Mahammad Yasin vs University of Kashmir and Ors.

Mufti, J.

(1) By an Act of the State Legislature styled as Jammu and Kashmir University Act 2005 an University named as ""The University of Jammu and

Kashmir"" was set UD for the first time in the State in the Samvat year 2005. The headquarters of the University were located at Srinagar

wherefrom t was designed to serve the entire State. The petitioner joined its services as a Lecturer in the year 1963 on contract basis. His

appointment was made by the Syndicate of the said university in accordance with the provisions of the said Act and the Statutes made there under

On March 24, 1965 a new Act called the Jammu and Kashmir University Act H65 (hereinafter referred to as 1965 Act was passed which

repealed the previous Act and provided for the establishment of two divisions of the University, one at Jammu called 'the Jammu Division' and the

other at Srinagar called the 'Kashmir Division'. Section 52 thereof provided for the continuance of the existing rules and regulations as also the

services of teachers, officers employed by it under the earlier Act. The petitioner therefore continued to be employee of the said University and

was thereafter appointed as a Reader in September 1965. On 15421967 the petitioner was appointed as professor in the Post Graduate

Department of History, Kashmir Division on the terms and conditions communicated to him by the Registrar of the University in his letter dated

811968 reproduced below :

No. F. I. (GNR.IGD 27) CU/ADM 90:0

University Campus, Jammu,

Dated 811968.

Dr, Mohd. Yasin,

Katra Abuturab

Lucknow (U. P.)

Sir,

I have the pleasure to inform you that the Central Council of Jammu and Kashmir University vide its resolution No. 6 dated 15121967 ordered

your appointment as professor on Rs 1100/P. M. in the scale of Rs. 1100501300601600 in the Post Graduate Department of History Kashmir

Division on probation for one year.

The terms of appointment will be till the age of sixty years and you will be entitled to the benefits of University Contributory Fund at S|% of your

salary on confirmation. Immediately after your appointment you will have to enter into an agreement with the University. A copy of the agreement

from is enclosed.

Yours faithfully,

Sd/ Abdul Aziz, Registrar.

(2) The petitioner alleges that he executed the prescribed agreement in form annexure R to the petition in terms whereof the petitioner was bound

by the statutes and regulations from time to time in force in the University and in particular by those governing his grade, increment, conditions of

service) rules of superannuation and provident fund rules, provided that no change in the statutes or regulations was to effect him adversely. The

respondents deny the petitioner having executed the agreement, but all the same admit that he was bound by the statutes framed under the original

Act and also by those framed under the 1965 Act. The case of both the parties however is that the appointment of the petitioner is professor was

on contract basis. The period of probation was due to expire on 14121968, but it was extended by the Vice Chancellor under his orders

conveyed to the petitioner on 11111968 for a period of one year.

(3) On 591969 an Ordinance called the Kashmir and Jammu Universities Ordinance, 1969 (hereinafter referred to as 1969 Ordinance') was

promulgated by the Governor. It provided for the establishment of two separate universities, one for the Jammu Division and other for the Kashmir

Division respectively called the ""University of Jammu'' and 'University of Kashmir'. By Section 21 and 22, the Act provided for the constitution of a

University council for each of the universities and the powers and functions thereof. In terms the University council was made into supreme

authority of each university with the result that it could exercise plenary powers including interalia the power to appoint teachers of the status of

readers and above and to define their duties. The appointments of teachers were to be made by the Council on the recommendation of a selection

committee constituted under Section 36 of the Ordinance and on such terms and conditions as might be prescribed by the Statutes provided that

the ViceChancellor was also competent to make such appointment as a temporary measure for a period not exceeding six months which could be

extended for the duration of the academic sessions with the approval of the University Council, Section 52 of the Ordinance provided for the

continuance of the Services of the existing employees of the University of Jammu and Kashmir and their allocation. It was to the following effect:

'Continuance of service of the existing employees and their allocation. Notwithstanding anything contained in this Ordinance or any statute or

Regulation made there under or in any other law for the time being in force.

