Tare G. J.-

In this petition under Articles 226 and 227 of the Constitu­tion of India, the petitioner, a former Principal of the Pt. Jawaharlal Nehru Science and Arts College, Bemetara, challenges the resolutions of the Govern­ing Body, dated 28-10-1971 (Petitioner's Annexures-L and N) terminating his services with effect from 21-8-1971. At this stage it may be relevant to reproduce the exact wording of the resolution, which is as follows:-

"Case of Shri Mudliar-The report of the Committee constituted on 7-10-1971 was circulated amongst the members present. Report perused. Shri Mudliar has left us with no option (except) to dispense with his services from 21-8-71, though he was afforded every possible opportunity to defend himself. It is, therefore, unanimously resolved to dispense with his services with effect from 21st August, 1971.

A copy of the resolution be sent to the University for approval and to Shri J.G. Mudliar. Necessary Steps be taken for recruitment of the Principal after receiving permission from the University with respect to the termination of Shri Mudliar."

2. The facts leading to the filing of the present writ petition lie within a narrow compass: They are as follows: On 2-7-1969 the petitioner joined as Principal of Pt. Jawaharlal Nehru Science and Arts College, Bemetara. By a resolution, dated 15-7-69 (Petitioner's Annexure-A) the petitioner was appointed Principal on probation for a period of two years with effect from 1-7-1969. As such, the probationary period was to end on 1-7-1971. A format -order in that behalf was passed on 31-7-1969 (Petitioner's Annexure-B) appoint­ing him on a pay-scale of Rs.850-25 950-30-1100, in addition to the dearness allowance admissible under the Rules applicable to the Government servants. The order also stated that the appointment was subject to the approval of the Executive Council of the Ravishankar University.

3. The petitioner applied for leave from 21-8-1971 to 31-8-1971. He did not join immediately, but resumed his duty on 25-9-1971. However, that leave was refused and by order, dated 11-10-1971 (Petitioner's Annexures-D and G), he was asked to deposit donations receipt-books and to render an account of the donations received. Thereafter a show-cause notice, dated 2-10-1971 (Petitioner's Annexure-E) was given to the petitioner to show cause as to why his services should not be dispensed with. The allegations made in the notice were that 'the petitioner failed to properly conduct; supervise and control the elections of Students Union, which ultimately was dissolved in both the years and the petitioner chose to nominate the members of the Union. As a result of dissolution of the Union and nominations, dissatisfaction spread amongst the students resulting in agitation. The members of the staff expressed resentment against the petitioner. An explanation was sought from the peti­tioner, bat he failed to offer any. In the current session also the petitioner was absent from the headquarter from the start of the academic session except for a week. The petitioner failed to give and maintain proper accounts of the donations and Lottery tickets. The petitioner did not join in proper time, even though leave was refused. The petitioner during that period was quite hale and hearty and he had deliberately avoided join his duty. As such, he had acted to the detriment of the interest and welfare of the Institution in the matter of management, disbursement of pay and other routine matters of management, including education.

4. In reply to the said show-cause notice, the petitioner sent a letter, dated 22-10-1971 (Petitioner's Annexure-F), wherein he acknowledged receipt of the show-cause notice. He made a demand for being furnished with copies of the record, including statements, if any, recorded, which formed the basis for framing of the charges against him. He also demanded a copy of the resolution of the Governing Body. The petitioner also sent another letter of the same date (Petitioner's Annexure-H) asserting that he was on duty and that he was not a Principal on refused leave. The petitioner also alleged that out of 500 donations lottery tickets, 476 tickets had been returned to the Secre­tary on 14-10-1971 and the remaining were yet to be collected. However, a second show-cause notice, dated 18-10-1971 (Petitioner's Annexure-I) was served on the petitioner to show cause as to why his services should not be dis­pensed with. A statement of allegations on which the charges were framed had already been finished O the petitioner in compliance with his demand. The notice also stated that if the petitioner did not rile his statement in reply to the charges, ex-pane proceeding would be taken against him.

5. In reply to the second show-cause notice, the petitioner sent a letter, dated 27-10-1971 (Petitioner's Annexure-J) stating that the enquiry may not be held ex pane and that he wanted to defend himself. Thereafter, the im­pugned resolutions (Petitioner's Annexure-L and N) were passedon28-10-1971.

6. Thereafter, on 29-10-1971, as per the letter, dated 29-10-1971 (Res­pondents' Annexure-VIII) the petitioner intimated the President of the Govern­ing Body that it will not be possible for him to carry on the work in the Insti­tution. Therefore, he requested the President to accept his resignation from that date, i.e. the 29th and the notice of period of one month up to 28-11-1971 might by treated as sick leave. As such, the petitioner no doubt requested the President to accept his-resignation with effect from 29-10-1971, but the same was to be operative from 28-11-1971 and the period of one month's notice was requested to be sanctioned as sick leave. However, by letter, dated 19-11-1971 (Petitioner's Annexure-O) he withdrew his resignation. Thus, the resignation was withdrawn before it became operative.

7. On these facts the parties have raised the following three questions for our consideration. The case was originally heard by a Division Bench of this Court, presided over by one of us, namely, P. K. Tare G. J. and Sen J., which by order, dated 13-2-1974, directed the case to be put up before the Full Bench as the questions involved were of sufficient importance and there are conflicting views expressed in some cases. Therefore, the entire case has come up before the Full Bench. The questions canvassed on behalf of the petitioner are: (i) that the College Code has the force of law and the petitioner's services could not be terminated witl-out the prior sanction of the Executive Council of the Ravishankar University; (ii) that the letter of resignation had, been withdrawn before it became operative. Although the Governing Body did not act on the letter of resignation, the respondents gave in their return taken the stand that action could as well be taken on the resignation submitted by the petitioner. According to the petitioner, this the Governing Body could not do.

8. On behalf of the respondents a question is raised that no writ can be issued to the Governing Body of a private Institution, which is merely a college affiliated to the University and the affairs of which are managed by the Govern­ing Body not according to the statutory Rules. We propose to consider these three questions.

9. Taking up the second question urged on behalf of the petitioner with respect to the resignation, it is clear that the resignation was to be operative from 28-11-1971. However, the petitioner withdrew the same by a letter dated 19-11-1971 (Petitioner's Annexure-O). Although in the letter of resig­nation it was requested that the same might be accepted from that date, it was to be operative from 28-11-1971 and the period of one month's notice was requested to be treated as sick leave. Therefore, we are unable to accept the contention of the learned counsel for the respondents that the resignation was to be effective from the date of its despatch on 29-10-1971. We may observe that it was a conditional resignation, the condition being grant of one month's sick leave in lieu of notice period. The respondents, therefore, could not have treated the resignation to be effective from 29-10-1971 by refusing sick leave. In this connection we might observe that in State of Punjab v. Amarsingh Harika AIR 1966 S C 1313, their Lordships have laid down that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned. An order of dismissal passed by an appropriate authority and kept on its file without communicating it to the officer concerned or other­wise publishing it would not take effect as from the date on which the order might actually have been written out by the said authority. Such an order could only be effective after it was communicated to the officer concerned or was otherwise published. Of course, this case is with respect to the operation of the order of dismissal. So far as the resignation is concerned, the matter was considered by their Lordships of the Supreme Court in Raj Kumar v. Union of India AIR 1969 S C 180. In that case the petitioner, a member of the Indian Administrative Service, asked the Government to relieve him from service. The Government accepted it. But before communication' of the order accepting his resignation reached him, he withdrew his offer of resignation, In those circumstances their Lordships made the following observations:

"A resignation becomes effective when it is accepted and the office is relieved of his duties. Where a resignation has not become effective and the officer wishes to withdraw it, it is open to the authority which accepted the resignation either to permit the officer to withdraw the resignation or to refuse the request for such withdrawal. Where, however, a resignation has become effective, the officer is no longer in Government service and acceptance of the request for withdrawal of resignation would amount to re-employing him in service after condoning the period of break."

Their Lordships distinguished the case of State of Punjab v. Amarsingh Harika (supra). Thus, their Lordships laid down that the resignation can always be withdrawn before it has started to become operative. Where the authority competent to accept the resignation accepts it before it has started to become operative, the discretion is with that authority either to permit the employee to withdraw it or not. The authority can certainly say that it will act on the resignation and will not permit the employee to withdraw it

10. To the same effect is the view expressed by a Division Bench of this Court in Bhairon Singh Vishwakarma v. Civil Surgeon, Narsimhapura 1970 M P L J 756, wherein it was held that the resignation would not be effective if withdrawn before it was accepted by the competent authority. The Division Bench followed the view as expressed by their Lordships of the Supreme Court in Rajkumar v. Union of India (supra) and the earlier pronouncement of their Lordships of the Supreme Court in Jai Ram v. Union of India AIR 1954 S C 584.

