# C/M Kanoharlal P.G. Girls College, Brahmapuri, Meerut & Anr v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 67
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-24
- **Case number:** Special Appeal No. 1 of 2023
- **Bench:** Manoj Misra J. Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-kanoharlal-p-g-girls-college-brahmapuri-meerut-anr-v-state-of-u-p-ors-49910
- **Pages:** 16

## Headnote

Law
-
Probation
-
Termination - Uttar Pradesh Government
Department Driver's Service Rules, 1993 -
Rule 17(1) - U.P. St. Universities Act, 1973:
Section 35(2), 35(3); U.P. Higher Education
Services Commission Act, 1980: Section 12,
13, 14, 30 - A teacher as defined by S.
2(19) of the 1973 Act includes a
Principal of an affiliated or associated
College. The first proviso deals with three
separate situations as specified in clauses (a),
(b) and (c). Clause (a) deals with the case of
a teacher of the University; Clause (b) deals
with the case of a Principal of an affiliated or
associated College of the University; and
Clause (c) deals with the case of any other
teacher of an affiliated or associated College
of the University. The requirement of placing
Principal in Clause (b) and any other teacher
in Clause (c) is apparent from the fact that in
so far as a teacher is concerned before his
termination there can be consideration of the
report of the Principal and in case the teacher
is not the senior most teacher of the subject,
also of the senior most teacher of the subject.
Such consideration cannot be there in the
case of a Principal because in the hierarchy of
teachers,
the
Principal
is
the
highest.
Therefore, by placing Principal in clause
(b) and teacher in clause (c) of the first
proviso, the use of the word 'teacher' in
the second and third provisos does not
express a legislative intent to deprive
the Principal of the protection of the
aforesaid
two
provisos.
As
per
the
provisions of section 2(19) of the 1973 Act,
'teacher' includes a Principal. (Para 27)

B. The phrase 'or otherwise' is used in
sub-section (3) of section 35, cannot be
read ejusdem generis to the word
punishment - The legislative intent for
inserting second and third proviso to
sub-section (2) of Section 31 of the
1973 Act was clear to accord protection
to teachers against arbitrary termination
of their services during or on the expiry
of the period of probation. Bearing that in
mind by using the phrase "by way of
punishment or otherwise" the legislative
intent is further strengthened as to indicate
that sub-section (3) of Section 35 of the 1973
Act would apply to termination whether it is
punitive or simpliciter. In such circumstances
the word "otherwise" would have to be given
its ordinary meaning which is, in other
manner; in other circumstances or in a
different manner; in another way; differently
in other respects. (Para 37)

Assigning ordinary meaning to the words "or
otherwise", makes the position clear that, by
virtue of sub section (3) to section 35, the
provisions of sub-section (2) of Section 35 of
1973 Act shall apply to any decision to
terminate the service of a teacher whether by
way of punishment or by way of termination
simpliciter. (Para 38)

C. Words and Phrases - (i)'Teacher' -
Section 2 (19) of the 1973 Act defines 'teacher'
as: 'teacher' in relation to the provisions of this
Act except Chapter XI-A, means a person
employed in a University or in an institute or in
a constituent or affiliated or associated college
of a University for imparting instructions or
guiding or conducting research in any subject or
course approved by that University and includes
a Principal or Director.
68 INDIAN LAW REPORTS ALLAHABAD SERIES
From a plain reading of the definition of teacher
in the 1973 Act it is clear that unless the context
otherwise requires, wherever the word 'teacher"
is used in relation to the provisions of the 1973
Act, it shall, inter-alia, include a Principal of a
constituent or affiliated or associated College of
a University. (Para 20, 21)

(ii) 'ejusdem generis' - The latin expression
ejusdem generis is a principle of construction
whereby when general words in a statutory
context are flanked by restricted words, the
meaning of the general words are taken to be
restricted by implication with the meaning of the
restricted words. This ejusdem generis principle
is a facet of the principle of Noscitur a sociis.

## Text

_Characters 0–39,742 of 55,744. This is a partial read: ask again with offset=39742 for what follows._

3 All. C/M Kanoharlal P.G. Girls College, Brahmapuri, Meerut & Anr. Vs. State of U.P. & Ors.
67
(2023) 3 ILRA 67
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.01.2023
BEFORE

THE HON'BLE MANOJ MISRA J.
THE HON'BLE VIKAS BUDHWAR, J.