(1) All employees of the University of Jammu and Kashmir constituted under the Jammu and 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 University) who, immediately before the

commencement of this Ordinance, were holding or discharging the duties of any post or office in connection with the affairs of the said University

shall, subject to the provisions of subsection (2 , continue in service on the same terms and conditions as regulated their services before such

commencement ;

(2) 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 Bureau of the University) between the University of

Kashmir and the University of Jammu) constituted under this Ordinance in such manner as he may consider necessary and every such allocation

shall be deemed to be an appointment, transfer or promotion 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 employees shall not be varied to their disadvantage ;

(3) The employees of the Publication Bureau of the University of Jammu and Kashmir along with the assets and liabilities of the said Bureau shall

stand transferred to the Jammu and Kashmir Board of Secondary Education constituted under the Jammu and Kashmir Secondary Education Act,

1965 with effect from such date after the commencement of this Ordinance as the Chancellor may specify ;

Provided that the conditions of service of such employee shall not be ' varied to their disadvantage on account of such transfer ; and

(4) All persons who immediately before the commencement of this Ordinance were holding or discharging the duties of any post or office in

connection with the affairs of the University of Jammu and Kashmir, on contract basis or by virtue of their deputation to such posts or offices from

other services in the State, unless otherwise ordered by the Chancellor after consulting the proChancellor, shall cease to hold such posts or to

discharge such duties after four days from the commencement of this Ordinance and all such contracts with or deputations to University of Jammu

and Kashmir shall stand terminated with effect from the expiry of the said period of 60 days

(4) It is common ground that all the employees of the erstwhile University of Jammu and Kashmir on contract basis, like the petitioner, were to

cease to hold their posts or offices after sixty days from the Commencement of the order when such contracts were considered to have been

terminated unless otherwise ordered by the Chancellor after consulting the prochancellor. The said period of sixty days expired on 5111969.

Admittedly no such order as aforesaid was made by the Chancellor during the said period in respect of the petitioner. Even so he was allowed to

continue in the services of the New University of Kashmir.

(5) On 15111969 the Kashmir and Jammu University Act 1969 (hereinafter referred to as '1969 Act') came into force which repealed the

aforesaid ordinance. By section 52 the Act provided for the continuance of the existing employees of the Jammu and Kashmir University in terms

provided for in section 52 of the Ordinance except that such employees serving on contract basis were to cease to hold their posts or offices on

the expiry of period of sixty days from the commencement of the Act when their contracts of service were to be treated as terminated unless the

Chancellor otherwise orders after consulting the prochancellor. By section 58 it also provided that any appointment made under the said ordinance

shall continue under this Act subject to condition, if any, attached to such appointment. Except for these variations the Act was practically the same

as 1969 Ordinance.

(6) On 14121969 the Vice Chancellor purporting to act in exercise of his power under sec. 13 (4) of the aforesaid Ordinance, which actually

stood repealed from 15111969, the date of commencement of the Kashmir and Jammu Universities Act, 1969, extended the petitioners

probationary period till further orders on the assumption that the extension granted in such period earlier was due to expire on 15121969. On

26121969 the Chancellor issued an order under section 52 (4) of the 1969 Act whereby he continued the services of certain teachers of the

erstwhile University of Jammu and Kashmir mentioned in schedule 1 of the order on the terms and conditions embodied in schedule 2

thereofTreating the petitioner, perhaps, as one of such employees, the order stated at the end that decision regarding Dr. Mohammad Yasin of the

post Graduate Department of History will be taken separately. No such decision was however admittedly taken and meanwhile the petitioner

continued in the services of the new University of Kashmir as before On 911970 he was even told (vide Registrar's No. F. 4 69/ACD dated

911970) forming annexure AA to the petition) that in accordance with the provisions of the 1969 Act he was an exofficio member of the

Academic council of University of Kashmir and that he should assist the University by accepting the membership of the said council Then again on

3041970 his pay which, for reasons not indicated in the petition or the counter affidavit, had remained withheld from January 1970 to April, 1970,

was released under orders of the Vice Chancellor communicated to the petitioner under Assistant Registrar's No. 10/ ' HST1 dated 3041970

forming annexure CC to the petition. Thereafter also the salary continued to be paid to him.

(7) Earlier on 971969 when the 1965 Act was still in force, a charge sheet was served on the petitioner to which he pleaded not guilty.

