority are left at the choice of the Registered Society and certain members constituting it though in minority, are imposed by the Statutes. The recognition of those members constituting the Managing Committee who are appointed at the choice of the Registered Society is itself sanctioned by the Statutes. The body as a whole with the Principal and the representative of teachers then becomes the 'Management' as defined under Section 2 (i) of the Meerut Act. If it be held that the existing committee selected or elected by the Registered Society is constituted as the Managing Committee with the Principal as Ex-Officio and the representative of the teachers by rotation as additional member, even so the Meerut Act and Statutes adopt such a body as the Management. Thus in any view the 'Management' of the affiliated college will remain a creature of the Meerut Act and the Statutes. The power to appoint teachers of the affiliated colleges is conferred on the 'Management' in the manner prescribed by the Statutes, vide Section 26 (1) of the Meerut Act. No other body of persons owning or administering the college except the 'Management' as defined under the Meerut Act can employ a teacher. The duty to appoint the teacher, therefore, is cast on the 'Management' by the Meerut Act. Thus the 'Management' acts as a statutory functionary when appointing a teacher of an affiliated college. Tt follows, therefore, that when the Management dismisses or removes a teacher it also acts under the authority of the Statutes as a Statutory functionary. It is the Management as defined under Section 2 (i) of the Meerut Act who is the employer and not the Registered Society. Once the Committee of Management of an affiliated college is constituted as explained above, it no longer remains under the control or supervision of the Registered Society owning the College. The Vice Chancellor of the University exercises general control over the affairs of the affiliated college under Sub-section (4) of Section 10 of the Meerut Act. Since the affairs of an affiliated college almost in all respects are supervised by the Committee of Management of the College, the Vice Chancellor of the University will have a controlling hand over it. Further by its Section 6 the Meerut Act empowers the State Government to cause an infection and enquiry to be made of any affiliated college and compel the compliance of any direction given by it to the Management of the affiliated college. Thus under the scheme of the Meerut Act the Management of an affiliated college does not function as an autonomous independent body of private persons but is supervised and controlled by the State Government and the Vice Chancellor of the University.

48. It was then suggested on behalf of the Management that in so far as the teacher is concerned, his relationship with the Management remains contractual as the Meerut Act lays down that every teacher of an affiliated college will be appointed under a written contract and without first entering into a contract the Management will not have any jurisdiction over the teacher. The submission was that the Management of a college even if said to be functioning under the Meerut Act and Statutes, will have no jurisdiction over a teacher unless a contract is entered into between the Management and the teacher and the Management being that of a private college entirely managed by private funds the mere fact of affiliation of the College to the University will not make it quasi-public authority amenable to the jurisdiction of the High Court under Article 226 of the Constitution. Reliance was placed on Josheph Mundassary v. Manager St. Thomas College, Trichur AIR 1954 Trav Co. 199 wherein it has been held that a Management of Private College entirely managed by private funds would not be a quasi-public authority merely because of its affiliation to an University. Even if this be true, it will not help in solving the problem arising before us. In the case cited the learned Judges found that there was nothing in the Madras University Act, the Statutes, the Ordinances and the Regulations imposing any duty on the Management of an affiliated college in regard to the conditions and terms of service of its teachers and they held that a mere resolution of the Executive Council of the University approving of the report of inspection recommending that in case of dispute between the Management and its teacher, the rules applicable to Government servants would apply will not become the law of the University. The decision in the said case thus turned on the absence of any provision in the University Act, Statutes, Ordinances and Regulations regulating and controlling the relationship between the Management of an affiliated College and its teacher. This is not the case here. It has been demonstrated above that the Meerut Act and the Statute do regulate and control the relationship between the Management of affiliated college and its teachers imposing certain duties on the Management and the Vice Chancellor. Though the relationship between the teacher and the Management of an affiliated college originates from a contract but once such a relationship arises and that relationship in certain respects is controlled and regulated by the Meerut Act and the Statute and the duties are imposed on the Management by the Meerut Act and the Statute in regard to the relationship then in performing its duties, the Management would be subject to the power of judicial review by the High Court. In 'Judicial Review of Administrative Action' S. A. De Smith at page 391 (Second Edition) says :--

'On the other hand a body invested by Statute with jurisdiction over persons who have entered into contractual relationship with it may be subject to certiorari and prohibition although the occasion for the exercise of its jurisdiction does not arise until the contractual relationship is formed.'

It has been shown above that the Meerut Act by its Section 28 (3) and the Agra Act by its Section 25-C (2) impose a duty on the Management of an affiliated college and Statute 30 of Chapter XVIII also imposes a duty on the Management which wholly fall outside the scope of the written contract. The Management while performing those functions will be exercising a statutory jurisdiction on the teacher not as a private body though a part of its membership may have been elected or selected originally by the Registered Society, a private, body, and when it acts in breach of the provisions of the Act and the Statutes in any matter in regard to a teacher falling outside the scope of the written contract, it would be amenable to the jurisdiction of High Court under Article 226 of the Constitution. The Supreme Court appears to have approved of the above principle in Roshan Lal Tandon v. Union of India : (1968)ILLJ576SC it observed :

'It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by the consent of both the parties, but by Statute or Statutory rules which may be framed and altered unilaterally by the Government. Tn other words, the legal position of a Government servant is more of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by public law and not by mere agreement of the parties.' (Underlining mine).

49. In sum it can be stated that there may be bodies which are Statutory and which are Non-Statutory. Statutory Bodies may perform statutory functions and may perform non-statutory function. When Statutory Bodies perform statutory functions their acts iwill be amenable to judicial review by the Court. When Statutory Bodies perform non-statutory functions their acts may not be amenable to judicial review by the Court. When non-statutory bodies perform non-statutory functions, their acts will not be subject to judicial review by the Court but when they perform statutory functions there is no valid reason why it not be held that their actions will be amenable to judicial review by the Court inasmuch as non-statutory bodies when performing statutory functions will be nothing else than mere instrumentalities acting under the Statute which imposes duties upon it affecting the rights of third persons and parties.

50. The conclusion, therefore, is that the Management of an affiliated college of the Meerut University is a statutory body or a statutory functionary while discharging its functions under the Act and the Statutes within the meaning of the third exception formulated by the Supreme Court in S. R. Tewari's case : (1964)ILLJ1SC .

51. It has been demonstrated that the Management of an affiliated college of the Meerut University when appointing a teacher or when terminating his service functions as a statutory body, Section 25-C (2) of the Agra Act or the parallel Section 28 (3) of the Meerut Act and Statute 30 of the Ch. XVIII of the Agra University Statutes are enforceable 'proprio vigore' and though the origin of service of a teacher or Principal is contractual but once appointed to his post he acquires a status as attached to that relationship are rights and duties imposed by the Meerut Act and the Statutes.

52. The discussion above is sufficient for formulating the answers to the three propositions framed in paragraph 14.

(1) The service of a teacher including the principal of the affiliated colleges in question is not purely contractual and is regulated and controlled by the provisions of the Meerut Act and the Statutes.

(2) The 'Management' of the two colleges concerned acts as a statutory body or statutory functionary when it takes action to terminate the service of a teacher.

(3) The teacher will be entitled to an appropriate injunction and a declaration of statutory invalidity of the action taken against him in terminating his service by the Management in violation of any provision of the Meerut Act and Statutes.

53. In Second Appeal No. 2973 of1972, Vaish College Shamli v. Sri LaxmiNarain, the plaintiff-respondent Laxmi Narainwould be entitled to the relief claimed in theplaint on the facts and circumstances of thecase.

54. In Special Appeal No. 516 of 1971, the Board of Managemeni of Dayanand Brijendra Swarup Degree College v. Suresh Chandra Verma, the petitioner, respondent Suresh Chandra Verma will be entitled to the appropriate relief if the special Appeal Bench affirms the factual findings recorded by the learned Single Judge.

Writ Petition No. 858 of 1970

55. Now the question referred in Writ Petition No. 858 of 1970 Ahmad Husain v. Aligarh University be considered. That question is whether a writ petition is maintainable by an employee of an University which is a Statutory Body on the ground that his services have been terminated or he has been reduced in rank in violation of the provisions of the regulations framed by the University

56. The question is couched in words general in nature. The question postulates that the University is a Statutory Body which it certainly is. It has been laid down by the Supreme Court in S. R. Tewari's case that when a Statutory Body sets in the breach of a statutory provision while terminating the services of its employee its action is amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution. The question therefore, reduces to whether the regulations of which the breach is complained of are in the nature of statutory regulations or provisions? If the answer is in the affirmative then the remedy under Article 226 of the Constitution will be available when the University terminates the services of its employee in the breach of such regulations.

57. Since a reference has been made in the case of Aligarh University, the nature and the character of the Regulations framed under the Aligarh University Act 1920 of which the breach is complained of by the petitioner have to be examined. The petitioner is a Head Clerk in the Aligarh Muslim University. He was promoted to the post of Assistant Registrar and was kept on probation for one year. The petitioner claimed that he successfully completed the period of .probation and became confirmed in the post. The petitioner, however, was reverted to his substantive post of Head Clerk. The petitioner has questioned the validity of the resolution of the Executive Committee of the University in his petition under Article 226 of the Constitution. He questioned the validity of the order on the ground that he was a confirmed Assistant Registrar and the resolution refusing to confirm him In the post of Assistant Registrar and reverting him to the post of Head Clerk amounted to his removal from the post of Assistant Registrar and reduction in rank without affording him a reasonable opportunity of showing cause. The writ petition was heard by our brother G. C, Mathur. An objection was raised by the learned counsel for the University that the petitioner's remedy, if any, lay by way of a suit for damages. Reliance was placed on behalf of the University on a decision of the Division Bench in the case of Mohd. Nafis Khan v. Aligarh University. Special Appeal No. 95 of 1972, decided on 21-4-1972 (All) Brother Mathur held that another Division Bench, decision to which he was a party in V. P. Kapoor v. University of Roorkee, Special Appeal No. 540 of 1971, decided on 19-1-1972 (All) was in conflict with the former decision. He, therefore, directed the reference.

