o 2 of 1972
Appeal by Special Leave from the judgment and order dated April 13 1970 of
the Allahabad High Court in Special Appeal No 1074 of 1968
M C Setalvad P N Tiwari J B Dadachanji and Co for the appellant
R K Garg and section C Agarwal for the respondents
The Judgment of the Court was delivered by Mathew J
The appellant filed a writ petition before the High Court of Allahabad Lucknow Bench challenging the validity of a resolution passed on 12 11 1967 by the Managing Committee of the Jai Narain College Lucknow formerly known as Kanyakubja Degree College an associated college of the Lucknow University terminating his services and praying for issue of an appropriate writ or order quashing the resolution
A learned single judge of that Court finding that in terminating the services the Managing Committee acted in violation of principles of natural justice quashed the resolution and allowed the writ petition
The Managing Committee appealed against the order
A Division Bench of the High Court found that the relationship between the College and the appellant was that of master and servant and that even if the service of the appellant has been terminated in breach of the audi alteram partem rule of natural justice the remedy of the appellant was to file a suit for damages and not to apply under Article 226 of the Constitution for a writ 322 or order in the nature of certiorari and that in fact no principle of natural justice was violated by terminating the services of the appellant as the appellant was given an opportunity of submitting his explanation to the charges
The Bench therefore set aside the order of the learned single judge and dismissed the writ petition
It is from this judgment that the appeal has been preferred by special leave
The appellant joined the service of the college as lecturer in 1946
He was promoted to the post of Head of the Department of Zoology in 1959
On the basis of certain complaints against him received by the Manager of the College charges were framed against him and his explanation was called for
He submitted an explanation
The explanation was found not to be satisfactory and the Managing Committee passed a resolution on 12 11 1967 for removal of the appellant from service
As already stated this was the resolution challenged by the appellant in the writ petition
On behalf of the appellant Mr M C Setalvad contended that the appellant had a statutory status that his services were terminated in violation of the provisions of statutes passed under the
Lucknow University Act 1920 and therefore the High Court was wrong in its conclusions that no application for a writ or order in the nature of certiorari would lie
He further submitted that the appellant was not given a reasonable opportunity of defending himself against the charges
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 see Executive Committee of UP State Warehousing Corporation Ltd vs Chandra Kiran Tyagi1 and Indian Airlines Corporation vs Sukhdeo Rai 
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
In Ridge vs Baldwin3 Lord Reid said in his speech  The law regarding master and servant is not in doubt
There cannot be specific performance of a contract of service and the master can terminate the contract with his servant at any time and for any reason or for none
But if he does so in a manner not 1  2  3 1965 Weekly Law Reports Vol 1 79
323 warranted by the contract he must pay damages for breach of contract
So the question in a pure case of master and servant does n ot at all depend on whether the master has heard the servant in his own defence it depends on whether the facts emerging at the trial prove breach of contract But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its ser vants or the grounds on which it can dismiss them A teacher appointed by a University constituted under a statute was held not to be holding an office or status in Vidyodaya University vs Silva1
In that case the services of the respondent was brought to an end by a resolution of the University Council set up under the statute establishing the University
The resolution was admittedly passed without hearing the teacher
Under the statute the Council was empowered to institute professorships and every appointment was to be by an agreement in writing between the University and the professor and was to be for such period and on such terms as the Council might resolve
Under section 18e of the Act the Council had the power to dismiss an officer or a teacher on grounds of incapacity or conduct which in the opinion of not less than two third 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 Act gave no right to the teacher of being heard by the Council
The Privy Council held that the mere circumstances 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 teachers though subject to section 18e 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 decision in this case has been criticised by academic writers see Jaffe English and American Judges as Law Makers p 26 SA de Smith Judicial Review of Administrative Action pp 214 215 G Ganz Public Law Principles applicable to Dismissal from Employment Modem Law Review Vol
30 pp 288291
Recently the House of Lords considered the question in Malloch vs Aberdeen Corporation 2 
That case concerned a teacher in Scotland who was dismissed by the Education Committee for the reason that he was not registered in terms of paragraph 2 of schedule 2 to the Teachers  Education Training and Registration Scotland Regulations 1967 made under section 1 1964 3 All FR 865
2 324 21 of the Education Scotland Act 1962 and the amending regulation 42 of the Schools Scotland Code 1956
In an action against the education authority he claimed that the purported dismissal was a nullity in that it was contrary to natural justice since he had not been given a hearing
It was held Lord Morris and Lord Guest dissenting that the teacher had a right to be heard before he was dismissed as according to the majority he was holding an office
In the course of his speech Lord Wilberforce made certain observations A comparative list of situations in which persons have been held entitled or not entitled to a hearing or to observation of rules of natural justice according to the master and servant test looks illogical and even bizare
