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Dr. D.C. JaIn Vs. the University of Jodhpur - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 242 of 1974
Judge
Reported in1974WLN986
AppellantDr. D.C. Jain
RespondentThe University of Jodhpur
Cases ReferredIn Venkateswara Rao v. Govt. of Andhra Pradesh
Excerpt:
interpretation of statutes - rules of interpretation may be pressed into service when there is ambiguity.;(b) jodhpur university act, 1962 section 25 and ordinance 328 - resolution gives guide line--no automatic extension of tenure of an employee.; giving the resolution the meaning which the clear words employed therein carry, it means that inspire of this resolution the extension of tenure of an employee going to superannuate will not be automatic, but it will be for the competent authority to pass an appropriate order, if it so likes to continue an employee in service even after his superannuation.;(c) jodhpur university act, 1962 - section 25 and ordinances 317 & 328--resolution of academic council approved by the syndicate--held, it becomes resolution of the syndicate.; it is.....kan singh, j.1. this is a writ petition under article 226 of the constitution filed by one dr. d.c. jain questioning the validity of a resolution of the syndicate of the jodhpur university no. 174 dated 21/22/23rd november, 1973 and seeking an appropriate writ, direction or order.2. the writ petition is a sequel to an earlier writ petition filed by dr d.c. jam no. 723 of 1973 against the university and shri s.c. thanvi, respondent no. 2, for a writ of quo warranto. there was a stay application moved in that writ petition by the petitioner dr. d.c. jain restraining the university from continuing shri s.c. thanvi as professor and dean in the faculty of law after his retirement on 9-10-74 the university opposed the stay application and in its reply to that stay application took the stand.....
Judgment:

Kan Singh, J.

1. This is a writ petition under Article 226 of the Constitution filed by one Dr. D.C. Jain questioning the validity of a resolution of the Syndicate of the jodhpur University No. 174 dated 21/22/23rd November, 1973 and seeking an appropriate writ, direction or order.

2. The writ petition is a sequel to an earlier writ petition filed by Dr D.C. Jam No. 723 of 1973 against the University and Shri S.C. Thanvi, respondent No. 2, for a writ of quo warranto. There was a stay application moved in that writ petition by the petitioner Dr. D.C. Jain restraining the University from continuing Shri S.C. Thanvi as Professor and Dean in the Faculty of Law after his retirement on 9-10-74 The University opposed the stay application and in its reply to that stay application took the stand that in view of the aforesaid resolution of the Syndicate there would be no need to pass any order for continuing Shri S.C. Thanvi as Professor in the Faculty of Law, but in terms of the resolution there would be automatic extension of his tenure as Professor of Law till the end of the current academic session. The resolution was passed on the recommendation of the Academic Council & the resolution of the Academic Council ran as follows:

Resolved to recommend that in future any teacher whose date of retirement falls due during the middle of the academic session may be permitted to continue as a matter of course in service of the University upto the end of the session.

Provided that notwithstanding, the above, no teacher shall be retained in service under any circumstances beyond the age of 65 years.

This resolution of the Academic Council was approved by the Syndicate. The petitioner contends that it was beyond the competence of the Academic Council and the Syndicate to pass such a resolution and to make ineffective the Ordinance No. 328 of the University which required the cases for extension to be put up before the Syndicate. The petitioner further contends that the aforesaid resolution does not entitle Shri Thanvi to continue in service as be was not qualified to hold the post of a Professor in accordance with Ordinance No. 317 of the University. In elaboration it was pointed out that the powers of the Academic Council have to be gathered from statute No. 7 which does not empower the Academic Council to make the recommendation of the kind. The petitioner avers that on 24-8-74 he made a representation by registered post to the Chancellor of the University requesting him to restrain the University from continuing Shri S.C. Thanvi in service after he attains the age of retirement and not to grant him any further extension. The petitioner then came to know that a meeting of the Syndicate was to be held on 9-9-74 and accordingly he saint a telegram to the Chancellor requesting him to attend to his representation and reply by the 2nd of September, 1974 and unless any relief were granted to him by that date he would be approaching this Court. On the above premises the petitioner prays (1) that a writ of mandamus or any other writ, order or direction be issued to the University directing it not to continue the respondent No. 2, Shri Thanvi, in service after he attains the age of superannuation on 9-10-74 and further not to grant him any extension in service either under the impugned resolution or under any other Ordinance, Statute of the University for any period; (2) the petitioner be awarded such further relief which in the circumstances of the case would do complete justice to him in the matter:

