Harbans Singh, C.J:— This appeal under Clause 10 of the Letters Patent is directed against the decision of the learned Single Judge, dismissing Civil Writ No. 3352 of 1970, The facts necessary for the decision of this appeal may briefly be stated as follows:
Jaswinder Singh Toor appellant was appointed as a Sports Assistant in the Punjab Agricultural University (hereinafter referred to as the University). He joined this post on 23rd November, 1965. According to the terms of his appointment he was to be on probation for two years, which could be further extended but the total period was not to exceed three years. The Deputy Director, Students Welfare, under whom the appellant worked on 9th February, 1968, certified that the appellant had completed his period of Page: 200probation of two years satisfactorily on 22nd November, 1967 (afternoon) A copy of this certificate is Annexure ‘B’ at page 38 of the paper-book.
2. More than two and a half years later, i.e, on 15th October, 1970, the services of the appellant were terminated by the Vice-Chancellor with immediate effect giving him one month's pay in lieu of one months' notice required under the rules of the University and the terms and conditions of his appointment. The only ground given in this order (copy Annexure ‘C’ at page 39) for terminating the services was that this services were no longer required.
3. It may be stated here that under his letter of appointment inter alia the appellant was required to execute an agreement in the requisite form, which was enclosed to serve the University for a period of at least three years. The appellant challenged the above mentioned order of the Vice-Chancellor terminating his services by means of Civil Writ No. 3352 of 1970 which has been dismissed by the learned Single Judge.
4. Two points were mainly urged, first that the post, against which the appellant had been working, had been declared permanent before the date of the termination of his services and, consequently, his services could not be terminated, except in accordance with the procedure laid down in the Statutes of the University governings the terms and, conditions of the employees and, secondly, that the termination of his services was by way of punishment. Till February, 1970 there was a common Agricultural University having jurisdiction over the reorganised States of Punjab, Haryana and Himachal pradesh and the Union Territory of Chandigarh. This University was created by the Punjab Agricultural University Act, 1961. This University ceased to exist and a separate Punjab Agricultural University was formed. This was done by an Act of the Parliament, viz., The Haryana and Punjab Agricultural Universities Act, 1970. The relevant provisions of the two Acts were, however, identical and for the purpose of this appeal reference was made at the time of arguments and would be made in this judgment to the Act of 1961 (hereinafter referred to as the Act), and the Statutes and Regulations made thereunder which under the new Act continue to be operative unless altered.
5. It was not seriously disputed that in accordance with statute 19, Chapter VI, of the Punjab Agricultural University Act and Statutes 1967–1968 which deals with the terms and conditions of service of officers and other employees of the University, other than the teachers (and the same rules apply also to teachers), the University can terminate the service of an employee who is not yet confirmed by giving him one month's notice or paying him one month's salary in lieu thereof. This is provided in clause (3) of statute 19. There is a corresponding right given to the employees under clause (2) of the said statute to leave the service of the University by giving a similar notice after the expiry of the period of agreement. With regard to the permanent employee clause (4) runs as under:—
“A permanent employee after the expiry of the period of agreement, shall be required to give three months' notice in case he desires to be relieved, or he shall pay to the University three months' salary, in lieu of such notice, unless otherwise directed by the Board of Management.”
6. There is no corresponding right given to the University to terminate the service of a permanent employee by giving him three months' notice. The University can, however, under clause (1) of statute 19 terminate the service of an employee for various grounds detailed therein, including negligence in the discharge of the duty, misconduct, conviction in a Court of Law for Page: 201offence involving moral turpitude, etc. Statute 12 of Chapter VI provides various penalties, including that of dismissal and removal from service. Clause (iii) of this statute, however, provides as under:—
“No penalty of dismissal, removal or reduction shall be imposed unless the employee has been given a reasonable opportunity of showing causes against the action proposed to be taken in regard to him.”
7. In the present case, the admitted facts are that no such opportunity was given and the contention of the University is that the appellant being a temporary employee, it was not necessary to give him such an opportunity.
8. The main ground of the University in taking up the position that the appellant was still a temporary employee was that he was not working against a permanent post and, consequently, the question of his being treated as having been confirmed against any such vacancy, after the expiry of the period of probation, which, as already stated, in case of the employees of the University is fixed at two years and could not be extended beyond three years, did not arise. It is not denied that if the appellant was working against a permanent post, then, in view of the certificate given by the Deputy Director, Students Welfare, about the appellant having satisfactorily completing his period of probation and the appellant having continued in service for a number of years thereafter, he would be treated as a confirmed hand.