A specialist surgeon is denied protection which is given to hospital doctor a University professor as a servant has been denied the right to be heard a dock laborer and an undergraduate have been granted it examples can be multiplied see Barber vs Manchester Regional Hospital Board  Palmar vs Inverness Hospitals Board of Management 1963 C 311 Vidyodaya University Council vs Silva  Vine vs National Dock Labour Board  Glynn vs Keele University One may accept that if there are relationships in which all requirements of the observance of rules of natural justice are excluded and I do not wish to assure that this is inevitably so these must be confined to what have been called pure master and servant cases which I take to Mean cases in which there is no element of public employment or service no support by statute nothing in the nature of an office or a status which is capable of protection
If any of these elements exist then in my opinion whatever the terminology used and even though in some inter parties aspects the relationship may be called that of master and servant there may be essential procedural requirements to be observed and failure to observe them may result in a dismissal being declared to be void
 and then he said as regards the decision in VidyodaYa University Council vs Silva1  It would not be necessary or appropriate to disagree with the procedural or even the factual basis on which this decision rests  but I must confess that I 1 325 could not follow it in this country in so far as it involves a denial of any remedy of administrative law to analogous employments
Statutory provisions similar to those on which the employment rested would tend to show to my mind in England or in Scotland that it was one of a sufficiently public character or one partaking sufficiently of the natu re of an office to attract appropriate remedies of administrative law
 Whether the decision in Vidyodaya University Council vs Silva1 is correct or not in this
case we think there was no element of public employment nothing in the nature of an office or status which is capable of protection
In section R Tewari vs District Board Agra2 this Court formulated the exceptions 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 an 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 Mr Setalvad contended that since the college in question is affiliated to a statutory body namely the University of Lucknowand is governed by the relevant statutes and ordinances framed under the provisions of Lucknow University Act 1920 any violation of the statute or the ordinance in the matter of terminating the services of a teacher would attract the jurisdiction of the High Court under Article 226 of the Constitution as statutes and ordinances have the force of law
In support of this counsel relied upon the decision of this Court in Prabhakar Ramakrishna Jodh vs A L Pande and another
The appellant before this Court in that case was a teacher in a college affiliated to the University of Saugar and managed by the Governing Body 1 2  3 326 established under the provisions of the relevant ordinance made under 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
The appellant in his explanation denied 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
The appellant moved the High Court under Article 226 of the Constitution for a writ quashing the order of the Governing Body and for his reinstatement
He contended 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
Clause 8 vi a of the College Code provided that the Governing Body of the college shall not terminate the services of a confirmed teacher without holding an enquiry and without giving him an opportunity of defending himself
The High Court held that the conditions of service of the appellant were governed not by the College Code  but by the contract made between the Governing Body and the appellant under clause 7 of the College Cod which stated that all teachers of the college shall be appointed under a written contract in the form prescribed  that the provisions of the College Code  were merely conditions prescribed for affiliation of colleges and that no legal rights were created by the College Code  in favour of the teachers of the affiliated colleges as against the Governing Body
The High Court therefore dismissed the petition
In appeal to this 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 colleges
The Court further said It is true that Clause 7 of the Ordinance provides that all teachers of affiliated colleges shall be appointed on a written contract in the form prescribed in Sch
A but that does not mean that teachers have merely a contractual remedy against the Governing Body of the College
On the other hand we are of opinion that the provisions of Clause 8 of the Ordinance relating to security of the tenure of teachers are part and parcel of the teachers  service conditions   When once this Court came to the conclusion that the College Code  had the force of law and conferred rights on the teachers of affiliated colleges the right to challenge the order terminating the services of the appellant passed in violation of clause 8 vi a of the College Code  in a proceeding under Article 226 327 followed as the night the day  and the fact that the appellant had entered into a contract was considered as immaterial
In the case in hand the position is entirely different
The relevant statutes governing this case are statutes 151 152 and 153 framed under the provisions of the Lucknow University Act 1920
Statute 151 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 Associated College may include in its own form of agreement
Then the conditions as regards salary age of retirement etc are enumerated
The statute then goes on to specify the grounds on which a teacher s services can be terminated
Statute 152 states 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
It may be noted that statute 151 does not provide for any particular procedure for dismissal or removal of a teacher for being incorporated in the contract
Nor does the model form of contract lay down any particular procedure for that purpose
The appellant had entered into an agreement when he was employed in the college
