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The Managing Committee of the Digambar College, Dibai Vs. the Vice-chancellor, Meerut University and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 619 of 1973
Judge
Reported inAIR1975All445
ActsKanpur and Meerut Universities Act, 1965 - Sections 26, 28, 28(1) and 28(3)
AppellantThe Managing Committee of the Digambar College, Dibai
RespondentThe Vice-chancellor, Meerut University and anr.
Appellant AdvocateR. Dwivedi, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
service - termination of service - sections 26 and 28 (1) of kanpur and meerut universities act, 1965 and statute no. 6.06 - as per statute service of teacher on probation terminated only with prior approval of vice chancellor - act provides for written terms and conditions in contract of service - held, statute not ultra vires of the act as act itself requires terms and conditions to be determined. - - 2. the writ petition has been contested by the meerut university as well as dr. ' 6. it is, therefore, clear that the proviso to clause (d) of statute 6.06 as well as 11.07 (7) provides that in the case of a teacher appointed on probation the termination from service of such a teacher shall not take effect except with the previous approval of the vice-chancellor. the division bench held..........1972. the managing committee met on the aforesaid date and passed a resolution dispensing with the service of the respondent no. 2. as required by section 26 of the said act, the copy of the resolution was sent to the vice-chancellor. meerut university, meerut for his approval. by the letter dated 7-7-1972 the assistant registrar of the meerut university called upon the managing committee to give detailed report about the work and conduct of the respondent no. 2, the committee of management being of the opinion that the vice-chancellor had no right to know the reasons for the termination of the service of the respondent no. 2, refused to comply with the demand of the university. but on being pressed by the university sent the same on 14-8-1972. the vice-chancellor ultimately refused to.....
Judgment:
ORDER

K.C. Agarwal, J.

1. The petitioner is a Managing Committee of the Digambar College, Dibai District Bulandshahr. The said Managing Committee is running a Degree College in the name of Digambar College at Dibai, which is affiliated to the Meerut University. As the post of the Principal of the said college was vacant, the same was advertised in the newspaper. Dr. Ratna Kumar Varshney, was ultimately selected for being appointed as a Principal. His name was thereafter, sent to the Vice-Chancellor for his approval under Section 26 of the Kanpur and Meerut Universities Act, 1965 (hereinafter referred to as the Act). After approval was accorded by him, the respondent No. 2 was appointed on probation for one year by the appointment letter dated 4-7-1971. The respondent No. 2 joined the college on 6-8-1971. As the work of the respondent No. 2 was not to the satisfaction of the Managing Committee, a meeting of the Managing Committee was convened for the 26th of June, 1972. The Managing Committee met on the aforesaid date and passed a resolution dispensing with the service of the respondent No. 2. As required by Section 26 of the said Act, the copy of the resolution was sent to the Vice-Chancellor. Meerut University, Meerut for his approval. By the letter dated 7-7-1972 the Assistant Registrar of the Meerut University called upon the Managing Committee to give detailed report about the work and conduct of the respondent No. 2, The Committee of Management being of the opinion that the Vice-Chancellor had no right to know the reasons for the termination of the service of the respondent No. 2, refused to comply with the demand of the University. But on being pressed by the University sent the same on 14-8-1972. The Vice-Chancellor ultimately refused to give permission to terminate the service of the respondent No. 2. Feeling aggrieved by the refusal of the Vice-Chancellor the present writ petition has been filed by the Management for the quashing of the same.

2. The writ petition has been contested by the Meerut University as well as Dr. Ratna Kumar Varshney, respondent No. 2. The respondent No. 2 has asserted that his work during the probation period was highly satisfactory and commendable, but as he refused to oblige the management by refusing to adopt irregular, illegal and corrupt practices in their advantage therefore, the members of the Managing Committee were against the respondent No. 2. The Meerut University has justified the order of the University on the ground of the same being legal, correct and within his jurisdiction.