Special Appeal No. 1 of 2023

C/M
Kanoharlal
P.G.
Girls
College,
Brahmapuri, Meerut & Anr. ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Sri Abhiuday Mehrotra, Sri Subhanshu, Sri
Shailendra (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Avneesh Tripathi, Sri Hemendra
Kumar, Sri R.K. Ojha (Sr. Advocate)

A.
Service
Law
-
Probation
-
Termination - Uttar Pradesh Government
Department Driver's Service Rules, 1993 -
Rule 17(1) - U.P. St. Universities Act, 1973:
Section 35(2), 35(3); U.P. Higher Education
Services Commission Act, 1980: Section 12,
13, 14, 30 - A teacher as defined by S.
2(19) of the 1973 Act includes a
Principal of an affiliated or associated
College. The first proviso deals with three
separate situations as specified in clauses (a),
(b) and (c). Clause (a) deals with the case of
a teacher of the University; Clause (b) deals
with the case of a Principal of an affiliated or
associated College of the University; and
Clause (c) deals with the case of any other
teacher of an affiliated or associated College
of the University. The requirement of placing
Principal in Clause (b) and any other teacher
in Clause (c) is apparent from the fact that in
so far as a teacher is concerned before his
termination there can be consideration of the
report of the Principal and in case the teacher
is not the senior most teacher of the subject,
also of the senior most teacher of the subject.
Such consideration cannot be there in the
case of a Principal because in the hierarchy of
teachers,
the
Principal
is
the
highest.
Therefore, by placing Principal in clause
(b) and teacher in clause (c) of the first
proviso, the use of the word 'teacher' in
the second and third provisos does not
express a legislative intent to deprive
the Principal of the protection of the
aforesaid
two
provisos.
As
per
the
provisions of section 2(19) of the 1973 Act,
'teacher' includes a Principal. (Para 27)

B. The phrase 'or otherwise' is used in
sub-section (3) of section 35, cannot be
read ejusdem generis to the word
punishment - The legislative intent for
inserting second and third proviso to
sub-section (2) of Section 31 of the
1973 Act was clear to accord protection
to teachers against arbitrary termination
of their services during or on the expiry
of the period of probation. Bearing that in
mind by using the phrase "by way of
punishment or otherwise" the legislative
intent is further strengthened as to indicate
that sub-section (3) of Section 35 of the 1973
Act would apply to termination whether it is
punitive or simpliciter. In such circumstances
the word "otherwise" would have to be given
its ordinary meaning which is, in other
manner; in other circumstances or in a
different manner; in another way; differently
in other respects. (Para 37)

Assigning ordinary meaning to the words "or
otherwise", makes the position clear that, by
virtue of sub section (3) to section 35, the
provisions of sub-section (2) of Section 35 of
1973 Act shall apply to any decision to
terminate the service of a teacher whether by
way of punishment or by way of termination
simpliciter. (Para 38)

C. Words and Phrases - (i)'Teacher' -
Section 2 (19) of the 1973 Act defines 'teacher'
as: 'teacher' in relation to the provisions of this
Act except Chapter XI-A, means a person
employed in a University or in an institute or in
a constituent or affiliated or associated college
of a University for imparting instructions or
guiding or conducting research in any subject or
course approved by that University and includes
a Principal or Director.
68 INDIAN LAW REPORTS ALLAHABAD SERIES
From a plain reading of the definition of teacher
in the 1973 Act it is clear that unless the context
otherwise requires, wherever the word 'teacher"
is used in relation to the provisions of the 1973
Act, it shall, inter-alia, include a Principal of a
constituent or affiliated or associated College of
a University. (Para 20, 21)

(ii) 'ejusdem generis' - The latin expression
ejusdem generis is a principle of construction
whereby when general words in a statutory
context are flanked by restricted words, the
meaning of the general words are taken to be
restricted by implication with the meaning of the
restricted words. This ejusdem generis principle
is a facet of the principle of Noscitur a sociis.
The Latin word `sociis' means `society'.
Therefore, when general words are juxtaposed
with specific words, general words cannot be
read in isolation. Their colour and their contents
are to be derived from their context. (Para 32)

The ejusdem generis rule strives to reconcile the
incompatibility between specific and general
words. This doctrine applies when (i) the statute
contains an enumeration of specific words; (ii)
the subjects, of the enumeration constitute-a
class or category; (iii) that class or category is
not exhausted by the enumeration; (iv) the
general term follows the enumeration and (v)
there is no indication of a different legislative
intent.

The ejusdem generis rule is not a rule of
law but is merely a rule of construction to
aid the courts to find out the true
intention of the legislature. If a given
provision is plain and unambiguous and
the legislative intent is clear, there is no
occasion to call into aid that rule. (Para 35,
36)

Therefore, the decision of the management of a
College affiliated or associated to the University
to terminate the service of a Principal or teacher
of the College, during or on expiry of the period
of probation, shall not take effect unless it has
been approved by the Vice-Chancellor. (Para 39)

Special appeal dismissed. (E-4)

Precedent followed:

1. P.C. Bagla (Post Graduate) College Hathras
Vs Vice-Chancellor, Agra University & anr.,
(1980) 6 ALR 413 (Para 13)

2. Edukanti Kistamma (dead) through Lrs. & ors.
Vs S. Venkatareddy (dead) through Lrs. & ors.,
(2010) 1 SCC 756 (Para 13)

