Case: Prabhakar Ramakrishna Jodh Vs. A. L. Pande And Another

confirmed in the service of the college :- (a) Without holding a full enquiry into the matter, the teacher concerned shall be given in writing a statement of charges against him and afforded every possible opportunity of defending himself. His previous service and character shall also be taken into consideration; (b) No decision for such termination of service, or reduction of pay shall have any effect unless passed by a majority of two- thirds of the members of the Governing Body; (c) At the request of the teacher concerned any difference or dispute either arising out of the contract, or, otherwise, shall be referred to a Tribunal of Arbitration consisting of the Vice-Chancellor, and two other persons appointed by the Executive Council of the University, one of whom shall possess a status not lower than that of a District Judge. The decision of this Tribunal shall be final and binding on both the parties." Clause 7 of the "College Code" states that all teachers of the colleges shall be appointed on a written contract in the form prescribed in Schedule A except in the case of teachers appointed temporarily for a period of one year or less. Para 9 of agreement mentioned in Sch. A provides as follows :- "9. After confirmation, the services of the party of the first part can be terminated only on the following grounds :- a. Wilful and persistant neglect of duty, b. Misconduct, c. Breach of any of the terms of contract, d. Physical or mental unfitness, e. Incompetence, f. Abolition of the posts Provided firstly, that the plea of incompetence shall not be used against the party of the first part after he has served the party of the second part for five years or more L4Sup./65-12 Provided, secondly, the services of the party of the first part shall not be terminated under clause (c) or (f) without the previous approval of Saugar University."It is not disputed on behalf of the respondents that the "College Code" has been made by the University in exercise of statutory power conferred by s. 32 and under s. 6(6) of the Act. It is also conceded on behalf of the respondents that the "College Code" is intra vires of the powers of the University contained in s. 32 read with s. 6(6) of the Act. In our opinion, the provisions of Ordinance 20, otherwise called the "College Code have the force of law. It confers legal rights on the teachers of the affiliated colleges and it is not a correct proposition to say that the "College Code" merely regulates the legal relationship between the affiliated colleges and the University alone. We do not agree with the High Court that the provisions of the "College Code" constitute power of management. On the contrary we are of the view that the provisions of the "College Code" relating to the pay scale of teachers and their security of tenure properly fall within the statutory power of affiliation granted to the University under the Act. It is true that Clause 7 of the Ordinance provides that all teachers of affiliated colleges shall be appointed on a written contract in the form prescribed in Sch. A but that does not mean that teachers have merely a contractual remedy against the Governing Body of the College. On the other hand, we are of opinion that the provisions of Clause 8 of the Ordinance relating to security of the tenure of teachers are part and parcel of the teachers service conditions and, as we have already pointed out, the provisions of the "College Code" in this regard are validly made by the University in exercise of the statutory power and have, therefore, the force and effect of law. It follows, therefore, that the "College Code" creates legal rights in favour of teachers , of affiliated colleges and the view taken by the High Court is erroneous.It was urged on behalf of the appellant in the next place that there was violation of the procedure prescribed in Clause 8 (vi) (a) of the "College Code and the order of the Governing Body dated June 30, 1960 terminating the appellants services was illegal and ultra vires and must be quashed by grant of writ in the nature of certiorari. Counsel for the respondents contended that there was no violation of the Procedure prescribed under Clause 8(vi) (a) of the "College Code" and that the order of the Governing Body, dated June 30, 1960 was not defective in law. Since the question has not been investigated by the High Court we consider that it is necessary that this case should go back on remand to the High Court for deciding the question whether there was a violation of the procedure prescribed under Clause 8 (vi) (a) of the "College Code" and whether the order of the Governing Body, dated June 30, 1960 is consequently illegal and ultra vires and whether the appellant is entitled to the grant of a writ under Art. 226 of the Constitution. 5. We should like to add that Counsel for the respondent raised two preliminary objections in the course of argument. The argument was stressed in the first place that the appellant had an alternative remedy under Clause 8 (vi) (c) of the "College Code which provides that the aggrieved teacher may request for a reference of the dispute to a Tribunal of Arbitration consisting of the Vice-Chancellor and two other persons appointed by the Executive Council of the University. It was contended on behalf of the respondents in the second place that the Governing Body of the College was not a statutory body performing public duties and no writ in the nature of mandamus may, therefore, be issued to the Governing Body of the College. On behalf of the respon- dents it was conceded that these objections were not pressed before the High Court. We are, therefore, unable to entertain these preliminary arguments at this stage and they must be over-ruled.