9. On the other hand, it was urged on behalf of the appellant that, under section 10 of the Act, the Board of Management (hereinafter referred to as the Board), which is the highest authority in respect of the management of the affairs of the University, is empowered to appoint officers, teachers and other employees of the University in the manner prescribed, and to regulate and determine all matters concerning the University in accordance with the Act and the Statutes (see sub-section (9), clauses (f) and (1); that Board had in its meeting dated 15th May, 1970, taken a decision, after considering the resolution of the Finance Committee, that all non-plan posts which were in existence in the year 1966–1967 and have continued thereafter should be made permanent and that this decision amounted to making all such posts, as were covered by the decision, permanent with effect from 15th May, 1970, when this decision was taken. It was urged that the subsequent acts, which were to be performed by the office to prepare such lists and by the Vice-Chancellor formally to declare these posts as permanent, were merely ministerial acts.
10. On behalf of the University a notification dated 4th September, 1971, was produced, which was in the following terms:—
“In pursuance of the decision taken by the Board of Management at their second meeting held on 15-5-1970 vide item No. B-30, the Vice-Chancellor of the Punjab Agricultural University is pleased to declare the posts shown in the Annexures I&II, as permanent.”
11. The post of the Sports Assistant was admittedly one of the posts shown in the Annexures, which were declared permanent. It was not even suggested that this post was not a non-plan post or that it did not exist in 1966–1967 and was not to continue thereafter.
12. The learned Single Judge has gone into this matter in detail and has reproduced the earlier resolution of the Finance Committee, etc., which were taken into consideration and a decision, as reproduced above, taken by the Board. The sole dispute is whether this decision of the Board takes effect from the date when it was passed or whether it was to take, effect on a subsequent date.
13. As already indicated, the contention of the appellant was that the Board, on which even the Vice-Chancellor sits, is the highest authority for the management of the affairs of the University and the decision taken by it Page: 202is final and that the subsequent acts are merely ministerial acts. He also stressed the point that even the notification produced in this Court, reproduced above does not fix any subsequent date from which those posts were to become permanent. Nor has it been stated therein that these posts will become permanent from the date of the notification. It was, therefore, contended that the notification was merely a ministerial order which had to be passed in pursuance of the decision taken by the Board and the notification says so. In view of the above, it was urged that the posts of the Sports Assistant became permanent with effect from 15th May, 1970, and, as the appellant was working against that post for nearly five years and had completed his period of probation satisfactorily, he stood confirmed against this post, and on the date on which his service was terminated, he was a confirmed hand.
14. As regards the second point, the contention of the learned counsel was that in the writ petition it was definitely averred (vide paragraph 11) that on 17/18th August, 1970, some posters appeared in the University Campus against one Shri T.S Sandhu, respondent No. 3; that suspicion fell on the petitioner as being responsible for these posters and for having distributed them and that the matters was referred by respondent No. 3 to the Deputy Director, Students' Welfare, respondent No. 4, under whom the petitioner was Working who, after making inquiries, found the petitioner innocent and the matter was dropped. These facts are admitted in the corresponding paragraph of the return filed by respondent No. 4. As regards the further allegation, that Mr. Sandhu was not satisfied and harbored a grudge against the petitioner, naturally respondent No. 4 could not give any reply and Mr. T.S Sandhu did not care to file an affidavit denying these allegations.
15. In paragraph 12 of the writ petition, another incident is referred to in which it is stated that a member of the vigilance Staff was caught red-handed inter alia by the petitioner and that this matter also proved an eye sore to Mr. T.S Sandhu. Then in paragraph 14 it is further stated that some posters appeared in the University against the Vice-Chancellor as well and that Mr. T.S Sandhu had poisoned the mind of the Vice-Chancellor by suggesting that the petitioner was connected with these posters.
16. The Registrar of the University, who alone filed a return on behalf of the University, in the corresponding paragraph of the return at page 41 of the paper book replied as under:—
“Paragraph 14 is admitted to the extent that the petitioner was suspected to be involved in the distribution of objectionable pamphlets.”
