ivil Appeals Nos
3222 3241 of 1988
From the Judgment and Order dated 521981 of the Madras High Court in WP Nos
59 18 67 12 7495 7496 7591 8623 8624 and 9088 of 1982 502 503 1336 2433 3460 3596 3846 6797 8859 104 18 104 19 of 1983 and 5888 of 1984
V Krishnamurthy for the Appellants
P Chidambaram AS Nambiar Smt
Shanta Vasudevan PK Manohar MN Krishnamani Sunder Rao Diwan Balak Ram CS Vaidyanathan SR Setia and KV Mohan for the Re spondents
35 The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
The Tamil Nadu Government passed an Act called the Tamil Nadu Industrial Establish ments Conferment of Permanent Status to Workmen Act 1981 The Act which came into force on 1st January 1982
The Act was to confer permanent status to workmen in various industrial establishments who have put in continuous service for a period of 480 days in a period of 24 calendar months in an industrial establishment
Section 3 is a crucial provision in the Act
It reads as under Sec 3
Conferment of permanent status to workmen 1 Notwithstanding anything contained in any law for the time being in force every workman who is in continuous service for a period of four hundred and eighty days in a period of twenty four calendar months in an industrial establishment shall be made permanent
2 A workman shall be said to be in continuous service for a period if he is for that period in uninter rupted service including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal or a lockout or on account of non employment or discharge of such workman for a period which does not exceed three months and during which period a substitute has been employed in his place by the employer or a cessation of work which is not due to any fault on the part of the workman
Explanation For the purposes of this section the number of days on which a workman has worked in an industri al establishment shall include the days on which i he has been laid off under an agreement or as permitted by standing orders made under the Central Act XX of 1946 or under any other laws applicable to the industrial establish ment ii he has been on leave with full wages earned in the previous years 36 iii he has been absent due to temporary disablement caused by accident arising out of and in the course of his employ ment and iv in the case of a female she has been on maternity leave so however that the total period of such maternity leave does not exceed twelve weeks  The constitutional validity of the Act was challenged in a batch of writ petitions by various industrial establish ments before the High Court of Madras
The High Court has allowed the writ petitions in part holding inter alia as follows The Explanation to section 3 is incapable of enforcement and must therefore be held to be redundant
2 The provisions of Section 32 of the Act are valid except that the clause or on account of non employment or discharge of such workman for a period which does not exceed three months and during which period a substitute has been employed in his place by the employer  is void on the ground that it amounts to an unreasonable restriction on the right of the employer
3 An apprentice or a badli worker could not be included in the workman  referred to in section 31 and 2 of the Act and they will therefore be not entitled to the bene fit of section 3
4 The Act will not supersede a settlement between the workers and the employer in so far as it deals with the subject of conferment of permanent status to workman
5 The Act cannot be held to be retrospective in character
 On 7th July 1985 the State of Tamil Nadu preferred this appeal challenging the judgment of the High Court
During the pendency of the appeal the State also amended the principal Act in order to obviate the practical difficulties in implementing the provisions of the Act by reason of the judgment of the High Court
The relevant portion of the Amending Act 44 of 1985 reads as under 37 2
Amendment of section 3 Tamil Nadu Act 46 of 1981 In section 3 of the Tamil Nadu industrial Establishments Conferment of Permanent Status to Workmen Act 1981 Tamil Nadu Act 46 of 1981 hereinafter referred to as the princi pal Act 1 in the Explanation for the opening portion beginning with the words for the purposes of this section and ending with the words include the days on which the following shall be substituted namely For the purposes of computing the continuous service re ferred to in sub sections 1 and 2 a workman shall be deemed to be in continuous service during the days on which  2 the Explanation shall be numbered as Explanation I and after Explanation I as so numbered the following Explana tion shah be added namely Explanation II For the purposes of this section law  includes any award agreement settlement instrument or contract of service whether made before or after the com mencement of this Act
The Amending Act also contains provision for validation in the following terms 3
