vil Appeal No 1386 of 1972
From the Judgment and order dated the 26th October 1971 of the Jammu and Kashmir High Court at Srinagar in Writ Petition No 36 of 1970
F section Nariman Additional Solicitor General of India 0
C Mathur and P C Bhartari for the appellant
T R Bhasin R L Kohli and Ramesh Kohli for respondent No 1 The Judgment of the Court was delivered by KRISHNA IYER J
The University of Kashmir the appellant with a blurred sense of legality issued a ukase by resolution of its Council terminating the services of its Professor the appellee insufficiently aware of the kaleidoscopic legislative changes and crucial statutory consequences on the one hand and curiously indifferent to its own embarrassingly ambivalent dealings seemingly legitimising the permanent status of the Professor
This decision virtually dismissing the appellee was successfully challenged as void in the High Court but the appellant University has come up in appeal with a certificate of fitness seeking to sustain the validity of its action
At the first blush the law of master and servant may apply to the present fact situation bum the statutory status of the employer substantially transforms tile character of the master the consequences of its ultra vires acts as well as amenability to types of relief like reinstatement and the applicability or writ remedies alien to the legal chemistry of breaches of contract
However in the light of the factual cum legal conclusions which appeal to us these thorny jurisprudential issues of deeper import in a socio economic and cultural context where the State undertakes dynamic activities affecting citizens  rights and operates through 171 corporate and other effective instrumentalities may not fall for direct decision
Enough unto the day is the evil thereof
A chronological narration of the principal facts and events and legislative shifts and their implications must precede consideration of the legal contentions put forward by either side
The Jammu and Kashmir University Act 2005 Samvat Year created the University of Jammu and Kashmir
Several years later the present respondent joined the University as a lecturer on contract basis the law that governed his services being the provisions of that Act and the statutes framed thereunder
Subsequently the Jammu and Kashmir University Act 1965 was passed which while repealing the previous Act preserved and continued for the transitional period the rules and regulations and services of teachers and officers of the University section 52
Primarily the 1965 Act imparted embryonic shape to the Jammu University and the Kashmir University by the creation of two Divisions
1 Jammu Division and 2 Kashmir Division Anyway the respondent who had joined in 1963 was appointed as Reader in September 1965 a few months after the 1965 Act came into force
A couple of years later the respondent registered an advance in hiscareer and became Professor in the Post Graduate Departmentof the University in the Kashmir Division on terms and conditionscontained in letter dated January 8 1968
While he was put on probation for one year he was informed that immediately after his appointment he would have to enter into an agreement with the University in the form forwarded to him
This agreemcnt bound the respondent to the statutes and regulations from time to time in force in the University
It is significant to note as the High Court has pointed out in its judgment that the case of both the parties however is that the appointment of the petitioner as Professor was on contract basis
The one year period of probation expired on December 14
1968 but the Vice Chancellor extended it for one more year by order dated November 11 1968
This extension was confirmed by the meeting of the Central Council of the Unversity at its meeting dated June 26 1969
But at the same meeting it was resolved by the Central Council that the respondent be charge sheeted for certain alleged misconduct
An enquiry was held by an enquiry officer appointed in this behalf Shri J N Bhan who submitted his report on September 5 1969 holding the respondent guilty substantially
By accident it happens that on the same date namely September 5 1969 the Jammu and Kashmir University Ordiinance 1969 was promulgated by the Governor establishing two separate universities one for Jammu and the other for Kashmir
How ever by section 52 thereof the rules an regulations and services of employees were continued
And then followed a significant provision which laid down that within 60 days from the commencement of the Ordinance the services of teachers employed on contract basis were to cease unless otherwise ordered by the Chancellor
No such order was issued by the Chancellor extending the respondent s employment
However oblivious or heedless of the statutory cessation of the respondent s services he was allowed to function as Professor and his probation was again extended for a year by the Vice Chancellor under 172 section 134 of the Ordinance which had already been replaced on November 10 1969 by the Jammu and Kashmir Universities Act 1969
More incongruous with the appellant s present stand is the direction by the Vice Ciiancellor to release the salary of the respondent and the request to him to serve on the Academic Council as an ex officio member being Professor and Head of the Department of History
While thus on the one side quiet flowed the stream of service as professor on the other turbid eddies of threat to terminate surfaced up
For based on the enquiry report the Vice Chancellor issued a show cause  notice on December 22 1969 which elicited the respondent s explanation on January 31 1970
Together all the materials were considered by the University Council at its meeting dated
July 7 1970 where the decision was taken to remove him paying one month s salary
Thereafter of course the present litigation started
The principal questions canvassed before us turn on the correctness of the views taken by the High Court on a the respondent s right to continue in service even after the statutory explanation thereof and b the validity of the reliance on the enquiry report in the termination order and the breach of statutory conditions subject to which alone the power of terminating the relationship could be exercised by the University Council