11. Applying the tests as laid down by their Lordships of the Supreme Court in the said cases, we may observe that it was open to the President of the Governing Body to have accepted the petitioner's resignation. But it was not accepted. On the other hand the Governing Body, instead of acting on the letter of resignation, purported to terminate the petitioner's services retros­pectively with effect from 21-8-1971. The reason given in the resolution was that there was no option left except to dispense with the services of the peti­tioner from 21-8-1971, though the petitioner was afforded every possible oppor­tunity to defend himself. As such, the Governing Body purported to act on the charges levelled against the petitioner and on that basis the petitioner's services were dispensed with. Although in the return an attempt is made to justify the order of termination of service, dated 28-10-1971 (Petitioner's Annexure-L and N), it is pertinent to note that the Governing Body never acted on the letter of resignation. This is clearly an afterthought. If the order impugned itself was not based on the acceptance of resignation, the respondents cannot be permitted to make out a new case in the present proceedings. They have to justify the impugned order on the grounds mentioned in the order itself. Moreover, the petitioner had already withdrawn the resignation before it became operative. As such, the resignation could be considered by the Govern­ing Body, but it was never done, and moreover, it was withdrawn before it started to become operative. Therefore, we would uphold the contention of the learned counsel for the petitioner that the impugned order cannot be justi­fied on the basis of the resignation submitted by the petitioner. The impugned order has to stand or fall on its own merits and legality.

12. Coming to the next question urged on behalf of the petitioner, we may take note of one fact that by the Madhya Pradesh Universities Laws Amendment Act, No. 8 of 1965, certain changes were made in the law relat­ing to Universities. It is necessary to examine the statutory provisions govern­ing the affiliated Colleges.

13. The M.P. Ravishankar University Act, 1963, came into force from 1-5-1954. Previous to that the matter was governed by the University of Sagar Act, 1946. However, even after the Ravishankar University Act, 1963, was brought into force, some matters were still governed by the Statutes and Ordi­nances passed under the University of Sagar Act, 1946. Section 2 (i) of the Ravishankar University Act, 1963S defined an 'Affiliated College' to mean an institution recognised by the University in accordance with the provisions of this Act and the Statutes for providing instructions at least up to the Bachelor's degree and which is a constituent College'. Section 2 (ii) of the Act defined the 'College' to mean 'an institution maintained by or admitted to the privileges of the University by or under the provisions of this Act and included an affiliated College a constituent College'. Section 2(iii) of the Act defined 'Constituent College' to mean 'a College which provides post-graduate teaching in four or more subjects or is a College for technical or professional education and which in addition satisfies conditions laid down in the Statutes in this behalf and has been declared by the Executive Council as a constituent College'.

14. It is not disputed that the Institution in which the petitioner worked College, Section 2 (vi) of the Act defined the word Principal' mean the head of a College and includes when there is no Principal, the r the time being duly appointed to act as Principal'. Section 4 (7) of the Act empowers the University to maintain Colleges, schools of studies and hostels to admit to its privileges, Colleges not maintained by the University :D withdraw all or any of those privileges, and to recognise hostels not main­tained by the University and to withdraw any such recognition in the manner prescribed in the Statutes or Ordinances'. Section 23 of the Act defined the powers of the Executive Council. We may reproduce the relevant provisions under which control can be exercised by the Executive Council over affiliated Colleges to some extent. The relevant provisions are as follows:-

"Section 23 (1).-Subject to such conditions as may be prescribed by or under the pro­visions of this Act, the Executive Council shall have the following powers and perform the following duties, namely:-

(viii) to admit Colleges the privileges of the University with the previous sanction of the State Government and subject to the provisions of this Act and the Statutes;

(xix) to arrange for and direct the inspection of affiliated Colleges, recognised insti­tutions and hostels, and to issue instruction for maintaining their efficiency and for ensuring proper conditions of employment for members of their staff, and payment of adequate salaries and in case of disregard of such instructions, to recommend to the Court, modifications of the conditions, of affiliation or recognition, or taking of such other steps as it deems necessary and proper in that behalf."

15. Section 35 of the Ravishankar University Act, 1963, prescribes the scope of the Statutes to provide for all or any of the following matters, namely: -;

(e)

(b)

(c)

(d)

(e)

(f)

(g)

(h)

(i)

(j) "the conditions under which colleges and other institutions may be admitted to the privileges of the University and the withdrawal of such privileges."

(n) the emoluments and terms and conditions of service of the officers and the emolu­ments and terms and conditions of service other than pay scales of teachers of the Univer­sity paid by the University."

16. As such, it is clear that the Ravi Shankar University Act, 1963, did not empower the authorities of the University to pass statutes and Ordinances regarding the relations between the affiliated colleges and their staff, How ever, the authorities constituted under the Act could certainly conditions for giving recognition to the affiliated colleges and, in our opinion, such conditions could include matters of fixing a standard of teaching as also for reemploy of the teachers and other staff. It is another matter as to what tjie effect' would be if such conditions were not to be followed by the affiliated colleges. That aspect we shall consider a little later.

17. At one point of time it was held by a Division Bench of this Court in Vedraj Bhawanidas, Dua v. Damoh Arts College and others 1961 M P L J 239, that the College Code was not a law and had no statutory basis. Therefore, it was held that it could not be availed of by teachers of the affiliated colleges against its Governing Body. Further it was held that a University cannot interfere with the affairs of an affiliated college except to the extent permitted by the Act which constituted it and the Statutes and Ordinances made in pursuance of the provisions of the Act. There was nothing in the University of Saugor Act, 19463 which authorised the University to provide for management of the affiliated colleges. The Division Bench laid down that the provisions of the College Code made under section 32 of the Act ought to be regarded merely as conditions prescribed for the continued extension of the privileges of the University to affiliated colleges and could not be availed of or enforced by the teachers of any affiliated college against its Governing Body. However, it was found that the College Code prescribing such conditions on which a college could be admitted to privileges of the University was not outside the scope of section 32 of the Act. That view was later on followed by another Division Bench of this Court in P.R. Jodh v. A.L. Pandey Miscellaneous Petition No. 236 of 1960, decided on the 28ft February 1962 (1962 M P L J Note 176.) also head-noted by the Madhya Pradesh Law Journal. However, the latter case was reversed by their Lordships of the Supreme Court in Prabhakar Ramkrisha Jodh v. A.L. Pande 1970 MPLJ 983-1965 JLJ 513. Their Lordships laid down that the College Code, Ordinance No. 20, framed under section 32 of the University of Act, 1946, had the force of law and that it conferred legal rights on the teachers of the affiliated colleges. In that view the teachers could enforce their rights as conferred by the College Code and it was wrong to say that the College Code merely regulated the relationship between the affiliated colleges and the University alone. The case of Vedraj Bhawanidas Dua v. Damoh Arts College (supra) was specifically over­ruled by their Lordships. Thus, the view expressed by this Court in the said two cases can no more be considered to be good law as it stands over-ruled by the pronouncement of their Lordships of the Supreme Court.

18. A Division Bench of this Court in Umashankar Shukla v. B.R. Anand 1968 M P L J 604, subsequently followed this view of their Lordships in Prabhakar Ramkrishna Jodh v. A.L. Pandy (supra) and subsequently, Bhave J. in Ravi Pandey v, Governing Body, Jakhaipur Arts and Science College, Takhatpur Second Appeal No. 376 of 1969, decided on the 25th July 1970 (1971 M P L J Note 124.), also head-noted by the Madhya Pradesh Law Journal held that a Principal of an affiliated college could sue the Governing Body for wrongful acceptance of his resigna­tion, which he had withdrawn before it became operative. The learned Judge also held that Ordinance No. 20, framed under the University of Saugor Act, 1946. and as adopted by the Ravishankar University Act, 1963, had the force of law and that all service contracts between an affiliated college and its teachers be 2. matter of private contract and teachers could enforce the provide Ordinance in the matter of his services because the Ordinance would have force. Therefore, after the pronouncement of their Lordships of at Supreme Court in Prabhakar Ramkrishna Jodh v. A.L. Pandey (supra) futile to contend that the Ordinance No. 20 of the Ravi Shankar University has no force of law. In our opinion, it would have the force F law and a teacher could certainly enforce his legal rights as granted by the Ordinance. The only question would be to what extent and in what the legal rights can be exercised,

19. In Vidya Ram Misra v. The Managing Committee, Shri Jai Narain College A 1 R 1972 S C 1450, their Lordships with reference to the provisions relating to the Lucknow University held that a lecturer appointed by the Managing Com­mittee of the College affiliated to Lucknow University would not hold any office of public employment of status, which would be capable of protection. Statute 151, framed under the Lucknow University Act, 1920, only provided the terms and conditions mentioned therein had to be incorporated in the contract to be entered into between the college and the lecturer concerned. It did not show that the terms and conditions had any legal force, until and they were embodied in the contract. Without the contract they had no vitality and could confer no legal rights on the teachers. We may observe that the provisions of the Lucknow University Act, 1920, and Statute 15 is framed there under were different and this case would be distinguishable for that reason. Ordinance No. 20, adopted by the Ravishankar University Act, does not make any provision in respect of services of teachers. But, It certainly provides a safeguard in favour of a, Principal whose services cannot be terminated except with the prior sanction of the University authorities. As such, Ordinance No. 20 confers a legal right on a Principal, which would certainly be enforceable. It is a different matter whether it can be enforced by a writ petition or by a regular Civil Suit.