58. It appears from the petition that the petitioner was appointed as officiating Assistant Registrar by the Vice Chancellor on 23-1-1963. His substantive post at that time was that of a Head Clerk in the University. The action of the Vice Chancellor appointing the petitioner as an officiating Assistant Registrar was ratified by the Executive Council of the University. The petitioner was then appointed in temporary capacity as Assistant Registrar till such time as regular arrangement was made or till further order, which ever was earlier. Then by a resolution of the Executive Council of the University, held on 6-2-1965, the petitioner was appointed as Assistant Registrar of the University on probation of one year with effect from 7-2-1965 on the recommendation of a duly constituted selection committee. The petitioner claims that after he had completed the period of probation of one year, be should have been confirmed as Assistant Registrar of the University with effect from 7-2-1966 but the University neither confirmed the petitioner nor extended the period of probation and. therefore, the petitioner became confirmed in tha eye of law as an Assistant Registrar of the University but the Registrar of the University by his letter dated 5-4-1966 informed the petitioner that the Executive Council of the University at its meeting held on 26-3-1966 has approved the extension of the petitioner's probationary appointment as an Assistant Registrar of the University by six months from 7-2-1966. One of the challenges raised by the petitioner in the writ petition was that he had already become confirmed and the Executive Council of the University had no juris diction to extend the probation retrospectively. The petitioner then further stated that even after the expiry of six months the so-called extended period came to an end on 6-8-1966 but the Executive Council of the University did not pass any order either extending the period of probation or confirming the petitioner on the post. Then it was said that the Executive Council on 9-2-1966 further extended the probation period by 3 months. This action of the Council was also challenged on the same ground as stated above. When this extended probation came to an end on 6-11-1966, even then the Executive Council neither extended the probation nor confirmed the petitioner. Yet by a resolution passed on 22-12-1967 the Executive Council again extended the period of probation of the petitioner upto 31-1-1968. This action was again questioned by the petitioner on the same ground stated above. When this extended probation cama to an end, the Vice Chancellor by his order extended the probation till the date of the next meeting of the Executive Council which was held on 6-7-1968 at which no action was taken by the Executive Council either confirming the petitioner or extending the probation. It is alleged that the Executive Council extended the petitioners' terms of appointment from 1-4-1968 and ultimately on 13-2-1970 refused to confirm the petitioner on the post of Assistant Registrar. The main attack of the petitioner seems to be that the resolution of the Executive Council dated 13-2-1970 amounted to termination of the petitioner's service as an Assistant Registrar of the University without affording him an opportunity to show cause. The petitioner appears to be complaining of breach of Regulation 3. A subsequent amendment of this Regulation was characterised as ultra vires and not applicable to his case. This is a question on which we are not called upon to express any opinion. The writ petition seems to be based on the petitioner's claim that he was a permanent Assistant Registrar and the resolution of the Executive Council of the University not confirming him amounted to termination of his service as Assistant Registrar and reduction in rank. On this basis the petitioner sought an order, writ or direction for quashing of the resolution of the Executive Council dated 13-2-1970 and as well as for quashing of the various orders of the Vice Chancellor and the Executive Council of the University.

59. In the counter-affidavit filed on behalf of the University the main averments were that while the petitioner worked as a probationer, his work was not found satisfactory he having been warned from time to time and that he never successfully completed the period of probation though it was extended repeatedly.

60. It is not disputed that the Aligarh Muslim University is constituted as a body corporate under the Aligarh Muslim University Act 1920 (hereinafter called as the Act) and thus is a statutory body. The Executive Council is an Authority of the University and derives its powers from the provisions of the Act, Statutes, Ordinances and Regulations framed thereunder. It is the settled law that the power of a Statutory body flows from its corporate character and it is limited by the Statute constituting it. The courts in appropriate cases have power to declare an action of a statutory body illegal and ultra vises if found acting in breach of a mandatory obligation imposed by the Statute. It follows, therefore, if in terminating the services of the petitioner as Assistant Registrar and reverting him to his substantive post of Head Clerk the University or any of its Authority acted in the breach, of any Statutory provision the petitioner would be entitled to the appropriate relief under Article 226 of the Constitution.

61. In answering the question referred, the real nature and character of the Regulations framed by the Executive Council of the Aligarh University has to be determined. If the Regulations have statutory force then the answer would be that the writ petition will be maintainable.

62. Section 31 of the Aligarh Muslim University Act empowers the Authorities of the University to make regulations consistent with the Act, Statutes and the Ordinances providing, for all matters which by Act, Statute or the Ordinances are to be prescribed by the Regulations and providing for all other matters concerning such Authorities or Committee appointed by them not provided for by the Act, Statute and Ordinances. As observed above, the Executive Council is an Authority of the University and it is the Executive Body of the University presided by the Vice Chancellor. The constitution and the terms of office of the members and the powers and duties of the Executive Council are as prescribed by the Statutes. Under Statute 16 the Executive Council has been conferred the power to appoint members of the administrative staff. The petitioner is a member of the administrative staff. He was appointed by the Executive Council on an administrative or ministerial post created by the University under Sub-section (11-B) of Section 5 of the Act. There is no dispute that Chapter IX of the Regulations framed by the Executive Council of the University regulating the conditions of service of the Officers or servants of the University apply in the case of the petitioner. The petitioner was appointed on probation as Assistant Registrar, Regulation 3 of Chapter IX applied. One of the contentions of the petitioner is that since the probation could not be extended beyond two years, he became automatically confirmed in his post immediately on the expiry of two years as no order terminating the probation was passed prior to the expiry of two years. This is disputed by the learned counsel for the University, who contended that under Regulation 3 there is no automatic confirmation. On this question we express no opinion. The Executive Council being the appointing authority had under Regulation 10 of Ch. IX the power to dispense with his services as Assistant Registrar. The argument for the petitioner was, assuming the petitioner was still on probation, if he was considered incompetent then he was entitled to a reasonable opportunity to explain his conduct and if his services were no longer needed then six months' notice was necessary stating that his services were no longer needed.

63. Shri Hyder appearing for the University contended that the reversion of the petitioner to his substantive post was not in the breach of the Regulations. In the alternative the learned counsel submitted that the Regulations framed under Section 31 of the Act had no statutory force and even if there was any violation of the said Regulations, the petitioner was not entitled to any relief under Article 226 of the Constitution, his remedy, if any, lay in suit for breach of contract.

64. We are not called upon to decide the question whether the reversion of the petitioner to his substantive post was in the breach of the said Regulations. The question referred as framed assumes it. We have to examine whether the Regulations framed by the Executive Council of the University under Section 31 have statutory force.

65. On behalf of the petitioner reliance was placed on the case of State of U. P. v. Baburam Upadhaya : 1961CriLJ773 wherein the Supreme Court held that if a Statute could be made by the Legislature within permissible limits, rules made by an Authority in exercise of powers conferred thereunder would likewise be efficacious within the said limits and they must be treated for all purposes of construction or obligation exactly as if they were in the Act and of the same effect as if they were contained in the Act. The Act empowers the Executive Council to frame Regulations. It is in exercise of that power that the Regulations were framed by the Executive Council. These Regulations would be in the nature of ancillary rules subserving the purpose of carrying out the essential policy laid down in the Act. The Executive Council having framed such Regulations will be bound by them. Clause (2) of Statute 3 lays down :--

'It shall be the duty of the Vice Chancellor to see that the Act, the Statutes, the Ordinances and the Regulations are duly observed and he shall have all powers necessary for that purpose.'

The language of Clause (2) of Statute 3 is as emphatic as it can be and there is no escape from the conclusion that the Vice Chancellor has been vested with all powers to compel the Authorities of the University to duly observe the Regulations. A clear intention is manifest that the Regulations framed by any Authority of the University are meant to be observed and followed. The Vice Chancellor is duty bound to see that a particular Authority of the University duly observes the Regulations. It was submitted by Shri Hyder that by Statute 3 (5) the Vice Chancellor is under a duty to give effect to the decision of the Authorities of the University, the Executive Council being an Authority of the University the Vice Chancellor was bound to give effect to the decision of the Executive Council refusing to confirm the petitioner and reverting him to his substantive post. The learned counsel further submitted that Statute 3 (2), therefore, cannot be interpreted as conferring on the Vice Chancellor a power to override the decision of the Executive Council or to exercise a veto over it even though such decision may be given in contravention of the Regulation. The argument was that Statute 3 (2) is only directory in nature and its provisions are not mandatory conferring an enforceable right on the petitioner. Reliance was placed on the following passage from Crawford 'Statutory Contraction' at page 516:--

'The question as to whether a Statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design and the consequence which would follow from construing it one way or the other.'