Accordingly an enquiry was held into these charges by the then Vice Chancellor Mr. J N. Bhan under orders of the Central council of the Erstwhile

University of Jammu and Kashmir, Mr. Bhan submitted the report of his enquiry on 591969 i. e. on the very day, the 1969 Ordinance was

promulgated. The report having been considered by the Chancellor a show cause notice was issued to the petitioner on 2212J969, that is after

1969 Act came into force, why his services should not be terminated, The petitioner submitted his report on 3111970 which along with the report

of the enquiry was placed before the University Council of Kashmir University which had meanwhile come into existence under the 1969 Act The

University Council considered the matter and resolved on 771970 that the services of the petitioner be terminated and that he be allowed one

month's salary in lieu of one month's notice from the date the resolution was notified to him . The petitioner was informed if the resolution by the

Registrar of the University of Kashmir on the same day and thus his services were terminated. The petition is directed to challenge this resolution.

(8) There is no dispute that immediately before the promulgation of 1969 Ordinance, the petitioner was holding the post and discharging the

functions of a professor in the Post Graduate Department of History on contract basis in the erstwhile university of Jammu and Kashmir' The said

ordinance came into force on 591969. By virtue of the provisions of section 52 (4) thereof, about the validity of which no question was raised in

the petition or ever before us and which we therefore assume to be valid, the petitioner was to 1 cease to hold his post on the expiry of sixty days

unless Chancellor otherwise directed. No such direction was admittedly made by the Chancellor within the said period. The contract of

employment of the petitioner therefore stood terminated on 5111969 Even so he was allowed to continue in service of the new University of

Kashmir as a professor as before till his employment was terminated by the impugned resolution. On this basis and particularly in view of the

various orders made by the ViceChancellor herein before referred to extending the Period of probation of the petitioner and releasing the salary as

also the fact that he was called upon to function on the academic council of the University of Kashmir as an exofficio member, the petitioner alleges

that there was a fresh appointment of the petitioner as professor and head of the Post Graduate Department of History of the new University of

Kashmir by an implied contract. The contention of the respondents on the other hand is that he was simply an adhoc employee implying perhaps

that this was an action taken by the ViceChancellor under section 13 (4) of the 19&9 Ordinance or in any case, under a similar provision in 1969

Act which empowered him to take action in case of emergency and then to report the same to the competent officer, authority or other body or

that it was an action taken by him under the last proviso to clause (f) of section 22 of the 1969 Ordinance or in any case under a similar provision

in section 22 of the 1969 Act which empowered the Vice Chancellor to make appointments of teachers of the status of readers and above for a

period of six months, to begin with and then to extend it for the duration of the academic session with the approval of the University Council. Be

that as it may, he was admittedly in the employment of the University of Kashmir on the relevant date and the main question in this case is whether

the employment of the petitioner was validly terminated under the impugned resolution.

(9) The petitioner has made a four cornered attack on the termination of his employment by the University Council. The grounds of attack, as given

in the petition, may be set out as under:

(1) That the enquiry instituted against the petitioner under the 1965 Act did not survive its repeal by 1959 Ordinance and so the order of

termination passed on such enquiry was ultra vires and void;

(2) That the order of termination was in breach of the Statutes of the University subject to which the petitioner's employment could be terminated;

(3) That the charges against the petitioner were trumped up malafide by Dr. J. N. Bhan and Kh. NoorudDin respondents 5 and 12 acting in unison

as a result of jealousy and rivalry against the petitioner;

(4) That no reasonable opportunity was afforded to the petitioner to defend himself at the enquiry.

(10) The enquiry against the petitioner was admittedly instituted under 1965 Act. This Act was repealed by 1969 Ordinance. Section 58 of the

Ordinance provided for repeal and savings and was to the following effect:

Repeal and savings(1) The University of Jammu and Kashmir Act, 1965, is hereby repealed.

(2) Notwithstanding such repeal.

(a) All degrees conferred and diplomas certificates and privileges granted by the University (f Jammu and Kashmir before the commencement of

this Ordinance shall be as good and valid as if conferred and granted by the University concerned under this Ordinance and

(b) The Syndicates of the Divisions of the University of the Jammu and Kashmir constituted under the Jammu and Kashmir University Act, 1965,

shall continue for purpose of Subsection (e) of Section 55.