In the opinion of the High Court the facts and circumstances of the case clearly enabled the spelling out of a fresh appointment of the respondent as Professor and Head of the Department of History of the new University of Kashmir by an implied contract
Once this position is reached it follows logically that the termination has to be in terms of the statutory regulations
On the aspect of the case the Court took the view that the enquiry directed under the 1965 Act lapsed when the 1969 Ordinance and the Act came into force and could not furnish the basis for punitive action against the respondent
The irresistible conclusion the Court therefore reached was that the order of dismissal passed by the University Council being based on the report of the Enquiry Officer was bad in law
The Court directed reinstatement by a writ of mandamus
The learned Additional Solicitor General appearing for the appellant University built an argument the corner stone of which was that there was a statutory cessation of the contractual service of the respondent by operation of section 524 of the Ordinance and the Act of 1969
The statutes under the Act of 1965 contained a provision which ran thus  Procedure conditions for appointment of University Teachers
STATUTES 1 2
Every salaried teacher of the University shall have to execute a written contract with the University
The conditions of service of teachers appointed by the University shall be those embodied in the Agreement of service an nexed hereto or on Agreement substantially to like effect and every teacher shall execute the Agreement before he enters upon his duties or as soon as possible thereafter
 173 It is also common case that respondent s employment was on a contractual basis
By section 51 of the 1969 Ordinance all the statutes and regulations made under the Jammu and Kashmir University Act of 1965 and in force immediately before the commencement of this Ordinance shall so far as may be consistent with the provisions of this Ordinance continue to be in force in each University after the commencement of this Ordinance
 Thus we reach the position that on a combined reading of Statute 2 framed under the 1965 Act already extracted above and section 51 of the Ordinance of 1969 which is in identical terms with section 59 of the Act which replaced the Ordinance the respondent was an employee of the University serving under a contract
In fact neither party disputes this position
Our attention must now turn to a crucial provision in the 1969 Ordinance which is also reproduced in the ensuing Act
Section 52 thereof runs thus  52
Continuance of service of the existing employees and their allocation  Notwithstanding anything contained in this Ordinance or any Statute or Regulation made thereunder or in any other law for the time being in force  1 all employees of the University of Jammu and Kashmir constituted under the Jammu  Kashmir University Act 1965 other than those serving on contract or on deputation in the University or those serving in the Publication Bureau of the University who immediately before the commencement of this Ordinance were holding or discharging the duties of any post or office in connection with the affairs of the said University shall subject to the provisions of sub section 2 continue in service on the same terms and conditions as regulated their service before such commencement 2 the Chancellor may in consultation with the Pro Chancellor by order allocate the employees of the University of Jammu and Kashmir other than those serving on contract or deputation in the University or those serving in the Publication Division of the University between the University of Kashmir and the University of Jammu constituted under this Ordinance in such manner as he may consider necessary and every such allocation shall be deemed to be an appointment transfer as the case may be to the post or office by the competent authority under this Ordinance  Provided that in making such allocations the conditions of service of employment of such employees shall not be varied to their disadvantage 3 4 all persons who immediately before the commencement of this Ordinance were holding or discharging 174 the duties of any post or office in connection with the affairs of the University of Jammu and Kashmir on contract basis or by virtue of their occupation to such posts or offices from other services in the State unless otherwise ordered by the Chancellor after consulting the Pro Chancellor shall cease to hold such posts or to discharge such duties after 60 days from the commencement of this Ordinance and all such contracts with or deputations to the University of Jammu and Kashmir shall stand terminated with effect from the expiry of the said period of 60 days
If we may condense the effect of this provision to the extent relevant to the present case it means that teachers employed on contract basis unless otherwise ordered by the Chancellor after consulting the Pro Chancellor shall cease to hold such posts or to discharge such duties after 60 days from the commencement of this Ordinance or the Act as the case may be
To add emphasis as it were to the cessation of such tenure the further part of the section reiterates that all such contracts with  the University of Jammu and Kashmir shall stand terminated with effect from the expiry of the said period of 60 days
 Thus by the inexorable operation of the calendar on November 5 1969 the respondent made a statutory exit from the employment of the Kashmir University
This much even the respondent has reconciled himself to and the High Court has accepted
To retrieve the situation thereafter the respondent had recourse to a plea which found favour with the learned Judges that the actings and dealings of the higher functionaries of the University vis a vis the respondent eloquently testified to the claim of implied employment of the respondent subsequent to the statutory cessation
It is true that de facto the respondent functioned as Professor
drew salary as such became a member of the Academic Council in that capacity and was treated as on extended probation by the Vice Chancellor