66. It is difficult to accept tne contention of Shri Hyder that Statute 3 (2) was framed with intent and purpose of conferring on the Vice Chancellor a power directory in nature or a discretionary power. Once Statute 3 (2) is read as vesting only a discretion in the Vice Chancellor, decisions and orders of the Authorities of University, made without observing the Act, the Statutes, the Ordinances and the Regulations, will prevail a state of affairs which cannot be countenanced. The use of the word 'shall' in respect of the duty cast on the Vice Chancellor can have only one meaning as imposing a mandate on the Vice Chancellor that he must exercise his powers to see that the Act, the Statutes, the Ordinances and the Regulations are duly observed. This is further emphasised by the framers of the Sta-tutes by enacting 'and he shall have all powers necessary for that purpose.' There will not arise any conflict between Statute 3 (2) and Statute 3 (5), if the latter Statute is construed as casting a duty on the Vice Chancellor to give effect to all such decisions of the University Authorities which are made after duly observing the Act, Statutes, Ordinances and the Regulations. Any decision made by the Executive Council without observing the Regulations, as is alleged by the petitioner, will not be given effect by the Vice Chancellor and he will be under a duty to point out to the Executive Council the error and ask it to consider the matter in accordance with the Regulations applicable. Such a direction given by the Vice Chancellor who is also a member of the Executive Council and presides over it will not amount to exercising a power of veto or an overriding power. The passage quoted above from Crawford, relied upon by Shri Hyder instead of supporting his contention militates against it.

67. It was then suggested by Shri Hyder that the Regulations made under Section 31 of the Act have no force of law as they are merely measures for day to day administration and can always be changed. Statute 3 (2) places the Act, the Statutes, the Ordinances and the Regulations on equal footing. A Regulation is defined as a Regulation of the University for the time being in force. The mere circumstance that a particular Regulation can be changed at convenience from time to time will not derogate from its character of being a Regulation as defined by the Act to be duly observed by the Executive Council of University and it will be the duty of the Vice Chancellor to see That it is duly observed. Nothing, therefore, turns on the submission that a Regulation is a measure for a day to day administration and can always be changed. There is a clear intention manifest by the framers of the Act and the Statute that the Regulations are meant to be observed and followed and their breach by any Authority of the University in making a decision will make that decision invalid in the same way as a decision made in breach of the provisions of the Act, the Statutes and the Ordinances. The decision of the Division Bench of this Court dated 21-4-1972 in Special Appeal No. 95 of 1972, is not a well considered decision and is incorrect. The law declared by the Supreme Court in the cases of : (1970)ILLJ32SC and : (1971)ILLJ496SC will not apply in determining the true nature and character of the Regulations made by the Executive Council of the Aligarh University as the scheme of the Act and the Statutes of the Aligarh Muslim University leaves no doubt that the Regulations have the same force as the provisions of the Act, the Statutes and the Ordinances of the Aligarh Muslim University.

68. The answer to the question re-J ferred is in the affirmative.

R.B. Misra, J.

69. I have perused the judgment prepared by Asthana, J. and I entirely agree with him. But as the question referred in these cases is of general importance and was debated before this Bench at great length, I would like to add a few words of my own.

70. The facts of the three cases have been given in detail by Asthana, J. and it is not necessary for me to reiterate them again. I would rest content by giving a bare outline of the facts to bring out the points for consideration.

71. In Second appeal No. 2973 of 1971, the following two questions have been referred:--

'1. Whether the view taken by the Division Bench of this Court in 1969 All LJ 621 is no longer a good law in view of the two decisions of the Supreme Court in : (1970)ILLJ32SC and : (1971)ILLJ496SC .

2. Can the Civil Court grant the relief of injunction in view of the facts and circumstances of the present case?'

72. The Division Bench admitting the Special Appeal No. 516 of 1971, referred the appeal itself to a Full Bench, as it doubted the correctness of the decision of the Division Bench in 1969 All LJ 621 (supra).

73. In Writ No. 858 of 1970, the learned Single Judge referred the following question for decision by the Full Bench:--

'Whether a writ petition is maintainable by an employee of an University, which is a statutory body, on the ground that his services have been terminated or he had been reduced in rank in violation of the provisions of the Regulations framed by the University.?'

74. Learned counsel for the parties were agreeable that in the Special Appeal also, only the question of law involved alone should be decided and, thereafter, the case might be referred back to the Division Bench for deciding the appeal on merits. This Bench will, therefore, answer only the questions of law involved in these cases.

75. In the second appeal, Sri Laxmi Narain, the plaintiff-respondent, was the permanent Principal of the Vaish College, Shamli, district Muzaffarnagar, then affiliated to the Agra University. His services were terminated by the Management with effect from 24th October, 1966. On the ground that he had absented himself from duty. He challenged the termination order by filing a regular suit on the grounds, inter alia, that the termination of his services without the approval of the Vice Chancellor of the Kanpur and Meerut Universities to which the college stood affiliated after the passing of the said Act, was void and ineffective and he continued to be in service. The defence of the Management, among others, was that the suit was not maintainable in view of Section 21 (b) of the Specific Relief Act. The trial Court dismissed the suit on the ground that the appointment of the Principal was not under a written contract, as required by Section 25 (c) of the Agra University Act and so he could not seek the protection of the Act or the Statutes framed thereunder. The first appellate Court, however reversed the judgment of the trial Court and decreed the suit holding that the Principal was entitled to the protection of the Act or the Statutes framed thereunder even in the absence of a written contract of service. The Judge has relied upon the decision of the Division Bench of this Court in 1969 All LJ 621 (supra) and of the Supreme Com; in : [1965]2SCR713 . On appeal to this Court, the learned Single Judge referred the aforesaid questions in view of the latter decision of the Supreme Court.

76. In special appeal No. 1516 of 1971, Suresh Chandra Verma was a confirmed Geography teacher in Dayanand Vijen-dra Swarup Degree College, Dehradun, then affiliated to Agra University. On certain charges, framed against him, he was suspended and, eventually, removed from service as his explanation did not satisfy the Management. The resolution terminating his service in this case was approved by the Vice Chancellor concerned. The teacher questions the validity and legality of the termination of the service in defiance of Statute 30 of Chapter XVIII of the Agra University Act which is applicable to the College, which stood affiliated to the Meerut University after the enforcement of the Kanpur and Meerut Universities Act, 1969. The learned Single Judge relying on 1969 All LJ 621 (supra) allowed the petition and set aside the order of termination on the ground that he had not been afforded reasonable opportunity, as required by Statute 30. The contention on behalf of the Management was that the jurisdiction of the High Court even under Article 226 of the Constitution was restricted by Section 21(b) of the Specific Relief Act and the remedy of the teacher, if any was to claim damages by suit for wrongful termination of employment and not through a petition for writ Thus, in this case also, the question of law for determination is whether Section 21(b) of the Specific Relief Act would bar the petition under Article 226 of the Constitution.

77. In Writ Petition No. 858 of 1970, Ahmad Husain, the petitioner was a Head clerk in the office of the Registrar of the Aligarh University. He was appointed as Assistant Registrar on probation. His probation was extended from time to time. Eventually, by resolution dated 13th February, 1970, the Executive Council of the University reverted him to his substantive post of Head clerk. He challenged the legality of the said order and the resolution on the ground that the same were in breach of the regulations framed by the Executive Council of of the University by virtue of the powers under Section 31 of the Aligarh University Act. The petition was resisted mainly on two grounds, viz, the reversion of the petitioner was not in breach of any regulation and that, in any case, the regulations have no statutory force and, therefore, he was not entitled to any relief under Article 226 of the Constitution in view of Section 21 (b) of the Specific Relief Act.

78. Thus, the question of law in all the three cases is substantially the same, namely, whether Section 21 (b) of the Specific Relief Act bars the regular suit and the petition under Article 226 of the Constitution on the facts in each case, and whether the case of 1969 All LJ 621 (supra) stands overruled by the later decisions of the Supreme Court.

79. At this stage, it would be convenient to refer to Section 21 of the Specific Relief Act in so far as it is material for the purpose. Section 21 of the said Act reads:--

'21. Contracts not specifically enforceable. The following contracts cannot be specifically enforced--

(a) .................................

(b) a contract which runs into such minute or numerous details, or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature, is such, that the Court cannot enforce, specific performance of its material terms; Illustration to Clause (b) of Section 21.

'A' contracts to employ 'B' on personal service:

'B' cannot enforce specific performance of these contracts.'

80. This question has been the subject-matter of consideration by various authorities and it is by now well settled that under the common law, the Court will not ordinarily direct an employer to retain the services of the employee whom he no longer wishes to employ, but this rule is subject to certain well recognized exceptions, as laid down in : (1964)ILLJ1SC (supra). It is open to the Courts, in an appropriate case, to declare that a public servant, who is dismissed from service in contravention of Article 311 of the Constitution continues to remain in service, even though by doing so, the State is forced to continue to employ the servant whom it does not desire to employ. Similarly, under the industrial law, jurisdiction of the Labour and Industrial Tribunals to compel the employer to employ a worker, whom he does not desire to employ, is recognized, the Courts are also invested with the power to declare invalid the act of a statutory body, if by doing the act, the body has acted in breach of a mandatory obligation imposed by Statute, even if by making the declaration the body is compelled to do something it does not desire to do.

81. The same view was reiterated in : (1970)ILLJ32SC (supra). After reviewing its earlier decisions and English cases, the Supreme Court laid down as follows:--

'From the two decisions of this Court, referred to above, the position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well-recognized exceptions to this rule and they are: To grant such a declaration in appropriate cases regarding (1) a public servant, who has been dismissed from service in contravention of Article 311. (2) Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals (3) A statutory body when it has acted in breach of a mandatory obligation, imposed by statute.'

82. In view of the aforesaid decisions of the Supreme Court, unless a case is covered by any of the three exceptions, there can be no enforcement of a contract of personal service. Now, the question is whether the employees in the three cases come within any of three exceptions. Obviously, the first and the second exceptions have no application to the present case. It is only the third exception, which can be attracted.