(11) Clearly this section did not save actions taken under the repealed Act. Nor even were such actions revived by the 1969 Act which replaced

the Ordinance. By section 58 the 1969 Act provided as under :

Repeal and saving(1) The Kashmir and Jammu Universities Ordinance, 1969 (X of 1969) is hereby repealed.

(2) Notwithstanding the repeal of the said Ordinance or the repeal of the Jammu and Kashmir University Act, 1965 under the said ordinance.

(a) All degrees conferred and diplomas, certificates and privileges granted by the University of Jammu and Kashmir under the Jammu and Kashmir

University Act 1965 shall be good and valid as if conferred and granted by the University concerned under this Act.

(b) The Syndicates of the Divisions of the University of Jammu and Kashmir Constituted under the Jammu and Kashmir University Act 1955, shall

continue for purposes of subsection (2) of Section 55 of this Act for the period mentioned in the said subsection;

(c) Anything done, any action taken, any appointment made or order issued under the said Ordinance shall be deemed to have been done, taken,

made or issued under this Act;

Provided that if any appointment was made under the said Ordinance, subject to any condition, such appointment shall continue subject to that

condition under this Act,

(12) On the commencement of the Ordinance i. e. 591969 therefore the enquiry against the petitioner became extinct and could not also be

revived under the 1969 Act. Nor also could section 6 of the General Clauses Act be invoked as long as a different intention appeared from the

section 52 of the 1969 Ordinance and section 58 of 1969 Act, for that section applies only if a different intention does not appear from the

repealing Act. The report of enquiry made on 591969 by the Vice Chancellor and show cause notice issued by the Chancellor on 221269' as al o

the order of termination made by the University council on 7770' were all, therefore, untra vires and without, jurisdiction. Whether the University

council of the new University of Kashmir could independently take notice of the allegations brought against the petitioner by the erstwhile university

of Jammu and Kashmir and order institution of a fresh enquiry is a question which does not directly arise in this case and we refrain from making

any comments in that behalf.

(13) Assuming however that the enquiry could be continued by the successor university of Kashmir and that an order of termination could be

passed by it pursuant thereto, the questions that arise are whether the procedural safe guards provided in the statures were followed and whether

noncompliance with such statutes carries with it the infringement of any legal right vitiating the order of termination.

(14) Chapter IV of the University Statutes deals with the University teachers. The existing statutes in the chapter came into force from 221269

when the same were substituted for the Statutes appearing earlier in that behalf by a notification issued by the Chancellor under subsection 2 of

section 48 of the Kashmir and Jammu Universities Act 1969. Statute No. 24 provides as under:

(i) The University Council Syndicate of the University shall be entitled summarily to determine the engagement of a teacher on grounds of

misconduct, insubordination, inefficiency or unsatisfactory performance of duty in accordance with the provisions hereinafter set forth

(ii) The Vice Chancellor may, when he deem it necessary, suspend a teacher on grounds of misconduct, insubordination, inefficiency or

unsatisfactory performance of duty. When he suspends the teacher, he shall report it to the University Council/Syndicate at its next meeting.

(iii) The University Council/Syndicate shall investigate all matters reported to it by the ViceChancellor about the misconduct, insubordination,

inefficiency or unsatisfactory performance of duty of the teacher whether he has been suspended or not. The University Council/Syndicate may

appoint a Committee for the purpose. The teacher shall be notified, in writing of the charges against him and shall be given not less than three

week's time to submit his explanation in writing.

(15) The University Council/Syndicate or the Committee thereof may hear the teacher and take such evidence as it may consider necessary) The

University Council/Syndicate may determine the appointment of the teacher where it deems that the misconduct, insubordination, inefficiency or

unsatisfactory performance of duty of the teacher deserves to be dealt with in that manner, after it has considered the explanation and evidence, if

any and or the report of the Committee, if one has been appointed.