17. Now the contention of the learned counsel was that this suspicion against the petitioner was being admitted. The other part about Mr. T.S Sandhu poisoning the ears of the Vice-Chancellor could be refuted by Mr. T.S Sandhu by filing an affidavit which has not been done and that consequently, it should be taken as admitted or proved, that there was some suspicion in the mind of the authorities and that the termination of service of the petitioner was founded on the same. This contention was not accepted by the learned Single Judge.
18. The arguments of the learned counsel for the appellant on both these points are such as would require thoughtful consideration, rt is however, not necessary to go into these questions in detail or to give a finding as to whether the view taken by the learned Single Judge is legally correct or not, because of the view that we are taking of the preliminary objection that was raised on behalf of the University. The objection taken was that the University, was merely a corporate body and not a Government Department and even if it is held that the order of dismissal is illegal in the sense that the same has been passed without following the procedure laid down in the rules or regulations made by the University, that would not give Page: 203any jurisdiction to this Court to quash the order of dismissal or to declare that the petitioner-appellant continued in service. The relationship between the University and the petitioner was merely that of a master and a servant based contract of service and this Court will not pass an order which will have the effect of giving specific performance of a contract for personal service.
19. This contention was repelled by the learned Single Judge. The matter was argued at length before us and for the reasons that we shall detail, we find that there is a great deal of force in this contention on behalf of the University. This appeal has, therefore, to be dismissed on that short ground. The questions, whether the petitioner was temporary or stood confirmed and whether the order of termination of his service was by way of punishment and required the proper procedure to be followed or was otherwise wrongful, or in breach of the contract or the terms and conditions of employment, are, therefore, left open, and shall have to be decided, if and when the petitioner-appellant chooses to file a suit for damages for wrongful dismissal.
20. The question, as to the cases in which, on a finding being given that an order of dismissal is wrongful, a declaration of continuity of service can be ordered, was considered in a number of cases by their Lordships of the Supreme Court. We were taken through the judgment of their Lordships of the Supreme Court in Executive Committee of U.P State Warehousing Corporation v. Chandra Kiran Tyagi, 1969 Services Law Reporter 799. This was a case where the respondent had joined the service of U.P State Warehousing Corporation (hereinafter referred to as the Corporation) as a Technical Assistant in November, 1958. He was promoted as a Warehouseman and in 1962 he was confirmed in that post. Certain charges were framed against him and pending the enquiry he was placed under suspension. After the inquiry and in consequence thereof he was dismissed from service on 10th March, 1964. He filed a suit in which inter alias, he prayed for a declaration that the order dated 10th March, 1964, dismissing him from service was null and void and that he was entitled to be reinstated with full pay and other emoluments. The trial Court declined the relief for reinstatement with full pay and emoluments, but declared that the order of dismissal dated 10th March, 1964, was void and ineffective. On appeal, the plaintiff's cross-objections were accepted and his suit was decreed allowing him both the reliefs. The Corporation went up in second appeal to the Allahabad High Court, but the appeal was dismissed. The High Court agreed with the finding of the Courts below that the inquiry proceedings were vitiated and in violation of the principles of natural justice and that they were not in accordance with the Regulations framed under the Agricultural Produce (Development and Warehousing) Corporation Act, 1956. It was further held that these Rules and Regulations had statutory force and that as there had been a violation of Regulation No. 16(3), the plaintiff was entitled to the declaration for reinstatement.
21. After going through the facts of that case, their Lordships of the Supreme Court came to the conclusion that the termination of service was in violation of Regulation No. 16. The arguments were then addressed on the point whether the grant of relief of declaration by way of reinstatement could be given even if the order of dismissal was illegal as having been passed in violation of Regulation No. 16(3). It was then observed by their Lordships, that the “question as to when and under what circumstances a relief by way of declaration regarding continuity of service, after holding that an order of dismissal is void or ultra vires, can be given, has been considered both in England and here.” Their Lordships then discussed three English decisions, first being of the House of Lords in Vine v. National Dock Labour Board, (1956) 3 All E.R 939, the second of the Queen's Bench Division in Barber Page: 204v. Manchester Hospital Board, (1958) 1 All E.R 322 and the third of the Privy Council in Francis v. Municipal Counsillors etc., (1962) 3 All E.R 633.