3. The writ petition has been opposed by the University as well as Shri S.C. Thanvi. It is denied by them that the impugned resolution of the Syndicate was invalid on any of the grounds taken by the petitioner or that Shri Thanvi was not qualified to hold the post of a Professor or that he could not be continued after 9.10.74 on the ground that he was not qualified to hold the post of the Professor Then certain preliminary objections were raised. Firstly, it, was urged that the petitioner has no legal right to file the writ petition, as he himself is ineligible for being appointed as Professor of Law and further he had not made any demand for justice to the proper authority of University; nor had he waited for sufficient time to enable the competent authority of the University to make up its mind about the petitioner's representation. Then it was pleaded that the writ petition has been filed after undue delay.

4. On 16-9-74. when the case came up before me, it was found that certain teachers of the University as also the President of of the Jodhpur University Teachers Association, had made identical applications for being imp leaded as party respondents. They submitted that they were vitally interested in the impugned resolution as that confers benefits on all the teachers of the University. After hearing arguments it was ordered that the various applicants be allowed to intervene and they could make oral arguments at the time the case would be heard. Accordingly, I have heard leraned Counsel for the parties as well as leraned Counsel for the Teachers Association and such of the interveners individually who wanted to address me.

5. At the commencement of the arguments it was felt that the question regarding the eligibility of Shri Thanvi to hold the post of Professor would arise in this case. I, therefore, put it to leraned Counsel for the petitioner if be would like the present writ petition to be linked up with the earlier writ petition already set down for hearing on 9th October, 1974. Leraned Counsel submitted that for the purposes of this writ petition he will be arguing on the assumption that Shri Thanvi was qualified to hold the post of a Professor when he was first appointed as such though be would be maintaining that for the purposes of extension the qualifications laid down in Ordinance No. 317 have to be still satisfied. Therefore, I proceed to hear this case on the express understanding that it will be assumed that Shri Thanvi was qualified to be appointed as Professor when he was so appointed. I would be dealing with the preliminary objections a little later, because I may straightaway say that I was not impressed much by the contentious. Before examining the resolution, I may read the relevant provisions of the University Act, the Statutes and the Ordinances.

6. The Jodhpur University Act, 1962 became law on 12.6.62. The powers of the University are defined by Section 4 They are of general nature and cover the entire range of the activities of the University. Section 9 lays down as to who would be the Officers of the University; they are : (1) Chancellor, (2) Vice-Chancellor, (3) the Registrar. (4) the Deans of the Faculties, and (5) such other persons in the service of the University as may be declared by the Statutes to be officers of the University Section 10, inter alia, lays down that the Governor of Rajasthan shall be the Chancellor and he shall be by virtue of his Office the Head of University and shall, when present there at, preside over the Senate and at convocations of the University. Section 11 lays down that the Vice-Chancellor shall be a whole time paid officers of the University and further how he will be appointed and what would be his conditions of service. Section 12 defines the powers and authorities of the Vice-Chancellor and I may read this section:

Section 12. Powers and autorities of the Vice Chancellor.

(1) The Vice-Chancellor shall be the principal executive and academic officer of the University, and shall, in the absence of the (sic) preside at meetings of the Senate and at any convocation of the University. He shall be an ex-officio member and Chairman of the Syndicate and the Academic Council. He shall have the right to speak in, and to take part in the proceedings of, the meetings of any other authority or body of the University but shall not, merely by virtue of this Sub-section, be entitled to vote there at.

(2) It shall be the duty of the Vice-Chancellor to ensure the faithful observance of the provisions of this Act, the Statutes and the Ordinances and he shall, without prejudice to the powers of the Chancellor, possess all such powers as may be necessary in that behalf.