Statute No. 25 reads as follows:

''The appointment under Statute 24 shall not be determined by the University Council/Syndicate, except by a resolution stating the reasons for the

termination. Before a resolution under this clause is passed, the University Council/Syndicate shall give notice to the teacher of the proposal to

determine the engagement and not less than three week's time to make such representation as the teacher may like to make. Every resolution

terminating the service under this Statute shall be passed only after consideration of the representation, if any of the teacher.

The teacher whose services are terminated under this Statute shall be given not less than one month's notice from the date on which he is notified of

the resolution of the termination of service or not less than one month's salary in lieu of such notice

(16) Statute No. 24 clearly indicates that the basis responsibility for affording the right of hearing rested upon the University Council who could

either do it itself or entrust it to a Committee. In any case it was obligatory upon it to give notice to the petitioner of its proposal to determine his

engagement and to give three week's time to him to make the representation against such proposal and then to consider the representation, if any,

before the resolution of termination could be passed by it. This is what has not been done in the instant case. That being so, the impugned

resolution is clearly in violation of the relevant statutes.

(17) The question which then falls for determination is whether the nonobservance of the 1 statutes constitutes the infringement of any legal right

which may be enforced by a writ. Dwelling on this question, the learned counsel for the respondents argued that though the University was a

statutory body, the relations between it and its employees were purely those of a master and servant although their employment was governed by

the Act and the statutes made there under by the University. Accordingly, he further argued, no such employee could claim the relief for restoration

in service of the University from which he was dismissed even if such dismissal were wrongful in the sense that such statutes were not followed in

terminating his employment. On this account, therefore, according to him no relief could be given by this court to the petitioner in exercise of its

jurisdiction under section 103 of the State Constitution (Corresponding to Article 226 of the Indian Constitution) in as much as the relief claimed

by him was in substance on? for an order sectoring him to the service of the University from which he was dismissed and the remedy, if any, to the

petitioner was to claim damages by suit for wrongful termination of employment. A similar argument was advanced before their Lordships of the

Supreme Court in S R. Tewari Vs Dist. Board Agra (AIR 1964 SC 168 and their Lordships observed:

''Under the Common law the court will not ordinarily force an employer to retain the services of an employee whom he no longer wishes to

employ. But this rule is subject to certain wellrecognized exceptions. It is open to the Courts in an appropriate case to declare that a public servant

who is dismissed from service in contravention of Art. 311 continues to remain in service even though by so doing the State is in effect force to

continue to employ the servant whom it does not desire to employ. Similarly under the Industrial Law, Jurisdiction of the labour and industrial

tribunals to compel the employer to employ a worker, whom he does not desire to employ, is recognized. The courts are also invested with the

power to declare invalid the act of a statutory body, if by doing the act the body has acted in breach of mandatory obligation imposed by statute,

even if by making the declaration the body is compelled to do something which it does not desire to do.

(18) In the case of a statutory body, therefore, the restoration can be ordered by writ into its service of an employee dismissed by it if in doing so it

has acted in breach of a mandatory obligation. This decision was followed by the Supreme Court in one of its recent decisions in Indian Air Lines

Vs. Sukhdey. Raj (AIR 1971 SC 1828) in which the court laid down that the obligation or restriction must be statutory in nature in the sense that it

should be contained in the Act itself or in any . rule, regulation or byelaw made under the Act having the force of law as one affecting the Public or

some section of the Public imposed by some authority clothed with statutory powers ordering something to be done or not to be done and

accompanied by some sanction or penalty for its nonobservance. Accordingly on the facts of that case which was the case of an employee of the

Indian Air Lines it held that the case did not fall in this ; category in as much as it was in breach of the terms and conditions of employment

contained in the regulations and not of breach of statutory restrictions or obligation subject to which only the power of terminating the relationship

could be exercised.

(19) The reply to the question whether the violation of the University Statutes in the instant case constitutes the infringement of any legal right

depends, therefore, on whether or not the relevant statutes impose upon the university any statutory restriction or obligation which limits its power

of terminating the employment of teachers like the petitioner. For this purpose certain provisions of 1969 Act may usefully be referred. To begin

with section 51 may be noticed which provides as follows:

Continuance of the existing statutes and Regulations.

