H.R. Khanna, J.
(1) Shri Shital Prasad Tyagi by means of this petition under Article 226 of the Constitution of India has prayed for the issuance of a writ to quash the notice dated November 30, 1968/January 30, 1969 by which his services as Lecture in Mathematics in the Central Institute of Education (hereinafter referred to as CIE) were terminated with effect from the expiry of the period of one month from the date of the service of the notice. The notice had been sent to the petitioner by the Secretary of National Council of Education Research and Training, New Delhi (hereinafter referred to NCERT). The respondents named in the petition are :
(1)The Principal, CIE.
(2)The Secretary, Ncert and
(3)The Union of India through Minister of Education.
(2) The brief facts of the case are that the Cie was formally opened on December, 5, 1947 by Lady Mount batten and started functioning in the middle of January, 1948. On April 6, 1948 the Ministry of Education, Government of India, applied to Delhi University for the affiliation of the CIE. It was stated that the Cie was being run and controlled by the Ministry of Education who had made due provision for its continued maintenance. The Cie was at that time housed in the Vice Chancellor's residence at Cavalry Lines, Delhi. The Government sanctioned adequate sum for the construction of the permanent building for the Cie and it shifted to its new building on Chhatra Marg in the University Enclave in 1950. The Cie was recognized as a College of the University by the Executive Council of the University at its meeting held on August 5, 1948. Subsequently, the Government of India, Ministry of Education, vide resolution dated July 24, 1961 established Ncert and the management of the Cie was transferred to the NCERT. The Ncert was registered as a Society under the Societies Registration Act on June 6, 1961.
(3) On December 12, 1966 the petitioner applied to the Ncert for appointment as a Lecturer in Mathematics in the CIE. On May 16, 1967 the Secretary of the Ncert sent a memorandum to the petitioner offering him a post of Lecturer in Mathematics in the Cie in the scale of pay of Rs.400-40-800/50-950, on the following terms and conditions :-
'1.The appointment is temporary for a period of six months in the first instance with effect from 17th July, 1967 and the continuance of the appointment beyond six months will depend on his performance as Lecturer during this period.
2.The appointment can be terminated at any time without any reason being assigned thereforee by one month's notice on either side
4.The Council is an autonomous body set up by the Government of India and is registered under the So cities Registration Act. Service under the Council is nto Government service and is governed by the rules and regulations of the Council.
5.In case he is retained in the services of the council on regular basis, he will be entitled to the retirement benefits in the form of C.P.F./Pension-cum-Gratuity in accordance with the rules of the Council.
6.The appointment carries with it the liability to serve in any part of India.
11.If Shri Tyagi accepts the offer on the above terms, he is requested to communicate his acceptance to the Council by the 30th May 1967 in the form enclosed and await for further communication for joining in the post.
ON May 29, 1967 the petitioner sent a letter to the Ncert accepting the offer. The attestation form duly filled was also sent along with that letter. The petitioner thereafter joined service on September 16, 1967. On April 29, 1968 the following order was made by the NCERT:-
'ON the recommendations of the Appointments Subcommittee, the Council is pleased to appoint Shri S. P. Tyagi, Lecturer (Maths), Cie to the same post beyond 15th March, 1968, on a regular basis, pending approval by the Appointments Committee.
SHRI Tyagi will be on probation for 2 years from the date of his appointment in the above post. The other conditions of his service would remain unchanged.'
MEMORANDUM dated November 30, 1968/January 30, 1969 was sent by the Secretary of the Ncert to the petitioner as under:
'IN pursuance of term No. 2 of the terms of the offer of his appointment as contained in this office Memorandum of even number dated 16th May, 1967, the Council hereby gives notice to Shri Shital Prasad Tyagi, Lecturer in Mathematics in the Central Institute of Education, that his services shall stand terminated with effect from the expiry of the period of one month from the date on which this notice is served on him.
A receipt in writing of this notice may please be acknowledged.'