3. Kamlesh Kumar Sharma Vs Yogesh Kumar
Gupta & ors., 1998 (3) SCC 45 (Para 13)

4. Dr. A.P. Srivastava Vs The Committee of
Management, Laxmi Narain Degree College,
Sirsa, Allahabad & anr., 1982 UPLBEC 25 (Para
16)

5. Committee of Management Mahatma Gandhi
Shanti
Smarak
Maha
Vidyalaya,
Gram
Maqsoodpur, District Ghazipur & ors., 1988
UPLBEC 526 (Para 16)

6. Amar Chandra Chakraborty Vs Collector of
Excise, 1972 (2) SCC 442 (Para 31)

7. Maharastra University of Health Sciences &
ors. Vs Satchikitsa Prasarak Mandal & ors., 2010
(3) SCC 786 (Para 33)

8. Smt. Lila Vati Bai Vs St. of Bombay, AIR 1957
SC 521 (Para 35)

9. Jage Ram & ors. Vs St. of Har. & anr., 1971
(1) SCC 671 (Para 36)

10. P. Ramanatha Aiyar Advanced Law Lexicon
Edition 4, Vol. VIII, Page 3443 (Para 37)

11. Avtar Singh Vs U.O.I. & ors., (2016) 8 SCC
471 (Para 9)

12. U.O.I. & ors. Vs Methu Meda, (2022) 1 SCC
1 (Para 9)

13. Pawan Kumar Vs U.O.I. & anr., 2022 SCC
OnLine SC 532 (Para 17)

Present special appeal challenges the
judgment and order dated 29.11.2022,
passed by the learned Single Judge.

(Delivered by Hon'ble Manoj Misra, J.
&
3 All. C/M Kanoharlal P.G. Girls College, Brahmapuri, Meerut & Anr. Vs. State of U.P. & Ors.
69
Hon'ble Vikas Budhwar, J.)

1. The short question that arises for
our consideration in this appeal is whether
an order of termination of service of a
Principal of a College affiliated or
associated to the University governed by
the provisions of U.P. State Universities
Act, 1973 (1973 Act), during or on expiry
of the period of probation, could take effect
without
the
approval
of
the
ViceChancellor of the University concerned.

2. The factual matrix in the context of
which the above issue arises is as follows:
Kanohar Lal Post Graduate Girls College,
Sharda
Road,
Brahampuri,
Meerut
(hereinafter referred to as ''the College') is
affiliated to Chaudhary Charan Singh
University, Meerut (hereinafter referred to
as ''the University'). As the post of Principal
in the College was lying vacant, a
requisition
was
sent
to
the
Higher
Education Services Commission (for short
''the
Commission')
to
recommend
a
candidate for filling up the post. Pursuant
thereto, the Director of Higher Education
recommended
fifth
respondent
for
appointment on the post. In pursuance
thereof, letter of appointment was issued on
22.10.2021 appointing fifth respondent as
Principal of the College on probation of
one year by stipulating that her service
shall be subject to the service conditions
prescribed by the University. On strength of
the
letter
of
appointment,
the
fifth
respondent joined her duties as Principal of
the College on 23.10.2021. On 16.10.2022,
the Management of the College (the
appellants herein) resolved that services of
the fifth respondent would neither be
confirmed nor the period of probation shall
be extended on expiry of probation period
of one year. Consequent to this resolution,
by letter dated 21.10.2022, the appellant
informed the fifth respondent that her
services are not confirmed and they shall
stand terminated on expiry of probation
period. Against termination of her service,
the fifth respondent represented to the
University. The In-charge Vice-Chancellor
of the University, through its letter / order
dated 28.10.2022, directed that the effect
and operation of the termination letter
dated 21.10.2022 shall remain stayed as
prior to issuance of the termination letter
the matter was not reported to the
University and no approval was sought as
is required by section 35 (2) of the 1973
Act. Accordingly, by the said letter, the
management of the College was invited to
explain the circumstances in which the
termination letter was issued. It is this
letter/order dated 28.10.2022 which was
impugned in Writ A No. 19736 of 2022
filed by the appellants before the learned
Single Judge.

3. Before the learned Single Judge, on
behalf of the appellants, it was argued that
the Vice-Chancellor is not vested with
power to stay the effect and operation of
the resolution, or the consequential order of
termination, passed by the Committee of
Management and, therefore, the order is
void.
Whereas,
on
behalf
of
fifth
respondent it was argued that by virtue of
Section 35 (2) of the 1973 Act, there could
be no dispensation of service without the
prior approval of the Vice-Chancellor
therefore,
the
order
terminating
the
services, without prior approval, was void.
Thus, the order of the Vice-Chancellor
impugned in the writ petition required no
interference.