(3) The Vice-Chancellor shall have power to convene meetings of the Syndicate, the Senate and the Academic Council:

Provided that he may delegate this power to any other officer of the University.(4) The Vice-Chancellor shall exercise general control over the affairs of the University and shall be responsible for the due maintenance of discipline therein.

(5) In any emergency, when in the opinion of the Vice-Chancellor, immediate action is required, the Vice-Chancellor shall take such action as he may deem necessary and shall at the earliest opportunity report the action taken to the officer, authority, or body who or which in the ordinary course would have dealt with the matter, but nothing in this Sub-section shall be deemed to empower the Vice-Chancellor to incur any expenditure not duly authorised and provided for in the budget.

(6) Where any action taken by the Vice-Chancellor under Sub-section (5) affects any person in the service of the University to his disadvantage, such person may prefer an appeal to the Syndicate within fifteen days from the date on which the action so taken is communicated to him:

Provided that the Syndicate may entertain an appeal under this Sub-section after the expiry of the period of limitation prescribed by the same, if it is satisfied that there were sufficient grounds for the applicant being unable to file the appeal within such period.(7) Subject to the provisions contained in Sub-sections (5) & (6), the Vice-Chancellor shall give effect to the orders of the Syndicate regarding the appointment, suspension, removal or dismissal of officers and teachers of the University.

(8) The Vice-Chancellor shall exercise such other powers as may be prescribed by the Statutes and the Ordinances.

The authorities of the University are as laid down in Section 14(1). They are: (1) the Senate, (2) the Syndicate, (3) the Academic Council (4) the Finance Committee, (5) the Faculties, (6) the Committees of Courses & Studies and such other authorities as may be declared by the Statutes to be the authorities of the University. Section 15 lays down that the Senate shall be the supreme authority of the University and shall have the power to review the acts of the Syndicate and the Acaosmic Council and shall exercise all the powers of the University not other wise provided for by this Act or the Statutes. This section further gives the constitution of the Senate with which we are not concerned at the moment. Section 16 lays down that the Syndicate shall be the executive body of the University and shall consist of the persons indicated therein. Section 17 provides that the Academic Council shall be the chief academic body of the University and shall subject to the provisions of this Act, the Statutes and the Ordinances have the control and general supervision and be responsible for the maintenance of standards of instruction, education and examinations within the University and shall exercise such other powers and perform such other duties as may be conferred or imposed upon it by the Statutes. It shall have the right to advise the Syndicate on all academic matters. The constitution of the Academic Council and the term of office of its members other than ex officio members shall be prescribed by the Statutes. Section 22 lays down bow the Statutes are made and with it we are rot concerned at the moment Section 24 lays down how the Ordinances shall be made. It is provided that Ordinances shall be made by the Syndicate, but no such Ordinance shall take effect until it has been approved by the Chancellor after considering the views of the Senate The proviso to this section is not important and I may not read the other provisions of this section, as they are not relevant for the purpose in hand. Section 26 provides that the authorities of the University may make regulations consistent with this Act, the Statutes and the Ordinances. The regulations are, by and large, to make provision for procedural matters for the meetings of the various bodies and for keeping of the record of such meetings. Section 35 provides for conditions of service of the salaried officers, and teachers of the University. It provides that every salaried officer and teacher of the University shall be appointed by means of a written contract. The contract shall be lodged wish the Registrar of the University and a copy thereof shall be furnished to the officer or teacher concerned.

7. Statute 7 lays down the powers of the Academic Council. I need not read the whole of it. Suffice it to say that it deals with mostly matters relating to the academic sphere. Statute 5 lays down that the Syndicate shall, subject to the control of the Senate, manage and administer the revenue and property of the University and the conduct of all administrative affairs of the University not other wise provided for. It, inter alia, lays down that subject to the provisions of the Act, the Statutes and the Ordinances, the Syndicate shall, in addition to all other powers vested in it, have the powers to appoint from time to time the Registrar, Librarian, Principals of Colleges and Heads of Institutions established by the University and such Professors, Readers, Lecturers and other members of the teaching staff as may be necessary on the recommendations of the Selection Committee constituted for the purpose, provided that no action shall be taken by the Syndicate in respect of the number and the emoluments of teachers otherwise than after consideration of the recommendations of the Academic Council Further it empowers the Syndicate to entertain and redress any grievances of the officer of the University, the teaching staff and the University's servants who may for any reason feel aggrieved, otherwise than by Act of the Senate.