22. In Vine's case the House of Lords came to the conclusion that dock workers were employed under a scheme set up under the Dock Workers (Regulation of Employment) Order, 1947, and it was found that the plaintiff was a registered dock worker employed in the reserve pool by the National Dock Labour Board. On the plaintiff failing to obey a valid order to report for work, the disciplinary committee set up by the local board to whom the National Dock Labour Board had delegated its power of disciplinary action, heard the case and terminated his employment. The House of Lords found that the order of dismissal was a nullity since the local board had no power to delegate its disciplinary functions. Their Lordships quoted with approval the following observations of Viscount Kilmuir, L.C at page 944 of the report:—
This is an entirely different situation from the ordinary master and servant case. There if the master wrongfully dismisses the servant, either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract. Here, the removal of the plaintiff's name from the register being, in law, a nullity, he continued to have right to be treated as a registered dock worker with all the benefits, which that status conferred on him.… … …”
23. So far as Barber's case is concerned, Barber was employed as a Medical Consultant in the hospital and the order terminating his employment was passed by the Regional Hospital Board. Barry, J.'s observations at page 331 were quoted with approval, which distinguished Vine's case (supra), by observing as follows:—
“… … … … … … … … There the plaintiff was working under a Board which had statutory powers, and, cleary in those circumstances, all the lords of appeal who dealt with the case in the House of Lords took the view that the case could not be dealt with as though it were an ordinary master and servant claim in which the rights of the parties were regulated solely by contract. Here despite the strong statutory flavour attaching to the plaintiff's contract, I have reached the conclusion that in essence it was an ordinary con tract between master and servant and nothing more.”
24. In Francis's case (supra), the Privy Council held that though the plaintiff had been wrongly dismissed, yet his remedy lay in claim for damages and he cannot be given the further declaration that he had a right to continue in employment notwithstanding the order of dismissal. Their Lordships of the Privy Council distinguished the facts that existed before the House of Lords in Vine's case.
25. After noticing these English decisions, their Lordships of the Supreme Court summed up the position in paragraph 20 (at page 807 of the report) as follows:—
“The law relating to master and servant is clear. A contract for personal service will not be enforced by an order for specific performance nor will it be open for a servant to refuse to accept the repudiation of a contract of service by his master and say that the contract has never been terminated. The remedy of the Page: 205employee is a claim for damages for wrongful dismissal or for breach of contract. This is the normal rule and that was applied in Barbar's case and Francis's case. But when a statutory status is given to an employee and there has been a violation of the provisions of the statute while terminating the services of such an employee, the latter will be eligible to get the relief of a declaration that the order is null and void and that he continues to be in service, as it will not then be a mere case of a master terminating the services of a servant. This was the position in vine's case.”
26. Their Lordships of the Supreme Court also considered a number of cases decided by the Supreme Court. These were Dr. S.B Dr S. Dutt v. University Of Delhi, 1959 S.C.R 1236, S.R Tewari v. District Board, Agra, (1964) 3 S.C.R 55 wad The Life Insurance Corporation of India v. Sunil Kumar Mukherjee, (1964) 5 S.C.R 528.
27. Dr. Dutt, who was a Professor of the University of Delhi, was dismissed from service by the University. Section 45 of the Delhi University Act provided that any dispute arising out of a contract between the University and any officer or teacher of the University shall, on the request of the officer or teacher concerned, be referred to a tribunal for arbitration. The matter was, consequently, referred to arbitration at the instance of Dr. Dutt, and inter alia, the award provided that Dr. Dutt was wrongfully dismissed, his dismissal was ultra vires, mala fide, and had no effect on his status, and that he still continued to be a Professor of the University. At the request of Dr. Dutt, the Court of Subordinate Judge at Delhi, after hearing various objections, made the award the rule of the Court. An appeal was filed before the District Judge, which was withdrawn by the High Court. It was held that although the word used in Section 45 of the Delhi University Act are “any dispute” such an award cannot deal with a claim for reinstatement, because this would amount to enforcement of a contract of personal service, which was forbidden by section 21 of the Specific Relief Act. This order of the High Court was upheld by the Supreme Court.
28. In S.R Tewari's case (supra), it was laid down that “under the common law the Court will not ordinarily force an employer to retain the services of an employee whom he no longer wishes to employ”. Three exceptions were, however, mentioned:—
(1) Cases covered by Article 311.