4. By impugned judgment and order
dated 29.11.2022, the learned single Judge
disposed off Writ A No. 19736 of 2022 by
observing that there is no patent error in the
70 INDIAN LAW REPORTS ALLAHABAD SERIES
order of the In-charge Vice-Chancellor.
However, a direction was issued that if the
writ petitioner files an objection to the
proceedings pending before the ViceChancellor,
the
Vice-Chancellor
shall
proceed to pass an appropriate reasoned
order, in accordance with law, within a
specified period, after hearing both sides.

5. Aggrieved by the order of the
learned Single Judge dated 29.11.2022, the
Management of the College (i.e. the writ
petitioner) has filed this intra court appeal.

6. We have heard Sri Shailendra,
learned senior counsel, assisted by Sri
Subhanshu and Sri Abhiuday Mehrotra, for
the appellants; Sri Avneesh Tripathi for the
University; the learned Standing Counsel
for the State of U.P.; and Sri R. K. Ojha,
learned senior counsel, assisted by Sri
Hemendra Kumar, for the respondent no.1.
counsel for the parties in support of their
respective cases, it would be apposite for us
to notice the relevant statutory provisions
in the context of which those submissions
have been made before us.

Relevant Statutory Provisions

8. The U.P. Higher Education
Services Commission Act, 1980 (for short
1980 Act) was enacted to establish a
service commission for the selection of
teacher for appointment to the Colleges
affiliated to or recognised by a University
and for matters connected therewith or
incidental thereto. Section 30 of the 1980
Act provides that the provisions of this Act,
shall have effect notwithstanding anything
to the contrary contained in the Uttar
Pradesh State Universities Act, 1973 or the
Statutes or Ordinances made thereunder.
Section 12 of the 1980 Act provides that
every appointment as a teacher of any
college shall be made by the management
in accordance with the provisions of this
Act and every appointment made in
contravention thereof shall be void. Subsection (2) of section 12 provides that the
management shall intimate the existing
vacancies and the vacancies, likely to be
caused during the course of the ensuing
academic year, to the Director at such time
and in such manner, as may be prescribed.
Sub-section (3) of section 12 provides that
the Director shall notify to the Commission
at such time and in such manner as may be
prescribed a subject wise consolidated list
of vacancies intimated to him from all
colleges. Sub-section (4) of section 12
provides that the manner of selection of
persons for appointment to the posts of
teachers of a college shall be such, as may
be determined by regulations. Section 13
(1) provides that the Commission shall, as
soon as possible, after the notification of
vacancies to it under sub-section (3) of
Section 12, hold interview of the candidates
and
send
to
the
Director
a
list
recommending such number of names of
candidates found most suitable in each
subject as may be, so far as practicable,
twenty five per cent more than the number
of vacancies in that subject. Sub-section (2)
of section 13 provides that the list sent by
the Commission shall be valid till the
receipt of a new list from the Commission.
Sub-section (3) of section 13 provides that
the Director shall having due regard in the
prescribed
manner,
to
the
order
of
preference
if
any
indicated
by
the
candidates under the second proviso to subsection (4) of Section 12, intimate to the
management the name of a candidate from
the list referred to in sub-section (1) for
being appointed in the vacancy intimated
under sub-section (2) of Section 12. Section
14 casts a duty on the management to issue
appointment letter to the person whose
3 All. C/M Kanoharlal P.G. Girls College, Brahmapuri, Meerut & Anr. Vs. State of U.P. & Ors.
71
name has been intimated within a period of
one month from the date of receipt of
intimation under sub-section (3) or subsection (4) or sub-section (5) of Section 13.
Sub-section (2) of section 14 provides that
where the person referred to in sub-section
(1) fails to join the post within the time
allowed in the appointment letter or within
such extended time as the management
may allow in this behalf, or where such
person is otherwise not available for
appointment, the Director, shall on the
request of the management intimate fresh
name from the list sent by the Commission
under sub-section (1) of Section 13 in the
manner prescribed.

9. The provisions of the 1980 Act
therefore deal with the selection of teachers
for appointment to the Colleges affiliated to
or recognised by the University, and for
matters connected therewith or incidental
thereto. They do not specifically provide
for the terms and conditions of appointment
of such teacher or the service conditions of
the teachers. As a result thereof, the terms
and conditions of appointment including
termination of the services continue to be
governed by the provisions of 1973 Act.
Chapter VI of 1973 Act provides for
appointment and condition of service of
teachers
and
officers.
The
relevant
provisions of section 31 of the 1973 Act
with which we are concerned in this appeal
read as under:-

"31. Appointment of Teachers. -
(1) Subject to the provisions of this Act, the
teachers of the University and the teacher
of an affiliated or associated college (other
than a college maintained exclusively by
the State Government) shall be appointed
by
the
Executive
Council
or
the
management of the affiliated or associated
college, as the case may be, on the
recommendation of a Selection Committee
in the manner hereinafter provided.