8. The Ordinances lay down the conditions of service of the teachers. I may read the Ordinance that deals with the Faculty of Law.

Order 317. The following shall be the minimum qualifications for appointment of University teachers as required under Statute 7(ii)(c) or as may be modified from time to time... .... .... .... .... 3. Faculty of Law

Lecturer: (a) A first or second class Master's degree in law or first or high second class degree in Law with 3 years teaching or 3 years practice at the bar.

Reader: (a) A first or second class Master's degree in Law or first or second class degree in Law with a post-graduate degree in Humanities or Social Sciences.

(b) Experience of teaching post graduate and/or degree classes for 5 years or at least five years practice at the bar.

Professor: (a) A first class L.L.M. or L.L.B. with a post-graduate degree in Humanities or Social Sciences with about five years experience at bar

(b) Administrative and teaching experience of at least five years as Head of an Institution.

Then Ordinance 328 which makes provision for extension of tenure of a teacher reads as follows:

Order 328. All permanent whole-time employees of the University shall retire on attaining the age of 60 years. In special circumstances which must be recorded in writing, a person may, however, be retained in service after the date of retirement. Such an extension shall be given for not more than two years at a time, subject to the maximum of five years, provided the officer concerned remains fit for duty.

This Ordinance lays down that all permanent whole-time employees of the University including the teachers shall retire on attaining the age of 60 years, but in special circumstances which have to be recorded in writing a person may however, be retained in service after the date of retirement subject to the limitations that such an extension shall be given for not more than two years at a time and further subject to the limitation that the maximum period to be allowed would be 6 years, provided the officer concerned remains fit for duty.

9. The argument has ebbed and flawed around the language of the impugned resolution and particularly the words 'may be permitted to continue as a matter of course'. While the petitioner contends that the resolution does not do away with the necessity of approaching the Syndicate for the extension of tenure of a teacher who is superannuating, leraned Counsel for the University and some of the interveners argued to the contrary. 1 have devoted anxious consideration to these crucial words. These words, in my humble opinion, imply that there is someone who permits to continue and then there is someone who is permitted to continue. The resolution has to be given its ordinary meaning as, in my view, the meaning is quite clear and does not admit of any ambiguity. Rules of interpretation may be pressed into service, if there is any ambiguity in the language employed in the resolution, or it would otherwise lead to an absurd result. Therefore, giving the resolution the meaning which the clear words employed therein carry, it means that inspire of this resolution the extension of tenure of an employee going to superannuate will not be automatic, but it will be for the competent authority to pass an appropriate order, if it so likes to continue an employee in service even after his superannuation Leraned Counsel for the petitioner has argued that the recommendation in the form of this resolution could not have been made by the Academic Council. I find it difficult to hold the resolution of the Syndicate to be invalid on that ground. Firstly, there is Section 17 of the University Act which, inter alia, gives the right to the Academic Council to advise the Syndicate on all academic matters. It is difficult to hold that when a teacher retires in the mid session and some arrangement has to be thought of for meeting the difficulty that may be created on that account, it will not be an academic matter. It may have a bearing on the standard of imparting education and will thus very much be a matter within the sphere of the Academic Council. But, even if that were not so, it will not mean that the competent authority namely, the Syndicate, could not have taken note of this recommendation of the Academic Council even if the making of such a recommendation may not strictly fall within the ambit of latter's sphere. The Syndicate could have informed its mind regarding this through any agency. The teachers association too have made a representation for Making such a provision as was done by the impugned resolution. It is true, the Syndicate has not passed any independent resolution of its own in so many words except a resolution for approving the recommendations of the Academic Council as contained in its regulation, but the moment the resolution of the Academic Council was approved by the Syndicate it became its own resolution, as if the whole thing had been rewritten by it in the terms the resolution was presented to it by the Academic Council.