3. Sri Shanti Bhushan, appearing for the management submitted that the provisions of the Statutes requiring approval of the Vice-Chancellor were ultra vires of the Kanpur and Meerut Universities Act. He urged that Section 26 of the Act confers an absolute and unfettered right on the management of an institution to terminate the services of a teacher on probation aS there is no provision in the Act requiring the approval of the Vice-Chancellor in this regard, therefore, the following proviso added to Statute No. 6.06 is invalid. The said proviso is as follows:--

'Provided that prior permission of the Vice-Chancellor shall be necessary.' I have considered the above submission of the learned counsel for the petitioner but I am unable to find any substance in the same. It is true that Section 26 of the Act deals with the confirmation of a teacher on probation. The relevant part of the aforesaid section is as follows:--

'26 (2) Every teacher appointed under Sub-section (1) shall, in the first instance, be on probation for such period as may be prescribed and he shall not be confirmed-

(a) if he is a teacher of the University except by the order of the Executive Council after considering the reports of the Vice-Chancellor and the Head of the Department, unless he himself is the Head of the Department, and the Dean concerned; and

(b) if he is a teacher of an affiliated college, except by the order of the Management after considering the report of the principal and the senior-most teacher of the subject: Provided that no report under this clause shall be necessary in the case of confirmation of the principal and the report of the principal alone shall be necessary in the case of confirmation of the senior-most teacher.'

4. The other section which is material for the purpose of this controversy is Sections 28 (1) and 28 (3). These provisions are quoted below :

'28 (1) Every teacher in an affiliated college, shall be appointed under a written contract which shall contain such terms and conditions as may be prescribed. The written contract shall be lodged with the University and a copy thereof shall be furnished each to the management and the teacher concerned.

(3) Every decision by the Management of an affiliated college, to dismiss or remove from service a teacher, shall be reported forthwith to the Vice-Chancellor and subject to the provisions contained in the Statutes, shall not take effect unless it has been approved by the Vice-Chancellor.' Section 30 of the Act says:--

'Subject to the provisions of this Act, the Statutes may provide for any matter relating to the University and shall, in particular, provide for the following:-- (1) conditions under which colleges and other institutions may be affiliated to the University and the conditions under which the affiliation may be withdrawn.'

5. Coming to the relevant Statute which requires consideration for deciding this contention of the learned counsel for the petitioner is Statute No. 6.06. The said Statute is as under:--

'6.06. (a) Every teacher appointed under Section 26 (1) shall be on probation for a period of one year in the first instance.

(b) The Management may in its discretion extend the period of probation by one year.

(c) The Management may at the end of period of probation (including the extended period, if any) confirm the teacher after considering the reports mentioned in Section 26 (2) (b).

(d) The Management may, before or at the end of the period of probation (including the extended period, if any), terminate the services of a teacher of the College if his work or conduct is not considered satisfactory:

Provided that prior permission of the Vice-Chancellor shall be necessary.' Section 28 (1) mentioned above would show that it provides the terms and conditions on which a teacher shall be appointed shall be contained in a written contract. Those terms have been prescribed by the Statute. Statute 6.06 is one of the relevant Statutes in this regard. The other Statute which may be noticed is 11.07 (7). The said sub-statute is as under:

'In the case of a teacher of a college, who is appointed temporarily or on probation, services can be terminated only by giving at least one month's notice in writing or by paying to the teacher a sum equivalent to one month's basic salary.

Provided that if a teacher on probation is in the continuous service of a college from the beginning of the session and such notice is given on or after February 1, he shall be entitled to the pay upto the end of month of June of that year, except when his services are terminated on any of the grounds mentioned in the first proviso to Clause (4) or Clause (6) of Statute 3 in this Chapter: Provided further that the termination of services of a teacher on probation shall not take effect except with the previous approval of the Vice-Chancellor.'