(2) The appointment of every
such teacher, Director and Principal not
being an appointment under sub-section
(3), shall in the first instance be on
probation for one year which may be
extended for a period not exceeding one
year;

Provided
that
no
order
of
termination of service during or on the
expiry of the period of probation shall be
passed -

(a) in the case of a teacher of the
University, except by order of the Executive
Council made after considering the report
of the Vice-Chancellor and (unless the
teacher is himself the Head of the
Department), the Head of the Department
concerned;

(b) in the case of Principal of an
affiliated or associated college, except by
order of the Management; and

(c) in the case of any other
teacher of an affiliated or associated
college, except by order of the Management
made after considering the report of the
Principal and (unless such teacher is the
senior-most teacher of the subject), also of
the senior most teacher of the subject :

[Provided further that no such
order of termination shall be passed except
after notice to the teacher concerned giving
him an opportunity of explanation in
respect of the grounds on which his
services are proposed to be terminated:

Provided also that if a notice is
given before the expiry of the period of
probation or the extended period of
probation, as the case may be, the period of
probation shall stand extended until the
final order of the Executive Council under
clause (a) of the first proviso or, as the case
may be, until the approval of the Vice-
72 INDIAN LAW REPORTS ALLAHABAD SERIES
Chancellor
under
Section
35
is
communicated to the teacher concerned.] "

10. Section 35 of the 1973 Act of
which reference is there in the third proviso
to sub section (2) of section 31 is
reproduced below:-

"35. Conditions of service of
teachers of affiliated or associated
colleges other than those maintained by
Government or local authority. - (1)
Every teacher in an affiliated or associated
college (other than a college maintained
exclusively by the State Government) shall
be appointed under a written contract
which shall contain such terms and
conditions as may be prescribed. The
contract shall be lodged with the University
and a copy thereof shall be given to the
teacher concerned, and another copy
thereof shall be retained by the college
concerned.

(2)
Every
decision
of
the
Management of such college to dismiss or
remove a teacher or to reduce him in rank
or to punish him in any other manner shall
before it is communicated to him, be
reported to the Vice-Chancellor and shall
not take effect unless it has been approved
by the Vice-Chancellor:

Provided that in the case of
colleges established and administered by a
minority referred to in clause (1) of Article
30 of the Constitution of India, the decision
of the Management dismissing removing or
reducing in rank or punishing in any other
manner any teacher shall not require the
approval of the Vice-Chancellor, but, shall
be reported to him and unless he is satisfied
that the procedure prescribed in this behalf
has been followed, the decision shall not be
given effect to.

(3) The provisions of sub-section
(2) shall also apply to any decision to
terminate the services of a teacher, whether
by way of punishment or otherwise but
shall not apply to any termination of
service on the expiry of the period for
which the teacher was appointed:

Provided that in the case of
colleges established and administered by a
minority referred to in clause (1) of Article
30 of the Constitution of India, the decision
of the Management terminating the service
of any teacher shall not require the
approval of the Vice-Chancellor, but shall
be reported to him and unless he is satisfied
that the procedure prescribed in this behalf
has been followed, the decision shall not be
given effect to.

(4) Nothing in sub-section (2)
shall be deemed to apply to an order of
suspension pending inquiry, but any such
order may be stayed, revoked or modified
by the Vice-Chancellor;

Provided that in the case of
colleges established and administered by a
minority referred to in clause (1) of Article
30 of the Constitution of India, such order
may be stayed, revoked or modified by the
Vice-Chancellor only if the conditions
prescribed for such suspension are not
satisfied.

(5) Other conditions of service of
teachers of such colleges shall be such as
may be prescribed."
Submissions on behalf of Appellants

11. The learned counsel for the
appellant contended that sub-section (2) of
Section 31 specifically provides that the
appointment of a teacher, Director and
Principal in the first instance shall be on
probation for one year which may be
extended for a period not exceeding one
year. The first proviso to sub-section (2)
has three clauses. Each clause deals with a
separate class of teacher. Clause (a) deals
with teacher of the University; clause (b)
3 All. C/M Kanoharlal P.G. Girls College, Brahmapuri, Meerut & Anr. Vs. State of U.P. & Ors.
73
deals with the case of a Principal of an
affiliated or associated College; and clause
(c) deals with the case of any other teacher
of an affiliated or associated College. As
the three clauses of the first proviso deal
with three separate class of persons,
namely, (i) a teacher of the University; (ii)
Principal of an affiliated or associated
College; and (iii) any other teacher of an
affiliated
or
associated
College,
the
provisions of the second proviso that no
such order of termination shall be passed
except after notice to the teacher concerned
giving him an opportunity of explanation in
respect of the grounds on which his
services are proposed to be terminated
would relate to a teacher other than the
Principal. Likewise, the provisions of the
third proviso would apply to a teacher other
than the Principal of an affiliated or an
associated
College.
In
respect
of
applicability of the provisions of subsection (2) read with sub section (3) of
Section 35 of the 1973 Act it was argued
that the same would apply only where the
termination of service is by way of
punishment and not termination simplicitor,
because the words ''or otherwise' used
after the word punishment would have to
be interpreted ejusdem generis the word
punishment. In addition to above, it was
argued that the provisions of sub-section
(2) of Section 35 read with sub section (3)
of section 35 of the 1973 Act would not in
any case apply to the case of a Principal
because sub-section (3) speaks of a teacher
and not a Principal.