All the statutes and Regulations made under the Jammu and Kashmir University Act, 1965 and in force immediately before the commencement of

this Act, shall so far as may be consistent with the provisions of this Act continue to be in force in each University after the commencement of this

Act.

(20) Next comes section 48 which is to the following effect:

''Appointment of Special Officer until University Authorities duly constituted. (I) At any time after the passing of this ' Act and until such time as the

two Universities shall have been duly constituted or until such time as the Chancellor may desire a special officer shall be appointed by the

Chancellor for a University.

(2) Subject to the superintendence of the Vicechancellor, the Special Officer shall examine the Statutes and Regulations continued under section 51

of this Act and propose such modifications, alterations and additions therein as may be necessary to bring such Statutes and Regulations in.

conformity with the provisions of this Act. The Modifications alterations and additions proposed by the Special Officer shall, if approved by the

Chancellor be deemed to have been made by the competent authority under this Act and shall continue to be in force until altered or superseded

by the authority constituted under this Act.''

(21) Then comes sect ion 41 which is as under :

Statutes bow made (1) subject to the provisions of section 48 and 51 of this Act, the Statutes may be amended or repealed or added to by

Statutes made by the University council in the manner hereinafter appearing.

(2) The University council may of its own motion take into consideration the draft of any statutes submitted to it by one of its own manners ;

Provided that in any such case, before a Statute is passed, the opinion of the Syndicate or if the draft of such a Statute affects the powers, duties or

emoluments of any officer, teacher, authority or board, a report from the person or body concerned together with the opinion of the Syndicate shall

be taken into consideration by the University Council.

(3) The Syndicate of a University may propose to the University Council the draft of any Statute to be passed by the University Council such draft

shall be considered by the University Council at its next meeting. The University Council may approve such draft and pass the Statute, or may

reject, it or may return it to Syndicate for reconsideration either in whole or in part, together with any amendments which the University Council

may suggest, After any draft so returned has been further considered by the University Council, it shall again be presented to the University Council

with the report of the Syndicate and the University Council may then deal with the draft in such manner as it may think proper.

(4) (a) When the University Council has passed a Stature, it shall be submitted to the Chancellor who may assent to it or may withhold his assent

or may refer it back to the University Council for further consideration.

(b) If the University Council rejects the draft of a Statute proposed by the Syndicate the draft shall be submitted to the Chancellor who may refer it

back to the University Council for further consideration.

(c) A Statute passed by the University Council shall not become valid until assent thereto of chancellor is published in the Government Gazette.

(5) The Syndicate shall not propose the draft of any Statute or of any amendment of a statute.

(a) Affecting the statute powers or constitution of an authority of the University until such authority has been given an opportunity of expressing an

opinion upon the proposal. Any opinion so expressed shall be in writing and shall be considered by the University council and shall be submitted to

the Chancellor and

(b) Affecting the conditions of recognition and affiliation of constituent and affiliated colleges to the University concerned after consultation with the

Academic council concerned.

(22) Clearly by section 51 the previous Statutes of the University were continued and became a part of the Act. These statutes could be modified,

altered or added to during the transitional period by the Special Officer with the approval of the Chancellor under section 48 which carried such

modifications, alterations and additions to the Act itself. Thereafter these could be amended, repealed or added to under and in accordance with

the provisions of section 41 which again made such amendments and additions a part of the Act. The effect of these sections is that the Statutes

made before the repealing of the Act or those made during the transitional period or at any time thereafter became a part of the Act. The statutes

on which reliance has been placed are those which were introduced by the Special Officer with the approval of the Chancellor under section 48 of

the Act. These statutes must therefore be treated as part of the Act. That being so, an obligation or restriction contained therein must be treated as

contained in the Act and therefore, statutory in character. In that view any violation of these statutes must be construed as violation of the Statutory

obligation by the University entitling the petitioner to restoration in service by way of a writ.

(23) In view of our findings of the first two points urged in the petition we need not go into the question if the charges were made against the

petitioner malafide by M/s J. N. Bhan and Kb. NoorudDin or even into the question if the reasonable opportunity was afforded to the petitioner to

defend himself at the enquiry.