20. In Vidhyadhar Pandey v. Vidyut Griha Siksha Samiti, Korba 1972 MPLJ 438, a, Divi­sion Bench of this Court laid down that in wrongful dismissal, which was not in breach of any statutory obligation, the employee could not seek reinstatement, but he could only claim damages sustained as a consequence of breach of contract. Therefore, an employee could not claim a declaration that his dismissal was wrongful and he should be deemed to be in service. With res­pect to the Madhya Pradesh Madhyamik Shiksha Adhiniyam No. 23 of 1965, and the Regulations framed there under, the Division Bench observed that there was no provision in the Act, which authorised the Board of Secondary Educa­tion to make any Regulations for regulating the conditions of service of teachers of private educational institutions. As such, Regulations Nbs. 71 and 79 had no statutory force and could not be given the status of Regulations framed under the Act. A teacher of a private Institution could not, therefore, seek to enforce those Regulations against the Institution. The case of Prabhakar Ramkrishna Jodh v. A.L. Pandey (Supra) was distinguished by the Division Bench on facts.

21. In Bhagwat Prasad Sao v. Ravishankar University, Raipur 3973 M P L J 158, a Division Bench of this Court held that a Principal of a private college appointed on a purely temporary basis can be terminated from service on one months notice. On 1-7-1968 the Governing Body terminated his services and the Ravi-Shankar University College Code came into force with effect from 29th November, 1968. Therefore, it was held that the petitioner had no enforceable legal right either under the College Code of the University of Saugor or under the Ravishankar University Act, 1963. The remedy of the petitioner was only by way of a suit for damages for breach of contract. The Supreme Court case of Prabhakar Ramkrishna Jodh v. A. L. Pande (Supra) was distinguished by the Division Bench.

22. We may refer to some earlier cases of this Court, namely, Gulabchand Gupta v. Hitkarini Sabha, Jabalpur 1963 M P L J 293, wherein the Division Bench laid down that unless the body or authority or person against whom a writ of Certiorari was sought for sending up his records for being quashed, had legal authority to determine the questions affecting the rights of subjects and was required to act judicially in that determination, a writ of Certiorari could not be issued for. quashing its decision or determination. The petitioner in that case claim­ed to be the life member of an Institution (Hitkarini Sabha), which was a registered Society under the Societies Registration Act. He moved the High Court for issuing the writ of Certiorari to quash the decision taken in a meet­ing of the Institution so that his rights and privileges should not be interfered with. The Division Bench laid down that no writ could be issued against the Institution because no duty was cast on the Institution to act in a particular manner. Merely because rules and' regulations were framed, the Institution could not become a judicial or quasi-judicial authority required to act judici­ally in the discharge of its functions. So far as this principle is concerned, it can admit of no doubt. However, we have to work out matters in the present case having in view the pronouncement of their Lordships of the Supreme Court in Prabhakar Ramkrishna Jodh v, A.L. Pandey (Supra). To the same effect was the view expressed by a Division Bench of this Court in Krishna Chandra Bajaram Gupta v. Registrar, Co-operative Societies and others 1963 M PL J 631.

23. However, it is necessary for us to take note of the two Full Bench decisions, one of this Court and the other of the Allahabad High Court. In Mahendrakumar Sharma v. Jiwaji University, Gwalior 1974 MPLJ 139 (FB), to which one of us, namely, P. K. Tare C. J. was a party, the facts were that the Executive Council of the Jiwaji University passed a resolution resolving to follow the Regulations and Ordinances of the Vikram University till the Regulations and Ordinances of their own University were finalized. The procedure prescribed in sections 38 and 39 of the Jiwaji University Act, 1963, was not followed and approval of the Chancellor was not obtained. Powers of the Executive Council under the two University Acts were also not identical. An employee of the University had been dismissed. He challenged his dismissal on the ground chat it was void because the requirements of a proper inquiry provided by Ordinance No. 18 of the Vikram University had not been complied with, especially when all the Regulations and Ordinances of the Vikram University were adopted by the Executive Council of the Jiwaji University. The Full Bench laid down that employment of the person concerned was purely con­tractual, which had no statutory basis and where the relationship is contractual, the dismissal of a servant without an inquiry would not be void. Therefore, the real distinction is whether the relationship is contractual or statutory. Where the relationship is statutory, a servant can certainly maintain an action and he can also invoke the prerogative powers of the High Court in the matter of enforcing his statutory rights. But where the matter is purely contractual, the remedy of the servant would be to file a suit for damages for a breach of the contract.

24. A Full Bench of the Allahabad High Court in Vaish College (Society) Shamli v. Sri Lakshmi Narain AIR 1974 AII 1. held that a contract of personal service could not be specifically enforced. Therefore, a declaration by a Court that the ruination of service had no effect and the servant still continued in service, could not ordinarily be made as that might amount to enforcing a contract But, where an employee has based his claim on breach f some statutory provision, which governed and regulated the conditions of his service, he would be entitled to a declaration that he still remains unaffect­ed and that he continued in service. In that event a reinstatement could be granted by the Court. With reference to the provisions of the Service Condi­tions of Lecturers in a private college affiliated to the Meerut University, it was held that the termination of service would only amount to a breach of the contract, which would be actionable for damages. The Full Bench followed the view as expressed in Prabhakar Ramkrishna Jodh v. A.L. Pande (Supra) and in Vidya Ram Misra v. The Managing Committee, Shri Jai Narain College.

25, Thus there can be no doubt that contractual rights and obligations would not be justifiable in exercise of prerogative powers, which could only be invoked for enforcement of statutory, constitutional or legal rights. If a public authority is required to act in a particular manner or in a judicial or quasi judicial manner, then only the prerogative powers could be invoked. The prerogative powers cannot be exercised for enforcement of contractual rights or obligations, nor can a writ be issued to private Institutions, which are not required to act in a particular manner or in a judicial or quasi-judicial manner. As such, there can be no doubt that a writ cannot be issued against the Governing Body of a private college affiliated to the University because it is not required to act in a particular manner or in a judicial or a quasi' judicial manner irrespective of the fact whether it has framed certain Rules or Regulations for guiding its activities. Such Rules and Regulations would have no statutory basis and if there be contractual rights and obligations, the same can be enforced by filing a suit and by invoking the prerogative powers of the High Court. It would only be the constitutional; statutory or legal rights which could be enforced in a writ petition. There can be no doubt about these propositions in view of the pronouncement of their Lordships of the Supreme Court in the cases mentioned above.

26. We may further advert to the pronouncement of their Lordships of the Supreme Court in Executive Committee of U. P. State Warehousing v. Chandra Kiran Tyagi AIR 1970 S C 1244, wherein their Lordships laid down that a contract of personal service was not specifically enforceable and there would be three exceptions to that proposition. A public servant, who is dismissed from service in contravention of Article 311 of the Constitution can claim his reinstatement. Secondly, reinstatement can be claimed by the industrial worker under the Industrial law and thirdly, if a statutory body, which is required to act in a particular manner or on a mandatory obligation, acts in breach of the same, such breach can be enforced by resort to the exercise of prerogative powers. Thus, according to their Lordships, subject to these three exceptions a contract of personal service would not be enforceable. To the same effect has been the view expressed by their Lordships of the Supreme Court in Indian Air Lines Corporation v. Sukhdeo Rai AIR 1971 S C 1828.

27. The position, however, would be different where a public body is required to act according to some statutory provisions, such as the case of a Municipality. Therefore, their Lordships of the Supreme Court in Sir Municipality by its President v. Cecelia Rom Francis Tellis AIR 1973 S C 855, said down that as the Municipality would be required to act according to the Rules, which imposed mandatory obligations, the dismissal of an employee could only be by a written order after recording written statements, which could have been tendered. Thus, the essential condition precedent for exercise of prerogative powers is a statutory obligation or a statutory duty, which must be mandatory. We may observe that if the power conferred be discretionary, in that event also resort to prerogative powers cannot be made. On these principles we have to judge the correctness or otherwise of the action taken against the petitioner in the present case.

28. We may also refer to some Division Bench cases of this Court in which conflicting views have been expressed. In Krishna Rao Bire v. Gurusingh Sabha, Raipur Miscellaneous Petition No. 257 of 1971, decided on the 25th October 1971 Miscellaneous Petition No. 257 of 1971, decided on the 25th October 1971, to which one of us, namely P.K. Tare, C. J. was a party along with T. P. Naik, J., the question was with reference to the provisions of the Madhya Pradesh Board of Higher Secondary Education Regulations, 1965, framed in exercise of the powers conferred by section 28 (4) of the Madhyamik Shiksha Adhiniyatn, 1965. The Division Bench laid down that the Regulations had a statutory force and they could be enforced by a resort to prerogative powers. The Division Bench followed the Supreme Court case of Prabhakar Ramkiishna Jodh v. A.L. Pande (supra). On facts the Division Bench found that the Regulations clearly provided that the Managing Com­mittee alone could terminate the services of a lecturer or a teacher and the Chairman acting in his personal capacity could not terminate the petitioner's services unless there was a proper resolution to be passed by the Managing Committee in that behalf. It was found that there was no resolution of the Managing Committee and, therefore, the termination order passed by the C hair man in his individual capacity had no legal effect. Thus, there was a statutory obligation placed on the Managing Committee to exercise the powers relating to termination of services of any employee and such power could not be exercised by the Chairman in his individual capacity. It was for that reason that the Division Bench quashed the order of termination of services. We may that there was no case of enforcement of any contractual obligations, but the matter related to the enforcement of statutory rights as per the Regu­lations framed under the Act.

