# UNIVERSITY OF KASHMIR AND OTHERS v. MOHD. YASIN AND OTHERS

- **Citation:** [1974] 2 S.C.R. 169
- **Court:** Supreme Court of India
- **Decided:** 1973-11-05
- **Bench:** V. R. Krishna Iyer, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/university-of-kashmir-and-others-v-mohd-yasin-and-others-6125
- **Pages:** 9

## Headnote

169
Jammu and Kashmir University Ordinance, 1969 and lammu and 1Ka.ihmlr
Universily Act, 1969-Section 52-Automatic tertnin'ation under iec1lo11 of 1er·
vices of Lecturer emP,loye~ on contract basis-No reemploJ.ment IJ! provided
by statute-More cont1nuatton on the expiry of statutory pzriod does not Justify
inference of implied engagement.
Jammu and Kashmi'r University Act, 1965-Enquiry fnJo n1isconduc1 and.
report under the 1965 Act-No validation o.~ continuation of enquiry co,nmenced
i111der the 1965 Act it1 the 1969 Act-Show caus:1 notfce and termination service
basecf on the Enquiry-Report under the 1965 Act- .validity,
The respondent joined the Jttmmu anU Kashmir University in
19~3 as
lecturer on contract basis.
He was later promoted as professor. His appoint·
mo:nt as profe&sor was also on contract ba'iis and by aareement be was bound
. by the stz..,tutes and regulations from time to time in force in the
University,
While extendina: his period of probation as Professor the Ce·ntral Council of the
University rP:solved that the respondent b~ charge-'iheeted for certain alleaed
misconduct. An Enquiry was he~d under the Jammu and Kashmir Universi~
Act, 1965 arJ1 a report was submitted holding the respondent guilty.
On the
·day the enquiry officer submitted ~he report, the Jan1mu and Kashmir University
Ordinance 1969 was promulgated.
Section 52 of the Ordinance provid~d that
teachers employed on contract basis "unless otherwise ordered by the Chancellor
after consulting the Pro-Chancellor shall cease to hold such posts or to discharge
su'ch duties after 6() days from the commencement of this Ordinance or the Act.
as the case· may be."
No such order was issued by the Chancellor extending
t.he respond:nts employment on the expiration of the period.
On the other
hand. the Vice·Chancellor. allowed him to function as P.rofessor and his pro·
bation was again extended for a year by the Vice-Chancellor'· under s. 13(4) of
the Ordinance (which had already been replaced on November 16, 1969· by the
Jammll and Kashmir University Act, 1969}. The Vice-Chancellor also dlrected
the release of the salary of the respondent and requested him to serve on the
academic council as an ex-offi:io member.
Based on the enquiry report the
Vice-Chancellor issued a show cause notice to which the respondent submitted
his explanation.
The Universitv Council decided to terminate the services of
the respondent.
JD a Writ pet:ition filed by the respc;mdent the High court
cHrected re-instatement.
The Hi.1Z.h Court took the view that the facts. nnd
drcumstanc~111 of the case clearly enabled the· spelline: out of a fresh app.oint·
ment of the respondent as ProfeSsor' by an emplied contract. The High Court
was also of the opinion that the enquiry directed· under the 1965 Act lapsed
when the 1969 Ordinance came into force and could npt furnish the basis for
punitive action agair.iSt the respondent and therefore the order of dismissal based
en the report of the En9uiry Officer was bad in law.
HELD : that the High 'eoUrt•s order of reins~atement ha-d to be quashed.
\Vhile the respoJ1dent had no right to contiilue in the University the terntination
of his services was invalid.
(i) Under the 1969 Ordinance and the"'Sub!'equent Act which replaced it the
only body competent to appoin(a professor. like the respondent, is the Univer.
sity Council and even the Council shall make such aopointments onlv on the
recommendation of the Selection Committee created by sec~ion 36.
There is
no case that, the Selection Committee even considered or recon1mended the
respondent for appointment and there is no sue:e:estion that the UniversitY Council
appointed the respondent a1i professor. It follows that the on.lY. sta!utory body
170
SUPREME COURT REPORTS
[ 1974] 2 s.c.R.
empowered .in this behalf has not appointed the respondent to the post claimed
by him.