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Section 2 4(i) provides that the Executive Council shall admit colleges to the privileges of the University subject to the provisions of this Act and such conditions as may be prescribed in the Statutes. The "College Code" is an Ordinance made under the provisions of s. 32 of the Act read with s. 6(6) of the Act and Clause 8 of the Ordinance deals with conditions of service of teachers of affiliated colleges. Clause 8 (vi) of the "College Code" reads as follows "8. (vi) The Governing Body of the College shall not terminate the service or reduce the pay of any teacher confirmed in the service of the college :- (a) Without holding a full enquiry into the matter, the teacher concerned shall be given in writing a statement of charges against him and afforded every possible opportunity of defending himself. His previous service and character shall also be taken into consideration; (b) No decision for such termination of service, or reduction of pay shall have any effect unless passed by a majority of two- thirds of the members of the Governing Body; (c) At the request of the teacher concerned any difference or dispute either arising out of the contract, or, otherwise, shall be referred to a Tribunal of Arbitration consisting of the Vice-Chancellor, and two other persons appointed by the Executive Council of the University, one of whom shall possess a status not lower than that of a District Judge. The decision of this Tribunal shall be final and binding on both the parties." Clause 7 of the "College Code" states that all teachers of the colleges shall be appointed on a written contract in the form prescribed in Schedule A except in the case of teachers appointed temporarily for a period of one year or less. Para 9 of agreement mentioned in Sch. A provides as follows :- "9. After confirmation, the services of the party of the first part can be terminated only on the following grounds :- a. Wilful and persistant neglect of duty, b. Misconduct, c. Breach of any of the terms of contract, d. Physical or mental unfitness, e. Incompetence, f. Abolition of the posts Provided firstly, that the plea of incompetence shall not be used against the party of the first part after he has served the party of the second part for five years or more L4Sup./65-12 Provided, secondly, the services of the party of the first part shall not be terminated under clause (c) or (f) without the previous approval of Saugar University."It is not disputed on behalf of the respondents that the "College Code" has been made by the University in exercise of statutory power conferred by s. 32 and under s. 6(6) of the Act. It is also conceded on behalf of the respondents that the "College Code" is intra vires of the powers of the University contained in s. 32 read with s. 6(6) of the Act. In our opinion, the provisions of Ordinance 20, otherwise called the "College Code have the force of law. It confers legal rights on the teachers of the affiliated colleges and it is not a correct proposition to say that the "College Code" merely regulates the legal relationship between the affiliated colleges and the University alone. We do not agree with the High Court that the provisions of the "College Code" constitute power of management. On the contrary we are of the view that the provisions of the "College Code" relating to the pay scale of teachers and their security of tenure properly fall within the statutory power of affiliation granted to the University under the Act. It is true that Clause 7 of the Ordinance provides that all teachers of affiliated colleges shall be appointed on a written contract in the form prescribed in Sch. A but that does not mean that teachers have merely a contractual remedy against the Governing Body of the College. On the other hand, we are of opinion that the provisions of Clause 8 of the Ordinance relating to security of the tenure of teachers are part and parcel of the teachers service conditions and, as we have already pointed out, the provisions of the "College Code" in this regard are validly made by the University in exercise of the statutory power and have, therefore, the force and effect of law. It follows, therefore, that the "College Code" creates legal rights in favour of teachers , of affiliated colleges and the view taken by the High Court is erroneous.It was urged on behalf of the appellant in the next place that there was violation of the procedure prescribed in Clause 8 (vi) (a) of the "College Code and the order of the Governing Body dated June 30, 1960 terminating the appellants services was illegal and ultra vires and must be quashed by grant of writ in the nature of certiorari. Counsel for the respondents contended that there was no violation of the Procedure prescribed under Clause 8(vi) (a) of the "College Code" and that the order of the Governing Body, dated June 30, 1960 was not defective in law. Since the question has not been investigated by the High Court we consider that it is necessary that this case should go back on remand to the High Court for deciding the question whether there was a violation of the procedure prescribed under Clause 8 (vi) (a) of the "College Code" and whether the order of the Governing Body, dated June 30, 1960 is consequently illegal and ultra vires and whether the appellant is entitled to the grant of a writ under Art. 226 of the ConstitutionWe should like to add that Counsel for the respondent raised two preliminary objections in the course of argument. The argument was stressed in the first place that the appellant had an alternative remedy under Clause 8 (vi) (c) of the "College Code which provides that the aggrieved teacher may request for a reference of the dispute to a Tribunal of Arbitration consisting of the Vice-Chancellor and two other persons appointed by the Executive Council of the University. It was contended on behalf of the respondents in the second place that the Governing Body of the College was not a statutory body performing public duties and no writ in the nature of mandamus may, therefore, be issued to the Governing Body of the College. On behalf of the respon- dents it was conceded that these objections were not pressed before the High Court. We are, therefore, unable to entertain these preliminary arguments at this stage and they must be over-ruled.