# PRABHAKAR RAMAKRISHNA JODH v. A. L. PANDE AND ANOTHER

- **Citation:** [1965] 2 S.C.R. 713
- **Court:** Supreme Court of India
- **Decided:** 1963-02-28
- **Case number:** Civil Appeal No. 137 of 1964
- **Bench:** K. SUBBA RAo, Raghubar Dayal, R. S. Bachawat, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prabhakar-ramakrishna-jodh-v-a-l-pande-and-another-3438
- **Pages:** 7

## Headnote

University 6/ Saugar Act, 194&-College Code (Ordinance 20)-Affi--
/Jated College--Teacher's pay scales and security of tenure--Whether within
•taJutory power, or contractual relationship.
The appellant was a teacher in a college, affiliated to the University
C
of Saugar and managed by the Governing Body established under cl. 3
of the 'College Code' which is an ordinance made under the provisions of
the University of Saugar Act. The Principal of the College served the
appeUant a charge sheet and asked him to submit bis explanation. The
appellants denied all the charges and requested the particulars on which
one of the charges was based. The appellant alleged that this was not
1upplied and the Governing Body terminated bis services without holding
any enquiry. Thereafter the appeUant moved the High Court for a writ
D quashing the order of the Governing Body and for bis reinstatement;
bis case was that the Governing Body bad made the order of discharge
in violation of the provisions of the 'College Code'.
The High Court
rejected the contention of the appeUant on the ground that the conditions
of service of the appellant were governed not by the 'College Code' but
by the contract made between the Governing Body and the appellant.
The High Court also took the view that provisions of 'College Code' were
E
merely conditions prescribed for affiliation of Colleges and no legal rights
were created by the 'College Code' in favour of the teachers of the
a.ffiliated colleges as agail)st the Governing Body.
In appeal by special
leave.
HELD : That the view taken by the High Court was erroneous.
The provisions of Ordinance 20, otherwise called the ''College Code"
have the force of law. It confers legal rights on the teachers of the affiF
liated coUeges and it is not a correct proposition to say that the "College
Code" merely regulates the legal relationship between the affiliated Colleges
and University alone. Th provisions of the "College Code" relating to
the pay scale of teachers and their security of tenure properly faU within
the statutory power of affiliation granted to the University under the Act.
[718 B-E]
Vedraj Bhawanidas Dua v. Damoh Arts College, 1961
G M.P.L.J. 239, overruled.

## Text

A
PRABHAKAR RAMAKRISHNA JODH
v.
A. L. PANDE AND ANOTHER
/anuary 12, 1965
B
( K. SUBBA RAo, RAGHUBAR DAYAL, R. S. BACHAWAT
AND V. RAMASWAMI, JJ.)
University 6/ Saugar Act, 194&-College Code (Ordinance 20)-Affi--
/Jated College--Teacher's pay scales and security of tenure--Whether within
•taJutory power, or contractual relationship.
The appellant was a teacher in a college, affiliated to the University
C
of Saugar and managed by the Governing Body established under cl. 3
of the 'College Code' which is an ordinance made under the provisions of
the University of Saugar Act. The Principal of the College served the
appeUant a charge sheet and asked him to submit bis explanation. The
appellants denied all the charges and requested the particulars on which
one of the charges was based. The appellant alleged that this was not
1upplied and the Governing Body terminated bis services without holding
any enquiry. Thereafter the appeUant moved the High Court for a writ
D quashing the order of the Governing Body and for bis reinstatement;
bis case was that the Governing Body bad made the order of discharge
in violation of the provisions of the 'College Code'.
The High Court
rejected the contention of the appeUant on the ground that the conditions
of service of the appellant were governed not by the 'College Code' but
by the contract made between the Governing Body and the appellant.
The High Court also took the view that provisions of 'College Code' were
E
merely conditions prescribed for affiliation of Colleges and no legal rights
were created by the 'College Code' in favour of the teachers of the
a.ffiliated colleges as agail)st the Governing Body.
In appeal by special
leave.