Therefore the continuance of the respondent on the expiration of the
statutory two months' period canr:ot be Je2itim1ted by law.
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UNIVERSITY OF KASHMIR AND OTHERS
v.
MOHD. YASIN AND OTHERS
November 5, 1973
[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]
169
Jammu and Kashmir University Ordinance, 1969 and lammu and 1Ka.ihmlr
Universily Act, 1969-Section 52-Automatic tertnin'ation under iec1lo11 of 1er·
vices of Lecturer emP,loye~ on contract basis-No reemploJ.ment IJ! provided
by statute-More cont1nuatton on the expiry of statutory pzriod does not Justify
inference of implied engagement.
Jammu and Kashmi'r University Act, 1965-Enquiry fnJo n1isconduc1 and.
report under the 1965 Act-No validation o.~ continuation of enquiry co,nmenced
i111der the 1965 Act it1 the 1969 Act-Show caus:1 notfce and termination service
basecf on the Enquiry-Report under the 1965 Act- .validity,
The respondent joined the Jttmmu anU Kashmir University in
19~3 as
lecturer on contract basis.
He was later promoted as professor. His appoint·
mo:nt as profe&sor was also on contract ba'iis and by aareement be was bound
. by the stz..,tutes and regulations from time to time in force in the
University,
While extendina: his period of probation as Professor the Ce·ntral Council of the
University rP:solved that the respondent b~ charge-'iheeted for certain alleaed
misconduct. An Enquiry was he~d under the Jammu and Kashmir Universi~
Act, 1965 arJ1 a report was submitted holding the respondent guilty.
On the
·day the enquiry officer submitted ~he report, the Jan1mu and Kashmir University
Ordinance 1969 was promulgated.
Section 52 of the Ordinance provid~d that
teachers employed on contract basis "unless otherwise ordered by the Chancellor
after consulting the Pro-Chancellor shall cease to hold such posts or to discharge
su'ch duties after 6() days from the commencement of this Ordinance or the Act.
as the case· may be."
No such order was issued by the Chancellor extending
t.he respond:nts employment on the expiration of the period.
On the other
hand. the Vice·Chancellor. allowed him to function as P.rofessor and his pro·
bation was again extended for a year by the Vice-Chancellor'· under s. 13(4) of
the Ordinance (which had already been replaced on November 16, 1969· by the
Jammll and Kashmir University Act, 1969}. The Vice-Chancellor also dlrected
the release of the salary of the respondent and requested him to serve on the
academic council as an ex-offi:io member.
Based on the enquiry report the
Vice-Chancellor issued a show cause notice to which the respondent submitted
his explanation.
The Universitv Council decided to terminate the services of
the respondent.
JD a Writ pet:ition filed by the respc;mdent the High court
cHrected re-instatement.
The Hi.1Z.h Court took the view that the facts. nnd
drcumstanc~111 of the case clearly enabled the· spelline: out of a fresh app.oint·
ment of the respondent as ProfeSsor' by an emplied contract. The High Court
was also of the opinion that the enquiry directed· under the 1965 Act lapsed
when the 1969 Ordinance came into force and could npt furnish the basis for
punitive action agair.iSt the respondent and therefore the order of dismissal based
en the report of the En9uiry Officer was bad in law.
HELD : that the High 'eoUrt•s order of reins~atement ha-d to be quashed.
\Vhile the respoJ1dent had no right to contiilue in the University the terntination
of his services was invalid.
(i) Under the 1969 Ordinance and the"'Sub!'equent Act which replaced it the
only body competent to appoin(a professor. like the respondent, is the Univer.
sity Council and even the Council shall make such aopointments onlv on the
recommendation of the Selection Committee created by sec~ion 36.
There is
no case that, the Selection Committee even considered or recon1mended the
respondent for appointment and there is no sue:e:estion that the UniversitY Council
appointed the respondent a1i professor. It follows that the on.lY. sta!utory body
170
SUPREME COURT REPORTS
[ 1974] 2 s.c.R.
empowered .in this behalf has not appointed the respondent to the post claimed
by him.