6. It is, therefore, clear that the proviso to Clause (d) of Statute 6.06 as well as 11.07 (7) provides that in the case of a teacher appointed on probation the termination from service of such a teacher shall not take effect except with the previous approval of the Vice-Chancellor. The provision of requirement of approval of the Vice-Chancellor although has not been made in the Act but the said provision is contained in Statute No. 6.06. The provision that the termination of the service of a teacher shall not take effect without prior approval of the Vice-Chancellor is a condition of service and as Section 28 (1) of the Act lays down that the terms and conditions on which a teacher has to be appointed shall be mentioned in a written contract, therefore, the rule prescribing the terms and conditions cannot be said to be ultra vires to the Act. Section 28 (1) of the Act itself desires the rule to be framed for the purpose of laying down the terms and conditions of service. As stated above since the provision that the termination of service of a teacher shall not take effect without the approval of the Vice-Chancellor is a matter regarding the terms and conditions of service, therefore, the proviso to Clause (d) of Statute 6.06 cannot be said to be ultra vires. The view which I have taken in this case finds support from an unreported decision given in Special Appeal No. 902 of 1970 (All.) K.G.K. (Post-Graduate) College v. The Vice-Chancellor, Agra University decided on 1-5-1972. In the said case the validity of similar Statute made under the Agra University Act requiring the previous approval of the Vice-Chancellor was challenged on the ground of invalidity. The invalidity alleged was the same as in the instant case. The Division Bench held that the said Statute was valid having been made under Section 25 (c) (i) of the Agra University Act, The learned counsel for the petitioner attempted to draw a distinction by suggesting that Section 26 of the Kanpur and Meerut Universities Act is a provision clearly providing for the absolute right of the management to refuse to confirm a teacher appointed on probation without obtaining the approval of the Vice-Chancellor and as there was no such provision in the Agra Act, therefore, the law laid down by the Division Bench mentioned above could not apply to the instant case. I do not find any merit in this submission of the learned counsel for the petitioner. Despite the provision of Section 26 in the present Act the proviso to Clause (d) of Statute 6.06 can be said to have derived its authority from Section 28 (1) of the Act. Once it is held that the said proviso is covered by Section 28 (1) of the Act, the mere fact that there is a provision like Section 26 in the Act would not render the impugned statute as framed without the authority of law.

7. Even if the contention of the learned counsel for the petitioner with regard to the invalidity of the proviso to Clause (d) of Statute 6.06 is accepted to be correct, I find that there is another provision No. 11.07 (7) in the Statute which is applicable to the facts of the present case. This Statute has been made under Section 28 of the Act. Sub-sections (1) and (2) of Section 28 are important in this regard. Sub-section (1) requires the terms and conditions of the service to be prescribed whereas Sub-section (3) of this section speaks about dismissal and removal. Statute 11.07 (7) has already been quoted by me above. According to this sub-statute every proposal of termination of service of a teacher will have to be approved by the Vice-Chancellor before it becomes effective. The word 'termination' in this Statute cannot be said to have restricted meaning meant only for the cases of dismissal and removal. Considering Sub-sections (1) and (3) of Section 28 along with the Statute 11.07 as a whole it appears to me that the words 'termination' and 'removal' are interchangeable. In this view I am supported by an authority reported in Managing Committee of Meerut College Meerut v. Dr. V. Puri (1969 All LJ 612). The proviso to sub-statute (7) of Statute 11.07 specifically provided that the termination of service of a teacher on probation shall not take effect except with the permission of the Vice-Chancellor. I accordingly find that the approval of the Vice-Chancellor was required to be obtained by the Management under this proviso of sub-statute (7) of Statute 11.07,

8. Coming to the next submission of the learned counsel for the petitioner that the Vice-Chancellor was required to give a reasoned order for refusing to accord approval to the proposal of the management, I find myself unable to accept the above argument as well. In order to appreciate the necessity of the Vice-Chancellor giving reasons for his order it may be proper to consider the nature of power which is exercised by him. I may now refer to the object of the Act passed in the year 1965. The objects and reasons given in the appeal amongst others are-