HELD : That the view taken by the High Court was erroneous.
The provisions of Ordinance 20, otherwise called the ''College Code"
have the force of law. It confers legal rights on the teachers of the affiF
liated coUeges and it is not a correct proposition to say that the "College
Code" merely regulates the legal relationship between the affiliated Colleges
and University alone. Th provisions of the "College Code" relating to
the pay scale of teachers and their security of tenure properly faU within
the statutory power of affiliation granted to the University under the Act.
[718 B-E]
Vedraj Bhawanidas Dua v. Damoh Arts College, 1961
G M.P.L.J. 239, overruled.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 137 of
1964.
Appeal by special leave from the judgment and order, dated
February 28, 1963, of the Madhya Pradesh High Court in Misc.
H
Petition No. 236 of 1960.
The appellant appeared in person.
S. N. Bhandari and Anand Prakash, for the respondent.
714
SUPREME COURT REPORTS
[9! 65 2 S.C.R
The Judgment of the Court was delivered by
Ramaswami J.
This appeal
is brought, by special leave,
against the judgment of the High Court of Judicature of Madhya
Pradesh dated February 28, 1962 dismissing the petitii>n of the
appellant for grant of a writ under Art. 226 of the Constitution of
India.
The appellant was appointed as a lecturer in Sanskrit in the
year 1955 in the S.B.R. College (Sheobhagwan Rameswarlal Arts
College) , Bilaspur and he was confirmed in that post in the year
1957. The College is affiliated to the University of Sau gar under
A
B
the provisions of the University of Saugar Act 1946 (hereinafter
called the Act) and is managed by the Governing Body established
C
under Clause 3 of the 'College Code' which is an Ordinance made
under the provisions of the Act. The College is maintained out
of the funds of Sheobhagwan Rameswarlal Charitable Trust,
Biiaspur and is aided by the State Government. On June 2, 1960
the Principal of the College served the appellant, by post, a charge
D
sheet consisting of three charges and the appellant was asked to
~ubmit explanation within a week's time.
The charges were as
follows:-
"(1) That you have deliberately based your representation dated 28-12-1959 on false
fact~ and misstatements and have committed acts of insubordination amounting to misconduct by making
counter-charges against the Governing Body.
( 2) That you have not been taking active interest in
the extra-curricular activities of the College and
have failed to cooperate with the authorities as
required by the conditions of service.
(3) That you have deliberately avoided to execute your
service ,bond which every teacher of the institution
is required to do. This non-fulfilment of the conditions of your appointment order No. FC/56-57
dated 1-7-1956 amounts to breach of the service
rules of the college."
E
F
G
·The appellant submitted explanation d.enying all the charges and
requested the Governing Body to supply particulars on which the
first charge was based. The allegation of the appellant is that he
was not supplied with the required particulars and that the Governing Body terminated the services of the appellant with effect from
H
July 1, 1960 without holding any enquiry~ The anneliant made
a representation to the Governing Body on July 5, 1960 requesting
P. R. JODH v. A. L. PANDE (Ramaswami, J.)
715
A it to reconsider the whole matter. The Governing Body rejected
this representation also.
The appellant thereafter moved
the
High Court of Judicature of Madhya Pradesh for grant of a writ
of certiorari under Art. 226 of the Constitution of India to
quash the order of the Governing Body dated June 30, 1960
terminating the services of the appellant, and also for the grant
B of a writ of mandamus reinstating the appellant to his post as a
confirmed lecturer of the College. The case of the appellant was
that the Governing Body had made the order of discharge in violation of the provisions of Clause S(vi)(a) of the 'College Code'
and that the order of the Governing Body was, therefore, ultra
C vires and illegal. The High Court rejected the contention of the
appellant on the ground that the conditions of service of the
appellant were governed not by the "College Code" but by the
contract made between the Governing Body and the appelh,nt.
The High Court also took the view that provisions of the "College
Code" were merely conditions prescribed for affiliation of colleges
D and no legal rights were created by the "College Code" in favour
of lecturers of the affiliated colleges as against the Governing Body.