29. However, a contrary view has been expressed by a Division Bench of this Court in Vidhyadhar Pande v. Vidyut Griha Sikshi Samiti and others and in Prasad Sao v. Ravishankar University, Raipur.

30. Earlier we have already referred to the case of Vidhydhar Pande v. Yidyut Griha Siksha Samiti and others (supra). In that case the Division Bench found that there was no provision in the Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1965, where under the Board of Secondary Education could make any Regulations for regulating the conditions of services of teachers of private educational Institutions. According to the Division Bench, Chapter XII of the Regulations framed by the Board and particularly, Regulations Nos. 71 and 79 had no statutory force and for that reason it coald not be given the status of Regulations framed under the Act. A teacher of private Institution could not, therefore, seek to enforce those Regulations against the Institution. The Divi­sion Bench distinguished the case of Rankrishna Jodh v. A.L. Pande (supra). The Division Bench doubted the correctness of the decision in Krishna Rao Bire v. Gurusingh Sabha, Raipur (supra). We may observe that if the Divi­sion Bench did not accept as correct the view of another Division Bench, the proper course was to refer the matter to a Full Bench and not to ignore the view of the Division Bench by airily observing that the correctness of the decision of another Division Ranch was open to question. It would certainly be open to question not before another Division Bench, but before a Full Bench In Krishna Rao Bire v. Gumsingh Sabha, Raipur (supra), the Division Bench found it is as a fact that the Regulations framed under the Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1965, had statutory force. This Division Bench in Vidhyadhar Pandt v. Vidyut Grih Siksha Samiti, Korba (supra), was of the view that the Regulations had no statutory force. In view of the pronouncement of their Lordships of the Supreme Court in the cases mentioned about. we are clearly of the opinion that the Regulations framed under the Madhya Pradesh Madhyamik Siksha Adhiniyam, 1965, have statutory force and they would be enforceable by a resort to prerogative powers of the High Court. It is not necessary for us to repeat all those reasons all over again. But, suffice it to say that the view expressed in Vidhyadhar Pande v. Vidyut Grih Siksha Samiti, Korba (supra] is not sustainable in view of the pronouncement of their Lordships of the Supreme Court in the case mentioned above and for that reason we would overrule the case of Vidhyadhar Pande v. Vidyut Griha Siksha Samiti,Korba (supra).

31. Similarly, we might advert to another Division Bench case of this Court in Bhagwat Prasad Sao v. Ravishankar University, Raipur. In this case the petitioner was a Principal of a private college affiliated to the University appointed temporarily. There was no contract in writing in the form pres­cribed as envisaged by clause 7(i). The Governing Body terminated his services on one month's notice in pursuance of the agreement. The Division Bench held that the safeguards contained in sub-clauses (a);(b) and (G) of clause 8(vi) of the College Code of the Ravishankar University formed part of the substan­tive provisions, which were qualified by the words 'any teacher confirmed in the services of the College'. As the petitioner was appointed as a Principal tem­porarily, the services being terminable on one month's notice or one month's pay in lieu thereof and as there was no contract in writing in the form prescribed in Schedule A, the petitioner could not be held to be governed by clause 8 (vi), but his case was governed by clause 7 and as such, the action of the Governing Body could not be challenged. It was further held that the Saugor University had no power under section 32 (h), as amended in 1965, to make any Ordinances Governing the conditions of service of a teacher in a private college, though affiliated to the University. As such, a teacher in a private college was not a teacher of the University, paid by the University within the meaning of section 32 (b) of the Saugor University Act, 1946. It was held that the College Code of the Ravishankar University in so far as it sought to regulate the conditions of services of teachers of affiliated colleges had no statutory force and any breach of the provisions of the Code by an affiliated college might result in withdrawal of affiliation and other consequences. The relations bet­ween the teachers and the affiliated colleges would be governed by the terms of the contract. We may observe that the said case is also distinguishable inasmuch as the Division Bench found that the petitioner's case was not govern­ed by clause 7, but clause 8 of the Ravishankar University Code. If the Divi­sion Bench had found that the case was governed by clause 8, the consequences might have been different. Under these circumstances the case would be distin­guishable on facts. On behalf of the petitioner four contentions were raised. The first one was that the termination of the petitioner's services was not with thefior approval of the Executive Council, as required under Statute No. 22 (3), framed by the University and, therefore, invalid. The second contention was that the University was in duty bound under clause 8 of the College Code to for the dispute to a Tribunal for arbitration. The third contention was that the Governing Body was not duly constituted and, therefore, the impugned solution was not legal in effect. The fourth contention was that the way in which the resolution was passed was not fair and just as the item was not on the agenda of the meeting. The Division Bench rejected all the four contentions urged on behalf of the petitioner. The other three questions do not arise for consideration before us in the present case. But the first question that had been posed before the said Division does arise for consideration. Therefore, we propose to consider that alone.

32. Statute No. 22 (3), framed under the Ravishankar University Act, 1963, is as follows: -

"Statute No. 22 (3).-(i) the appointment of the Principal and other members of the teaching staff shall be made after advertisement.

(ii) the Principal of a college should possess the qualification and be in receipt of salary not lower than that laid down by the State Government for Principals of the Government Colleges or corresponding status.

(iii) The appointment of the Principal in such college shall be made by tie Governing Body of a college after the approval of Executive Council is obtained.

(iv) The conditions of service including age of retirement of the Principal and teachers in colleges shall be prescribed in the Ordinances.

Provided that the Principal of a Law College shall have at least 15 years continuous teaching experience or practice at the Bar.

Explanation.-The period spent in judicial service shall be counted towards practice at the Bar.

(4) Every college shall be inspected from time to time but at least once every three years, by a committee appointed by the Academic Council, and the report of that committee shall be submitted to the Academic Council which shall forward the same to the Executive Council with its recommendations. The Executive Council after considering the report and the recom­mendations, if any, of the Academic Council shall forward a copy of the report to the Governing Body or the Government if the Council is maintained by Government with such comments, if any, as it may deem fit for suitable action.

(5) The Executive Council may, after consulting the Academic Council withdraw any privileges granted to a college if at any time it considers that the college is not fulfilling the requisite conditions.

Provided that before any privileges are so withdrawn, the Governing Body or the Government, if the college is maintained by the Government, shall be given an opportunity to represent to the Executive Council why such action should not be taken.

(6) The Ordinances may prescribe the procedure for the admission of colleges and institutions to the privileges of the University and for the withdrawal of those privileges."

33. It is to be noted that as per the Statute No. 22(3) (iii), the appoint­ment of a Principal is to be made by the Governing Body after the approval of the Executive Council is obtained. Sub-clause (4) of the said Statute also permits Ordinances to be framed with respect to the conditions of service, includ­ing the age of retirement of the Principal and teachers in colleges. It is to be noted that the word 'college' has been used without any qualifications. There­fore, the said Statute authorises the University to prescribe the service condi­tions of teachers in a private college as well. The College Cede would have the force of law, as laid down by fear Lordships of the Supreme Court in Prcbhakar Ramkriskna Jodh y. A.L. Pandey (supra] and if any service condi­tions be made, they will certainly have the force of law conferring a right on teachers or the Principal and consequently, the teachers or the Principal would be able to maintain an action by a resort to the prerogative powers of the High Court. In that Division Bench case section 32 (h) of the University of Saugor Act, 1946, did not empower the University to frame such Statutes or Ordinances. On this ground also the said Division Bench case will, in our opinion, be distinguishable.

34. We may also take note of the fact that the University Acts in the State were amended by the Madhya Pradesh University Laws (Amendment) Act, 1965 (Xo. 8 of 1965). However, the Amending Act did not make any change so far as the provisions relating to the Principal and teachers of private colleges were concerned.

35. On behalf of the respondents it was urged that no writ could be issued to the Governing Body and the only remedy of the petitioner was to file a suit, as laid down by their Lordships of the Supreme Court in Vidya Ram Misra v. The Managing Committee, Shri Jai Narain College and the earlier pro­nouncements of their Lordships in Indian Airlines Corporation v. Sukhdeo Rai†.. It was urged that the present case would not stand on the same footing as the case of a Municipal employee as per the pronounce­ment of their Lordships of the Supreme Court in Sirsi Municipality by its Presi­dent v. Cecelia Kom Francis Tellis. We may observe that the said cases would be distinguishable inasmuch as the relations between the University or the statutory Corporation were governed purely by the terms of the contract and there was no statutory provision in the enactments concerned governing such relationship. As laid down by their Lordships of the Supreme Court in Prabhakar Ramkrishna Jodh v. A.L. Pandey (supra), the College Code has the force of law and any provision relating to the relations between the University and Principal and teachers of the affiliated colleges would similarly have the force of law, which could be exercised by a resort to the prerogative powers of the High Court. In such cases at least it is not necessary for the Principal or the teachers of affiliated colleges to resort to the ordinary remedy of a Civil Suit. The specific provision made in the College Code, framed under the Ravishankar University Act, 1963, prescribes that no order of termination of service of a Principal passed by a Governing Body would be valid without the prior approval of the Executive Council. As this prevision has the force of law, it would be open to a Principal to enforce his statutory rights by a resort to the prerogative powers of the High Court. It is to b; noted that the appoint­ment and termination of service of a Principal is not purely a matter of con­tract, but it is an item of the College Code, which has the force of law.