83. Sri S. N. Kacker, appearing for the Management, contended that even the third exception has no application. His stand is that two conditions must be satisfied before the case can come within the four corners of the third exception. They are, firstly, that the body terminating the service must be a statutory body, and, secondly, that the body must have acted in breach of a mandatory obligation imposed by the Statute. According to him, the body in his case, is not a statutory one and, as such, the first requirement is lacking. In support of his contention, he strongly relied upon : (1964)ILLJ1SC (supra); : (1970)ILLJ32SC (supra); : (1971)ILLJ496SC (supra). I find great difficulty in accepting his contention. There may be cases in which the body is not a statutory one yet it is required under a statutory obligation to act in a particular manner. Such a case would, in my opinion, be also covered with the third exception.

84. In Praga Tools Corporation v. C. V. Imanual : (1969)IILLJ479SC , the Supreme Court laid down that the condition precedent for the issue of mandamus is that there is one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is in the form of a command, directed to a person, corporation or an inferior Tribunal requiring him or them to do a particular thing therein specified which pertained to him or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. If writ can be issued to a non-statutory body for the performance of a statutory duty a fortiori a suit for injunction would also lie.

85. Even assuming but not conceding that the body must be a statutory body, As-thana, J. has held that the Managing Committee in question is a statutory body. He has given copies and weighty reasons for his finding with which I fully agree and it is not necessary to repeat those reasons over again here.

86. Sri Kacker next contended that the second requisite of the third exception is also lacking here, namely, there is no statutory obligation on the Management to act in a particular manner. The obligation at the most, is a contractual one. In order to appreciate this point, it is necessary to read the relevant provisions of the relevant Act and the Statutes framed therein.

87. At the time of the appointment of the two teachers, the two colleges, namely, Vaish College, Shamli and Dayanand Vijendra Swarup Degree College, were affiliated to the Agra University. It is, therefore, the provision of the Agra University Act, which would be applicable to their cases. In spite of the subsequent affiliation of the said colleges to the Meerut University after the enforcement of the Meerut and Kanpur Universities Act, the First Statute of the two Universities was to be framed by the Government, as required by Section 31 of the Meerut and Kanpur Universities Act. The Government, however did not frame any Statute. The Meerut and Kanpur Universities Act, by its Section 50 (1) (aa) authorised the Government to apply the Statutes or ordinances made under the Agra University Act, 1926 with such adaptations and modifications as it may deem necessary and expedient. The State Government by its notification dated 18th November, 1966, directed that the Statutes and Ordinances of the Agra University, as amended upto date, shall apply to the Meerut University so long as the First Statute was not made under Sub-section (1) of Section 31. The result is that it is the Agra University Act and the Statutes framed therein, which would be relevant for the purposes of the decision of the Second appeal and the special appeal.

88. Section 25-C (1) of the Agra University Act provides:--

'Every teacher in an affiliated college, not being a college maintained exclusively by Government, who is recruited after the commencement of the Agra University (Amendment) Act, 1953, shall be appointed under a written contract which will contain such terms and conditions as may be laid down by the Statutes.'

Sub-section (2) of Section 25-C of the Agra University Act contemplates that

'Every decision by the Management of an affiliated college, other than a college maintained by Government to dismiss or remove from service a teacher shall be reported forthwith to the Vice Chancellor and subject to provisions to be made by the Statutes shall not take effect until it has been approved by the Vice-Chancellor.'

89. The conditions of service of the teachers of the affiliated colleges have been provided in Statutes 28 onwards. The Statute further prescribes a form of agreement with the Principal or Members of the staff other than the Principal in the Appendix attached to the Statute.

90. The point raised by Sri S. N. Kacker is that Section 25-C of the Agra University Act is subject to the provisions made by the Statute and the Statute provides for a contract about the terms and conditions of the service. As the approval of the order of dismissal by the Vice Chancellor has been incorporated in serial No. 13 of the terms of contract in the prescribed form, therefore, that also becomes a part of the contract and if there is a defiance of this condition, it is only a breach of the terms of the contract and not a breach of the Statute. The conditions of service, therefore, become a part and parcel of the agreement and not a matter of Statute. If, therefore, there is a defiance of Section 25-C (2) of the Agra University Act, it is only a breach of the terms of the contract of personal service and not a breach of the Statute.

91. It is true that Section 25-C (2) provides that the decision by the Management of an affiliated college to dismiss or remove from service a teacher shall, subject to the provisions to be made by the Statute, not take effect until it has been approved by the Vice Chancellor. The decision by the Management will take effect subject to the provisions of the Statutes only after the approval of the Vice Chancellor. It is the decision of the Management which is subject to the Statute. The prescribed form of agreement appended to the Statute, which is a part of the Statute, by Clause 12, provides that the Principal shall be acquainted, in writing with the grounds on which it is proposed to remove him and he shall be given enough time (not less than 15 days) to submit his explanation, which shall be duly considered by the Managing Committee before the decision of removal is taken. It further requires that the member shall also have a right to be personally present at the meeting of the Managing Committee to explain his case subject to the other requirements of the Statute. But on that account, it cannot be said that Section 25-C (2) of the Agra University Act itself is subject to the Statute. This would be clarified by a reference to Section 26 of the Agra University Act. Section 26, in so far as it is material for the purpose of this case reads:--

'Subject to the provisions of this Act, the Statute may provide for any matter relating to the University and shall in particular provide for the following:'

There is no room for doubt that the Statutes are subject to the provisions of the Act and not vice versa. To interpret Sub-section (2) of Section 25-C of the Act differently would militate against the provisions of Section 26 of the said Act. If Section 25-C is not controlled by the Statute or the prescribed form of contract appended to the Statutes, it will work independently of the agreement between the parties and merely because the requirement of Section 25-C (2) has been also incorporated in item No. 13 of the prescribed form of agreement, it will not cease to have its operation as a law, Section 25-C is not subservient to the Statute or the prescribed form of agreement attached to the Statute. It has its independent existence. If the law requires that the order of dismissal by the Management shall not take effect until it has been approved by the Vice Chancellor, there would in effect, be no order of dismissal or termination in the eye of law.

92. Contention of Sri S. N. Kacker, however, is that merely because certain restrictions have been imposed on the right of the parties, the contract, will not cease to be a contract. It would still remain a contract. The tendency of the Legislature, in recent years, has been to regulate the contract of the parties, instances are not wanting where law has intervened and regulated the contract between the parties. Parties, therefore, cannot be allowed to contract themselves out of law. The mere fact that law has regulated the contract or put certain restrictions on the right of the parties to contract will not make the contract a Statute. It will still be a contract between the parties. The view taken by the Division Bench of this Court in 1969 All LJ 621 (supra), that the agreement being the creature of the Act and the Statutes and, therefore, Statute 29-A and the agreement cannot be separated and, therefore, the agreement partakes the character, of a statute, in my opinion, is no longer a good law in view of the recent decisions of the Supreme Court in : (1971)ILLJ496SC (supra) and : (1970)ILLJ32SC (supra).

93. In : (1971)ILLJ496SC (supra), it has been held that:

'The fact, therefore, that the appellant corporation was one set up under and was regulated by Act, XXVII of 1953 would not take away, without anything more, the relationship between it and its employees from the category of purely master and servant relationship.'

94. The mere fact that the terms of contract between the employer and the employee have been regulated by the Statute will not make the contract a Statute. It will still remain a contract.

95. In : (1970)ILLJ32SC (supra) summing up the legal point, the Supreme Court observed as follows:--

'From a review of the English decision, referred to above, the position emerges as follows. The law relating to master and servant is clear. A contract for personal service will not be enforced by an order for specific performance nor will it be open for a servant to refuse to accept the repudiation of a contract of service by his master and say that the contract has never been terminated. The remedy of the employee is a claim for damages for wrongful dismissal or for breach of contract............ But when a statutory statute is given to an employee and there has, been a violation of the provisions of the statute while terminating the services of such an employee, the latter will be eligible to get the relief of a declaration that the order is null and void and that he continues to be in service, as it will not then be a mere case of master terminating the services of a servant.'

96. In the present case, however, there is something which entitles the teachers to get the relief of declaration from the Court, either by means of a suit or by means of a petition under Artvicle 226 of [he Constitution. Section 25-C (2) of the Agra University Act enjoins that the order of dismissal or termination shall not be given effect to unless approved by the Vice Chancellor. This provision entitles the teachers to get the relief of declaration, that they are in service, on account of the breach of law.

97. Sri Jagdish Swarup, appearing for the Management in special appeal No. 1516 of 1971, also contended that a writ can be issued to a statutory body performing statutory functions. While dealing with the contentions raised by Sri S. N. Kacker, I have already pointed out that a writ can be issued even to a non-statutory body provided it is under a legal obligation to act in a particular manner. He, however, contended that the teachers in the two cases had no status and, therefore, there could be no declaration that they still continue to be teachers despite termination. He referred to Corpus Juris Secundum. Vol. 81, page 1349, to explain the meaning of the term 'status'. The word 'status' has reference to, and means, the persons' legal social relation and condition; the legal position of the individual in or with regard to the rest of the community a person's condition arising out of legal station. Thus, as applied to a person 'status' means condition, such as being an infant, a slave, a married man or woman, ward, or a prisoner, and it can be determined only by the State and not by agreement of the parties so, the 'status' in common parlance is different from the status, as contemplated in law. It is conferred by law and not by an agreement.

98. Jurisprudence by George White Cross Paton describes 'status' as follows:--

'Status' is a word which has no very precise connotation. Salmond gives four meanings.

(a) legal condition, of any kind, whether personal or proprietary;

(b) personal legal condition, excluding proprietary relations:

(c) personal capacities and incapacities as opposed to other elements of personal status;

(d) compulsory as opposed to conventional legal position.'