(4) The petitioner claims that the termination of his services is void because his services are governed by Ordinance Xii of the University calendar. According to that Ordinance the services of a College appointed teacher can be terminated in the following ways:-
(A)Summarily for misconduct, but by giving three months' notice; and
(B)for good cause and after hearing the teacher and giving him three months' notice of termination in writing'.
AS the provisions of the above Ordinance were nto complied with, the petitioner prays for quashing the notice terminating his services.
(5) The petition has been resisted by the respondents and the affidavit of Shri P. N. Natu, Secretary of the NCERT. has been filed in opposition to the petition. According to the respondents, the services of the petitioner are governed nto by the Statutes and Ordinances of the University but by contract between the petitioner and the NCERT. The Cie is stated to be a Government maintained institution, nto subject to the provisions of Ordinance X! 1. The services of the petitioner are, accordingly, stated to have been properly and validly terminated.
(6) It is the common case of the parties that the Cie is a Constituent College of the University of Delhi under Clause (a) of section 2 of the Delhi University Act, 1922 (8 of 1922). According to that clause, College means an institution maintained or admitted to its privileges by the University and includes and Affiliated College and a Constituent College. The Cie imparts teaching and training to students for B. Ed., M. Ed. and Ph. D. courses of the University of Delhi, the syllabus of which is prescribed by the Delhi University. The degrees on the students passing out of the Cie are conferred by the said University. It is further the common case of the parties that the teaching staff of the Cie is recognized by the University of Delhi and that the petitioner on being appointed as a lecturer of the Cie became a 'teacher of the University-'. According to clause (h) of section 2 of the Delhi University Act, Teachers of the University' means persons appointed or recognized by the University for the purpose of imparting education in the University or in any College. The material on record also indicates that the petitioner's name was included in the Electoral Roll of the 'Teachers of the University' for the purpose of 1968 Election for Membership of the Academic Council.
(7) There can a.lso be no doubt that the Cie is a Government maintained College. At the time application was made to the Delhi University for the affiliation of the Cie it was stated, as mentioned earlier, that the Cie was being run and controlled by the Ministry of Education and that the said Ministry had made due provision for its continued maintenance. After the management of the Cie was transferred to the Ncert, the only source. from which grants of money have been received by the Ncert for running the Cie and other institututions, is Central Government. On February 8, 1964 the Registrar of the Delhi University addressed a letter to the Secretary, Ncert, in the course of which it was stated that the Executive Council of the University decided in a meeting held on January 25, 1964 that the Cie be considered as a Government maintained institution, and thereforee the question of grant of approval to the personnel of the management Committee of the Institute did nto arise. We would, thereforee, hold that the Cie is a Government maintained institution.
(8) The main controversy between the parties has centered round the point as to whether the employment of the petitioner is governed by the terms of the contract between the parties or by Ordinance Xii of the Delhi University. The case of the respondents is that the services of the petitioner can be terminated at. any time without any reason being assigned thereforee in accordance with the contract between the parties by one month's notice on either side. ' As against that. the petitioner claims that his services could only be terminated in compliance with the provisions of Ordinance Xii and nto otherwise. In this connection we find that section 4 of the Delhi University Act enumerates the powers of the University. One of those powers, as given in clause (9) of that section, is 'to maintain Colleges and Halls, to admit to its privileges Colleges nto maintained by the University and to withdraw all or any of those privileges, and to recognise Halls nto maintained by the University and to Withdraw any such recognition.' According to section 2(f) of the Act, 'Statutes', 'ordinances' and 'Regulations' mean, respectively, the Statutes, Ordinances and Regulations made under under the Act. Section 28 of the Act deals with Statutes and enumerates the matters for which the statutes might make provision subject to the provisions of the Act. Section 30 deals with Ordinances. According to this section, subject to the provisions of the Act and the Statutes, the Ordinances, may provide for all or any of the matters mentioned in that section. Clause (k) of that section specifies 'the emoluments and the terms and conditions of service of the teachers of the University', as one of the matters for which provision might be made by Ordinances. According to Statute 17, Teachers of the University shall be of two classes, namely:-
(I)Appointed teachers of the University; and
(II)Recognised teachers of the University.