10. Now, the next question is whether Ordinance No. 317 could stand in the way of continuance in service of such the teachers who entered the University service prior to this Ordinance, when the qualifications for appointment may have been different from those laid down by this Ordinance 317. The crucial words in Ordinance No 328 are 'in special circumstances which must be recorded in writing, a person may, however, be retained in service.' The words 'reamed in service' cannot by any stretch of imagination mean the fresh appointment in service. It means he continuance of a person already in service of the University who, of course, was going to superannuate on attaining the age of 60. I need not enter into the question, as already observed, regarding the validity of Shri Thanvi's appointment as Professor when he was first appointed so in the service of the University, because that is a subject-matter of the other writ petition and ex-hypothesis that appointment is valid so far as the present writ petition is concerned. 1 should think the retention in service of Shri Thanvi's if at all it comes about under orders of a competent authority, would not be invalid on the ground that he is not fulfilling the qualification prescribed by Ordinance 317 of the University. The resolution, as it stands, in my view, is a harm less one and does not amount to more than a statement of the policy or the guide lines set by the Syndicate for future action. If the Syndicate alone were to deal with such matters at all times then the laying down of such guide lines may look rather odd, but one cannot overlook that under extraordinary situations the Senate, the Syndicate or other bodies of the University may not be able to function and then it may be for the Vice Chancellor to take appropriate action in a particular case according to the circumstances and the situation then confronting him. Therefore, Syndicate could have laid down such a general policy for future action by the concerning organs of the University. Normally, inspite of this resolution, therefore, a case for retention in service of an employee going to retire would be coming to the Syndicate and it will be for the Syndicate to pass appropriate orders in the matter though, as I have already observed, in an extraordinary situation the matter may have to be dealt with by another limb of the University, namely, the Vice Chancellor.

11. Therefore, according to my interpretation of the aforesaid resolution I am unable to hold that it goes contrary to the provisions of the Act, the Statute or the Ordinances What action has to be taken will be a matter for the competent body of the University to see, but I must over rule the contention that this resolution results in an automatic extension of the tenure of a teacher who superannuates in the mid section.

12. I may now briefly dispose of several contentions raised by leraned Counsel for the respondents and the interveners. Shri Rastogi argued that the petitioner was not directly or materially affected by the retention in service of Shri Thanvi and, therefore, he had no right to file the writ petition. Further it was argued by Shri Rastogi and other leraned Counsel that as there was no demand for justice from the competent authority of the University, the writ of mandamus was not maintainable and again sufficient time was not allowed by the petitioner to the competent body of the University to make up its mind regarding the representation of the petitioner and finally, the so-called representation was of no avail as the same was addressed to the Chancellor who was strictly speaking not the University as such, though he may be Head of the University. Shri Rastogi maintained that the petitioner was not qualified to hold the post of a Professor and, therefore, he should not be heard in the matter. As regards the qualification of a Professor he emphasised that a Professor is to have 5 years experience at the bar which the petitioner was singularly lacking and further be had no experience as head of the Institution.

13. The second preliminary objection was that the writ petition was filed after considerable delay. Shri Vyas supported Shri Rastogi and cited a number of casts, such as, Commissioner of Police v. Gordhandas : [1952]1SCR135 , A.K. Chatterji v. J.C. Sharma : AIR1963All394 , Subodh Ranjan v. N.A.O. Callaghan : (1957)ILLJ69Cal , Ratan Chandra v. Adhar Biswas : AIR1952Cal72 , R.L. decided by Singhal J. writ petition No. 834 of 1971 Madan Lal v. State , which was summarily dismissed by Singhal j. on 16.7.71 on the ground that there was no demand for justice for refusal by the respondent authority prior to the filing of the writ petition.

14. The interveners, by and large, adopted the arguments of Serva-Shri Rastogi and Vyas. They emphasised that the retention of a teacher retiring in the mid session till the end of the academic session was in the interest not only of the University, but of the student community in general and, therefore, the resolution should be so interpreted that it may advance the under lying object of the resolution even though the language may not be free from certain imperfections. Lastly, they also emphasised that if the resolutions were not upheld there may be a hiatus and the interests of University as welt as the students would suffer.