36. In this view of the matter, we have no doubt that the present peti­tion is tenable in law and if the petitioner is found entitled to any relief, he ought to be granted that relief. For the sake of convenience we may reproduce Statute 22 (3) (i) and (ii) as amended, which would read as under:

"(i) The appointment of the Principal and Lecturers shall be made by the Governing Body of a College after advertisement and, with the prior approval of the Executive Council.

(ii) The termination of service of the Principal and other members of the teaching staff in such college shall be made by the Governing Body of a College after approval of Execu­tive Council is obtained."

In view of the amended Statute No. 22 (3), it is clear that no Governing Body of an affiliated College would have the power to terminate the services of a Principal or other members of the teaching staff without obtaining the prior approval of the Executive Council. It is true that by the order impugned (Petitioner's Annexure-L and N) the Governing Body had directed the resolu­tions to be sent to the University for approval. But inspite of that no such approval has been produced, nor was it suggested during arguments that such approval was granted by the University. Therefore, it is clear that the resolu­tions of the Governing Body would not be enforceable in law unless such approval from the Executive Council of the University were to be obtained. The approval would be a condition precedent to the enforceability of a resolution relating to termination of services of a Principal or a member of the teaching staff.

37. Earlier we have already decided the question that the Governing Body purported to take action on the basis of the charges. It is not our task to adjudicate on questions of fact. We may only observed that the Governing Body, which is a domestic Tribunal, clearly stated that the petitioner had been given ample opportunity to put up his defence, but he failed to do it inspire of opportunities. On account of this it is not possible to enter into an inquiry into the questions of fact. The Governing Body would certainly be free to enforce its resolutions subject to the statutory provisions made in the College Code.

38. As a result of the discussion aforesaid, this petition succeeds and is accordingly allowed. The orders impugned, dated 28-10-1971 (Petitioner's Annexure-L and N) purporting to terminate the petitioner's services are declared to be illegal and inoperative in the absence of prior approval of the Executive Council. However, it is further clarified that the Governing Body will be able to enforce the resolutions after obtaining the approval of the Executive Council of the Ravishankar University. In such a case we do not give any direction regarding reinstatement or otherwise. It is for the Govern­ing Body of the affiliated college to consider the matter in its proper perspective.

39. Consequently, this petition is allowed and after quashing the impugned orders, a writ of mandamus shall issue as directed above. However, under the circumstances, we do not think it proper to make any order as to costs, which shall be borne as incurred. The outstanding amount of the security deposit shall be refunded to the petitioner,

OPINION

Shiv Dayal J.-

I have had the benefit of perusing the order prepared may the Hon'ble the Chief Justice. I should record my reasons in my own words.

2. The petitioner, Jai Prakash Mudaliar, was appointed Principal of Pandit Jawaharlal Nehru Science and Arts College, Bemetara, district Durg. He assumed charge of his office on July 2, 1969. The appointment, was subject to the approval of the Executive of the Ravi Shankar University, Raipur. On July 15, 1969, its approval was accorded. In accordance with the recrimination of the Executive Council, the petitioner was appointed Principal on two years probation from the date of joining. On July is 1971, the petitioner completed two years period of probation.

3. By resolution dated October 28, 1971, the Governing Body of the College resolved to terminate the services of the petitioner with retrospective effect from August 21, 1971. The petitioner made a representation but it was rejected. He challenges the said resolution and termination of his services, inter alia, on the ground that prior approval of the University to which the College was affiliated was not obtained for the termination of his services.

4. The College is run and controlled by its Governing Body. The College is affiliated to Ravi Shankar University, Raipur.

5. The University is creation of the M.P. Ravi Shankar University Act., 1963, and is governed by the Act, and the Statutes and the Ordinances made tinder that Act.

6. Statute 22 (3) (iii) framed under the University Act, runs as follows :-

"The termination of service of the Principal and other members of the teaching staff in such Colleges shall be made by the Governing Body of a College after approval of Executive Council is obtained."

(Italics by me)

In the present case, the resolution, which was passed on October 28, 1971, was in these words:-

"Case of Shri Mudaliar- The report of the committee constituted1 on 7-10-1971 was circulated amongst the members present. Report perused. Shri Mudaliar has left us witted option (except) to dispense with his services from 21-8-71, though he was afforded every possible opportunity to defend himself. It is, therefore, unanimously resolved to dispense with his services with effect from 21st August 1971.

A copy of the resolution be sent to the University for approval and to Shri J.G. Mudaliar.

Necessary steps be taken for recruitment of the Principal after receiving permission from the University with respect to the termination of Shri Mudaliar."

7. The petitioner's contention is that the termination of his services without approval of the Executive Council of the University is without juris-diction.

8. The respondent, Governing Body, in its return inter alia denied that the petitioner completed his probationary period satisfactorily. Several facts are stated to show that the petitioner deliberately absented himself. It is con­tended that an enquiry had been held. As the petitioner did not file any reply to the show cause notice, the Governing Body considered the matter on 28-10-1971 and dispensed with his services. It is contended that prior appro­val of the University was not required. The Statute merely lays down the conditions for admission of a College to the privileges of the University so that the breach of any of the conditions is a matter between the University and the College, but it confers no legal right on the petitioner so as to entitle him to seek a writ. Furthermore, the Governing Body of the College is not a statu­tory body and is, therefore, not amenable to the writ jurisdiction of this Court. A preliminary objection was also raised by Shri Pandey that in any event since the petitioner tendered resignation on October 29, 1971, he cannot now approach this Court for a writ.

9. For the determination of this contention of the petitioner, the follow­ing question arise: -

(1) Whether Statute 22 (3) is ultra vires the Act?

(2) Whether Statute 22 (3) merely prescribes some of those conditions on the fulfillment of which a College can be admitted to the privileges of the University or it confers propriety vigor a legal right on the Principal to get it enforced.

(3) Whether the Governing Body in a statutory body within the third exception as laid down in S.R. Tiwari v. District Board, Agra AIR 1964 S C 1680-U964) 3 S C R 55, so as to be amenable to the jurisdiction of this Court under Article 226 of the Constitution.

(4) Whether the effect of tendering resignation is that the petitioner lost his right of seeking a writ from this Court against termination of his services?

(5) What is the effect of the impugned resolution and whether it is liable to be quashed?

10. It was contended by Shri Pandey that Statute No. 22 is invalid being beyond the power of the University. The attack is two-fold. The first limb of the contention is that the University has no power to make such a Statute. This contention cannot be accepted. The Ravi Shankar University, Raipur, is the creation of the Madhya Pradesh Ravi Shankar University Act, 1963 (No. 13 of 1963), and is governed by it.

11. Section 4 of the Act enumerates the powers of the University. Sub­section (7) reads thus:-

"The University, shall have the following powers, namely:-to maintain colleges, schools of studies and hostels, to admit to its privileges colleges not maintained by the University and to withdraw all or any of these privileges, and to recognise hostels not maintained by the University and to withdraw any such recognition in the manner prescribed in the Statutes or Ordinances."

(Italics by me)

Thus two kinds of Colleges are envisaged: (1) Those which are maintained the University, and (2) those which are admitted to the privileges of the University, Section 36 enacts that the first Statutes of the University shall be prepared by a committee to be constituted under section 41. Section 41 describes the constitution of the. Section 35 enumerates the matters which may be provided for in the Statutes. Sub-section (j) of section 35 runs thus:-

"the conditions under which colleges and other institutions may be admitted to the privileges of the University and the withdrawal of such privileges."

That the committee constituted under section 41 is empowered to make statutes -.ill provide for the conditions for admission of a College to the privileges of they.

12. In exercise of the above said powers, the Committee constituted under section 41 of the Act made the first statutes of the University in exercise of the powers conferred by section 36.

13. Thus it can clearly be seen that Statute No. 22 (3) contains provi­sions which apply to a College admitted to the privileges of the University within the meaning of section 35 (j) of the Act. It is not the petitioner's case that the Statutes were made by an authority which was not competent to make them. Section 4 (7) gives power to the University to admit a College to its privileges. And, clauses (13) and (24) of section 4 empowers the University to impose conditions for the management of the College and to ensure better discipline and better standard f education. In my opinion, Statute No. 22 falls within the ambit of these power.

14. The second limb of the contention is that the Legislature itself has no power to empower the University to make such a law for a private institu­tion, the teaching staff of which is not paid by the University. This conten­tion too is without force. The Legislature has empowered the University to admit to its privileges an institution or a College. It is for the College to ask the University to be admitted to its privileges or not. It is entirely an act of volition of a private institution or a College to apply to the University to be admitted to is privileges. Once a College seeks to be admitted to the privi­leges of the University and it has been so admitted, it is bound to comply with its Statutes.