12. In light of the above submissions,
the learned counsel for the appellant
contended that there was no requirement of
a prior approval before terminating the
services of a Principal on probation,
particularly, when the termination is
simplicitor and not punitive. It was also
argued that there being no specific
provision in the 1973 Act empowering the
Vice-Chancellor to stay the effect and
operation of an order of termination, the
order of Vice-Chancellor is void and was
therefore liable to be set aside. It was
argued that the learned Single Judge fell in
error while holding that there was no patent
error in the order of the Incharge ViceChancellor.

13. In addition to above, the learned
counsel for the appellant contended that the
Vice-Chancellor (In-charge) has stayed the
effect and operation of the communication
letter which was a consequence of a
resolution therefore, as there is no stay on
the resolution, the consequential order
would remain effective. In support of his
submissions, the learned counsel for the
appellant placed reliance on a Full Bench
decision of this Court in P. C. Bagla (Post
Graduate) College, Hathras vs. ViceChancellor, Agra University and another,
(1980) 6 ALR 413 wherein it was held that
the probationer has no right to hold a post
and therefore the termination of his
employment made in accordance with the
terms of the contract or rules of his service
does not per se amount to punishment
unlike the case of a permanent and
confirmed employee. Reliance has also
been placed on a decision of the Apex
Court in Edukanti Kistamma (dead)
through
Lrs.
And
others
Vs.
S.
Venkatareddy (dead) through Lrs. And
others, (2010) 1 SCC 756 so as to contend
that where the basic order has not been
questioned, the validity of consequential
order is not to be examined. This decision
was cited to contend that without putting a
stay on the resolution, the Vice-Chancellor
had no right to put in abeyance the
termination
letter.
To
buttress
the
submission that the words ''or otherwise'
74 INDIAN LAW REPORTS ALLAHABAD SERIES
used in sub-section (3) of Section 35 of the
1973 Act were to be read ejusdem generis
to the preceding word punishment, the
learned counsel for the appellant cited a
decision of the Apex Court in Kamlesh
Kumar Sharma vs. Yogesh Kumar Gupta
and others, 1998 (3) SCC 45.

Submissions on behalf of respondents

14. Per contra, the learned counsel
for the respondents contended that section
2 (19) of the 1973 Act defines ''teacher' as
follows:-

"In this Act, unless the context
otherwise requires ''teacher' in relation to
the provisions of this Act except Chapter
XI-A, means a person employed in a
University or in an institute or in a
constituent or affiliated or associated
college of a University for imparting
instructions or guiding or conducting
research in any subject or course approved
by
that
University
and
includes
a
Principal or Director."

15. By relying on the above definition
of the word ''teacher', the learned counsel
for the respondents contended that section
35 falls in Chapter VI of the 1973 Act and
therefore, the word ''teacher' used in subsection (3) of section 35 including subsection (2) of section 35 of the 1973 Act
would include a Principal on probation
hence the protection thereunder would be
available to a Principal as well. It was
contended on behalf of the respondents that
there is no general principle that the phrase
''or otherwise' is to be read ejusdem
generis to the preceding words. It is argued
that interpretation of the words ''or
otherwise' has to be accorded a wider
meaning so as to cover all cases, whatever
might be the reason, of termination.

16. In addition to above, the learned
counsel for the respondents submitted that
under Section 13(1)(a) of the 1973 Act, the
Vice-Chancellor
being
the
Principal
executive and academic officer of the
University is empowered to exercise
general supervision and control over the
affairs of the University including the
constituent
colleges,
the
Institutes
maintained by the University and colleges
affiliated and associated to it. Sub-section
(4) of section 13 casts a duty on the ViceChancellor
to
ensure
the
faithful
observance of the provisions of the Act, the
Statutes and Ordinance and provides that
without prejudice to the powers of the
Chancellor under Sections 10 and 68, he
may exercise all such powers as may be
necessary in that behalf. It was contended
that by conferring general power of
supervision and control on the ViceChancellor
over
the
affairs
of
the
University including constituent Colleges,
the institutes maintained by the University
and colleges affiliated or associated to it,
the legislative intent is clear that the ViceChancellor
shall
ensure
the
faithful
observance of the Act, the Statutes or the
Ordinances. In light thereof, the provisions
of section 35 of the 1973 Act have to be
accorded wider interpretation so as to serve
the purpose for which it is placed in the
Act. Hence, the context in which the phrase
''or otherwise' is used in sub-section (3) of
section 35, the same cannot be read
ejusdem generis to the word punishment.
Learned counsel for the respondents placed
reliance on two Division Bench decisions
of this Court, namely:- (a) Dr. A.P.
Srivastava
vs.
The
Committee
of
Management,
Laxmi
Narain
Degree
College, Sirsa, Allahabad and another,
1982 UPLBEC 25; and (b) Committee of
Management Mahatama Gandhi Shanti
Smarak
Maha
Vidyalaya,
Gram
3 All. C/M Kanoharlal P.G. Girls College, Brahmapuri, Meerut & Anr. Vs. State of U.P. & Ors.
75
Maqsoodpur, District Ghazipur Vs. ViceChancellor,
Gorakhpur
University,
Gorakhpur and others, 1988 UPLBEC 526.