15. So far as a writ of mandamus is concerned the principles are well settled that before approaching this Court under Article 226 of the Constitution a petitioner should make a demand for justice, from the authority against whom relief is sought so that authority may have an opportunity of looking into the petitioner's grievances and to remedy the same if it could. Nevertheless there are exceptional circumstances in which the High Court may entertain a writ petition even without the petitioner first making a demand for justice. In the present case, however, the relief which I have already set out in the beginning, is not limited to a mere writ of mandamus, but if the writ petition is read as a whole it shows that the grave man of the petition is the challenge against the resolution of the Syndicate and its not resulting in an automatic extension of the tenure of an employee going to retire even in the mid session. The University has taken a clear cut stand on an earlier occasion and even at the time of hearing of the present writ petition that the resolution enables the automatic retention in service of a teacher going to retire in the mid session. In view of this clear cut stand of the University which was taken prior to the making of the representation by the petitioner to the Chancellor or for that matter the filing of the present writ petition the seeking of justice from the University would have been a fruitless exercise. I need not speculate what the University would have precisely done, but it does appear from the stand that was taken in this Court even at the hearing of the present writ petition that nothing tangible could have resulted from any such representation Therefore, as I have already observed, the contention of the leraned Counsel did not carry conviction with me. Then regarding the Dale of delay in filing the writ petition I am only stating it to be rejected. Shri Rastogi while arguing this point was himself not quite confident of it and rightly so The resolution was brought forth in reply to the stay application in the earlier case and thereafter the petitioner had been taking steps to prepare ground for the present writ petition The petitioner may not be qualified to be appointed as a Professor in the Faculty of Law, but then it cannot be said that he has no interest in pursuing the matter Ii is not disputed that the petitioner is a Reader in the same Faculty of which Shri Thanvi is the Head and the Professor. He ranks next to him. Therefore, if eventually the University is not mined to retain Shri Thanvi in service after his superannuation the petitioner would be getting the chance of becoming the Head of Department or even a Dean for that matter In a case reported as R. v. Commissioners of Customs and Excise 1970 (1) All ER 1068, the learned Judges recognised that for a petitioner seeking a writ of mandamus there should be sufficiency of interest, that is, the interest over and above the interest of the community as a whole. The same thing has been recognised in two of the cases in India namely, S.K. Ghose v. V.C. Utkal University : AIR1962Ori1 and S.K. Agarwalla v. State : AIR1973Ori217 . In the first case relying on an old English case (1768-98) ER 139, it was observed that in an incomplete right may itself suffice for invoking the mandamus jurisdiction of the High Court. In S.K. Agarwalla v. State : AIR1973Ori217 it was observed that a writ can be granted also where there is reasonable likelihood of damage being done 'o the rights of the petitioner and not only after actual damage has been done. The learned Judges pointed out that the words 'person aggrieved' do include a person who has a genuine grievance that an order passed by an authority prejudicially affects his interest.

16. In Venkateswara Rao v. Govt. of Andhra Pradesh : [1966]2SCR172 their Lordships observed that a petitioner who files an application under Article 226 of the Constitution should 'ordinarily' be one who has a personal or individual right in the subject matter of the petition. A personal right need not be in respect of a proprietary interests That apart in exceptional cases, as the expression 'ordinarily' indicates, a person who has been prejudicially affected by an act or omission of an authority the person can file a writ petition even though he has no proprietary or even fiduciary interest in the subject-matter thereof.

17. For the above reasons I hold : (1) that the resolution of the Syndicate is only in the nature of a statement of policy for the guidance of the competent authorities of the University, (2) it does not dispense with the necessity of approaching the competent authority of the University for further retention in service of a teacher who retires in the mid session. The case will have to be dealt with by the appropriate authority of the University according to law, (3) it does not conflict with the Ordinance No. 328, (4) the mere fact that a teacher appointed prior to Ordinance No. 317 may not fulfil the qualifications laid down thereunder, but if be was qualified when appointed as a teacher of the University will not preclude him from being retained in service though in may be open to the competent authority to consider that as a relevant factor.

18. Accordingly, I hereby allow this writ petition in part and while holding as above, direct that the services of respondent No. 2 shall not be continued beyond 9th October, 1974, unless the competent authority of the University passes an order according to law. The parties are left to bear their own costs.


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