Therefore the continuance of the respondent on the expiration of the
statutory two months' period canr:ot be Je2itim1ted by law.
The cir:umstance
tha.t the respondent functioned in the University does not vest in him .the
legal sta~us of a validly appoir~ted employee with all the protection. that the Act
and the relevant statutes give to such a person.
Thus no case of statutorv ter·
mination is called ·for. th; basis of st:itutory employment being absent. [175!-J
'When a statute creates a bodl:;, and vests it with authority and circumscribes
the powers by specifving limitation the doctrine of implied eneal?ement le hors
the provisions and powers under the Ad would be 'Subversive· Or the statutory
scheme regardine anooiμtment of officers and cannot be countenanced bv the
Court.
If a Vice.Chancellor by a<lmir.istrative drift allows such employment
it cannot be validated bv anv theorv of factun1 valet.
f176~1
(ii) When there was no provision in the 1969 Act which would continue
or validate the enquiry commenced against the respondent by the Jammu and
Kashmir University created hv the 1965 Act. the Enquirv report r~ns to the
ground
vis·a.-vi.~ the respondent. The fact that he responded to a show cause
notice cannot clothe the enquiry witft Je~alitv and the reoort j-; impern1i5sible
material to injure the respondent with a punitive termination.
The respondent
would be considerably damnificd in his standin2 and reoutHion bv the order of
the lTniversitv.
The termination of his service: therefore has tO be declared
illegal.
[!76GJ
C!VJL APPELLATE JURISDICTION: Civil Appeal No. 1386 of 1972.
Fr0m the Judgment and order dated the 26th October, 1971 of
the Jammu and Kashmir High Court at Srinagar in Writ Petition
No. 36 of 1970.
F. S. Nariman, Additional Solicitor General of India, 0. C. Mathur
and P. C. /Jlwrtari, for the appellant.
T'. R. B/111si11, R. L. Kohli and Ramesh Kohli.
for
respondent
No. 1
The Judgment of the Court was delivered by
KRISHNA !YER, J.-The University of Kashmir, the appellant, with
a blurred sense of legality, issued a ukase by resolution of its Council,
tern1innting the s::rvices of its Professor, the appellee. insuftit:iently
aware of the kaleidoscopic legislative changes and crucial statutory
consequences on the one hand
and curiously indifferent to its own
embarrassingly ambivalent dealings seemingly legitimising the permanent f.:tatus of the Profe~sor. This decision virtually dismissing lhe
appeEcc was ,.uccessfu!l,v challei1ged as void in the High, Court, but
th~ arpellant lJniYcrsit:y has come up in appeal. with a certificate of
fitness seekinr to susrnin the validity of its action. At the first blush.
the law of n1aster and servant may apply to the present foct·situati0n
bm the ft<1tu10:-y status of the employer substantially transforms Ihe
chsrc::ctcr of the maste:, the con~equences of its ultra vlres ccts ns
well as amenability to types of relief like re-instatement and the applicability or writ remedies, alien to the legal chemistry of breaches of
contract.
However, in the light of the factual-cum-legal conclusions
which appeal to m thes·o thorny jurisprudential issues of deeper import in a socio-economic and cultural context where the State undertakes dynamic activiHes affecting citizens' rights an<l operates through
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KASHMIR UNIV. v. MOHD. YASIN (Krishna Tyer, l.)
171
corporate and other effective instrumentalities may not fall for cflrcct
decision.
Enough unto the day is the evil thereof .
. A chronological narration of the principal facts and events and
legislative shifts and their implications must precede consideration. of
the legal contentions put forward by either side.
The Jammu and Kashmir UniversiUy Act, 2005
(Samvat Year)
created the University of Jammu and Kashmir.
Several years later
the. present respondent joined the University as a iecturer on contract
baSis, the law that governed his servic·~s being the provisions of that
Act and the statutes framed thereunder.