CLAUSE(2) and (3) of the above Statute read as under:-
'(2)'Appointed teachers of the University' shall be either
(A)servants of the University paid by the University and appointed by the Executive Council as Proffessors, Readers or Lecturers or otherwise as teachers of the University, or
(B)Persons appointed by the Executive Council as Honorary Professors, Readers of Lecturers or otherwise as teachers of the University.
3.Recognised teachers of the University shall be-
(A)Member of the staff of a recognised College of the University, or
(B)Members of the staff of a recognised Institution which provides graduate and post-graduate courses of study approved by the University.'
THERE follows a proviso to clause (3) but we are nto convened with that. Sub-clause (B) and the material part of sub-clause . (C) of Clause (1) of statute 30 provide :
(B)Colleges shall be of two types, namely. Constituent and Affiliated. Constituent Colleges will be those Colleges and Institutions which will impart instruction at least up to the Honours standard, or for a Bachelor's Degree in professional course recognised as such by the University.
AFFILIATED Colleges will be those Colleges and Institutions which will impart instruction up to the Bachelor's pass Degree excluding a degree in a professional course.
(C)Colleges and other Institutions with in the limits of State of Delhi; may be admitted to such privileges of the University as the executive Council may decide on the following conditions, namely :-
(1)Every such College or Institution shall have a regularity constituted Governing Body, consisting of nto more than twenty persons approved by the Executive Council and including, among others, at least two representatives of the University and at least three representatives of the teaching staff, of whom the Principal of that College or' Institution shall be one. The rules relating to the composition and personnel of the Governing Body, and those relating to other matters affecting the management of the Colleges shall conform to the Statutes and the Ordinances of the University and the conditions of Government Grant to Colleges. Saucy rules and the per- sound will require the approval of the Executive Council:
PROVIDED that the said condition shall nto apply in the case of Colleges and Institutions maintained by Government which shall, however, have an Advisory Committee, which shall consist of among others, at least three teachers, including the Principal of the College or Institution, and two representatives of the University. (II)Every such College or Institution shall satisfy the Executive Council on the following points namely:-
(A)the suitability and adequacy of its accommodation and equipment for teaching.
(B)the qualifications and adequacy of its teaching staff and the conditions of their service;
(C)the arrangements for the residence, welfare, discipline and supervision of its students;
(D)adequate financial provision has been made for the continued maintenance of the college; and
(E)such other matters as are essential for the maintenance of the standards of University education.
(III)No College or Institution shall be admitted to any privileges of the University except on the recommendation of the Academic Council made after considering the report of a committee of inspection appointed for the purpose by the Academic Council.'
(9) Chapter Iv of the Ordinances deals with the teaching staff and consists of Ordinances Xi, Xii, XII-A and XIII. Ordinance Xi relates to the University appointed Teachers. According to Para 2 of that Ordinance the conditions of service of teachers appointed by the University shall be those embodied in the Agreement of Service annexed to that Ordinance or, an agreement substantially to like effect, and every teacher shall sign the agreement before he enters upon his duties or as soon as possible thereafter. Clause 6 of that Agreement provides that the Executive Council shall be entitled summarily to determine the engagement of the teacher on grounds of misconduct, but save as aforesaid, the Executive Council shall nto be entitled to determine the engagement of the teacher save for good cause and after giving three months' notice in writing or payment of three months' salary in lieu of notice. It is also provided that the determination of a teacher's engagement shall require a two-thirds majority of the members of the Executive Council present and voting.
(10) Ordinance Xii pertains to College appointed Teachers. According to Para 2 of that Ordinance no wholetime teacher shall be engaged by any College as a member of its staff except on an Agreement of Service in the form annexed to that Ordinance, or an agreement substantially to like effect and every teacher shall sign the agreement before he enters upon his duties. Clause 5 of the Agreement, which constitutes an annexure to the above Ordinance, reads as under :-
'5.The Governing Body shall be entitled summarily to determine the engagement of the teacher for misconduct, but subject as aforesaid, shall only be entitled to determine the engagement after giving three months' notice in writing or payment of three monhs' salary in lieu of notice, and for good cause.'