In taking this view the High Court followed its previous decision
in Vedraj Bhawanidas Dua v. Damoh Arts College(') in which
it was held that the "College Code" being merely conditions prescribed for affiliating Colleges, the University may at its option
E enforce or relax those conditions and the only sanction for fulfil.
ment of those conditions is
disaffiliation.
The High
Court
accordingly did not go into the question whether the Governing
Body had violated the procedure prescribed in Clause S(vi)(a)
but dismissed the application of the appellant for the grant of
writ on the ground that it was only breach of contract and the
F proper recourse of the petitioner was to bring a suit in the Civil
Court for damages for wrongful breach of contract and
the
appellant cannot avail himself of the extraordinary remedy l!Ilder
Art. 226 of the Constitution.
The main question presented for determination in this case is
G whether the High Court was right in taking the view that the
"College Code" merely prescribed conditions for affiliation of
colleges and no legal rights· were created by the "College Code"
with regard to teachers of affili!lted colleges.
Section 2 (a) of the Act defines a "College" to mean "an instituH tion maintained by or admitted to the privileges of the University,
by or under the provisions of this Act." Section 6 of the Act
(i}~ 1991 M.P~ L.J. 239. -
716
SUPREME
COURT
REPORTS
[1965] 2 S.C.R.
refers to the powers of the University and s. 6(6) provides that A
the University shall have the power "to admit colleges to the
privileges of the University and to recognise hostels under conditions which may be prescribed in the Statutes or Ordinances."
Section 32 deals with Ordinances and is to the following effect :
"32. Subject to the provisions of this Act and the
Statutes and in addition to all matters which, by this Act
or the Statutes. are to be provided for by the Ordinances, the Ordinances may provide for all or any of the
following matters, namely :-
(a) the admission of students to the University;
(b) the courses of study to be laid down for all degrees
and diplomas of the University;
( c) the conditions under which students shall be
admitted to the degree or diploma courses and to
the examinations of the University and shall be
eligible for degrees and diplomas;
( d) the levying of fees for residence in hostels maintained by the University;
( e) the fees to be charged for the enrolment of students,
for attending courses of teaching in the University,
for admission to the examinations, degrees and
diplomas of the University and for the registration
of graduates;
( f) the conditions subject to which persons may be
recognised as qualified to give instruction in the
University and colleges;
(g) the conduct of examinations;
(h) the term of office, duties and conditions of service
of officers and teachers of the University in so far
as these are, by or under this Act, subject to the
Executive Council."
Section 24(i) provides that the Executive Council shall admit
colleges to the privileges of the University subject to the provisions
B
c
D
E
F
G
of this Act and such conditions as may be prescribed in the
Statutes.
The "College Code" is an Ordinance made under the
provisions of s. 32 of the Act read withs. 6(6) of the Act and
Clause 8 of the Ordinance deals with conditions of service of
H
teachers of affiliated colleges. Clause 8 (vi) of the "College Code"
reads as follows :
P. R. JODH v. A. L. PANDE (Ramaswami, 1.)
717
A
"8. (vi) The Governing Body of the College shall
not tenninate the service or reduce the pay of any
teacher confirmed in the service of the college :-
(a) Without holding a full enquiry into the matter,
the teacher concerned shall be given in writing a
B
statement of charges against him and afforded
every possible opportunity of defending himself.
His previous ~rvice and character shall also be
taken into consideration;
c
D
G
H
(b) No decision for such termination of service, or
reduction of pay shall have any effect unless passed
by a majority of two-thirds of the members of the
Governing Body;
( c) At the request of the teacher concerned any difference or dispute either arising out of the contract,
or, otherwise, shall be referred to a Tribunal of
Arbitration consisting of the Vice-Chancellor, and
two other persons appointed by the Executive
Council of the University, one of whom shall possess
a status not lower than that of a District Judge.
The decision of this Tribunal shall be final and
binding on both the parties."