Subsequently, the Jammu
and 'Kashmir University Ac;t, 1965, was passed which, while repealing
the previous Act, P"served and continued for the transitional period
the rules and regulations and services of teachers and officers of the
University (s. 52). Primarily, the 1965 Act imparted embryonic
shape to the Jammu University and the Kashmir University by the
creation of two Divisions. ( 1 ) J ammu
Division, and ( 2) Kashmir
Di visiou.
Anyway, the respondent who had .ioined in 1963 was ap·
.Pointed as Reader in September 1965, a few months after the 1965
Act came into force.
A couple of years later the respondent register·
ed an advance in his career and became Professor in the PostGraduate Department of the University in the Kashmir Division on
terms and conditions
contained in Jetter dated
Januarv 8, 1968.
While he was pur 9n probation for one year he was informed that im·
mediately after his appointment he would have to enter into an agreement with the University in the form forwarded to him.
This agreement bound the respondent to the statutes and regulations from time
to· time in force in the University.
It is significant to note,· as the
High Court has pointed out in its judgment, that "the case of hoth
the parties, however, is that the appointment of the petitioner as Pro·
fesscr \Vas on contract basis".
The one-year period of
probation
expired on December 14. 1968, but the Vice-Chancel:or extended it
for one more year by order dated November 11, 1968.
This exten·
sion was confirmed by the meeting of the Central Council of
the
un;versity at its meeting
dated June 26, 1969.
But at the seme
meeting it was resolved by the Central Council that the respondent
be cha.rge-sheeted for certain alleged misconduct.
An enquiry was
held by an enquiry officer· appointed in this behalf, Shri J. N. Bhan,
who submitted his report on September 5. 1969 holding the respo'1dcnt guilty substantially.
Bv accident it happens that on the same
date, namely, September 5, 1969, the Jammu and Kashmir .ui;ivmity
Ordina:ice. 1969. was promul.gated by the Governor estabh~hm~ two
separate universities. one for· J ammu and the other for Kashmtr. How·
ever, by S· 52 t)lereof, the rules and regulations a!1d. services of. ~m·
ployees werz continued.
And then followed a s1gmficant prov1s1on
which laid down that within 60 days from the commencement o! the
Ordinance the services of teachers employed on contract basis were
to cease unless otherwise ordered by tiie Chancellor.
No such order
was issued bv the Chanceltor extending the respondent's employment.
However oblivious or heedless of the statutory cessation of the respondent'~ services, he was all?wed to function a,s Professor and his
probation was agam extended for a year by the V1ce·Chanceltor under
172
SuPREME COURT REPORTS
( 1974 J 2 S.C.R.
s. 13 ( 4) of the Ordinance (which had alread;y been rep)aced on November 10, 1969 by the Jammu and Kashmir Universities Act 1969)
More inc.?ngruous with the appellant's present stand is the dircctio~
by the "1ce-Cn~ncellor to release the salary of the respondent and
the request to him to serve on the Academic Council as an ex-officio
mc1!Jber, being Prof~ssor ~nd H_ead of the Department of History..
Whlle, thus, on the one Side qmet flowed the stream of service as
professor, on the other turbid eddies of threat to terminate surfaced
up.
For, based on the enquiry report the Vice-Chancellor issued a
'show-cause' notice on Dec·:mber 22, 1969, which elicited the respondent's explanation on January 31, 1970.
Together, all the materials
were considered by the University Council at its meeting dated July 7,
1970, where th-: decision was taken to ·remove him paying one month's
salary.
Thereafter, of course, the present litigation started.
The principal questions canvassed before us turn on the correct·
ncss of the views taken by the High Court on (a) the respoi1dent's'
right to continue in service even after the statutory explanation thereof,
and (b) the validity of the reliance on the enquiry report in the termination order nnd the breach of statutony conditions subject to which
alone the power of terminating the relationship could be exercised by
the University Council. In the opinion of the High Court, the facts
and circumstances of the case clearly enabled the spelling out of a
fresh appointment of the respondent as Professor and Head of
the
Department of History of the new University of Kashmir by an im·
plied contract. Once this position is reached, it follows logically that
!he termination has to be in terms of the statutory regulations. On
this aspect of the case the Court took the view that the enquiry Jirect-
·cd under the 1965 Act lapsed when the 1969. Ordinance and the Act
came into force, and could not furnish the basis for punitive action
against the respondent.