(11) Perusal of the different provisions of the Delhi University Act and Statutes and Ordinances made there under reveals that the object underlying these provisions is to ensure a good standard of education and teaching in the University and its Constituent and Affiliated Colleges. With this end in view various requirements have been insisted upon including one relating to the security of service of the teachers. It seems to have been felt that without adequate security of service a University teacher would nto be able to devote himself whole heartedly to the imparting of edcation. It needs hardly to be emphasised that if one wants to secure the service of an efficient teacher and to get the best out of him, one must offer him attractive terms including stability and security of service. Arbitrary and capricious termination of services of teachers nto only causes disaffection and frustration, it has also an adverse effect on the quality of teaching. Safeguards were, accordingly, provided against termination of services of teachers except in case of misconduct or for good cause. Those safeguards have been incorporated in Ordinances Xi and XII. The petitioner, as would appear from the above, was informed at the time he was appointed as a Lecturer in the Cie that service under the Ncert was nto Government service. The petitioner as such can obviously nto avail of the protection of Article 311 of the Constitution. The petitioner, however, became a teacher of the University on his appointment as a Lecturer of the Cie and in our opinion it would nto be a correct approach to hold that Ordinance Xii does nto govern the employment of the petioner because of Cie being a Government maintained institution. To accept the contention advanced on behalf of the respondents in this respect would be tantamount to holding that while other teachers, whether appointed by the University or by its Affiliated and Constituent Colleges, enjoy security of service as given in Ordinances Xi and Xii, the teachers employed by Government maintained institutions constitute a class apart who would nto have the benefit of the security of service as contained in those two Ordinances. No justification or valid basis for this invidious distinction and differential treatment have been shown to us and on reference to the relevant provisions we find ourselves unable to hold that the teachers of Government maintained institutions cannto claim the benefit of security of service contained in Ordinance XII. If it was intended that Ordinance Xii is nto to apply to Government maintained Colleges but is to apply only to other Colleges, it is nto clear as to why it was nto expressly so stated. In this respect reference may be made to Ordinance xviii the heading of which is 'Colleges other than those maintained by the Government of India.' Had it been the object of the authorities, who made Ordinance Xii, that the said ordinance too would nto apply to Government maintained Colleges, it could easily have been made clear by use of words similar to those in Ordinance xviii. Even in the case of Statutes whenever it was intended that the provisions of a particular clause should nto apply in the case of Government maintained Colleges, the same was made expressly clear. For example, Clause (2) of Statute 30 deals with personnel of the Selection Committee for appointment of the teaching staff of Colleges .and Institutions. The proviso to that Clause, however, reads as under:--
'PROVIDED that the provisions of this clause shall nto apply 'In 'the case of Colleges and Institutions maintained by Governmerit.
THE fact tha,t no such proviso has been added in Ordinance Xii, points.to,the conclusion that the said Ordinance applies to all teachers appointed by colleges irrespective of the fact whether those,.Colleges, are Government maintained Colleges or not.
(12) MR.MALHOTRA on behalf behalf of the respondents has argued that form of agreement, which constitutes annexure to Ordinance Xii, refers to governing body. it is pointed out that while Colleges and Institutions nto maintained by the Government have a governing body those maintained by Government have an Advisory Committee as mentioned in sub-clause (c) of Clause (1) of Statute 30. Reference to the governing body in the agreement annexed to Ordinance Xii, according to Mr. Malhotra, indicates that the said Ordinance does nto apply to Government maintained Colleges and Institutions. In this respect we find that while the number of members of the Advisory Committee in the case of a Government maintained College and of a Governing Body in the case of other College, may very each of them must have three teachers including the Principal of the College and two representatives of the University. The rules relating to the composition and personnel of the Governing Body in the case of non-Government maintained Colleges require also the approval of the Executive Council of the University and have to conform to the Statutes and Ordinances of the University and conditions of Government Grant to Colleges. The Governing body of Colleges other than those maintained by the Government and the Advisory Committee of Government maintained Colleges are in other respects similar to each other and perform the same functions. Keeping in view the different factors we are of the opinion that the use of the words 'Governing Body' in the different clauses of the form of Agreement annexed to Ordinance Xii, does nto rule out the applicability of that Ordinance to Government maintained Colleges.