In view of these habiliments of professorate the High Court assumed the premise that the respondent was admittedly in the employment of the University of Kashmir on the relevant date and proceeded to essay the next problem which it posed in these words The main question in this cause is whether the employment of the petitioner was validly terminated under the impugned resolution
 We are dealing with a statutory body the University and its powers and duties and the canalisation thereof
The functionaries under it and the contours of their authority are delineated by the Act
if any body created by a statute went beyond the area of its powers the act was ultra vires and of no effect
Ordinance 10 of 1969 and the subsequent Act which replaced it have vested in the 175 University Council certain powers regarding the appointment of the teaching staff
Section 22 reads  22
Powers and functions of the University Council The University Council of a University shall be the supreme authority of the University and shall have the following powers namely f save as otherwise provided in this Ordinance to appoint officers of the status of Joint Registrar Deputy Librarian and above and teachers of the status of Readers and above and to define their duties
Provided that no officer or teacher shall be appointed by a University Council until provision has been made for his salary in the approved budget of the University conc erned  Provided further that all appointments Permanent or temporary to the posts of Officers or teachers referred to in this section shall be made by the University Council on the recommendation of the Selection Committee constituted for the purpose in accordance with the provisions of Section 36 of this Ordinance and on such terms and conditions as may be prescribed by the Statutes  Provided also that the Vice Chancellor may make appointments of teachers referred to in this Section as a temporary measure for a period not exceeding six months to carry on the work and if the recommendations of the Selection Committee are not received within a period of six months the Vice Chancellor may extend the appointment if any made by him for the duration of the academic session with the approval of the University Council Thus the only body competent to appoint a professor like the respondent is the University Council and even the Council shall make
such appointments only on the recommendation of the Selection Committee created by section 36
There is no case that the Selection Committee ever considered or recommended the respondent for appointment and there is no suggestion that the University Council appointed the respondent as professor
It follows that the only statutory authority empowered in this behalf has not appointed the
respondent to the post claimed by him
There is an interim power vested in the Vice Chancellor hedged in with limitations as is contained in the third proviso to section 22f
lie may make appointments of teachers as a temporary measure for periods not exceeding six months to carry on the work and if the Selection Committee s recommendation is not received within the time he may extend the appointment for the duration of the academic session with the approval of the University Council
There has been no exercise of the narrow power of the Vice Chancellor under this proviso and the conclusion is irresistible that the continuance of the respondent on the expiration of the statutory two months  period cannot be legitimated by law
Of course he remained to teach and was paid for 176 his work
He did many other things which a legally appointed professor would do with the full knowledge and even at the request of the Vice Chancellor
May be he the Vice Chancellor and others in the University were perhaps not keeping themselves abreast of the law
But the fatal fact remains that the Chancellor did not extend the services of the respondent as contemplated by section 524 and this failure finishes the plea of continuance in office of the professor
We are not concerned with the administrative fall out from this finding although the salary of the teacher appears to have been sanctioned by the Vice Chancellor a piece of conduct which may be understandable on equitable grounds
The circumstance that the respondent functioned in the University does not vest in him the legal status of a validly appointed employee with all the protection that the Act and the relevant statutes give to such a person
In this view of the fact situation without more the respondent s work on the University campus can be brought to a close
No case of statutory termination of service is called for the basis of statutory employment being absent
The ad hoc arrangement by which he remained to teach did not acquire legal validity merely because the Vice Chancellor went through the irregular exercises of extending his probation etc
We have to hold that the curtain fell on the office held by the respondent when at the end of 60 days after the Act the sands of time ran out
The ground urged successfully as it were before the High Court of an implied engagement cannot in our view be sustained
When a statute creates a body and vests it with authority and circumscribes its powers by specifying limitations the doctrine of implied engagement de hors the provisions and powers under the Act would be subversive of the statutory scheme regarding appointments of officers and cannot be countenanced by the Court
Power in this case has been vested in the University Council only and the manner of its exercise has been carefully regulated
Therefore the appointment of the respondent could be made only by the Council and only in the mode prescribed by the statute
If a Vice Chancellor by administrative drift allows such employment it cannot be validated on any theory of factum valet
We cannot countenance the alleged continuance of the respondent in the University campus as tantamount to regular service under the University with the sanction of law
In short the respondent has no presentable case against the direction to quit
Even so there are certain disquieting features in this case
The Additional Solicitor General fairly concedes that there was no provision in the 1969 Act which would continue or validate the enquiry commenced against the respondent by Jammu and Kashmir University created by the 1965 Act
If so the enquiry report falls to the ground vis a vis the respondent