99. One of the best analysis is that of Alien. Status may be described as the fact or condition of membership of a group of which the powers are determined extrinsically by law, status affecting not merely one particular relationship, but, being a condition affecting generally though in varying degree a member's claims and powers.

100. It is clear from the extracts from the standard Text Books that the status of a person is a creature of law and not of contract. In the instant case, it is true that the appointment of the teachers was by virtue of a contract between the employer and the employee, but law has conferred status on the teachers. They have to perform certain duties required by the Act or the Statutes. This question has been dealt with by Asthana, J, in the judgment prepared by him and I agree with him in holding that the teachers of the affiliated colleges, have status and, therefore, they can seek a declaration.

101. There have been, however, two decisions of the Supreme Court : [1965]2SCR713 (supra) and : (1972)ILLJ442SC on which the teachers strongly relied, to contend that Section 25-C (2) and Statute 30 have the force of law while on behalf of the Management, reliance is placed on the ratio of : (1972)ILLJ442SC (supra). Both the Supreme Court cases have been exhaustively dealt with by Asthana, J, in his judgment and I do not think I can usefully add anything in what has already been said by him.

102. In Writ Petition No. 858 of 1970, the question was whether a writ petition is maintainable by an employee of the University, which is a statutory body on the ground that his services had been terminated or he had been reduced in rank in violation of the provisions framed by the University. I have already held that if the order of termination is in breach of some statute, a writ would lie. Now, the question arises whether the regulations framed by the Aligarh University have the force of law or not. I entirely agree with Asthana, J. that the regulations have the force of Statutes.

103. For the foregoing discussion, my conclusions are:--

1. The view taken by the Division Bench of this Court in 1969 All LJ 621 (supra) is no longer a good law in so far as it rules that an agreement between the Managing Committee, of a college and a newly appointed teacher is entered into not because of the free will of the parties, but under the compulsive force of the Act and the Statute and the terms contained therein are not those voluntarily agreed to by the parties, but those which are prescribed. Such an agreement has the same force as the Act and the Statutes in view of the two later decisions of the Supreme Court in : (1970)ILLJ32SC (supra) and : (1971)ILLJ496SC (supra).

2. The Civil Court can grant a relief of injunction to an employee who had been dismissed or removed from service in breach of the Statute.

3. The writ petition is maintainable by an employee of an University, which is a statutory body, on the ground that his services had been terminated or he had been reduced in rank in violation of the provisions of the regulations framed by the University, if the regulations have the force of statute.

T.S. Misra, J.

104. I have had the benefit of reading the judgment prepared to be delivered by my brother Asthana, J. I agree with the conclusions reached by him, However, as serious arguments were raised at the Bar relating to the relationship of master and servant and the status of a teacher and a principal of affiliated colleges governed by the provisions of the Kanpur and Meerut Universities Act 1965, I would like to express my views with regard to the same. The various submissions made by the learned counsel for the parties have been set out in detail by brother Asthana, J. in his judgment hence the same need not be stated here. Since the questions are of great public importance affecting a large number of teachers including principals of affiliated colleges of the Universities concerned it would be proper to examine in detail the provisions of law relating to the relationship of master and servant and the various decisions of the Supreme Court as well as the English decisions cited at the bar.

105. Section 21, Clause (b) of the Specific Relief Act, No. 1 of 1877, provided that a contract which is dependent on the personal qualifications or volition of the parties could not be specifically enforced. The aforesaid Act No. 1 of 1877 was repealed by the Specific Relief Act No. 47 of 1963. However, the provisions of the said Section 21 (b) were repeated in Section 14 (1) (b) of the Act No. 47 of 1963. From these provisions it is manifest that a contract of personal service cannot be specifically enforced. There are, however, certain exceptions to this rule as would be noticed later.

106. As far back as in 1948 the Privy Council in the case of made a declaration of a statutory invalidity of an act which is a thing entirely different from enforcing a contract of personal service. The Supreme Court in the case of : [1959]1SCR1236 , referred to I. M. Lal's case (supra) and observed that the Judicial Committee accepted the claim of I. M. Lal and made the declaration that his purported dismissal was void and inoperative and he remained a member of the' service on the date of the institution of the suit and that the declaration did not enforce a contract of personal service but proceeded on the basis that the dismissal could only be effected in terms of the statute and as that had not been done it was a nullity from which the result followed that I. M. Lal continued in service. In the case of : [1959]1SCR1236 , the relevant facts were these. On 28th April, 1953 Dr. Dutt wrote a letter to the University claiming under the provisions of the Delhi University Act an arbitration with regard to various disputes mentioned in it. He appointed professor M. N. Saha an arbitrator and asked the University to nominate another arbitrator. The University refused to do so whereupon Dr. Dutta appointed professor Saha the sole arbitrator who made bis award on 17th June 1953, inter alia, deciding that Dr. Dutta was wrongfully dismissed, his dismissal was ultra vires, mala fide and had no effect on his status and that he continued to be a professor of the University. At the request of Dr. Dutt the award was filed in the Court by the arbitrator. The University filed its objections. The objections were overruled and a decree in terms of the award was passed. On appeal the High Court set aside the award on the ground that it was not open to the arbitrator to grant Dr. Dutt a declaration that he was a professor in the University which no Court could or would give him. The High Court felt that this declaration amounted to specific enforcement of a contract of personal service which was forbidden by Section 21 of the Specific Relief Act and therefore, disclosed an error on the face of the award. The Supreme Court on appeal agreed with the View expressed by the High Court. It held:

'There is no doubt that a contract of personal service cannot be specifically enforced. Section 21, Clause (b) of the Specific Relief Act, 1877, and the second illustration under this Clause given in the section make it so clear that further elaboration of the point is not required. It seems to us that the present award does purport to enforce a contract of personal service when it stated that the dismissal of the appellant 'has no effect on his status' and 'He still continues to be a Professor of the University.' When a decree is passed according to the award which if the award is unexceptionable, has to be done under Section 17 of the Arbitration Act after it has been filed in Court, that decree will direct that the award be carried out and hence direct that the appellant be treated as still in the service of the respondent. It would then enforce a contract of personal service, for the appellant claimed to be a professor under a contract of personal service, and so offend. Section 21(b).'

It was further held:

'The award held that the appellant had been dismissed wrongfully and mala fide. Now, it is not consequential to such a finding that the dismissal was of no effect, for a wrongful and mala fide dismissal is none the less an effective dismissal though it may give rise to a claim in damages. The award, no doubt, also said that the dismissal of the appellant was ultra vires but as will be seen later, it did not thereby hold the act of dismissal to be nullity and therefore of no effect.'

In the case of Barber v. Manchester Hospital Board, (1958) 1 All ER 322. Barber having been dismissed without the prescribed procedure being followed it was held that despite the statutory flavour attaching to his contract it was an ordinary contract between master and servant.

107. In the case of Vidyodaya University v. Silva, (1964) 3 All ER 865 a teacher appointed by the University was found not to be holding an office or status and though the University was established under a statute it was under no statutory obligation or restriction subject to which only it could terminate the service of the teacher. The service of Silva was brought to an end by a resolution of the University Council set up under the statute establishing the University. Under Section 18 (e) of the Act the Council had the power to dismiss an officer or a teacher on the grounds of incapacity or conduct which in the opinion of not less than two-thirds of the members of the Council rendered him unfit to be an officer or a teacher of the University, such a resolution with the requisite majority was passed. The Privy Council held that the mere circumstance that the University was established by the statute- and was regulated by statutory enactments contained in the Act did not mean that the contracts of employment made with teacher, though subject to Section 18 (e), were other than ordinary contracts of master and servant, and therefore, the procedure of being heard invoked by the respondent was not available to him and no writ) could be issued against the University. The test laid down in this case was whether the employer was under any statutory obligation or restriction subject to which only he could terminate the services of the employee.

108. In the case of Ridge v. Baldwin, 1964 AC 40, Lord Reid observed that cases of dismissal fall into three classes, namely, (1) dismissal of a servant by his master (2) dismissal from office held during pleasure, and (3) dismissal from office where there must be something against a man to warrant his dismissal and added that in a case of purely master and servant relationship, the servant is not entitled to say that he was not heard by his master before his dismissal. A question of being heard or not could only arise where the authority employing the servant is under some statutory or other restriction as to the kind of contract which it can make with its servants or the grounds on which it can dismiss them.

109. In the case of Life Insurance Corporation of India v. Mukherjee : (1964)ILLJ442SC the Supreme Court held that Section 11(2) of the Life Insurance Corporation Act, 1956 was paramount and would override any provisions of the order passed by the Central Government if it was contrary to it. Next would come the order and lastly the regulations which were subject to the Act and the order and therefore, if the regulations were inconsistent with the provisions of Section 11(2) or the said order; the regulations would be to that extent invalid. Hence, even if the regulations provided for termination of services they would have to be read subject to the order of the Government and consequently, the order terminating the service of an officer would have to be in consonance with the provisions of the said Order. Consequently, an order terminating the services of an officer without giving him an opportunity of being heard as provided by Clause (10) of the said order, would be without power, and therefore, invalid. The Supreme Court held that the impugned dismissal was invalid also for the reason that regulation 4(3) provided for determination of pay and allowances and the fitment of officers in accordance with the principle laid down in the said circulars, and therefore, the service of an officer could not be determined under the guise of fitment. That could be done only under Clause (10) of the Order and in accordance with the procedure laid down in that clause. Thus the order declaring the dismissal invalid was based on the ground that the regulations and the order of the Central Government must be read harmoniously and when so read, the Central Government's order gave power to terminate the services of an officer after following the procedure there laid down and consequently the impugned dismissal made inconsistently with the provisions of the said order was without jurisdiction and therefore, a nullity.