(24) Towards the end however the learned counsel for the respondents took up the position that the University was not an authority within the

meaning of the expression 'authority' under section 103 of the State Constitution (corresponding to Article 226 of the Indian Constitution) and

argued that no writ could therefore be issued against it, The expression 'authority' in Article 2£b is intended to be understood in the same sense in

which the expression 'State' has been defined in Article 12 of the Constitution. The said Article defined the State as meaning the Government and

Parliament of India and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the

Government of India Often the question has arisen whether a particular authority falls within the definition of the expression 'State'. It is not

necessary to go through all the decisions on this point as the point has been clinched through a string of decisions cf the Supreme Court which we

will presently refer to.

(25) In Smt. Ujjem Bai Vs. State of Uttar Pradesh (AIR 1962 SC 1621) the words 'other authorities' in Article 12 were explained thus .

Again, Article 12 winds up the list of authorities falling within the definition by referring to 'other authorities' within the territory of India which

canobviously be read as ejusdem generis with either the Government and the Legislature or local authorities. The words are of wide amplitude and

capable of comprehending every authority created under the Statute and functioning within the territory of India or under the Control of the

Government of India. There is no characterisation of the nature of the 'authority' in this residuary clause and consequently it must include every type

of authority set up under a statute for the purpose of administering laws enacted by the Parliament or by the State including those vested with the

duty to make decisions in order to implement those laws.

(26) In case Ramamurthy Reddiar Vs. The Chief Commissioner (AIR 1563 SC 1464) the court dealt with this question and observed:

Further, all local or other authorities within the territory of India include all authorities within the territory of India whether under the control of the

Government of India or the Government of various States and even autonomous authorities which may not be under the control of the Government

at all.''

(27) Both these decisions were noticed in a later case Electricity Board Rajasthan Vs. Mohan Lal (AIR 1967 SC 1857) in which the court was

concerned with the determination of the question whether the Rajasthan Electricity Board was an authority within the meaning of the Article ]2,

Speaking for the majority his Lordship Justice Bhargava observed :

These decisions of the court support our view that the expression of other authorities in Article 12 will include all constitutional or statutory

authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on

commercial activities. Under the Constitution, the State is itself envisaged as having the right to carry on trade or business as mentioned in Article

18 (I) (g) in Part IV, the State has been given the same meaning as in Art. 12 and one of Directive Principles Lald down in Art. 46 is that the State

shall promote with special care the educational and economic interest of the weaker Sections of the people. The State, as defined in Art. 12, is

thus comprehended to include bodies created for the purpose of promoting the educational end economic interests of the people. The State, as

constituted by cur Constitution, is further specifically empowered under Art. 298 to carry en any trade or business The circumstance that the

Board under the Electricity Supply Act is required to carry on some activities of the nature of 1 trade or commerce does not, therefore, give any

indication that the Board must be excluded from the scope of the word 'State' as used in Art. 12. On the other hard there are provisions in the

Electricity Supply Act which clearly show that the powers conferred on the Board include power to give directions, the disobedience of which is

punishable as a criminal offence. In these circumstances, we do not consider it at all necessary to examine the cases cited by Mr. Desai to urge

before us that the Board cannot be held to be en agent or instrument of the Government. The Board was clearly an authority to which the

provisions of part III of the Constitution were applicable.

(28) As observed in Pramodrai Vs. Life Insurance Corporation (AIR 1969 Bumbay 337).

''It is clear from the judgment of Mr. Justice Bhargava that the Supreme Court adopted the test formulated by Mr. Justice Ayyangar in Ujjam Bai's

case, (1963 OSCR 778, AIR 1962 SC 1621) and held that the Electricity Board was an authority within the meaning of Art. 12 It is not possible

to read the judgment to say that 'authority' includes any and every autonomous body merely because it is constituted by a Statute, whatever be its

functions and ''this could not be so. , The very fundamental conception of an authority is that there is in it power to command and compel its

obedience either by enforcing the same or by punishing disobedience. The Electricity Board had such powers while administering the law framed

by the Parliament and therefore, the court held that it fell within the meaning of Art. 12. If the court intended to hold that merely because it was

constituted under a Statute of the Parliament or of the State Legislature and thus it fell within Art 12, the subsequent discussion could not be

necessary.