The irresistible conclusion the Court therefore reached was that the order of dismissal pa~sed by the Universi!Y
Council being based on the report of the Enqmry Officer was bad m
law.
The Court directed re-instatement by a writ of mandamus.
The learned Additional Solicitor General, appearing for the appel·
!ant University, built an argument the corner-stone o! which was that
there was a statutory cessation of the contractual service of the respon·
dent bv operation of s. 52(4) of the Ordinance and the Act of 1969.
The statutes under the Act of 1965 contained a provision which ran
thus :
''Procedure--conditions for appointment of University
Teachers.
STATUTES
1. ....
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2. Every salaried teacher of the University shall have
to execute a written contract with the University. The conditions of service of teachers
appointed by the University
shall be those embodied in the Agreement of service anH
nexed hereto or, on Agreement substentially to like effect,
and every teacher shali execute the Agreement before he
enters upon his duties or as soon as possible thereafter."
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KASHMIR UNIV. v. MOHD. YASIN (Krishna Iyer, /.)
1 '73
It is also common case that respondent's employment was on a
contractual basis.
By s. 51 of the 1969 Ordinance "all the statutes
and regulations made under the Jammu and Kashmir University Act
of 1965 and in force immediately before the commencement of this
Ordinance shall so ·far as may be consistent with the provisions of
this Ordinance continue to be in force in each University after the
commencement of this Ordinance."
Thus we reach the position that, on a combirted. reading
of
Statute 2 framed under the 1965 Act (already extracted above) and
s. 51 of the Ordinance of 1969, which is in identical terms with s.
59 of the Act which replaced the Ordinance, the respondent was an
employee of the University serving under a contract. In fact neither
party disputes this position. Our attention must now turn to a
crucial provision in the 1969 Ordinance which is also reproduced in
the ensuing Act.
Section 52 thereof runs thus :
"52. Continuance of service of the existing employees
and their allocation :-Notwithstanding anything contained
in this Ordinance or any Statute or Regulation made thereunder or in any other law for the time being in force :-
(I)
(2)
all employees of the University of Jammu and Kashmir constituted under 'the Jamirtu & Kashmir University Act, 1965 (other than those serving on contract or on deputation in the University or
those
serving in the
Publication Bureau of
the
Uni·
versity) who, immediately
before the the commencement of this Ordinance, were holding or discharging the duties of any post or office in connection
wjth the affairs Qf the .s.aid .lJnivo:rsity shall, subject
ta .the prli'yisiol\5 of sub-.sectio(l (2), continue in
serv\ce .on the same terms. and conditions as regulated their service before. such commencement;
the Chancellor may in consultation ·with the· ProChancellor by order allocate the. employees of the
University of Jammu '. and Kashmir
(other than
those serving on contract or deputation in the University or those serving in the Publication Division
of the University) between the University of Kashmir
and the University· of Jammu cdnstituted under this
Ordinance in such manner as he mav· consider necessary and every such allocation shall be deemed to
be an appointment, transfer . . . . as the case may be
to the post or office by the competent
authority
under this Ordinance :
Provided that in
making such allocations
the
conditions of service of · employment of such empl6yees shall not be varied to their disadvantage :
H
(3) ""
( 4) all persons who immediately befo~e the C?mmen~e
ment of this Ordinance were holdmg or d1schargmg
174
SUPREME COURT REPORTS
[ 1974) 2 S.C.R.
the duties of any post or office in connection with
the affairs of the University of J ammu and Kashmir
on contract basis or by virtue of thir occupation to
such posts or
offices from other
services in the
State, unless otherwise ordered by the Chancellor
after consulting the
Pro-Chancellor, shall cease to
hold such posts or to discharge such duties after 60
days from the commencement of this Ordinance and
all such contracts with or deputations to the Universitv of Jammu and Kashmir shall stand terminated
wiih effect from the expiry of the said period of 60
days."