(2) Cases under the Industrial law where the Labour Court or the Industrial Tribunal can compel the employer to employ a worker against the wishes of the employer.
(3) “The Courts are also invested with the power to declare invalid the act of a statutory body, if by doing the act the body has acted in a breach of a mandatory obligation imposed by statute.”
29. S.R Tewari was an Engineer under the District Board, Agra. On facts, however, the dismissal of the appellant was considered to be proper and justified.
30. In the Warehousing Corporation's case on behalf of the respondent great stress was laid on the decision of the Supreme Court in The Life Insurance Corporation of India v. Sunil Kumar Mukherjee, (1964) 5 S.C.R 528 in which the Court had granted the declaration that the dismissal was void. In that case section 11(1) of the Life Insurance Corporation Act, 1956 (hereinafter referred to as the Insurance Act) provided that the employees of the Insurance Companies whose business had been taken over by the Life Insurance Corporation of India (hereinafter referred to as the L.I.C) were to continue as the employees of the L.I.C on the same terms and conditions as were applicable to them before the business was taken over. Page: 206Section 11(2) provided that the Central Government may alter these terms and conditions and those of the employees, to whom such altered terms and conditions were not acceptable, could leave the service and were to be paid compensation to be determined in the manner prescribed. The Central Government subsequently issued an order, which was referred to as the Blue Order, and by virtue of clause 10(a) & (b), the procedure that was to be adopted for terminating the service of such employee was laid down. Section 48 of the Insurance Act gave power to the Central Government to make Rules consistent with the provisions of the Insurance Act and for carrying out the purposes of the said Act. Section 49 gave power to the L.I.C to make Regulations, which were to be consistent with the Insurance Act and Rules made by the Central Government. Inter alia these Regulations made provision for the procedure to be adopted for the termination of the services of its employees, which was inconsistent with sub-clauses (a) and (b) of clause 10 of the Blue Order issued by the Central Government earlier. The Supreme Court held that the employees to whom section 11 of the. Insurance Act applied were given under sub-section (1) statutory protection qua their terms and conditions. These could be altered only by the Central Government under sub-section (2) of section 11. Therefore, sub-clauses (a) and (b) of clause 10 of the Blue Order were issued by the Central Government under sub-section (2) of section 11 of the Insurance Act and were as effective as Rules made by the Central Government under section 48 and that the Regulations under section 49 must necessarily be subject to the provisions of sub-clauses (a) and (b) of clause 10 of the Blue Order and consequently, the termination of service was not in accordance with clause 10(a) & (b), and in view of the fact that clause 10 had not been complied with, the order terminating the service of the employees was invalid.
31. Referring to the decision in the Life Insurance Corporation of India's case, their Lordships of the Supreme Court in Warehousing Corpora-ration's case observed as follows:—
“… … … … … … … Therefore, it was not as if that the employees were there seaking to enforce a contract of personal service, but their grievance which was accepted by the court, was that the order terminating their services was a nullity as it had not been effected in terms of the statute.”
32. After considering the decisions in the various eases, mentioned above, as regards the case in hand, i.e, Warehousing Corporation's case, their Lordships concluded as follows at page 812 of the report:—
“As pointed out by us, the regulations are made under the power reserved to the Corporation under section 54 of the Act. No doubt they laid down the terms and conditions of relationship between the corporation and its employees. An order made in breach of the regulations would be contrary to such terms and conditions, what would not be in breach of any statutory obligation, as was the position which this Court had to deal with in the Life Insurance Corporation case. In the instant case, a breach has been committed by the appellant of regulation 16(3) when passing the said order of dismissal inasmuch as the procedure indicated therein has not been followed. The act does not guarantee any statutory status to the respondent, nor does't impose any obligation on the appellant in such matters. …
It is not in dispute that, in this case, the authority who can pass an order of dismissal has passed the same. Under those circumstances a violation of regulation 16(3), as alleged and Page: 207established in this case, can only result in the order of dismissal being held to be wrongful and, in consequence, making the appellant liable for damages.”
33. The decision of the Allahabad High Court was, consequently, reversed, so far as it declared that the order of dismissal was null and void and that the respondent continued to be in service of the appellant.