(29) Applying this test, the question to be determined in this case is whether the University is an authority in the matter of administering the

University Act or in ether words whether it is required to implement the Act and make decisions there under which it may be able to enforce. For

this purpose it is necessary to notice certain provisions of the University Act, 1969. Section 5 provides for the functions and powers of the

University which are as follows:

Powers and functions of a University A University shall have the following powers and functions namely '

(1) To provide for instruction in such branch s of learning as the University may think fit and to make provisions for research and for the

advancement and dissemination of knowledge ;

(2) To hold examinations, to grant degrees to and to confer other academic distinctions on persons who :

(A) have pursued an approved course of study in the University or in a constituent or affiliated college or in any educational institution approved for

the purpose, unless exempted there from, as a very special case, by a decision of the University Council en the recommendation of the Academic

Council under conditions Lald down in the Statutes and Regulations ; or

(B) Are teachers in educational institution under conditions Lald down in the Statutes and Regulations and have passed the examinations of the

University under like conditions ; or

(C) Have carried on independent research under conditions Lald down in the Statute ; or

(D) Are women who have carried on private studies under conditions Lald down in the Statutes ;

(3) To confer honorary degrees or other distinctions on approved persons in the manner Lald down in the Statutes ;

(4) To grant such diplomas to and to provide such lectures and instructions for persons not being members of the University may determine.

(5) To institute professorships, readerships, lectureships and any other teaching posts required by the University ;

(6) To admit and maintain colleges, to recognize colleges and other institutions not maintained by the University and to withdraw such recognition ;

(7) To inspect constituent and affiliated colleges and other institutions and place approved by the University for the residence of students.

(8) To demand and receive payments of such fees and other charges as may be authorised by the Statutes and Regulations :

(9) To obtain loans in furtherance of the objects of the University.

(10) To supervise and control the residence and discipline of students of the University or of colleges and other institutions admitted or affiliated to

it and to make arrangements for promoting their health and genera! welfare ;

(11) To institute and award fellowships, exhibitions, prizes and medals in accordance with the Statutes and Regulations and

(12) To do such other acts and things whether incidental to the powers aforesaid or not as may be requisite in order to further the objects of the

University as a teaching affiliating or examining body and to cultivate and promote arts, science and other branches of learning ''

(30) These functions and powers are exercisable by it through various bodies and authorities specified in section 20. Of these the University

council is the supreme authority which is invested by section 22 with the sovereign power to make statutes and regulations under the Act and with

power to amend and repeal the same. Section 40 enumerates the matters with respects to which statutes may be made and includes such matters

as conditions for recognition and affiliation of colleges and other institutions to the University, the conditions under which students shall be admitted

to the examinations conducted by the University or be eligible for degrees, diplomas or certificates ; the conditions and mode of employment and

the duties of examiners and paper sectors, conduct of examinations, the admission of students to constituent and affiliated colleges and generally in

respect of all other matters which are required by the Act to be prescribed by the Statutesi Section 43 empowers it to make regulations in respect

of matters with regard to which statutes cannot be made under sec. 40. Obviously, therefore, the University is concerned with the implementation

of the Act and can enforce obedience to the Statutes and regulations made by refusing or withdrawing the affiliations of the colleges or by refusing

admission to the courses run by it or to the examinations conducted by it and in so many other ways as for example by expelling, rusticating and

disqualifying students guilty of misconduct or unfair means. In that view it can be legitimately regarded as an authority i. e. 'State' against which a

writ can issue. The decision in Aftab Ram and ethers Vs State of J&K (1970 KLJ page 92) cannot be construed as an authority against this view

because this court was concerned therewith the determination of the question whether Jammu and Kashmir Industries Ltd was an authority and

following the decision in AIR 1967 SC (1857) held that it was not an authority because it was neither a creature of Statute nor possessed of

powers under which it could give directions, the disobedience of which was punishable as a criminal offence.

(31) In the result we accept this petition and by a writ of certiorari quash the impugned resolution and by a writ of mandamus direct that the

petitioner be treated to be continuing in the service of the University of Kashmir with effect from the date his employment was terminated. The

petitioner shall also be entitled to his costs in the petition assessed at Rs. 300/