15. I am further of the opinion that a Statute, which requires that a College, which has been admitted to its privileges by the University, should obtain a prior approval for the appointment of a Principal and for the termi­nation of his services, is quite reasonable and is consonant with the responsi­bilities of a University. The University can be a better judge of the com­petence and efficiency of a Principal. Thus the first contention must be rejected.

16 Second question:- On a perusal of the above provisions, there can be no doubt that Statute No. 22 (3) derives its source from section 35 (j) of the Act. That section empowers the making of a Statute, which will provide conditions under which Colleges and other institutions may be admitted to the privileges of the University and the withdrawal of such privileges. On that basis, the argument for the Governing Body before us was that the University may refuse to admit a College to its privileges if any of the condi­tions contained in Statute 22 (3) is not satisfied or may subsequently disaffiliate the College for breach of any such condition', but the Statute does not confer any legal right on the petitioner so as to entitled him to a writ. The argu­ment is that these conditions cannot, unless they are incorporated as conditions of service in an agreement between the parties, confer any legal right on the Principal. In answer, the petitioner argued that the conditions for admission „ of a College to the privileges of the University can themselves be enforced by

a person adversely affected as they confer legal right on him and strong reliance was placed on the decision in Prabhakar Ram Krishna Jodh v. A.L. Pande. In that case, Sheo Bhagwan Rameshwarlal Arts College, Bilaspur, was affiliat­ed to the Saugor University under the provisions of the University of Saugor Act, 1946, and was managed by the Governing Body established under clause 3 of the college code. clause 7 of the college code requires that all teachers of the Colleges shall be appointed under a written contract and para. 9 of the agreement was to contain the grounds specified in the Code on which service could be terminated. Their Lordships held as follows:-

"In our opinion, the provisions of Ordinance 20, otherwise called the 'College Code have the force of law. It confers legal rights on the teachers of the affiliated colleges ail it is not a correct proposition to say that the 'College Code merely regulates the leg relationship between the affiliated colleges and the University alone."

17. On a careful perusal of the entire Statute 22, I find that Shri Pande's contention is wholly misconceived. For better sunder standing of the Statute, it is necessary to reproduce it in toto:

"22 (1) Subject to the provisions of the Act, colleges and other institutions may admitted to such privileges of the University as the Executive Council may decide, on t following conditions, namely:-

(i) Every such college or institution shall have a regularly constituted Governt Body; Provided that this condition shall not apply in the case of colleges and institutes maintained or managed by the Government;

(ii) Every such college or institution shall satisfy the Executive Council on the folding points, namely:-

(a) there is a genuine need of such a college in locality and that the admission of the college will not adversely affect any college, which has already been admitted to the privileges of the University;

(b) the suitability and adequacy of its accommodation and equipment for teachers;

(c) the qualifications, adequacy of its teaching staff and conditions of their service;

(d) adequate provisions for the library and laboratory for the college;

(e) the arrangements, for the residence, welfare, discipline and supervision of its students; and

(f) such other matters as are essential for the maintenance of the standards of the University education as may be prescribed by the Ordinance;

(g) No college or institution shall be admitted to any privileges of the University except on the recommendation of the Academic Council made after considering the report of a committee of inspection appointed for the purpose by the Academic Council.

(a) The Governing Body of every college shall consist of not more than 11 members and seats shall be provided therein for-

(i) The Chairman of the society or the Foundation Society or the person maintain­ing the college (Ex Officio);

(ii) the Principal of the College (Ex Officio);

(in) two representatives of the teachers to be elected by the teachers of the college from amongst themselves;

(iv) two representatives of the University to be nominated by the Vice-Chancellor; (v) two persons appointed by the person or society or the foundation Society if any maintaining the college;

(vi) one nominee of the State Government;

(vii) not more than two representatives of the donors.

(b) Every Governing Body shall have the following office bearers:- (i) President,

(ii) Secretary,

(iii) Assistant Secretary, if necessary.

The Chairman of the Society or the foundation Society or the person maintaining the College and the Principal of the college shall respectively be the Ex officio Chairman and Ex officio Secretary of the Governing Body.

(c) The term of membership of the Governing Body as also the tenure of the office of the office-bearers shall be three years except that of the Ex officio members.

(d) Every change in membership and every change of President and/or Secretary of the Governing Body shall immediately be reported to the Registrar of the University under the signature of the President.;-..

(e) The Governing Body of the College shall be responsible for the general amnion of the college including-

(i) the Management and regulation of the finance, accounts and investments;

(ii) preparation of the budget;

(iii) institution of teaching and other posts;

(iv.) appointment of teachers and other servants to the college;

(v) maintenance of the college up to the standard required by the University.

(f) The Secretary of the Governing Body shall take immediate steps for filling vacancies on the Governing Body as and when they occur.

(g) Travelling allowance and Daily allowance of the nominees of the University shall be paid by the college concerned at the University rates.

(3) (i) The appointment of the Principal and Lecturers shall be made by the Governing Body of a college after advertisement and with the prior approval of the Executive Council.

(ii) The Principal of a college should possess the qualifications and be in receipt of salary not lower than that laid down by the State Government for Principals of the Govern­ment Colleges or corresponding status.

(iii) The termination of service of the Principal and other members of the teaching staff in such colleges shall be made by the Governing Body of a college after approval of s Executive Council is obtained.

(iv) The conditions of service including age of retirement of the Principal and teachers in colleges shall be prescribed in the Ordinance.

In Provided that the Principal of a law College shall have at least 15 years continuous in teaching experience or practice at the Bar. Explanation: The period spent in judicial service shall be counted towards practice at, the Bar.

(4) Every college shall be inspected from time to time but at least once every there 1 years, by a committee appointed by the Academic Council, and the report of that committee ' shall be submitted to the Academic Council which shall forward the same to the Executive Council with its recommendations. The Executive Council after considering the report and the recommendations, if any, of the Academic Council shall forward a copy of the report to the Governing Body or the Government if the council is maintained by Government, with such comments, if any, as it may deem fit for suitable action.

(5) The Executive Council may, after consulting the Academic Council withdraw any privileges granted to a college if at any time it considers that the college is not fulfilling the requisite conditions;

Provided that before any privileges are so withdrawn, the Governing Body or the Government, if the college is maintained by the Government, shall be given an opportunity to represent to the Executive Council why such action should not be taken.

(6) The Ordinances may prescribe the procedure for the admission of colleges and institutions to the privileges of the University and for the withdrawal of those privileges.

18. It can now be seen that Statute 22 contains clauses (1) to (6). It 2 is only clause (1), but no other, which lays down the conditions" enumerated V as (i), (ii) along with (a), (b), (c), (d), (e), (f) and (iii), on which a college may be admitted to the privileges of the University. They are required to Beth fulfilled before a College can be admitted to the privileges of the University. But clauses (2), (3), (4), (5) and (6) are not "conditions for admission to the se privileges". They are provisions of the Statute, which have their own force to and they apply to every College as soon as it is admitted to such privileges. A For example, under clause (1) (i) it is a condition for admission to privileges to that the College must have a regularly constituted Governing Body. If it has a. not, it is not eligible for being admitted to the privileges.

19. Turning now to clause (2), the Governing Body of every College h must consist of not more than 11 members and seats must be provided therein as enumerated in sub-clauses (a) (i) to (vii). Then clause (2) (b) enumerates the office bearers; sub-clause (c) prescribes the terms of membership of the Governing Body as also the tenure of the office bearers. Likewise, other sub-clauses (d), (e), (f) and (g) relate to the Governing Body.

20. Then corns clause (3) of that Statute 22, with which we are pre­cisely concerned. It relates to the appointment of Principals and teachers of Colleges, their conditions of service and the termination of services as also the 1 qualifications for appointment as Principals. This clause (3) is not part and parcel of clause (I) but is independent of it. In other words, clause (3) does not contain ''conditions" on the fulfillment of which a College can be admitted to the privileges. They deal with other allied matters. These provisions have their own force. Similarly clause (4) provides for inspection of Colleges; clause (5) empowers the Executive Council to withdraw any privileges granted to a College; and clause (c) provides for making Ordinances which prescribe the procedure for admission of a College to the privileges of the University and for the withdrawal of those privileges.

21. This analysis makes It abundantly clear that it is a misreading of claret of clause (1) of Statute 22. In that view of to seek support from Jodh's case (supra). From this it must -x: concluded that by virtue of Statute 22 (3) (iii), the so vices of a Principal of such a College cannot be terminated by the Body of the College before approval of the Executive Council is obtained. 22 Third Question:-Shri Pande's contention is that the Governing resent case is a private institution and is not a statutory body so-le to the writ jurisdiction of this Court. It is a celebrated role of law that specific performance of contract of service cannot be enforced. servant cannot be forced upon the master by a writ. A master can termi­nate a contract with his servant, at any time, and for any reason, or for no if the master rightfully ends the contract, there can be no complaint. If the master wrongfully ends the contract, then the servant can pursue a claim for damages for breach of contract. This rule is subject to three exceptions which were succinctly formulated by their Lordships in S,R. Tewari v. District Board, Agra as under:-

"(1) It is open to the Courts in an appropriate case, to declare that a public servant who is dismissed from service in contravention of Article 311 continues to remain in ser­vice, even though by so doing the State is in effect forced to continue to employ the servant whom it does not desire to employ.