Validation Notwithstanding anything contained in any judgment decree or order of any court or other authority all acts done or proceedings taken in pursuance of section 3 including the Explanation of the principal Act at any time on or after the 1st day of January 1982 and before the date of publication of this Act in the Tamil Nadu Government Gazette in relation to every workman in an industrial estab lishment for the purpose of conferment of permanent status to such workman by any officer or authority shall for all purposes be deemed to be and to have always been validly done or taken in accordance with law as if section 3 of the principal Act as amended by this Act had been in force at all material times when such acts or proceedings were done or taken
38 Mr Chidambaram learned counsel for the respondents argued that the Legislature while amending the principal Act with retrospective effect and also validating the acts done and proceedings taken under the principal Act appears to have accepted the judgment of the High Court so far as it relates to the offending portion in sub section 2 of section 3 since no different meaning has been given to that portion from the one asserted by the High Court
But counsel for the appellant argued that the view taken by the High Court as to the scope of sub section 2 of section 3 has to be determined notwithstanding the foregoing amendments
He claimed that non employment or discharge of any workman for a period which does not exceed three months and during which period a substitute has been employed in his place by the employer was intended to cover such cases where the employer deliberately discharges a workman in order to effect a break in service and again re employs him as a fresh candidate without continuity of service
We may first examine whether there is legislative ap proval of the High Court decision to the extent indicated by Mr Chidambaram for the respondent
The Statement of Objects and Reasons accompanying the Amending Act 44 of 1985 reads as follows STATEMENT TO OBJECTS AND REASONS The Tamil Nadu Industrial Establishments Conferment of Permanent Status to Workmen Act 1981 Tamil Nadu Act 46 of 1981 has been enacted with a view to provide for the con ferment of permanent status to workmen in the industrial establishments in the State of Tamil Nadu
The judgment of the Madras High Court rendered in a batch of Writ Petitions Nellai Cotton Mills Ltd Tirunelveli vs State of Tamil Nadu Writ Petition No 5910 of 1982 etc had given rise to certain practical difficulties in implementing the provi sions of the said Act
It has therefore been decided to amend section 3 of the said Act to remove the difficulties caused by the said judgment and confer the intended benefits on workmen
The Bill seeks to achieve the above object
 When the Act has been judicially interpreted Courts may study the _subsequent action or inaction of the legislature for clues as to legislative approval or disapproval of judicial interpretation
After the statute has been judi cially interpreted in a certain way and if the legislature by taking note of the judgment amended the statute appro 39 priately so as to give it a different meaning from the one asserted by the courts or not giving any different meaning from the view taken by the court it may be argued with some justification that the legislature has expressly or by implication ratified the judicial interpretation
In the instant case the legislature has expressly taken note of the High Court verdict and removed the practical difficul ties caused thereby in implementing the provisions of the Act by appropriate amendments
No provision however was inserted to re write and validate the portion which was struck down by the High Court
It could therefore be rea sonably held that the legislature has accepted the judgment of the High Court to the extent indicated
That apart the view taken by the High Court in strik ing down a portion of sub section 2 in our opinion cannot be found fault with
Sub section 2 of section 3 consists of three parts
The first part refers to interrup tion of service including service which may be interruption on account of sickness or authorised leave or an accident or a strike which is not illegal or a lockout
The second part Consists of the portion which has been struck down by the High Court as unreasonable restriction on the right of the employer
The third part refers to cessation of work which is not due to any fault on the part of the workmen
The provisions under the first and the third parts seem to be similar to the terms of section 25B of the Industrial Dis putes Act which also provides for continuous service of the workman
The second part dealing with non employment and discharge of a workman is distinct from the first and the third parts
It refers to the period during which there is no subsisting relationship of master and servant
We agree with the High Court that the word non employment  would include retrenchment as well and a person whose services have been terminated or discharged albeit illegal cannot at all be said to be a person in service
much less in continu ous service
Therefore the period of non employment or the period after discharge cannot be counted for the purpose of giving continuity of service
If the discharge is set aside and workman is reinstated by process known to law the work man automatically gets continuity of service
No special provision is necessary for such purposes
In any view of the matter we cannot therefore accept this appeal and is accordingly dismissed