Clause 7 of the "College Code" states that all teachers of the
colleges shall be appointed on a written contract in the form
prescribed in Schedule A except in the case of teachers appointed
temporarily for a period of one year or less.
Para 9 of this
agreement mentioned in Sch. A provides as follows :-
"9. After confirmation, the services of the party of
the first part can be terminated only on the following
grounds:-
a. Wilful and persistant neglect of duty,
b. Misconduct,
c. Breach of any of the terms of contract,
d. Physical or mental unfitness,
e. Incompetence,
f. Abolition of the pests :
Provided firstly, that the plea of incompetence sitall
not be used against the party of the first part after he
has served the party of the second part for five years
or more:
USup./65-12
718
SUP.REMB
COURT
.REPOllTS
[1965] 2 S.C.R.
Provided, secondly, the services of the party of the
A
fiIBt part shall not be terminated under clause ( c) or
(f) without the previous approval of Saugar University."
It is not disputed on behalf of the respondents that the
"College Code" has been made by the UniveIBity in exercise of B
statutory power conferred by s. 32 and under s. 6 ( 6) of the Act.
It is also conceded on behalf of the respondents that the "College
Code" is intra vlres of the pow= of the University contained in
s. 32 read with s. 6 ( 6) of the Act. In our opinion, tho provisions of Ordinance 20, otherwise called the "College Code" have
the force of law. It conf= legal rights on the teachers of the
C
affiliated colleges and it is not a correct proposition to say that the
"College Code" merely regulates the legal relationship bCtween
the affiliated colleges and the University alone. We do not 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 D
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 Sch. A but that does E
not mean that teach= 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 ?art 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 F
made by the Univ=ity in exercise of the statutory power and
have, therefore, the force and effect of law. It follows, therefore.
that the "College Code" create., leg;al rights in favour of teachers
of affiliated colleges and the view taken by the High C,ourt is
erroneous.
It was urged on behalf of the appellant in the next place that G
there was violation of the procedure prescribed in Clause 8(vi) (a)
of the "College Code" and the order of the Govemine; Body dated
June 30, 1960 terminating the auoellant's services was illegal and
ultra vires and must be quashed by p,rant of writ in the nature
of certiorari.
Counsel for the resoondents contended that there
was no violation of the procedure ore.o;cribed under Clam:e 8(vi)
(a) of the "ColleP.:e Code" and that the order of the Govemin!!.
Body, dated June. 30, 1960 was not defective in law. Since the
H
P. R. JODH v. A. L. PANDE (Ramaswami, /.)
719
A question has not been investigated by the High Court we consider
that it is necessary that this case should go back on remand to the
High Court for deciding the question whether there was a violation of the procedure prescribed under Clause S(vi)(a) of the
"College Code" and whether the order of the Governing Body,
dated June 30, 1960 is consequently illegal and ultra vires and
B whether the appellant is entitled to the grant of a writ under
Art. 226 of the Constitution.
We should like to add that Counsel for the respondent raised
two preliminary objections in the course of argument. The argument was stressed in the first place that the appellant had an
c alternative remedy under Clause 8 (vi)( c) of the "College Code"
which provides that the aggrieved teacher may request for a
reference of the dispute to a Tribunal of Arbitration consisting
of the Vice-Chancellor and two other persons appointed by the
Executive Council of the University. It was contended on bdtalf
of the respondents in the second place that the Governing Body
D of the College was not a statutory body performing public duties
and no writ in the nature of mandamus may, thereforo, be issued
to the Governing Body of the College. On behalf of the respondents it was conceded that these objections were not pressed before
the High Court.
We are, therefore, unable to entertain these
preliminary arguments at this stage and they must be over-ruled.
E
For the reasons already expressed, we allow this appeal, set
aside the judgment of the High Court, dated February 28, 1962
and order that the case should be remanded to the High Conrt
for investigating the question whether there was a violation of
the procedure contained in Clause 8 (vi) (a) of the "College Code"
F and for final determination of the case in accordance with Jaw.
Parties will bear their own costs in this Court as well as in the
High Court up to this stage.
Appeal allowed.