(2) Similarly, under the industrial law jurisdiction of the labour and industrial tribunals to compel the employer to employ a worker, when he does not desire to employ, is recognised.

(3) The Courts are also invested with power to declare invalid the act of a statutory body, if by doing the act, the body has acted in breach of a mandatory obligation imposed by the statute, even if by making the declaration the body is compelled to do something which it does not desire to do."

(Numbered by me).

The first exception has no application here inasmuch as the petitioner is not a civil servant. The second exception is also irrelevant.

23. In order that the third exception to the above said general rule may apply, it is necessary that the order must be of a statutory body acting in breach of a mandatory obligation imposed by a Statute. Whether, in Jodh's case (supra), the S. B. R. Arts College, Bilaspur, was a statutory body or not, was not considered by the Supreme Court. Their Lordships refused to enter­tain the objection because it had not been raised before the High Court. But in Vidya Ram v. Managing Committee, Shri Jai Narain College5, the Governing Body succeeded on that question. In that case the College was affiliated to the University of Lucknow and was governed by the relevant Statutes and Ordinances framed under the provisions of the Lucknow University Act, 1920. Mr. Justice Mathew, speaking for the Court, held as follows:-

"The College, or the managing committee, in question is not a statutory body and so the argument of Mr. Staved that the case in hand will fall under the third exception can not be accepted."

There is nothing in the whole judgment to show that the College or the mana­ging committee was created by or was constituted under the requirements of a Statute, The observations quoted above, fortify this assumption. It will be necessary to see whether the Governing Body of the College in the present case is the creation of the Statute or was constituted under the requirements of the Statute. It was further pointed out by his Lordship in that case that Jodh's case was out of the way inasmuch as the Supreme Court expressly stated in the judgment that no such contention was raised in the Supreme Court and so it could not be allowed to be raised in the Supreme Court.

24. A statutory body is one which is the creation of an enactment or is constituted under the requirements of a statute. In the present case, the M. P. Ravi Shankar University Act, 1963, provides for making Statutes; and, Statute 22 (2) lays down the constitution and composition of the Governing Body of a College which is admitted to its privileges. Once a College is admit­ted to the privileges of the University under Statute 22 (1), its Governing Body must be constituted as required by Statute 22 (2), Therefore the Governing Body in the present case is a statutory body. It is nobody's case that the Governing Body of the College in the present case, was not so constituted.

25. Shri Pandey relies on Vidyadhar v. V.G, Siksha Samiti, Korba 1972 MPLJ 438. That case is clearly distinguishable inasmuch as in that case there was no breach of any statutory obligation, so that in the case of a wrongful dismissal, the remedy of the servant was by way of an action for damages. In the present case, as I have pointed out above, there is a statutory obligation not to termi­nate the services of a Principal before obtaining approval of the Executive Council of the University.

26. Shri Pandey has also relied on Bhagwat Prasad v. Ravi Shankar Uni­versity, Raipur 1973 M PLJ 158. The petitioner in that case was appointed Principal of a private College affiliated to the Ravi Shankar University in 1966 purely on temporary basis, the services being terminable with one month notice. The Governing Body of the Society running the College terminated the services of the petitioner on July 1, 1968, by a resolution. The petitioner made a repre­sentation to the University and the University declined to interfere, whereupon the petitioner invoked clause 8 of the College Code for a reference of the dis­pute to arbitration, but the University declined as the College Code of the Ravi Shankar University was made applicable from November 29, 1968, after the termination of the services of the petitioner. The petitioner in that case then made a petition under Article 226 of the Constitution. It was held that the conditions of service of the petitioner were not governed by the College Code and the petitioner had, therefore, no enforceable legal right; that the relationship between the petitioner and the society was purely that of master and servant; that the remedy of the petitioner was by a suit for damages for breach of contract, if any; and that it was not a case of a statutory body acting in breach of a statutory obligation. Shri Dharmadhikari contended that the above decision of this Court could not be said to lay down good law in view of their Lordships' pronouncement in Jodh's case (supra). In paragraph 10 of that decision, the Division Bench distinguished their Lordships' pronouncement In Prabhakar Ramkrishna Jodh v. A. L. Pande (supra). It appears from para­graph Q of the report of that decision that the amended Statute 22 (3) was not brougnt to the notice of the Division Bench, although it is printed in the Calendar of 1970-71, while the decision of the Division Bench is dated April 7, 1972.

27. That aside, I have pointed out that the respondent Governing Body before us is the creation of and is constituted under Statute 22 (2), which itself was made in exercise of the powers conferred by the M. P. Ravi Shankar University Act. The Governing Body is, therefore, under a statutory obligation to comply with the requirement of Statute 22 (3). In Sir Municipality v. C.K.F. Tellis AIR 1973 S C 855, Mr. Justice Ray (as his Lordship then was) classified the cases of dis­missal of servants under three broad heads and said about the third category as follows :-

"The third category of cases of master and servants arises in regard to the servant in the employment of the State or of other public or local authorities or bodies created under statute."

In that case, the Municipality was governed by an Act and the rules framed under the rule making power conferred by that Act. His Lordship, after review of the earlier cases decided by the Supreme Court U.P, State Warehousing Corpn. Ltd v. Chandra Kir an Tyagi AIR 1970 S C 1244 =(1970) 2 SCR 250, Indian Airlines Corporation v. Sukhdeo Rai AIR 1971 SC1828=(1971)2SC R 192, A.R. Tewari v. District Board, Agra; Life Insurance Corpn. of India v. Sunil Kumar Mukharjee AIR 1964 SC 847=(19S4) 5 SCR 528, Calcutta Dock Labour Board v. Jaffar Iman AIR 1966 S C 282=(1965) 3 S C R 463, and Mafatlal Naraindas Barot v. Divisional Controller, S.T.C. AIR 1966 S C 1364=(1966) 3 S C R 40] deduced the following result :-

"The dismissal of a servant by statutory bodies including local authorities or bodies in breach of the provisions of the statue or orders or schemes made under the statute which regulate the exercise of their power is invalid or ultra vires and the principle of pure master and servant Contractual relationship has no application to such cases."

His Lordship then referred to recent English decisions [Vine v. National Dock Labour Board, Barber v. Manchester Hospital Board (1958) 1 All E R 322, Ridge v. Baldwin 1964 A C 40, Mellocli v. Aberdeen Corpn.15 and NcClelland v. Northern Ireland General Health Services Board] and observed :-

''These decisions indicate that statutory provisions may limit the power of dismissal, Where such limitation is disregarded a dismissal may be held invalid."

28. I have shown from the provisions of the University Act and Sta­tute 22 (2) made there under that the Governing Body, in the present case, Is a "body created under the Statute". In my opinion, the third question must also be answered in the affirmative.

29. Fourth Question:-It was urged for the Governing Body that the petitioner had submitted his resignation so that it is no more open to him to make a grievance against the termination of his services on the ground that there was a breach of Statute 22 (3) (iii).

30. The facts are that the petitioner wrote a letter dated October 29, 1971, to the President of the Governing Body, in these words:-

"My respectful salutations to you. I am not keeping good health from 22nd October 1973 onwards due to bronchitis and high fever.

It will not be possible for me to carry on the work in your institution. Hence kindly accept my resignation from today the 29th instant and the notice period of one month upto 28-11-1971, till then sanction sick leave and oblige.''

It is plain enough that the resignation was to come into operation after the expiry of one month, the notice period and till then he sought sick leave. Thus, the resignation was to come into operation on November 28, 1971, but the petitioner withdrew it earlier on November 9, 1971. The law is settled in Raj Kumar v. Union of India AIR 1969 S C 180, where it has been observed as follows: -

"A resignation becomes effective when it is accepted and the officer is relieved of his duties where a resignation has not become effective and the officer wishes to withdraw it, it is open to the authority which accepted the resignation either to permit the officer to with­draw the resignation or refuse the request for such withdrawal. Where, however, & resigna­tion has become effective, the officer is no longer in Government service and acceptance of the request for withdrawal of resignation would amount to re-employing him in service after condoning the period of break."

In the present case, the resignation could not be accepted before November 285 1971 s because up to that date the petitioner had sought sick leave. It could be accepted or refused on or after November 28, 1971. Therefore, the peti­tioner had the right to withdraw it on November 9, 1971. Thus he did not forfeit his right to challenge the impugned resolution.