34. This question has since been considered again very recently by the Supreme Court in Indian Airlines Corporation v. Sukhdeo Rai†., (1971) 2 SCC 192 : A.I.R 1971 S.C 1828. In this case, judgment of the Court was delivered, by Shelat, J., who was a party to the decision in Warehousing Corporation's case noted above. The respondent Sukhdeo Raj was an employee of Airways (India) Ltd. which was taken over by Indian Airlines Corporation (hereinafter referred to as the I.A.C) on the passing of the Air Corporation Act, 27 of 1953 (hereinafter referred to as the Corporation Act). Section 40 of the Corporation Act provided that the employees of the existing air companies, including the Airways (India) Ltd., whose undertakings were taken over by the I.A.C became the employees of the I.A.C This section also ensured that these employees would be governed by the same terms and conditions of service by which they were governed immediately before the date on which the undertaking was taken over until the I.A.C altered those terms and conditions by Regulations which they were empowered to make under section 45 of the Corporation Act. Such Regulations were made by the I.A.C The respondent was dismissed by an order of the I.A.C dated 6th February, 1956.
35. The respondent filed a suit alleging that the inquiry had not been conducted in accordance with the procedure laid down by the Regulations, mentioned above, and, therefore, the dismissal was wrongful and void. The trial Court granted a declaration that his service continued as the order dismissing him was null and void. The decree was upheld by the first appellate court and in the High Court it was conceded that the Regulations which applied to the respondent's case were not fully complied with, but it was contended that the respondent was entitled only to damages and not a declaration. The High Court, however rejected this contention and the I.A.C came up in appeal to the Supreme Court. After reviewing the various provisions of the Corporation Act, their Lordships of the Supreme Court held—
(1) that section 8(1) authorises the I.A.C to appoint officers and other employees;
(2) that under section 8(2) the I.A.C is empowered, subject to section 20, to lay down the terms and conditions of service in such officers and employees; and
(3) that by virtue of section 20 the officers and employees of the existing air companies, whose undertakings were taken over by the I.A.C, would become the employees of the I.A.C, and they will be governed by the same terms and conditions of service as were applicable to them earlier until the I.A.C alters those terms and conditions.
36. It was then observed (at page 1831 of the report), as follows:—
— — — — — — — — Indeed, the power of the Corporation to terminate the employment of its officers and other employees was nowhere disputed; the only dispute raised was as to the manner in which it could be exercised. It is necessary to observe in this connection that neither the Act nor the rules made under section 44 by the Central Government lay down any obligation or restriction as to the power of Page: 208the Corporation to terminate the employment of its employees or any procedural safeguards, subject to which only, such power could be exercised. The reason is that under the scheme of the Act such procedural safeguards and other terms and conditions of service were to be provided for in the regulations made by the Corporation under section 45.”
37. Their Lordships then discussed the various decided cases, including Warehousing Corporation's case, Sunil Kumars'a case and S.R Tewari's case, mentioned above.
38. While considering the decision in Dr. Gupta v. Nathu, A.I.R 1963 S.C 274, where the Court was dealing with a bye-law made by the Central Government under the powers conferred on it by the Forward Contracts (Regulation) Act, 1952, which compulsorily amended the bye-laws of the association recognised under the Act, it was noted that the bye-law in question was not limited to the members of the association but all those who entered into forward contracts and were governed by its bye-laws. Their Lordships then remarked in paragraph 12 at page 1833 of the report as follows:—
“— — — — — But all rules and regulations made by authorities in pursuance of a power under a statute do not necessarily have the force of law. In Kruse v. Johnson, (1898) 2 QB 91 at page 96 while considering the validity of a bye-law made by a county council, Lord Russell described a bye-law having the force of law as one affecting the public or some section of the public, imposed by some authority clothed with statutory powers ordering something to be done or not to be done and accompanied by some sanction or penalty for its non-observance. If validly made such a bye-law has the force of law within the sphere of its legitimate operation. The function of such bye-laws is to supplement the general law by which the legislature delegates its own power to make them.” Accepting the contention of I.A.C, their Lordships then finally observed at page 1834 as follows:—
“— — — — The regulations contain the terms and conditions which govern the relationship between the Corporation and its employees. Though made under the power conferred by the statute, they merely embody the terms and conditions of service in the Corporation but do not constitute a statutory restriction as to the kind of contracts which the Corporation can make with it servants or the grounds on which it can terminate them. That being so, and the Corporation having undoubtedly the power to dismiss its employees, the dismissal of the respondent was with jurisdiction, and although it was wrongful in the sense of its being in breach of the terms and conditions which governed the relationship between the Corporation and the respondent it did subsist. The present case, therefore, did not fall under any of the three well recognized exceptions, and, therefore, the respondent was only entitled to damages andfnot to the declaration that this dismissal was null and void.”