'The pattern of the two Universities will be teaching cum affiliating. To begin with, however, the two Universities may be affiliating in character and the teaching work namely of post-graduate teaching and research may be taken subsequently.'' Section 4 (3) of the Act contains the provision of automatic affiliation of all the colleges situated within the area of the Meerut University. As a result of this automatic affiliation these colleges ceased to be affiliated to the Agra University and stood admitted to the privileges of the Meerut University. Affiliation of a degree college to a University brings about a special type of relationship between them. It creates a necessity in the University to ensure that the educational institution is run and administered in accordance with the provisions of the Act and the Statutes framed thereunder. This further enables the students to appear in the examination conducted by it end to obtain the degree conferred by it. For the purpose of seeing that these affiliated colleger record (sic) qualifying teachers to teach the students and for ensuring proper conditions of service provisions have been made in the Act. Such provisions which are calculated to safeguard the interest of the teachers result in security of tenure. It is precisely for these reasons that they provide that the services of the teachers employed by a college will not be terminated without the prior approval of the Vice-Chancellor. In other words the object of obtaining the approval of the Vice-Chancellor is to keep a check on the administration of the college. It is accordingly, a regulatory measure. It is, therefore, essential for the management of the institution to obtain the approval before terminating the services of a teacher. In order to obtain the approval the management is required to satisfy the Vice-Chacellor that its proposed action of termination of service of the probationer is just and proper. For doing so it is implied that the resolution passed by it must contain reasons. The said resolution thereafter is forwarded to the Vice-Chancellor for his perusal and consideration. The Vice-Chancellor is then required to exercise his power. In the background of these statutory provisions it appears to me that the grant of approval by the Vice-Chancellor is an internal matter, where he is not required to perform any quasi-judicial or judicial function Dealing with the similar controversy where the service of a teacher on probation working in an affiliated college had been terminated, a Division Bench of this Court held in Special Appeal No. 1597 of 1969 (All.), Sri Devi Dayal Agarwal v. The Vice-Chancellor (decided on 20-8-1970) as under: 'In the provision requiring prior approval it is necessarily implied that the college must assign reasons for terminating service of a probationer in order to satisfy the Vice-Chancellor that the approval is being asked for on proper grounds. Accordingly it is necessary for the Managing Committee to specify reasons in its resolution. The passing of a resolution for terminating service and the grant of approval by the Vice-Chancellor are closely integrated. It seems to us that the grant of approval by the Vice-Chancellor, treated as an internal matter of the college. Accordingly even though the confirmatory copy of the telegram specifies fault of the appellant, it cannot be held that the termination of his service amounts to his removal from service.'

9. I respectfully agree with the view taken by the Division Bench in the case noted above and find that the function of the Vice-Chancellor was of a nature which could not be considered as one invoking the principles of natural justice for its exercise. There is yet another aspect of the case which may be considered in this regard. It is admitted on all hands that the termination of service of a teacher appointed on probation does not either involve any punishment or cast any stigma whenever an order to that effect is passed. In case the contention of the management regarding the requirement of a reasoned order is accepted it is bound to create another anomaly. It is indisputable that a probationer has no right to continue on the post and therefore the services of a probationer can be terminated by the management without compliance with the procedure of providing an opportunity to him. It is, therefore, clear that an action terminating his service cannot be held to arise out of the quasi-judicial proceedings so as to attract the proceedings of natural justice but if insistence on record of reasons by the Vice-Chancellor is accepted the same is likely to convert the proceedings of simple termination of service of a probationer into a regular proceeding of removal or dismissal I am, therefore, not prepared to accept the submission of the learned counsel for the petitioner for this reason as well. I do not, however, mean to suggest that as no reason for the decision given by the Vice-Chancellor is required it renders the court powerless to intervene even if the person impugning the order establishes misuse of power by the Vice -Chancellor.

10. The next contention of the learned counsel for the petitioner was that the Vice-Chancellor could refuse to accept the proposal of the Management only on his satisfaction that the Management had victimised the teacher and as in the instant case there is nothing to show that the action of management was meant for victimisation, therefore, the order of the Vice-Chancellor was in excess of his jurisdiction. I do not find any tenability in this submission. The Vice-Chancellor can certainly refuse to grant permission when the management exercises its right of termination of service mala fide or as a measure of victimisation but the exercise of the power to refuse to accord approval is not to be confined to these grounds alone. Considering the object behind the Act and the Statutes the Vice-Chancellor can refuse to approve the proposal of the Management also when the action of the Management is either improper, or is perverse. In this view of the matter this contention also fails.

11. The last submission of the learned counsel for the petitioner was that the order of the Vice-Chancellor in the instant case was arbitrary inasmuch as on the materials available before the Vice-Chancellor the only conclusion which could be reached was that the respondent No. 2 could not be continued in service as his work was highly unsatisfactory. This has been denied in the counter-affidavit. There is insurmountable difficulty in the way of the petitioner in getting the above contention accepted. I have been taken through the papers filed by the petitioner. It is not possible to accept that the order of the Vice-Chancellor was arbitrary, as on these materials it was possible to hold that the action of the management in terminating the services of the respondent No. 2 was not proper. Furthermore the High Court cannot assume the function of an appellate court in order to scrutinise the order of the Vice-Chancellor. Having held that the proceedings before the Vice-Chancellor were not quasi-judicial it will not be proper to insist on the interpolation of the judicial type of procedures, and to hold that as the impugned order does not disclose reasons for the view taken by the Vice-Chancellor, it must be found to be arbitrary.

12. In the result the writ petition fails and is dismissed with costs payable to respondents Nos. 1 and 2.


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