31. Fifth Question:- This brings me to the question to what relief the petitioner is entitled. The impugned resolution has been reproduced at the outset. Paragraph 2 of that resolution directs a copy of it to be sent to the University "for approval". In paragraph 3, the direction is that necessary steps for recruitment of the principal be taken "after receiving permission from the University with respect to the termination of Shri Mudaliar" (meaning, his services). The resolution cannot, therefore, be read as to mean that it was to be brought into effect before approval was accorded by the University. In other words, the resolution makes the termination of the petitioner's services contingent and subject to the approval of the University. That is precisely the requirement of Statute 22 (3) (iii). The effect of the restriction that ter­mination can be made after the approval of the executive council is that a ter­mination will not take effect before approval is accorded. On its true cons­truction, Statute No, 22 (3) (iii) imposes a restriction not on taking a decision to terminate the services of a Principal; but it is a bar to the implementation ®f such a decision. In other words, a decision to terminate the services of a Principal can be taken by the Governing Body. But such decision can be implemented only "after" the approval of the Executive Council. To inter it otherwise will lead to anomalous results. After all, the Governing Body has to express its decision by a resolution and it is only then that the approval can be sought from the University. In this view of the matter, I see nothing objectionable in the resolution itself. If the University accords its approvals the petitioner goes. If the approval is refused, he stays as Principal. There­fore, the implementation of the resolution depends on the approval of the University.

32. It is an argument that, on the analogy of dismissal services cannot be terminated with retrospective effect. In R. Jeevaratnam v. State Of Madras the impugned order was dated October 17, 1950, where by it was directed that the appellate be dismissed from service with effect from the date of suspension, that is to say, May K), 1949. Their Lordships expressed themselves thus:-

In substance, this order directed that (1) the appellant be dismissed, and (2) the dis­missal do operate retrospectively as from May 20, 1949. The two parts of this composite rabble. The first part of the order operates as a dismissal of the appellant as from October 17, 1950. The invalidity of the second part of the order, assuming this part to be invalid, does not affect the first part of the order. The order of dismissal as from October 1

". 1950 is valid and effective. The appellant has been lawfully dismissed, and he is not to claim that he is still in service."

33. In the present case, to judge the validity of the impugned resolution from that aspect, it can be read as a composite resolution containing three

It directs that the petitioner's service be terminated; (2) it directs that the termination will be subject to the approval of the Executive Council of the University; and (3) it directs that the termination will operate retros­pectively as from August 21, 1971. The three parts of this composite resolu­te severable. It has been shown above that there is nothing wrong in the first two parts of the resolution.

34. As regards the third part, there is a peculiarity about the present case. The petitioner has not been actually functioning as Principal as from August 21, 1971. According to the petitioner, his absence was justified; according to the Governing Body, not. The question is whether the services an employee, who has been absent from duty, cannot be terminated with retrospective effect, from the date on which the period of absence commenced. This is not a case where the master puts the servant under suspension. In case a Principal just absents himself from duty, whereupon the Governing Body decides terminate his services, it will necessarily take some time to pass a and to obtain approval of the Executive Council. Some time is bound to elapse between the date from which he has been absent and the date on which approval of the Executive Council is received. In such a case, two alternative actions can be envisaged, either (1) to terminate the services with retrospective effect from the date on which the period of absence commenced or (2) to terminate the services from the date of the resolution, or the date of approval, leaving it to the Principal find the Governing Body to settle the question whether the Principal is entitled to emoluments for the period anterior to it. In either case, the resolution cannot be struck down as a whole.

In my opinion, in view of all the facts and circumstances of this case, it will only be appropriate to leave the question about the petitioner's absence from August 21, 1971, to October 27, 1971, open for the parties to be determined in an appropriate proceeding.

35. It was faintly contended that the impugned resolution was passed without satisfying the requirements of natural justice inasmuch as adequate opportunity was not given to him to defend himself in the enquiry. There is no substance in this contention inasmuch as inspite of notice, the petitioner did not care to participate in the enquiry and allowed it to proceed ex pane.

36. Mandamus is a discretionary writ. It is the duty of the Court, while issuing a mandamus, to keep before it the whole picture of the matter. If we dismiss the petition on the ground that the resolution is ultra vires Statute 22 (3), the petitioner will remain in suspense indefinitely, for, it is not known when the University will decide whether to accord or to refuse its approval. On the other hand, if we direct the Governing Body to allow the petitioner to function as Principal, complications may arise if tomorrow the University accords its approval to the impugned resolution. It may now be mentioned that on the petitioner's application for stay, a Division Bench of this Court, on September 28, 1973, passed the following order:-

".........Shri Pandey on behalf of the said respondents states that although selection may be made, the now incumbent will not be confirmed till the final decision of the present writ petition."

And, on October 11, 1973, the following order was passed by the same Division Bench:-

The interim order dated 28-9-1973 is confirmed by directing that although Shri Upadhyaya has been selected as the Principal, he may function in an officiating capacity and he will not be confirmed till the final decision of the present writ petition." In The fact cannot be completely lost sight of that in the case of a private 197 College, it is primarily for the Governing Body to deal with its employees as be it pleases and the restriction imposed by the Statute seems to aim at protector ion to the Principal, when his continuation in service is in the interest of the for students for whom the College is established.

37. It is implicit in Statute 22 (3) (i) and (iii) that whenever a matter pet: is referred to it for approval, the University must take a decision and convey out it to the College. The University cannot just keep quiet and abstain from Un taking any decision. It is a matter of surprise that, in the present case, the state University has not entered appearance before us to say why it has not taken the any decision so far although about three years have elapsed. The University his is a statutory body and is bound to take a decision. There is no provision in to I the University Act or the Statute or Ordinances made under it, like the one which exists in some other enactments, that if approval or permission is not con accorded by the prescribed authority within the specified time and no decision the is taken within the further time, after attention is invited to its inaction, it mil will be deemed that approval" or permission, as the case may be, has been accorded, I am, therefore, of the view that the University must be compelled to take a decision one way or the other.

38. In the result, we direct that-

(1) A mandamus shall issue to the Ravi Shankar University, Raipur, to take a decision on the resolution dated October 28, 1971, passed by the Governing Body of Pandit Jawaharlal Nehru Science and Arts College Bemetara, and duly communicate it to the said Governing Body, within thirty days from today.

(2) Another mandamus shall issue to the Governing Body of the said. College to act upon its aforesaid resolution dated October 28, 1971, in accordance with the decision of the University to be rendered under the directions aforesaid.

(3) Parties shall bear their own costs.

OPINION

Malik J.-

I have had the advantage of reading the draft Judgments prepared by Hon'ble the Chief Justice and Hon'ble Justice Shiv Dayal. They have dealt with the matter very exhaustively, touching upon all the authorities bearing on the subject and I feel, I can add nothing useful to what has already been said. They have concurred in their opinion that the College Code framed under the Ravi Shankar University Act, 1963, governed the service conditions of a Principal of an affiliated College and that the Code had the force of law conferring upon him a right to maintain an action by resort to the prerogative powers of the High Court. They have exercised the relevant provisions of the Act which conferred powers on the University for making the Code and they have held that the was intra vires of the powers of the University. They have strongly relied on the authority of the Supreme Court reported in Prabhakar Ramkrishna Jodh v. A.L. Pande 1970 MPLJ 983= 1965 JLJ 513, to hold that the Code rd on the Principal of an affiliated College legal rights and that not regulate merely the relationship between affiliated College and the University.

2. In the present case the Governing Body of the affiliated College had terminated the services of the petitioner-Principal without obtaining the prior approval of the Executive Council of the University. Statute 22 (3)(i) and (ii) provide for appointment and termination of the service of the Principal. The appointment and termination both require the prior approval of the Executive Council. Whereas the letter terminating the Principal's service was forwarded to the University for approvals the University took no decision on it and the approval is yet awaited. Under the circumstances, the learned Chief Justice is of the view that the matter should be left to the Governing Body to con­sider termination of Principal's service in its proper perspective after the Body hears from the Executive Council. Reinstatement of the Principal was not possible since the approval of the Executive Council may very likely be received.

3. Hon'ble Shiv Dayal J. is of the opinion that the University must be compelled to take a decision one way or the other within the time to be specified by the Court. Almost three years have expired after the resolution terminating the Principal's services was passed, and conveyed to the University for approval. The period of inaction and waiting is definitely too long and exasperating. I am, therefore, Inclined to-agree with Hon'ble Shiv Dayal J. that it is a case of wrongful refusal to exercise jurisdiction or discretion which under (he circumstances would of amount to 6reacn of duty refreshable may an order of mandamus. Refusal to adjudicate or to exercise discretion can be inferred not by express words alone but also by such forms of conduct, as post­poning or adjourning consideration of the matter in a manner that is tant­amount to a refusal to decide it. Three years' long period can lead to no other conclusion than that of refusal to exercise discretion one way other. The body entrusted with the powers of decision is under a duty to exercise those powers within a reasonable time. Its inaction otherwise is redress able\ by mandamus.

4. I agree that the writ of mandamus be issued in the terms suggested by Hon'ble Shiv Dayal, J.

ORDER

By the Court:-

In accordance with the majority opinion we direct that:-

(1) A Mandamus shall issue to the Ravi Shankar University, Raipur to take a decision on the resolution, dated October 28, 1971, passed by the Governing Body of Pandit Jawaharlal Nehru Science and Arts College, 2 Bemetara, and duly communicate it to the said Governing Body, within thirty days from today.

(2) Another Mandamus shall issue to the Governing Body of the said College to act upon its aforesaid resolution, dated October 28, 1971, in accordance with the decision of the University to be rendered under the directions aforesaid.

(3) Parties shall bear their own costs.

Writ issued.