39. These observations fully cover the present case. The contention of the learned counsel for the appellant is that section 26 of the Act specifically provides that the University may prescribe inter alia the conditions of service of all the employees by statutes. Section 29 of the Act relates to the question as to how the statutes are to be issued. It runs as follows:
“Subject to the provisions of this Act, the Statutes may provide for any matter and shall, in particular, provide for the follows:—
— — —”
40. Then it details a number of specific matter which all relates to the internal management of the University affairs, for example (a) relates to the constitution, powers and duties of the authorities of the University, (b) to the election appointment and continuance in office of the members of the authorities of the University and of the officers, teachers and other employees of the University, etc. Then clause (q) is one which relates to “the number qualifications, emoluments and other conditions of service of officers, teachers and other employees of the University and the preparation and the maintenance of record of their services and activities.”
41. These Statutes, which are, in fact, in the form of regulations, can be made by the Board. The authorities of the University are detailed in section 8 of the Act, the highest authority is the Board then comes Academic Council and thereafter Board of studies, and then it is stated that the other authorities would be such as may be declared by the Statutes to be authorities of the University.
42. Section 10 of the Act gives the constitution, powers and duties of the Board, which includes the Vice-Chancellor of the University, the Chief Secretary to the Government of Punjab, the Secretary to Government of Punjab, Agriculture Department, three persons, not being officials, to be appointed by the Government of Punjab, etc.
43. Section 31 of the Act relates to Regulations and says as follows:—
“(1) Any authority of the University may make regulations consistent with this Act and the Statutes:
44. The purposes detailed therein are those which relate to the procedure or matters of detail concerning the various University Authurities, including the Academic Council and the Board. By sub-section (5) of section 31, the Board is given the power to amend or annul any of the regulations made under sub-section (1), which relates to the question of laying down the procedure to be observed at the meetings are providing for all matters which by the Act and the Statutes are to be provided by the Regulations and for providing for any other matter solely concerning the authority and not provided for by the Act and the Statutes.
45. The argument of the learned counsel was that inasmuch as the conditions of service of the employees are directed, to be prescribed by statutes, under section 26 of the Act, consequently, any rule made by the Board laying down such conditions of service would also take the colour of the Statutes itself and therefore, once a statute has been made by the Board under section 29 in compliance with the provisions of section 26 of the Act, it shall be as good as the Act itself. In the words of the learned counsel himself, the argument was put as follows:—
“The Statutes having been made according to the mandate of the Legislature (sections 26 and 29 of the Act), the terms and conditions laid down in the Statutes become part of the Act and any violation of the same would render the Order void being against the mandate of the Act.”
46. The learned counsel conceded that the mere fact that Regulations which are to be made by the Board are called “statutes” would not make much difference, because in the other Universities such Regulations are called ‘Ordinances’ or by such other names. In essence all that section 29 provides is that the University may frame Regulations with regard to important matters Page: 210which would be called “Statutes” and these must, of course, be subject to the provisions of the Act. The other authorities of the University are also given powers under section 31 of the Act to make their own bye-laws for carrying out their work and these are called Regulations. These bye-laws have necessarily to be in accordance with and not opposed to the provisions of the Act or the Statutes made by the University. By no stretch of imagination, these Regulations, called “Statutes” though made under the powers given to the University under section 26 or 29 of the Act, would get the status of statutory: rules (which are promulgated by the State or the Central Government by virtue of the delegated legislation) or otherwise, would become part of the Act. In this respect the observations of their Lordships of the Supreme Court, which’ have been quoted above from paragraph 12 of the judgment in Indian Airlines Corporation v. Sukhdeo Rai†., (1971) 2 SCC 192 : A.I.R 1971 S.C 1828, are relevant. Their Lordships observed “all rules and regulations made by authorities in pursuance of a power under a statute do not necessarily have the force of law.” If we apply the test laid down their, then it is clear that the “Statutes” under section 29 or the ‘Regulations’ under section 31 only control the-relations between the University on the one hand and its constituent ‘authorities’ or its employees on the other. These ‘Statutes’ in no way affect anyone outside the sphere of the University and the function of these ‘Statutes’ is not to supplement the ‘general law’ and, as we have already stated, the observations relating to the regulations made under section 45 of the Air Corporation Act, 1953, fully apply to the ‘Statutes’ made under section 29 of the Act, and the mere fact, that either section 26 or clause (q) of section 29 of the Act specifically provide that the University may, by Statutes, regulate the conditions of service of all its employees would not make such conditions of service, laid down in the Statutes, as giving the employees either a statutory status or protection. Consequently, the case cannot fall under the third exception to the general rule that normally speaking the Courts will not, give a declaration which will have the effect of giving specific performance of a contract of personal service. Some stress was laid on the provisions of section 30 of the Act. This relates to the manner in which the Statutes are to be made. Sub-section (1) provided as follows:—
“The first statutes with regard to matters set out in clauses (a) to (1) of section 29 shall be made by the State Government and a copy thereof shall be laid before each House of the State Legislature for fourteen days, and they shall be subject to such additions and alterations as may be agreed to by both the Houses but without prejudice to the validity of anything previously done thereunder.”