(13) It is no doubt true that the petitioner was on probation at the time his services were terminated, but in that respect we find that the form of Agreement annexed to Ordinance Xii makes no distinction for the purpose of termination of service between a Teacher who is on probation and the other Teachers except in the matter of arbitration vide Clause 8 of the Agreement.
(14) Mr. Malhotra has referred to the fact that the Ncert runs other Institutions in different States and the appointment of the petitioner carries with it the liability to serve in any part of India. It is urged that the petitioner can be transferred to other Institutions of the Ncert and thus deprived of the benefit of Ordinance XII. Such a contingency has nto arisen and we need nto express any opinion as to what consequences would follow if and when an order to that effect is made.
(15) The question as to whether the conditions of service of a College teacher are governed by the contract between him and the Governing Body or by the Ordinances made by the University. was considered by their Lords ships of the Supreme Court in Prabhakar Ramakrishna Jodh v. A. L. Pande and another (1) and it was held that the provisions of the Ordinance would prevail over those of the contract between the parties. Ramaswami J. speaking for the Court, observed:
''IT is nto disputed on behalf of the respondents that the 'College Code' has been made by the University in exercise of statutory power conferred by section 32 and under section 6(6) of the Act. It is also conceded on behalf of the respondents that the 'College Code' is intra virus of the powers of the University contained in section 32 read with section 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 nto a correct proposition to say that the 'College Code' merely regulates the legal relationship between the affiliated colleges and the University alone. We do nto 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 Schedule 'A' but that does nto 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. thereforee the force and effect of law. It follows, thereforee, that the 'College Code' creates legal rights in favor of teachers of affiliated colleges and the view taken by the High Court is erroneous.'
It thereforee follows that service conditions of the petitioner would be governed by Ordinance Xii rather than by the contract between the parties.
(16) Mr. Malhotra on behalf of the respondents has also argued that the 'NCERT was nto created by the Statute and that it does nto exercise statutory powers and, thereforee, it is nto amenable to the supervisory jurisdiction of this Court under Article 226 of the Constitution of India. It is, however, conceded that in the case of Mohinder Singh v. Union of India and another (2), and Amir-I-Jamia and others, v. Deshrath Raj Kapila, (3) a contrary view was taken. In the case of Mohinder Singh v. Union of India and another, (2) it was held by a Division Bench consisting of Jagjit Singh and Shankar JJ. that the Lawrence School (Snawar) Society registered under the Societies Registration Act can be considered to be an authority for purposes of Article 226 of the Constitution of India. In case of Amir-I-Jamia and others v. Deshrath Raj Kapila, (3) the Division Bench consisting of Dua C. J. and Deshpande Under Article 226 of the Constitution of India the learned Judges had quashed the order of Jamia Milia Islamia for the expulsion of the petitioner. Mr. Malhotra urges that the dictum laid down in the above authorities needs to be reconsidered. In this respect we find that no such plea was taken in the reply filed on behalf of the respondents that petition under Article 226 of the Constitution of India was nto maintainable against them. In the absence of such a plea we are nto prepared to allow the respondents to agitate this point in these proceedings.
(17) As a result of the above, we accept the petition and quash the notice dated November 30, 1968/January 30, 1969 by which the services of the Petitioner as Lecturer in Mathematics in the Cie were terminated with effect from the expiry of the period of one month from the date of the service of the notice. Looking to all the circumstances, we make no order as to costs of the petition.