In the circumstances of the case however we make no order as to costs
GN Appeal dismissed


Summary:
The appellant and the respondents applied for the post of Reader in Psychology in Lucknow University
Under the University Statute the minimum qualification for the post was a Doctorate degree or a published work of high standard in the subject
The respondents possessed PhD degree while the appellant s thesis was nearing completion
On the basis of her experience performance at the interview and published work which was found to be of high standard on the subject the Selection Committee recommended the appellant s appointment by grading her No 1 85 By a split of the majority the Executive Council disa greed with the recommendation of the Selection Committee on the ground that the appellant did not possess the essential qualification for the post of Reader and it preferred the appointment of respondent No 2
In view of the Council s disagreement the matter was referred to the Chancellor for his decision under Section 318a of the UP State Universities Act 1973
The Chancellor rejected the opinion of Executive Council and accepted the recommendations of the Selection Committee and directed that the appellant should be appointed as a Reader
Respondent No 1 challenged the Chancellor s order by filing a writ petition in the High Court which following its earlier Full Bench decision wherein it was held that the Chancellor must explicitly state the reasons for his deci sion and was enjoined by the Act to act quasijudicially quashed the Chancellor s order with a direction to reconsid er the matter
In the appeal to this Court on the question of the nature of the Chancellor s power under Section 318a of the UP State Universities Act 1973 Allowing the appeal and setting aside the order of the High Court this Court HELD 1
Three authorities are involved in the Selection of University teachers  i Selection Committee ii Execu tive Council and iii The Chancellor
The Selection Commit tee for appointment of University teachers is a recommenda tory body the composition of which has been prescribed under section 314a
The Executive Council is the principle executive body of the University
Subject to the provisions of the Act it has power to appoint officers teachers and other employees of the University
Section 318a seems to suggest that if the Executive Council wants to agree with the recommendation and appoint candidates in the order of merits no reasons are to be given
But if it wants to disagree with the recommendations made by the Selection Committee it must give reasons for disagreement
It has however no power to override the recommendation and appoint a candidate of its own choice
It may disagree but should give reasons for disagreement and refer the matter under section 318a to the Chancellor
Then the decision of the Chancellor shall be binding on the Executive Council
The Chancellor is not an appellate authority in matters of appointment
His decision is called for when the Executive Council disagree with the recommendation of the Selection Committee
What is referred to him 86 under section 318a of the Act is therefore not a dispute between the Selection Committee and the Executive Council on any issue
Nor it is a dispute between two rival candidates on any controversy
It is indeed a decision with regard to appointment of a particular person or persons in the light of the recommendation and opinion if any of the two statutory authorities
94H 95A IL F G 99F H 11 The power of the Chancellor under Section 318a is purely of administrative character and is not in the nature of judicial or quasijudicial power
No judicial or quasi judicial duty is imposed on the Chancellor and any reference to judicial duty seems to be irrelevant in the exercise of his function
Such a power cannot be considered as quasi judicial power
101 F H LN Malhur vs The Chancellor Lucknow University Lucknow  Ors  Dr UN Roy vs
GD Tapase 1981 UPLBEC 309 disapproved
Section 31 confers no right to make representation to the Executive Council or to the Chancellor against the recommendation of the Selection Committee
There is no provision in the Section for hearing any candidate or the Executive Council
There is also no provision for receiving evidence
The decision of the Chancellor in the exercise of this statutory function does not expressly or impliedly require the application of the principle of natural justice
 I 01 B 1 Dr G Sarana vs University of Lucknow and Ors   held inapplicable
RS Dass vs Union of India
1966 Supp SCC 617 re ferred to
21 The Chancellor however has to act properly for the purpose for which the power is conferred
He must take a decision in accordance with the provisions of the Act and the Statutes
He must not be guided by extraneous or irrele vant consideration
He must not act illegally irrationally or arbitrarily
Any such illegal
irrational or arbitrary action or decision whether in the nature of a legislative administrative or quasi judicial exercise of power is liable to be quashed being violative of Article 14 of the Constitu tion
102B C 22 The order of the Chancellor impugned in this case indicates very clearly that he has considered the recommen dation of the question Committee and the opinion expressed by the Executive Council