110. In the case of : (1964)ILLJ1SC it was laid down that there were only three well recognised exceptions to the general rule under the law of master and servant where such a declaration would be issued, namely (1) cases of public servants falling under Article 311(2) of the Constitution (2) cases falling under the Industrial Law, and (3) cases where acts of statutory bodies are in breach of a mandatory obligation imposed by a statute. It was held in S. R. Tewari's case that his case did not fall under any of the said three exceptions. It was further held that the dismissal was wrongful inasmuch as it was in, breach of the terms and conditions of employment embodied In the regulations and not in breach of a statutory restriction or obligation subject to which only the power to terminate the relationship depended. In S. R. Tewari's case the decision of this Court in Ram Babu Rathaur v. Life Insurance Corpn : AIR1961All502 was noticed with approval. In Ram Babu Rathaur's case this Court had held that though the Corporation was a statutory body the relations between it and its employees were governed by contract and were of master and servant and not subject to any statutory obligation although the corporation had framed under its power under the Act regulations containing conditions of service in the Corporation.

111. The case of : [1965]2SCR713 , was of a teacher in a college affiliated to the University of Saugar and managed by the Governing Body established under the provisions of the University of Saugar Act. Certain charges were framed against the appellant by the Principal of the College and he was asked to submit his explanation. He submitted his explanation denying all the charges and requested for particulars on which one of the charges was based. The particulars Were not supplied and the Governing Body terminated his services without holding any enquiry. Jodh moved the High Court under Article 226 of the Constitution for a writ quashing the order of the Governing Body and for his reinstatement, contending that the Governing Body had made the order in violation of the provisions of Ordinance 20, otherwise called the 'College Code', framed under Section 32 of the University of Saugar Act read with Section 6(6) of that Act. The High Court held that the conditions of service of Jodh were not governed by the 'College Code' but by the contract made between him and the Governing Body and therefore, dismissed the petition. On appeal to the Supreme Court it was held that the 'College Code' had the force of law and that it not merely regulated the legal relationship between the affiliated colleges and the University but also conferred legal rights on the teachers of affiliated college. It was observed by the Supreme Court :

'It is true that Clause 7 of the Ordinance provides that all teachers of affiliated college shall be appointed on a written contract in the form proscribed in schedule A but that does not mean that teachers have merely 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 ............'

Having held that the order of dismissal was passed in violation of Clause 8 (vi) (a) of the 'College Code' the appeal was allowed. In Jodh's case, however, the fact that the Managing Committee was not a statutory body was not allowed to be raised before the Supreme Court on the ground that no such contention was raised in the High Court.

112. In the case of M. N. Barot v. S. T. Corpn : (1966)ILLJ437SC the question whether the regulations constituted a statutory obligation subject to which only the power to terminate the employment could be exercised or not or the question whether they took the employment out of master and servant relationship was not canvassed.

112-A. In the case of Rajasthan State Electricity Board v. Mohan Lal : (1968)ILLJ257SC the Supreme Court held that the Board set up under the Electricity (Supply) Act 54 of 1948, was a 'State' within the meaning of Article 12 of the Constitution against which mandamus could issue under Article 226.

113. In the case of Bank of Baroda v. J. L. Mehrotra, 1970-2 Lab LJ 54 (SC) the Supreme Court reiterated the principles laid down in S. R. Tewari's case (supra).

114. In the case : (1970)ILLJ32SC the facts disclosed that Tyagi was dismissed from service without following the procedure laid down in regulation 16(3). The question which arose for determination in that case was whether declaration to the effect that the termination was invalid and void on the ground of non-compliance of regulation 16(3), could be granted. The Supreme Court after examining' a number of decisions, followed the decision in : (1964)ILLJ1SC and held that an order made in breach of regulation 16 (3) was not in breach of any statutory obligation and that the relevant Act did not 'guarantee any statutory status to Tyagi' nor did it impose any obligation on the Warehousing Corporation in the matter of dismissal. Thus the ratio in this case was that violation of Regulation 16 (3) was a breach of terms and conditions of relationship of master and servant and that master was liable for damages for wrongful dismissal.

115. In the case of : (1971)ILLJ496SC it was found that under Sections 8(2) and 20 of the Air Corporation Act of 1953, the Indian Airlines Corporation was given the power to employ its own officers and other employees to the extent it thought necessary on terms and conditions provided by it in regulations made under Section 45. The regulations contained terms and conditions which governed the relationship between the Corporation and its employees. The Supreme Court held that the Regulations made under the power conferred by the statute, merely embody the terms and conditions of service in the Corporation but they do not constitute a statutory restriction as to the kind of contracts which the corporation can make with its servants or the grounds on which it can terminate him. That being so, and the corporation having undoubtedly the power to dismiss its employees, the dismissal of the employee concerned was with jurisdiction, and although, it was wrongful in the sense of its being in breach of the terms and conditions which governed the relationship between the corporation and the respondent it did subsist. The case of that employee did not fall under any of the three well recognised exceptions, and therefore, he was only entitled to damages and not to the declaration that his dismissal was null and void. In para 4 of its judgment Supreme Court laid down

'It is well settled principle.........termination that the contract of service still subsisted would not be made in the absence of special circumstances because of the principle that courts do not ordinarily grant specific performance of service. This is so, even in cases where the authority appointing an employee was acting in exercise of statutory authority. The relationship between the person, appointed and the employer would in such cases be contractual, i. e. as between a master and servant and the termination of that relationship would not entitle the servant to a declaration that his employment had not been validly determined (See (1962) 3 All ER 635 and (1958) 1 All ER 322).'

116. It was further observed that

'the power of the corporation to terminate the employment of its officers and other employees was nowhere disputed; the only dispute raised was as to the manner in which it could be exercised. It is necessary to observe in this connection that neither the Act nor the rules made under Section 44 by the Central Government lay down any obligation or restriction as to the power of the corporation to terminate the employment of its employees or any procedural safeguards, subject to which only, such power could be exercised.'

The employment of Sukhdeo Rai not being one to an office or status and there being no obligation or restriction in the Act or the rules subject to which only the power to terminate his employment could be exercised, it was held that he was not entitled to the declaration that the order of dismissal was null and void and that he continued to be in service.

117. In the case of : AIR1971SC1920 , Km. Regina was working as a Head Mistress. She was served with certain charges. The reply given by her was found to be unsatisfactory and the management by an order passed on June 1, 1955 reduced her to the position of an assistant teacher. Her appeal before the District Educational Officer was rejected. She further appealed before the Divisional Inspector of Schools and succeeded. The management was directed to restore her original position as Head Mistress. The management declined to do so whereupon she filed the suit which was ultimately carried to the Supreme Court on appeal. The Supreme Court found that part II of the Rules which dealt with recognition could not be said to be statutory rules framed under the Madras Elementary Education Act, 1920, although the power to make such rules was still retained with the Government by reason of Clause (h) being still there in Section 56 (2). The Supreme Court observed that ordinarily the relations between the management of an elementary school and the teachers employed in it would be governed by the terms of the contract of employment and the law of master and servant in the absence of any statute controlling or to the contrary. The mere fact that such a school had obtained recognition and aid from the education department would not mean that the relationship between the management and its employees had ceased to be governed by the contracts of employment under which the employees were recruited and by the law of master and servant unless there was some provisions in the Act overriding the law as one finds in statutes dealing with industrial disputes and similar other matters. There was in fact no such provision in the Madras Elementary Education (Amendment) Act. The result was that the relations between the management and the teachers even in recognised elementary schools had to be regarded as being governed by the contracts of employment and the terms and conditions contained therein. Part II Rules, which could not be regarded as having the status of statutory rules made under Section 56 could not be said to have the effect of controlling the relations between the management of the schools and its teacher or the terms and conditions of employment of such teachers or abrogating the law of master and servant which ordinarily could govern those relations. In the absence of any such provision in the Act and the Rules not being statutory rules Km. Regina could not be said to have had a cause of action for enforcing the directions given by the Divisional Inspector to restore her as the Head Mistress in the appeal filed by her. The Supreme Court further held that if the rules lay down conditions the Government could insist that satisfaction of such conditions would be condition precedent to obtaining recognition and aid and that a breach or non-compliance of such conditions would entail either the denial or withdrawal of recognition and aid. The management of a school, therefore, would commit a breach or non-compliance of the conditions laid down in the rules on pain of deprivation of recognition and aid. The rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce these rules upon the management. But the enforcement of such rules is a matter between the Government and the management, and a third party, such as a teacher aggrieved by an order of the mangement, cannot derive from the rules any enforceable right against the management on the ground of a breach or non-compliance of any of the rules.

118. In the case of : (1972)ILLJ442SC the Supreme Court again examined the various decisions relating to the law of master and servant. Vidya Ram Misra was the Head of the Department of Zoology in Jai Narain College, Lucknow, which is an associate college of the Lucknow University. Charges were framed against him and his explanation was called for. He submitted an explanation which was not found to be satisfactory and the Managing Committee passed a resolution for his removal from service. This resolution was challenged by Vidya Ram Misra in a writ petition. A learned single Judge of this Court having found that the Managing Committee in terminating the service acted in violation of the principles of natural justice quashed the resolution. On appeal a Division Bench of this Court found that the relationship between the College and Vidya Ram Misra was that of master and servant and that even if his services had been terminated in breach of the 'audi alteram partem' rule of natural justice the remedy was to file a suit for damages and not apply under Article 226 of the Constitution for a writ. Vidya Ram Misra preferred an appeal before the Supreme Court by special leave. The Supreme Court observed:

'It is well settled that, when there is a purported termination of a contract of service, a declaration that the contract of service still subsisted would not be made in the absence of special circumstances, because of the principle that courts do not ordinarily enforce specific performance of contracts of service. If the master rightfully ends the contract, there can be no complaint. If the master wrongfully ends the contract, then the servant can pursue a claim for damages. So even if the master wrongfully dismisses the servant in breach of the contract, the employment is effectively terminated.'