The fact that he responded to a show cause notice cannot clothe the enquiry with legality and the report is impermissible material to injure the respondent with a punitive termination
The reliance on the enquiry report by the University
to take a hostile decision on July 7 1970 is illegal
The University Council could not act to his Prejudice on the strength of a damaging report which had no force
We are therefore clear in our minds that the termination of the services of the respondent was stricken by the vice of statutory violation
The respondent is per 177 fectly right in contending that he has been considerably damnified in his standing and reputation by this order of the University
We are therefore inclined to the view that while the respondent has no right to continue in the University the termination of his services as per annexure A is invalid
It is no use the University contending that its order is innocuous
It is clear that its annexure A carries a stigma with it since it expresses the unanimous conclusion that the  charges have been established against him and the termination itself is founded on the guilt so made out
We therefore declare that Annexure A is void but further hold that the respondent has no right to continue in service and the direction to him that he should leave his post as Professor and Head of the Post Graduate History Department is good
The High Court s order of reinstatement is quashed
There is much in the circumstances of the case to show that both sides have been indifferent to the provisions of the law which changed from time to time and both sides have acted under misapprehensions which warrant our direction that parties will bear their own costs throughout
The appeal is allowed subject to the above order as to costs
KBN Appeal allowed


Summary:
The respondent joined the Jammu and Kashmir University in 1963 as lecturer on contract basis
He was later promoted as professor
His appointment as professor was also on contract basis and by agreement he was bound by the statutes and regulations from time to time in force in the University
While extending his period of probation as Professor the Central Council of the University resolved that the respondent be charge sheeted for certain alleged misconduct
An Enquiry was held under the Jammu and Kashmir University Act 1965 and at report was submitted holding the respondent guilty
On the day the enquiry officer submitted the report the Jammu and Kashmir University Ordinance 1969 was promulgated
Section 52 of the Ordinance provided that teachers employed on contract basis unless otherwise ordered by the Chancellor after consulting the Pro Chancellor shall cease to hold such posts or to discharge such duties after 60 days from the commencement of this Ordinance or the Act as the case may be No such order was issued by the Chancellor extending the respondents employment on the expiration of the period
Or the other hand
the Vice Chancellor
allowed him to function as Professor and his probation was again extended for a year by the Vice Chancellor under section 134 of the Ordinance which had already been replaced on November 16 1969 by the Jammu and Kashmir University Act 1969
The Vice Chancellor also directed the release of the salary of the respondent and requested him to serve on the academic council as an ex official member
Based on the enquiry report the Vice Chancellor issued a show cause notice to which the respondent submitted his explanation
The University Council decided to terminate the services of the respondent
In a writ petition filed by the respondent the High Court directed reinstatement
The High Court took the view that the facts and circumstances of the case clearly enabled the spelling out of a fresh appointment of the respondent as Professor by an emplied contract
The High Court was also of the opinion that the enquiry directed under the 1965 Act lapsed when the 1969 Ordinance came into force and could not furnish the basis for punitive action against the respondent and therefore the order of dismissal based on the report of the Enquiry Officer was bad in law
HELD  that the High Court s order of reinstatement
had to be quashed
While the respondent had no right to continue in the University the termination of his services was invalid
iUnder the 1969 Ordinance and the subsequent Act which replaced it the only body competent to appoint a professor like the respondent is the University Council and even the Council shall make such appointments only on the recommendation of the Selection Committee created by section 36
There is no case that
the Selection Committee even considered or recommended the respondent for appointment and there is no suggestion that the University Council appointed the respondent as professor
it follows that the only statutory body 170 empowered in this behalf has not appointed the respondent to the post claimed by him
Therefore the continuance of the respondent on the expiration of the statutory two months  period cannot be legitimated by law
The circumstance that the respondent functioned in the University does not vest in him the legal status of a validly appointed employee with all the protection that the Act and the relevant statutes give to such a person
Thus no case of statutory ter mination is called for the basis of statutory employment being absent
175F When a statute creates a body and vests it with authority and circumscribes the powers by specifying limitation
the doctrine of implied engagement le hors the provisions and powers under the Act would be subversive of the statutory scheme regarding appointment of officers and cannot be countenanced by the Court
If a Vice Chancellor by administrative drift allows such employment it cannot be validated by any theory of factum valet
176E iiWhen there was no provision in the 1969 Act which would continue or validate the enquiry commenced against the respondent by the Jammu and Kashmir University created by the 1965 Act
the Enquiry report falls to the ground vis a vis the respondent
The fact that he responded to a show cause notice cannot clothe the enquiry with legality and the report is impermissible material to injure the respondent with a punitive termination
The respondent would be considerably damnified in his standing and reputation by the order of the University
The termination of his service therefore has to be declared illegal
176G