Clause 5 of the agreement provided that  the period of probation shall be one year unless extended by the Managing Committee and the College may at any time during the said period of probation put an end to this engagement or if service shall continue beyond the said term at any time thereafter dispense with the services of the said Lecturer without notice if the Managing Committee of the said College is satisfied that it is necessary to remove the said Lec turer for misconduct insubordination or habitual neglect of duty on the part of the said Lecturer or in case any of the conditions herein specified have been broken by the said Lecturer provided that an oppor tunity is given to him by the said Managing Committee to give his explanation before a decision is arrived at
 On a plain reading statute 151 it is clear that it only provides that the terms and conditions mentioned therein must be incorporated in the contract to be entered into between the college and the teacher concerned
It does not say that the terms and conditions have 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 have proprio 328 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 have no vitality and can confer no legal rights
Whereas in the case of Prabhakar Ramakrishna Jodh vs A L Pande and another1 the terms and conditions of service embodied in clause 8 vi a of the College Code  had the force of law apart from the contract and conferred rights on the appellant there here the terms and conditions mentioned in Statute 151 have no efficacy unless they are incorporated in a contract
Therefore appellant cannot found a cause of action on any breach of the law but only on the breach of the contract
As already indicated Statute 151 does not lay down any procedure for removal of a teacher to be incorporated in the contract So clause 5 of the contract can in no event have even a statutory flavor and for its breach the appellant s remedy lay elsewhere
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 section R Tewari vs District Board Agra2 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 sub silentio 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 Prabhakar Ramakrishna Jodh vs A L Pande and another1 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 as 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
In this view of the matter it is quite unnecessary to go into the question whether the appellant was given sufficient opportunity to meet the charges against him
We hold that the High Court was right in its view that the writ petition was incompetent
We therefore dismiss the appeal but in the circumstances we make no order as to costs
section N Appeal dismissed


Summary:
The appellant joined as a lecturer in a College in UP
On the hub of certain complaints received by the Manager of the College charges were framed against him and his explanation was called for
He submitted an explanation
The explanation was found unsatisfactory and the Managing Committee passed a resolution for removal of the appellant from service
The relevant statutes governing the present case are Statutes 151 152 and 153 framed under the provisions of the Lucknow University Act 1920
The appellant filed a writ petition before the High Court challenging the validity of the resolution and a learned single judge finding that the Managing Committee acted in violation of the principles of natural justice quashed the resolution and allowed the writ petition
On appeal a Division Bench set aside the order of the learned single judge and dismissed the writ petition on the ground that no writ lies in the facts and circumstances of the case
The remedy of the appellant lay in a suit for damages
On behalf of the appellant it was contended that the appel lant had a statutory status that his services were terminated in violation of the provisions of the statutes passed under the Lucknow University Act 1920 and therefore the High Court was wrong in its conclusions that no writ of certiorari would lie against the respondent
It was further submitted that the appellant was not given a reasonable opportunity of defending himself against the charges
Statue 151 provides that a teacher of an associated College shall be appointed on a written contract and the contract shall provide the conditions mentioned there in addition to such other conditions as the associated College may include in the agreement
Clause 5 of the agreement provides that the Managing Committee may dispense with the services of a lecturer without notice if the Committee is satisfied that it is necessary to remove the said lecturer for misconduct or otherwise provided an opportunity is given to him by the Committee to give his explanation before a decision is arrived at
Dismissing the appeal
HELD  1 When there is a purported termination of a contract of service
a declaration that a contract of service still subsisted would not be made in the absence of special circumstances and courts do not ordinarily enforce specific performance of a contract of service
The remedy of the victim lies in a claim for damages not a claim for a declaration that the contract of service still subsisted
322 E F Executive Committee of UP State Warehousing Corporation Ltd vs Chandra Kiran Tyagi   and Indian Airlines Corporation vs Sukh Dev Rai  followed
2 On a plain meaning of statute 151 it is clear that it only provides that the terms and conditions mentioned therein must be incorporated in 321 the contract to be entered into between the College and the teacher concerned
It does not say that the terms and conditions have any legal force until and unless they are embodied in an agreement
The terms and conditions of service mentioned in Statute 151 have proprio vigore no force of law
They become terms of service only by virtue of their being incorporated in a contract
Without the contract they have no vitality and can confer no legal right
Therefore the appellant cannot find a cause of action of any breach of law but only on the breach of the con tract for which a writ in the nature of ceritiorari will not lie 327 H 3 A writ will lie when the order is 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 High Court is right is dismissing the petition328 D Further since the High Court has no jurisdiction it is not necessary to go into the question as to whether the appellant was given sufficient opportunity to meet the charges against him
328 G Prabhakar Ramkrishna Jodh vs A L Pande  anr
1965 2 SCR 713 and Vidyodaya University vs Silva discussed and distinguished