Case: University Of Kashmir And Others Vs. Mohd. Yasin And Others

2. 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.3. 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 (S. 52). Primarily, the 1965 Act imparted embryonic shape to the Jammu University and the Kashmir University by the creation of the 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 his career and became Professor in theDepartment of the University in the Kashmir Division on terms and conditions contained 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 agreement 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 theextended it for one more year by order dated November 11, 1968. This extension was confirmed by the meeting of the Central Council of the University at its meeting dated June 26, 1969. But at the same meeting it was resolved by the Central Council that the respondent befor 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 Ordinance, 1969, was promulgated by the Governor establishing two separate universities, one for Jammu and the other for Kashmir. However, by S. 52 thereof, the rules and 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 respondents employment. However, oblivious or heedless of the statutory cessation of the respondents services he was allowed to function as Professor and his probation was again extended for a year by theunder S. 13 (4) of the Ordinance (which had already been replaced on November 10, 1969 by the Jammu and Kashmir Universities Act. 1969). More incongruous with the appellants present stand is the direction by theto release the salary of the respondent and the request to him to serve on the Academic Council as anmember, 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 theissued a showcause notice on December 22, 1969, which elicited the respondents explanation on January 31, 1970. Together, all the materials were considered by the University Council as its meeting dated July 7, 1970, where the decision was taken to remove him paying one months salary. Thereafter, of course, the present litigation started.

Reasoning: 6. Thus we reach the position that, on a combined reading of Statute 2 framed under the 1965 Act (already extracted above) and S. 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 ensuingwe 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 theshall ceases 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 calender, 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 hasis 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 theIn view of these habiliments of professoriate 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 thesethe 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 S. 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. If 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 thehedged in with limitations, as is contained in the third proviso to S. 22 (f). He may make appointments of teachers as a temporary measure for periods not exceeding six months to carry on the work, and if the Selection Committees recommendation is not received within that 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 theunder 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 his work. He did many other things which a legally appointed professor would do, with the full knowledge and even at the request of theMay be, he, theand 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 S. 52(4), and this failure finishes the plea of continuance in office of the professor.We are not concerned with the administrativefrom this finding although the salary of the teacher appears to have been sanctioned by thea place of conduct which may be understandable on equitable grounds.The circumstances that the respondent functioned in the University does not vest in him the legal status of a validity appointed employee with all the protection that the Act and the relevant statutes give to such a person. In this view of thewithout more, the respondents 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 thewent 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.8. 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 aby 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.9. 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 alls to the groundthe respondent. The fact that he responded to anotice 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 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 perfectly 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 Courts order of reinstatement is quashed.