119. The Supreme Court reaffirmed the exceptions formulated in S. R. Tewari's case to the general rule that when there is a termination of a contract of service, a declaration that the contract of service still subsisted would not be made by saying:

'But this rule is subject to certain well recognised exceptions. It is open to the courts, in a appropriate case, to declare that a public servant who is dismissed from service in contravention of Article 311 continues to remain in service, even though by so doing the State is in effect forced to continue to employ the servant whom it does not desire to employ. Similarly, under the industrial law, jurisdiction of the labour and industrial tribunals to compel the employer to employ a worker, whom he does not desire to employ, is recognised. The Courts are also invested with the power to declare invalid the act of a statutory body, if by doing the act, the body has acted in breach of a mandatory obligation imposed by the statute, even if by making the declaration the body is compelled to do something which it does not desire to do.'

119-A. Statute 151 framed under the provisions of the Lucknow University Act provides that teachers of an associated College including the Principal shall be appointed on written contract and that the contract shall inter alia, provide the conditions mentioned therein in addition to such other conditions not inconsistent with the Act and the Statutes as an Associate College may include in its own form of agreement. The statute specifies the grounds on which a teacher's services can be terminated. Statute 152 stipulates that the form of agreement to be adopted by each college shall be approved by the Executive Council before it is put in force. Statute 153 provides for a form of agreement which shall serve as a model. Thus statute 151 did not provide for any particular procedure for dismissal or removal of a teacher for being incorporated in the contract. Nor does the model of contract lay down any particular procedure for that purpose. Clause (5) of the agreement executed by Vidya Ram, bow-ever, provided that procedure. The Supreme Court in these circumstances held that statute 151 only provided that the terms and conditions mentioned therein must be incorporated in the contract to be entered into between the College and the teacher. It did not say that these terms and conditions had any legal force, until and unless they are embodied in an agreement. To put it in other words, the terms and conditions of service mentioned in Statute 151 had proprio vigore no force of law. They become terms and conditions of service only by virtue of their being incorporated in the contract. Without the contract, they had no vitality and can confer no legal rights. Therefore, Vidya Ram could not find any cause of action on the breach of any law but only the breach of the contract. It was further held that in order that the third exception to the general rule that no writ will lie to quash an order terminating a contract of service, albeit illegally, might apply, it is necessary that the order must be the order of a statutory body acting in breach of a mandatory obligation imposed by a statute. Tt was held that the Managing Committee in question was not a statutory body and so the case of Vidya Ram did not fall under the third exception.

120. The Supreme Court has recently again examined the law of master and servant in the case of Sirsi Municipality v. Celia Kok Francis Tcllis : (1973)ILLJ226SC and observed :--

'The cases of dismissal of servant fall under three broad heads. The first head relates to relationship of master and servant governed purely by contract of employment. Any breach of contract in such a case is enforced by a suit for wrongful dismissal and damages. Just as a contract of employment is not capable of specific performance similarly breach of contracts of employment is not capable of finding a declaratory judgment of subsistence of employment. A declaration of unlawful termination and restoration to service in such a case of contract of employment would be indirectly an instance of specific performance of conlract for personal services. Such a declaration is not permissible under the law of Specific Relief Act

The second type of cases of master and servant arises under Industrial Law. Under that branch of law a servant who is wrongfully dismissed may be reinstated. This is a special provision under Industrial Law. This relief is a departure from the reliefs available under the Indian Contract Act and the Specific Relief Act which do not provide for reinstatement of a servant.

'The third category of cases of master and servant arises in regard to the servant in the employment of the State or of other public or local authorities or bodies created under statute.

Termination or dismissal of what is described as a pure contract of master and servant is not declared to be nullity however wrongful or illegal it may be. The reason is that dismissal in breach of contract is remedied, by damages. In the case of servants of the State or of local authorities or statutory bodies, courts have declared in appropriate cases the dismissal to be invalid if the dismissal is contrary to rules of natural justice or if the dismissal is in violation of the provisions of the Statute. Apart from the intervention of statute there would not be a declaration of nullity in the case of termination or dismissal of a servant of the State or of other local authorities or statutory bodies.

The courts keep the State and the public authorities within the limits of their statutnry powers. Where a State or a public authority dismisses an employee in violation of the mandatory procedural requirements or on grounds which are not sanctioned or supported by statute the courts may exercise jurisdiction to declare the act of dismissal to be a nullity. Such implication of public employment is thus distinguished from private employment in pure cases of master and servant.'

121. The Supreme Court also considered in this case the question of 'statutory status' of an employee and observed that the cases of a 'statutory status' of an employee can also form the subject-matter of protection of the rights of an employee under the statute. The statutory scheme of employment in this case of Vine v. National Dock Labour Board (1956) 3 All ER 939, was held to confer on the worker a status and an unlawful act of the Board was found to be interference with status. The status of the dock worker was recognised by the Supreme Court in the case of Calcutta Dock Labour Board v. Jaffar Imam : 1966CriLJ189 and the termination of the employment in breach of Clause 36(3) of the scheme made by the Central Government in exercise of the power conferred on it by Section 4(1) of the 'Dock Workers (Regulation of Employment) Act, 1948 was held to be bad.

122. In Sirsi Municipality case : (1973)ILLJ226SC it was found that the dismissal was in violation of Rule 143 which imposed a mandatory obligation. The rules were made in exercise of the power conferred on the municipality by statute and were binding on the municipality. The dismissal was, therefore, held to be ultra vires.

123. The result of the enquiry into the various cases may be stated as follows :

(1) The cases of dismissal of servant fall under three broad heads, (i) cases of master and servant governed purely by contract of employment (ii) cases of master and servant arising under Industrial law and (iii) cases of servants in the employment of the State or of other public or local body or authority created under the statute.

(2) When there is a purported termination of a contract of personal service, a declaration that the contract of service still subsisted would not be made nor would the dismissal or termination in such a case be declared a nullity however wrongful or illegal it may be. The remedy of an employee in such an event will only sound in damages. A declaration of unlawful termination and restoration to service in such a case of contract of employment amounts to enforcement of contract of personal service and is not permissible under the provisions of the Specific Relief Act.

(3) In the cases governed by the Industrial law a servant who is wrongfully dismissed may be reinstated.

(4) In the case of servants in the employment of the State or other public or local bodies or authorities created under the statute courts may in appropriate cases declare a dismissal to be void if the dismissal is contrary to rules of natural justice or is in violation of the provisions of the statute or the rules laving the force of law or some provisions of the Constitution.

(5) There are thus three recognised exceptions to the general rule under the law of master and servant where a declaration that the determination of the employment is void and ultra vires may be made, namely, (i) cases of public servants falling under Article 311(2) of the Constitution (ii) cases falling under the Industrial law (iii) cases where acts of statutory bodies or public authorities are in breach of a mandatory obligation or restriction imposed by a statute.

(6) Where the provisions of an Act or statute relating to security of tenure of an employee are part and parcel of conditions of service apart from the terms and conditions stipulated in the written contract and such provisions have statutory force the order of termination of service passed in violation thereof may be challenged in an appropriate proceeding. In all such cases the acid test is whether an employer is under any statutory obligation or restriction subject to which alone he can terminate the services of the employee.

(7) The dismissal of a servant by statutory including local authorities or bodies in breach of the provisions of the statutes or order or schemes made under the statute which regulate the exercise of the power is invalid or ultra vires and the principle of pure master and servant contractual relationship has no application to such cases.

(8) If a right is claimed in terms of a contract such a right cannot be enforced in a writ petition. In other words if the cause of action is based not on the breach of a mandatory obligation imposed by a statute but only on the breach of contract the remedy is only by way of a suit for damages and not by way of an application under Article 226 of the Constitution.

124. The next question relates to the 'statute' of a teacher or principal of affiliated college in question. It was contended on behalf at the management that there was nothing in the nature of status which was capable of protection hence a teacher or a principal of an affiliated college governed by the provisions of the Kanpur and Meerut Universities ACT cannot seek a declaration that the order of dismissal is void and ultra vires. The submission was that the relationship between a teacher and the management is a pure relationship of master and servant governed by the terms of contract, hence even if the order of dismissal is found to be illegal his remedy would only sound in damages. In order to appreciate this contention raised on behalf of the management it is necessary to under-stand the meaning of the term 'status' as operative in the field of law.

125. In Corpus Juris Secundum Vol. LXXXI, page 1349 the word 'status' has been defined. It reads :--

'The word 'status' defined generally, means standing, state or condition.

As applied to a person, 'status' has reference to, and means, the person's legal relation and condition; the legal position of the individual in or with regard to the rest of the community, a person's condition arising out of a legal station, Thus, as applied to a person, 'status' means condition, such as being an infant, a slave, a married man or woman, a ward, or a prisoner, and it can be determined only by the state and not by agreement of the parties.

Status, as applied to a person, is frequently a conflict of laws problem.'

The word 'status' has also been defined in English Conflict of Laws by Schmitthoff. Chapter XI of that book deals with the status of a person. Relying on the definition of the term 'status' given in the American Restatement para 119 the learned author states:

'A 'status' means a legal personal relationship, not temporary in its nature nor terminable at the mere will of the parties, with which third parties and the state are concerned.