·
If we may condense the effect of this provision to the extent relevant to the present case, it means that teachers employed on contract basis "unless otherwise ordered by the Chancellor after cbnsultirtg
the Pro-Chancellor shall cease to hold such posts or to discharge such
duties after 60 days from the commencement of this Ordinance" or
the Act, as the case may be.
To add emphasis, as it were, to the
cessation of
such
tenure the
further part
of the
section
re-iterates
that
"all
such
contracts
with .... the
University
of Jammu and Kashmir shall stand terminated with effect from the
expiry of the said period of 60 days." Thus, by the inexorable operation of the calendar, on November 5, 1969, the respondent made
a statutory exit from the employment of the
Kashmir
University.
This much even the respondent has reconciled himself to, and the
High Court has accepted.
To retrieve the situation thereafter, the respondent had recourse
to a plea which found favour with the learned Judges, that the actings
and dealings of the higher functionaries of the University vis-a-vis
the respondent eloquently testified to the claim of implied employment
of the respondent subsequent to the statutory cessation. It is true
that de facto the respondent functioned as Professor. drew salary as
such, became a member of the Academic Council in that capacity and
was treated as on extended probation by the Vice Chancellor. In
view of these habiliments of professoriate the High Court assumed
the premise that the respondent was "admittedly in the employment
of the University of Kashmir on the relevant date", and proc~ded
to essay the next problem which it posed in these words :
"The main question in this cause is whether the employment of the petitioner was validly terminated under the impugned resolution."
We are dealing with a statutory body, the University, and its
powers and duties and the canalisation thereof. The
functionaries
under it and the contours of their authority are delineated by the
Act.
If any body created by a statute went beyond the area of its
powers, the act was ultra vires and of no effect.
Ordinance 10 of
1969 and the subsequent Act which replaced it have vested in the
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KAS!JMIR UNIV. v. MOHD. YASIN (Krishna [~er, J.)
175
University Council certain powers regarding the appointment of the
teaching staff.
Section 22 reads :
"22. Powers and functions of the University Council :-
The University Council of a University shall be the supreme
authority of the University and shall have the
following
powers, namely :-
(f) save as otherwise provided in this Ordinance;
to
appoint officers of. the
status of Joint Registrar, Deputy
Librarian and above and teachers of the status of Readers
and above and to define their duties.
Provided that no officer or teacher shall be appointed
by a University Council until provision has been made for
his salary i11 the approved budget of the University concerned :
Provided further that all appointments (Permanent
or
temporary) to the posts of Officers or teachers referred to
in this section shall be made by the University Council on
the recommendation of the Selection Committee constituted
for the purpose in accordance with the provisions of Section
36 of this Ordinance, and on such terms and conditions as
may be pre.scribed by tbe Statutes :
Provided also that the Vice-Chancellor may make appointments of teachers referred to in this Section as a tc111porary measure for a period not exceeding six 1nonths to carry
on the work· and if the recommendations of the Selection
Committee are not received within a period of six months,
the Vice Chancellor may extend the appointment, if any
made by him, for the duration of the academic session with
the approval of the University Council; ... "
Thus, the only bcdy competent to appoint a professor, like the
respondent, is the University Council, and even the
Council shall
make such appointments only on the recommendation of the Selection Committee created by s. 36.
There is no case that the Selection
Committee ever considered or recommended the respondent for appointment and there is no suggestion that the
University CounCJl
appointed the respondent as
professor. It follows that the
only
statutory authority empowered in this behalf has not appointed the
respondent to the post claimed by him.
There is an interim power
vested in the Vice-Chancellor hedged in with limitations, as is· contained in the third proviso to s. 22(1). · He may make appointments
of teachers as a temporary measure for periods not exceeding six
months to carry on the work, and if the Selection Committee's re·
commendation is not received within that time he may extend the
appointment for the duration of the -academic session with ·the approval of the University Council.
There has been no exercise of
the narrow power of the Vice-Chancellor under this proviso and the
conclusion is ·irresistible that the continuance of the respondent on
the expiration of the statutory two months' period cannot be legitimated by law.
Of course, he remained to teach and. was paid for
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SUPREME COURT REPORTS
[ 1974] 2 s.c.a.
his work.