17. In the aforesaid two decisions, the
phrase ''whether by way of punishment or
otherwise' used in sub-section (3) of
Section 35 of the 1973 Act has been
accorded wider interpretation as to include
cases of termination of service of a teacher
within the period of probation on the
ground that service work and conduct was
not satisfactory. The Court held that
termination of services of teacher appointed
on probation, without obtaining approval of
the Vice-Chancellor, would be illegal.

Submissions in Rejoinder

18. In his rejoinder arguments, the
learned counsel for the appellant submitted
that the above two division bench decisions
relied upon by the learned counsel for the
respondents are per incuriam as they fail to
notice the true import of the provisions of
section 31 of the 1973 Act.

DISCUSSION AND ANALYSIS

19. Before we proceed to weigh the
rival submissions, the argument of the
learned counsel for the appellants that there
is no specific power conferred on the ViceChancellor to stay the effect and operation
of the order of termination need not detain
us because, if we conclude that there can be
no termination of the services of a Principal
without
the
approval
of
the
ViceChancellor, the order terminating the
services would not operate till it is
approved.
Therefore,
it
would
be
immaterial whether the Vice-Chancellor
had the power to stay its effect or not. We
have, therefore, to examine, in light of the
relevant provisions noticed above, whether
the termination of service of a Principal of
a College affiliated or associated to the
University governed by the provisions of
U.P. State Universities Act, 1973 (1973
Act) could take effect without the approval
of the Vice-Chancellor of the University to
which
the
College
is
affiliated
or
associated.

20. Section 2 (19) of the 1973 Act
defines ''teacher' as follows:-

"2. Definitions. - In this Act,
unless the context otherwise requires: -

(19) 'teacher' in relation to the
provisions of this Act except Chapter XI-A,
means a person employed in a University
or in an institute or in a constituent or
affiliated or associated college of a
University for imparting instructions or
guiding or conducting research in any
subject or course approved by that
University and includes a Principal or
Director."

21. From a plain reading of the
definition of teacher in the 1973 Act it is
clear that unless the context otherwise
requires, wherever the word ''teacher" is
used in relation to the provisions of the
1973 Act, it shall, inter-alia, include a
Principal of a constituent or affiliated or
associated College of a University.

22. When we carefully read the
provisions of section 31 of the 1973 Act, we
notice that sub-section (1) of section 31 uses
the word ''teacher' and refrains from using the
word ''principal'. It is a general provision
which speaks of appointment of the teachers
of the University and the teachers of an
affiliated or associated college other than a
college maintained exclusively by the State
Government. Sub-section (2) of section 31
clarifies that the appointment of every such
76 INDIAN LAW REPORTS ALLAHABAD SERIES
teacher, Director and Principal not being an
appointment under sub-section (3) (note: we
are not concerned with appointments under
sub section (3) of section 31 as they deal with
appointments on a leave or short term
vacancy), shall in the first instance be on
probation for one year which may be
extended for a period not exceeding one year.
The first proviso to sub-section (2) of Section
31 of the 1973 Act specifies the authority and
the manner in which an order of termination
of service, during or on the expiry of the
period of probation, is to be passed. The
proviso has three clauses (a) , (b) and (c).
Clause (a) specifies the authority and the
manner in which the services of a teacher of
the University, during or on the expiry of the
period of probation, could be terminated.
Clause (b) specifies the authority which could
terminate the services of a Principal of an
affiliated or associated College whereas
Clause (c) not only specifies the authority
which could terminate the services of a
teacher other than the Principal of an
affiliated or associated College but also
suggests that no such order of termination is
to be made by the management except after
considering the report of the Principal and
unless such teacher is the senior most teacher
of the subject, also of the senior most teacher
of the subject.

23. The second proviso to sub-section
(2) of Section 31 provides a rider to the
exercise of power of termination by stating
that no such order of termination shall be
passed except after notice to the teacher
concerned giving him an opportunity of
explanation in respect of the grounds on
which his services are proposed to be
terminated.

24. The third proviso clarifies that as
and when a notice as contemplated by the
second proviso is given before the expiry of
the period of probation or the extended
period of probation, the period of probation
shall stand extended until the final order of
the Executive Council as contemplated by
Clause (a) of the first proviso or, as the case
may be, until the approval of the ViceChancellor
under
Section
35
is
communicated to the teacher concerned.

