UNIVERSITY OF KASHMIR Vs. MOHAMMAD YASIN

JUDGEMENT

(1.) The University of Kashmir,the appellant with a blurred sense of legality, issued a ukase by resolution of its Council, terminating the services of its Professor, the appellee, insufficiently 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 status of the Professor. This decision virtually dismissing the appellee was successfully challenged as void in the High Court, but the appellant University has come up in appeal, with a certificate of fitness, seeking to sustain the validity of its action. At the first blush, the law of master and servant may apply to the present fact situation but the statutory status of the employer substantially transforms the character of the master, the consequences of its ultra vires acts as well as amenability to types of relief like re-instatement and the applicability of writ remedies, alien to the legal chemistry of breaches of contract. However, in the light of the factual-cum-legal conclusions which appeal to us these thorny jurisprudential issues of deeper import in a socio-economic and cultural context where the State undertakes dynamic activities affecting citizens' rights and operates through corporate and other effective instrumentalities may not fall for direct decision. Enough unto the day is the evil thereof.

(2.) 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.

(3.) The Jammu and Kashmir University Act, 2005 (Samvat Year) created the University of Jammu and Kashmir. Several years later, the present respondent Joined the University as a lecturer on contract basis, the law that governed his services being the provisions of that Act and the statutes framed thereunder. Subsequently, the Jammu and Kashmir University Act, 1965, was passed which, while repealing the previous Act, preserved 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 the Divisions, (1) Jammu Division, and (2)Kashmir Division. Anyway, the respondent who had joined in 1963 was appointed as Reader in September 1965, a few months after the 1965 Act came into force. A couple of years later the respondent registered an advance in his career and became Professor in the Post-Graduate Department of the University in the Kashmir Division on terms and conditions contained in letter dated January 8, 1968. While he was put on probation for one year he was informed that immediately 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 both the parties, however, is that the appointment of the petitioner as Professor was on contract basis." The one year period of probation expired on December 14 , 1968, but the Vice-Chancellor extended it for one more year by order dated November 11, 1968. This extension was confirmed by the meeting of the Central Council of the University at its meeting dated June 26, 1969. But at the same meeting it was resolved by the Central Council that the respondent be charge-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 respondent guilty substantially. By accident it happens that on the same date, namely, September 5, 1969, the Jammu and Kashmir University Ordinance, 1969, was promulgated by the Governor establishing two separate universities, one for Jammu and the other for Kashmir. However, by S. 52 thereof, the rules and regulations and services of employees were continued. And then followed a significant provision which laid down that within 60 days from the commencement of the Ordinance the services of teachers employed on contract basis were to cease unless otherwise ordered by the Chancellor. No such order was issued by the Chancellor extending the respondent's employment. However, oblivious or heedless of the statutory cessation of the respondent's services he was allowed to function as Professor and his probation was again extended for a year by the Vice-Chancellor under S. 13 (4) of the Ordinance (which had already been replaced on November 10, 1969 by the Jammu and Kashmir Universities Act. 1969). More incongruous with the appellant's present stand is the direction by the Vice-Chancellor to release the salary of the respondent and the request to him to serve on the Academic Council as an ex-officio member, being Professor and Head of the Department of History. While, thus, on the one side quiet 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 'showcause' notice on December 22, 1969, which elicited the respondent's explanation on January 31, 1970. Together, all the materials were considered by the University Council as its meeting dated July 7, 1970, where the decision was taken to remove him paying one month's salary. Thereafter, of course, the present litigation started.