He did many other things which a legally appointed professor would do, with the full knowledge and even at the request of
the Vice-Chancellor.
May-be, he, the Vice-Chancellor and others in
the University were perhaps not keeping themselves abreast of the
law.
But the fatal fact remains that the Chancellor did not extend
the services of the respondent as contemplated bys. 52(4), and this
failure finishes the plea of continuance in office of the professor.
We
are not concerned with tbe administrative fall-out from this finding
although the salary of the teacher app;ars to have been sanctioned
by the Vice-Chancellor-a piece of coaduct which may b, understandable en equitable grounds.
The circumstance that the rec.pendent
functioned in the University does not vest in him the legal status of
a validly appointed employee with al\ the protection 'that tho Act and
the relevant statutes give to such a person.
In this view of the factsituation, without more, the respondent's work on the
University
campus can be brought to a close.
No case of statutory termination
of service is called for, the basis of statutory employment being absen~.
The ad hoc arrangement by which he remained to teach did not ac·
quire legal validity merely bccauso the Vice-Chanoelor went thro:Ugh
the irregular exercises of extending his probation. etc.
We have to
hold that the curtain fell on the office held by the respondent when,
at the end of 60 days after the Act, the sands of time ran out.
The ground urged successfully, as it were, before the High Court,
of an implied engagement cannot, in our view, be sustained.
When
a s\atute creates a body and vests it with authority and circumscribes
its powers· by specifying li1nitations, the doctrine of implied engagement de !tors the provisions and powers under the Act would be sub·
versive of the statutory scheme regarding appointments of officers
and cannot be countenanced bv the Court. · P6Wer ·in this case has
been vested in the Universi!J Council only and the manner _of. its
exercise has been carefully regulated.
Therefore, the appointment of
the respondent could be made only by the · Cou·nci!· and only in the
mode r.rescribed by the statute. If a- Vice-Chancellor by administrative dnft allows such emplpyment it cannot be validated on any theory
of fact111n vafet.
'v'le cannot countenance the alleged continuance of
the respondent in the University can1pus as tantamount to
regular
service under the Universitv \Vith the sanction of la\v.
In short, the
respondent has no presentable case l\gainst the direction to quit.
Even so. there are certain disquieting features in this case.
The
Additional Solicitor-General fairly concedes that there was no pro·
vision in the 1969 Act which would continue or validate the enquiry
· commenced against the respondent by Jammu and Kashmir Univer·
sity created by the 1965 Act.
If so, the enquiry report falls to the
ground vis-a-vis the respondent.
The fact that he responded to . a
show-cause notice cannot clothe the enquiry with legality and ·the
report is impermissible material to injure the respondent with a punitive termination.
The reliance on the enquiry report by the University to take a hostile decision on July 7. 1970 is illegal.
The Uni-·
versity Council could not act to his prejudice on the strength of a
damaging report which had no force.
\Ve are. therefore, clear in
our ininds that the ·termination of the se-rvices of the respondent was
stricken by the vice of statutory violation.
The respondent is perA
B
c
D
E
F
G
H
-
A
B
c
KASHMIR UNIV. v. MOHD. YASIN (Krishna Iyer, J.)
177
fectly tight in contending that he has been considerably damuified in
his standing and reputation by this order of the University. We
are, therefore, inclined to the view that while the respondent has no
tight to continue in the University, the termination of his services, as
per annexure A, is invalid. It is no use the University contending
that its order is innocuous. It is clear that its annexure A carries
a stigma with it since it expresses "the unanimous conclusion that
the .... charges have been established against him" .and the tennination itself is founded on the guilt so made out: We,
therefore
declare that Annexure A is void but further _hold that the resgondent
has no right to continue in service and the direction to him that he
should leave his post as Professor and Head of the Post-Graduate
History Department is good.
The High Court's order of re-instatement
is quashed.
There is much in the circumstances of the case to show that both
sides have been indifferent to the provisions of the law which
changed from time to time and both sides have acted under misapprehensions, which warrant our direction that parties will bear their
own costs throughout. The appeal is allowed subject to the above
order as to costs,
K.B.N.
Appeal allowed.
13-IA47Sup. C. I./74