The legal characteristic of status is, then that it is generally not temporary nor terminable at will. In this respect, status is unlike contract. A contract of service or of partnership may be limited in time and terminable at the will of one or more of the parties thereto, but the status of marriage is contemplated as permanent and can be dissolved only by the State.'

126. Lord Haldane in Salvesen v. Administrator of Austrian Property, 1927 AC 641 at p. 653, while considering the 'status' of marriage said :--

'For what does status mean in this connection? Something more than a mere contractual relation between the parties to the contract of marriage. Status may result from such a contractual relationship, but only when the contract has passed into something which Private International law recognises as having been superadded to it by the authority of the State.'

127. Brett, L. J., in Niboyet V. Niboyet, (1878) 4 PD 1 at p. 11, said that:

'The status of an individual, used as a legal term, means the legal position of the individual in or with regard to the rest of a community ............... As that relation and status are imposed by law, the only law which can impose or define such a relation or status (i.e. relative position) so as to bind an individual, is the law to which such individual is subject.'

128. In the case of Luck, Walker v. Luck, (1940) 3 All ER 307 it was observed:

'Status is in every case the creature of substantive law. It is not created by contract, although it may arise out of contract, as in the case of marriage, where the contract serves as the occasion for the law of the country of the husband's domicile to fix the married status of the parties to the contract. Perhaps the most far-reaching characteristic of status, and most material to the decision of the present case, is its quality of universality, both in the general jurisprudence of other nations and in private international law.'

129. Before the nineteenth century, the term 'status' had not received complete recognition as a separate judicial conception. In 1834, Story on Conflict of Laws, 1st Edn. said:

'The subject has never been systematically treated by writers on the common law of England; and indeed, seems to be of very modern growth in the Kingdom; and can hardly, as yet, be deemed to be more cultivated.'

130. The judgments of the first half of the nineteenth century disclose that status is the effect of domicile. There seemed to be occasional conflict between domicile and nationality. Napolenic Code placed reliance on nationality. Universality was the basic principle of status in private international law but it was a difficult problem in private international law.

131. In the case of : (1968)ILLJ576SC the Supreme Court observed:

'The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. The matter is clearly stated by Salmond and Williams on Contracts (2nd Edition page 12) as follows:'So we may find both contractual and status-obligations produced by the same transaction. The one transaction may result in the creation not only of obligations defined by the parties and so pertaining to the sphere of contract but also and concurrently of obligation defined by the law itself, and so pertaining to the sphere of status. A contract of service between employer and employee, while for the most part pertaining exclusively to the sphere of contract, pertains also to that of status so far as the law itself has seen fit to attach to this relation compulsory incidents, much as liability to pay compensation for accidents. The extent to which the law is content to have matters within the domain of contract to be determined by the exercise of the autonomous authority of the parties themselves, or thinks fit to bring the matter within the sphere of status by authoritatively determining for itself the contents of the relationship, is a matter depending on considerations of public policy. In such contracts as those of service the tendency in modern times is to withdraw the matter more and more from the domain of contract into that of status.'

132. In my view, maintenance of social institutions and orderly relationship between different individuals and groups within the State are the principal objects of the juristic concept of status. This concept goes on reshaping being affected by economic and political philosophies and new sociological schools of jurisprudence. On the establishment of a classless society the word 'status' would acquire a completely different connotation. Even in a welfare State pledged to provide greatest good to the greatest number the concept of status has received a new meaning. It is now linked with the relationship of labour with capital. A workman has a definite and recognised status. So do have all those persons who contribute their energy and labour to production and to various development and nation-building activities set up for the welfare of the society. A teacher has had a status. He has always been held in high esteem and reverance by his disciples and students. Society has always given him a place of honour. From ages past a day has been fixed in this country called as 'Guru Purnima' when a student goes to his Guru to pay his respects. Even in modern times fifth day of September every year is a teachers' day in our country. The tendency in modern legislation seems to be to recognise the status of a teacher as understood in the field of law. Teachers of the affiliated colleges governed by the provisions of Agra University Act and Kanpur and Meerut Universities Act, with which I am concerned in these cases at hand have, in my opinion, a status. The legal relationship between them and the management is something in the nature of status. The transaction of their appointment with affiliated colleges results in the creation not only of obligations defined by the parties but also and concurrently of obligations defined by the aforesaid enactments and the Statutes framed thereunder.

133. The management of an affiliated college may appoint a person as a teacher and for that purpose both the parties have to execute a written contract as required by the said Acts but the appointment is subject to the approval of the Vice-Chancellor. If the Vice-Chancellor disapproves of the appointment the services of the teacher will have to be terminated. Similarly the termination or removal from service is also subject to the order of the Vice-Chancellor in that behalf, The resolution of the management of an affiliated college to terminate the services of a teacher is not effective until and unless it is approved of by the Vice-Chancellor of the University. The matter, therefore, is not confined to the realm of contract only. It is not an employment depending merely on the terms of the contract. It is much more than a purely contractual relationship. The law, as pointed out above, imposes certain conditions which are essential to not only bringing into effect the appointment but also bringing into effect the termination of service. The powers and duties are thus determined by law as well. The relationship in the case of a teacher of an affiliated college governed by the said Acts may arise out of contract but the contract serves as an occasion for the law to fix the status of the teacher. The law in the case of teachers of such an affiliated college attaches to the relationship compulsory incidents such as approval of the Vice-Chancellor to the proposed dismissal as also the liability to pay provident fund etc. Statute 29 contained in Chapter XVIII leaves certain matters within the domain of contract but they are by law required to be necessarily incorporated in the contract governing the terms and conditions, which as mentioned in Statute 29, can also not be unilaterally altered. They are also fixed by the law. 'At the same time the conditions mentioned in Statute 30 which is independent of Statute 29 relates to matters depending on considerations of public policy to guarantee security of service. Of course, in a case of ordinary contract of service between a master and servant where the powers and duties are not determined by law but by agreement between the parties concerned it may be said that the relationship is merely contractual.

134. A principal of an affiliated college governed by the provisions of the aforesaid Acts having prescribed qualifications is a member of the Senate and the Court of the University. See Section 17 (1) (4) of the Agra University Act, Section 18 (1) (5) of the Kanpur and Meerut Universities Act. He has certain statutory duties to perform. He is responsible for the maintenance of discipline in the college (Section 33 of the Kanpur and Meerut Universities Act). He has a right of representation on University bodies and of being appointed as examiner. (See Chapter I Statute 5 (1) (2) (9) of the Agra University Statutes). Chapter XVIII of the Agra University Statutes prescribes the qualifications of a Principal and also his grade and salary. He is an ex-officio member of the managing committee. He is entitled to the benefits of provident fund and to certain leave. He is a member of the selection committee for the appointment of teachers. He has to certify to the University regarding the fulfilment of conditions of affiliation. The disputes about seniority of teachers are first to be decided by the Principal. He is also a member of the Finance Committee. Boys' fund is administered by him. A student can be admitted only when a Principal accepts his application. He has a power of punishing the students by placing them under suspension, imposing fine or passing an order of rustication. He has to send a list of the students admitted to the College to the Registrar. All applications for examination are sent through him. The refund of fee is to be granted by him. He has power to detain students from appearing at the examination and condone attendance in college and National Cadet Corps. The duties of a Principal are thus fixed by the law and in the enforcement of these duties society has an interest. The fate of thousands of students hangs on the manner of the performance of those duties. A lapse on the part of the management or the Principal or even a teacher may result in the disaffiliation of the college ultimately affecting the student community which is always a future hope of the country.

135. The learned counsel appearing for the management referred me to Vidya Ram's case : (1972)ILLJ442SC (supra) in which it was observed that in that case there was no element of public employment, nothing in the nature of an office or status which is capable of protection. That case is, however, distinguishable. Vidya Ram's appointment was held to be purely contractual. The relevant regulations framed under the Luck-now University Act relating to the terms and conditions of service were held to be not having any force and vitality of their own unless they were incorporated in a deed of agreement. It was observed that without the contract they have no vitality and can confer no legal rights. This is not so in the cases of appointments of a teacher and a Principal made under the Agra University Act and Kanpur and Meerut Universities Act and the statutes framed under those Acts. In view of the legal position discussed above I am of the view that a teacher including the Principal of an affiliated college whose terms of service are governed by the Agra University Act and Kanpur and Meerut Universities Act have status which is capable of protection.

136. Examining the cases at hand in the light of the legal position discussed above I would agree with the conclusions arrived at by brother Asthana However, I do not find it necessary to make a detailed examination of those cases as also of the submissions made by the learned counsel for the parties inasmuch as the same has been done by brother Asthana and I agree with his answers to the questions posed.

ORDER BY THE COURT

Second Appeal No. 2973 of 1971:

137. We hold that the plaintiff respondent Sri Laxmi Narain is entitled to the relief claimed in the plaint on the facts and circumstances of the case.

138. The second Appeal may now be listed before the learned Single Judge for further hearing on any point surviving and for decision in accordance with law.

Special Appeal No. 516 of 1971:

139. We hold that the petitioner Sri Suresh Chandra Sharma is entitled to the appropriate relief in the writ petition which is maintainable if the Special Appeal Bench affirms the factual findings recorded by the learned Single Judge.

140. The special appeal may now be listed before the Bench concerned for further hearing and decision in accordance with law.

Writ Petition No. 858 of 1970:

141. The question referred is answered in the affirmative. The writ petition is maintainable. The petition may now be listed before the learned Single Judge for decision in accordance with law.

Writ Petition No. 68 of 1971:

142. As the learned counsel for the parties had stated that they did not want any decision from the Court in this petition, it would be listed before the learned Single Judge to be decided in accordance with law and in the light of the Full Bench decision in the above connected cases.