47. Sub-section (2) of section 30 of the Act runs as under:—
“The Board may from time to time thereafter make new or additional Statutes and may amend or repeal the Statutes in the manner hereinafter in this section provided.”
48. Stress was laid on the fact, that the first Statutes were not only to be made by the State Government, but they had to be laid before each House of the Legislature for 14 days and could be amended as may be agreed by the Houses. It was urged that, at least, the first Statutes, which were prepared were as good as an Act passed by the Legislature. In putting up this argument two things are being missed, first, that the State Government was authorised to make the first Statutes only with regard to matters mentioned in clauses (a) to (1) of section 29 and there is no mention of making of any, Statutes under section 26 or Clause (q) of section 29 of the Act and, therefore,.’ the State Government could not make any Statutes relating to the terms and conditions of service of the employees of the University, which was left to the Board after it had been formed. Secondly, even these Statutes were Page: 211really directed to be made by the State Government obviously to ensure that the work of this University, which was just created by the Act, should begin in J go on smoothly till such time as the Board starts functioning and sub-section (2) of section 30 of the Act makes it absolutely clear that these Statutes, though originally made by the State Government, were at no higher pedestal than the Statutes to be made by the Board and, in fact, the Board could repeal or amend these Statutes in any manner it liked. It has also to be noted that in the new Act of 1970 creating separate Universities for the States of Punjab and Haryana, this provision is omitted and for obvious reasons. The only provision made is that all the existing Statutes, which had been made under the Act of 1961, would continue to be applicable to both the Universities till they are amended. Thus the provisions of sub-section (1) of section 30 of the Act are hardly of any assistance to the petitioner-appellant.
49. For the reasons given above, therefore, we have no doubt in our mind that the present case is fully covered by the principles laid down by their Lordships of the Supreme Court inter alia in the latest case of the Indian Airlines Corporation (supra) and that the terms and conditions of employment and the procedure laid down for termination of service in Statute 12 of Chapter VI have not the status of statutory rules conferring any statutory status or providing any statutory protection to the employees of the University. The matter is one of a pure contract of personal service; between the University and its employee and any violation of the terms and conditions of employment would merely amount to a breach of the terms of the contract giving rise to a claim for damages, and the case does not fall in any one of the three exceptions as laid down in S.R Tewari's case, which would justify the Court departing from the general rule that the contract of personal service shall not be specifically enforced.
50. In the present case, the only prayer made by the petitioner was for quashing of the order of dismissal contained in Annexure ‘C’ of the writ petition. The order has admittedly been passed by an authority which had the jurisdiction to pass this order of dismissal, though the order may be in breach of the terms of the contract and in that sense illegal giving rise to a claim for damages. The dismissal, consequently, subsists, even though it may be wrong. No direction can therefore, be issued quashing that order and declaring that the order of dismissal is void and that the petitioner-appellant still continues to be in service of the University. We, consequently, dismiss this appeal and confirm the order of the learned Single Judge, though for different reasons. In the peculiar circumstances of the case, there will be no order as to costs.
51. Appeal dismissed.