25. A plain construction of the
aforesaid provisions would reveal that
Clause (a) of the first proviso of subsection (2) relates to a teacher of the
University as per which no order of
termination of service of such teacher can
be passed during or on the expiry of the
period except by order of the Executive
Council made after considering the report
of the Vice-Chancellor and, unless the
teacher is himself the Head of the
Department, the Head of the Department
concerned. This implies that the service of
a teacher of the University other than the
Head of the Department, during or on the
expiry of period of probation, can be
terminated by an order of the Executive
Council after considering the report of the
Vice-Chancellor and the Head of the
Department
concerned.
Whereas
the
services of such a teacher who is himself
the Head of the Department, can be
terminated by order of the Executive
Council made after considering the report
of the Vice-Chancellor. On a plain reading
of clauses (b) and (c) of the first proviso we
would notice that whether it is the case of a
Principal or of any other teacher of an
associated or affiliated College, the services
can be terminated, during or on the expiry
of the period of probation, by order of the
management. The only distinction between
the two clauses (i.e. (b) and (c)) is that
when it relates to termination of a teacher
other than the Principal of an affiliated or
associated College, the order of the
3 All. C/M Kanoharlal P.G. Girls College, Brahmapuri, Meerut & Anr. Vs. State of U.P. & Ors.
77
management must be after considering the
report of the Principal and, if the teacher
concerned is not the senior most teacher of
the subject, also the report of the senior
most teacher of the subject. The second
proviso provides that no such order of
termination shall be passed except after
notice to the teacher concerned giving him
an opportunity of explanation in respect of
the grounds on which his services are
proposed to be terminated. The third
proviso clarifies that if a notice as
contemplated by the second proviso is
given before the expiry of the period of
probation or the extended period of
probation, as the case may be, the period of
probation shall extend until the final order
is passed by the Executive Council under
clause (a) or, as the case may be, until the
approval of the Vice-Chancellor under
Section 35 is communicated to the teacher
concerned. The use of phrase "as the case
may be" in the third proviso is to indicate
that where the notice as contemplated in the
clause (b) of the second proviso is served
on a teacher of an affiliated or associated
College, the period of probation shall stand
extended until the approval of the ViceChancellor
under
section
35
is
communicated to the teacher concerned.
Any other interpretation would render the
phrase "until the approval of the ViceChancellor under Section 35" otiose as
section 35 of the 1973 Act deals only with
the conditions of service of teachers of
affiliated or associated colleges other than
those maintained by the Government or
local authority.

26. At this stage we may note that the
second and third proviso to sub-section (2)
of Section 31 of the 1973 Act have been
inserted by U.P. Act No. 5 of 1977. In the
prefatory note - Statement of Objects and
Reasons - it is stated as follows:-

"With a view to removing certain
difficulties experienced in the working of
the provisions of the Uttar Pradesh State
Universities Act, 1973, it has been
considered expedient to make, inter alia,
the following amendments in the aforesaid
Act-

(1)...........

(2) It has been provided that
where the services of a teacher on
probation are to be terminated, he should
be given an opportunity of explanation in
respect of the grounds on which such action
is proposed to be taken

(3) ......

(4).......

(5) The Vice-Chancellor has been
empowered to direct the management to
reinstate and to pay the amount of salary to
the teacher of a Degree College in case a
decision of the management to dismiss or
remove him or to terminate his services is
not approved by the Vice-Chancellor. Such
order shall be executable like a decree of
the Civil Court and the amount of salary
shall be recoverable as arrears of land
revenue."

Thus, by insertion of the second
and third proviso to sub-section (2) of the
U.P. State Universities Act, 1973, the
legislature has clearly exhibited its intent to
control arbitrary termination of service of a
teacher on probation.

27. The contention of the learned
counsel for the appellant that the second
and third provisos will only relate to a
teacher of an affiliated or associated
College and not to the Principal thereof is
not acceptable for the reason that a teacher
as defined by section 2(19) of the 1973 Act
includes a Principal of an affiliated or
associated College. According to the
learned counsel for the appellant since the
second and third provisos are placed below
78 INDIAN LAW REPORTS ALLAHABAD SERIES
clause (c) therefore they would apply only
with reference to a teacher other than a
Principal is not acceptable because the first
proviso deals with three separate situations
as specified in clauses (a), (b) and (c).
Clause (a) deals with the case of a teacher
of the University; Clause (b) deals with the
case of a Principal of an affiliated or
associated College of the University; and
Clause (c) deals with the case of any other
teacher of an affiliated or associated
College of the University. The requirement
of placing Principal in Clause (b) and any
other teacher in Clause (c) is apparent from
the fact that in so far as a teacher is
concerned before his termination there can
be consideration of the report of the
Principal and in case the teacher is not the
senior most teacher of the subject, also of
the senior most teacher of the subject.