The 87 minimum qualification prescribed for the post is a Doctorate in the subject of study concerned or a published work of high standard in the subject
The appellant was found to have an alternate qualification though not a Doctorate in the subject
The Selection Committee has accepted the alter nate qualification as sufficient and did not relax the essential qualification prescribed for the post
The Execu tive Council appears to have committed an error in stating that the appellant has lacked the essential qualification and the Selection Committee has relaxed the essential quali fication
The Chancellor was therefore justified in re jecting the opinion of the Executive Council
His decision gets support from the Statute I 101 of the First Statute of the Lucknow University
Accordingly the judgment of the High Court and the consequential order made by the Registrar of the University reverting the appellant to her substantive post of Lecturer are set aside
Her original appointment as Reader pursuant to the decision of the Chancellor shall remain undisturbed with all consequential benefits
102E 103B C G 3
An administrative function is called quasi judicial when there is an obligation to adopt the judicial approach and to comply with the basic requirements of justice
Where there is no such obligation the decision is called purely administrative  and there is no third category
197G H Ridge vs Baldwin   G Nageshwara Rao vs Andhra Pradesh State Transport Corporation  Administrative Law by HWR Wade 6th Ed
p 46 47 referred to
31 The conclusiveness of the decision without the need for confirmation or adoption by any other authority is generally regarded as one of the features of judicial power
But the order made by a statutory authority even it is given finality does not thereby acquire judicial quality if no other characteristic of judicial power is present
Power to make orders that are binding and conclusive is not by itself a decisive factor to hold that the power is judicial
101 E F Prof Desmith Judicial Review of Administrative Ac tion  4th Ed p 82 referred to
32 An administrative order which involves civil conse quences must be made consistently with the rule expressed in the Latin Maxim audi alteram partem
The person concerned must be informed of the case against him and the evidence in support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken
98G H 88 State of Orissa vs Dr Binapani Dei  Ors   Ridge vs Baldwin   referred to
33 So far as the administrative officers are concerned the duty is not so much to act judicially as to act fairly
For this concept of fairness adjudicative settings are not necessary nor it is necessary to have lis inter parties
There need not be any struggle between two opposing parties giving rise to a lis 
There need not be resolution of lis inter parties
The duty to act judically or to act fairly may arise in widely different circumstances
It may arise expressly or impliedly depending upon the context and con siderations
All these types of non adjudicative administra tive decision making are now covered under the general rubric of fairness in the administration
But theneven such an administrative decision unless it affects one s personal rights or one s property rights or the loss of or prejudi cially affects something which would juridically be called atleast a privilege does not involve the duty to act fairly consistance with the rules of natural justice
99A E Keshva Mills Co Ltd vs Union of India   Mohinder Singh Gill vs Chief Election Commissioner   Swadeshi Cotton Mills vs Union of India  Management of Ms MS Nally Bharat Engi neering Co Ltd vs The State of Bihar  Ors Civil Appeal No 1102 of 1990 decided on 921990  referred to
In matters of appointment in the academic field the Court generally does not interfere
The Courts should be slow to interfere with the opinion expressed by the experts in the absence of mala fide alleged against the experts
When appointments are based on recommendations of experts nominated by the Universities the High Court has got only to see whether the appointment had contravened any statutory or binding rule or ordinance
The High Court should show due regard to the opinion expressed by the experts constituting the Selection Committee and its recommendation on which the Chancellor has acted
103D E University of Mysore  Anr
CD Govinda Rao  Dr JB Kulshreshtha  Ors
vs Chancellor Allahabad University Raj Bhavan  Ors
   Dalpat Abasaheb Soluke vs
BS Mahajan  followed
The principle of equality enshrined in Article 14 must guide every state action whether it be legislative executive or quasi judicial
102C D 89 EP Royappa vs State of Tamil Nadu  Anr   Mrs Maneka Gandhi vs Union of India  Ant 1978 1 SCC 248 Ajay Hasia  Ors
vs Khalid Mujib Sehravardi  Ors 1981 I SCC 722 Som Raj  Ors
vs State Of Haryana JT  referred 51 In matters relating to public employment whether by promotion or direct recruitment only requirement to be complied with is the mandate of Articles 14 and 16 of the Constitution
There shall be equality of opportunity and no discrimination only on ground of religion race caste sex dissent place of birth or residence or any of them
The eligible candidate has a right to have his case considered in accordance with law
100F