Singh J.:-
This order will also govern the disposal of Miscellaneous Petition No. 387 of 1968 (Karuna, Shankar Dikshit v. Vikram University, Ujjain and others).
2. Petitioner in Misc. Petition No. 212 of 1968 was appointed by the Syndicate of the Vikram University, Ujjain, as Deputy Registrar on probation for a period of one year. The appointment was liable to termination on two months' notice from either side and it took effect from March 1, 1967, when the petitioner joined the service. The Petitioner in the other petition (Misc. Petition No. 387 of 1968) was appointed by the Syndicate as Secretary to the Vice-Chancellor on one year's probation. His services were also liable to termination on two months' notice from either side. This appointment took effect from February 23, 1967, when the petitioner joined the service. At the time when these appointments were made Shri Nand Dulare Bajpai was the Vice-Chancellor of the University. Shri Bajpai died on August 1, 1967. By an order of the Chancellor passed on the same date the Registrar V. Shankaran was authorised under section 10 (5) of the vikram university act, 1955 to carry on the current duties of the Vice-Chancellor untill other arrangements were made. The probation of the petitioners in both these cases was extended for a period of three months by orders of the Registrar acting as Vice-Chancellor. The Syndicate by a resolution passed in its meeting held on March 25, 1968, abolished the posts of Deputy Registrar and Secretary to the Vice-Chancellor from April 1, 1968 and terminated the services of the petitioners from March 31, 1968, after paying them two months' salary in lieu of notice. The petitioners then filed these petitions under article 226 of the constitution to challenge the validity of the orders of the Syndicate terminating their services.
3. The first point argued by the learned counsel for the petitioners is that the Syndicate has no power to abolish the administrative posts and, therefore, the resolution abolishing the posts and the orders regarding the termination of the services of the petitioners were ineffective and void Reference. in this connection was made to section 20 of the Act and it was pointed out that whereas in case of teaching posts the Syndicate is specifically authorised under clause (b) to abolish the posts, no such authority is conferred on it to abolish administrative posts.
4. It is one of the powers of the University, as laid down in section 4 (j), to create administrative, ministerial and other necessary posts and to make oppointments thereto. The powers of the University are to be exercised by various authorities and officers mentioned in the Act. The Senate is the supreme authority of the University and exercises the powers mentioned in section 18. The Syndicate is the excutive body of the University and exercises the powers mentioned in section 20, which reads as under :
section 20. subject to the provisions of this act, the Syndicate shall exercise the following powers and perform the following duties, namely :-
(a) to institute, at its discretion, such Professorships, Readerships, Lecturerships or other teaching posts as may be proposed by the Academic Council;
(b) to abolish or suspend after report from the Academic Council thereon, any Professorship, Readership, Lecturership, or other teaching posts;
(b-1) to appoint teachers of University paid by the University or to suspend or terminate their services, as may be necessary, in accordance with the provisions of this Act;
(c) to appoint in accordance with the statutes officers of the University and to suspend or terminate their services as may be necessary; provided that such appointments shall be made on the recommendation of the Selection Committees, the constitution of which shall be determined by the statutes;
(d) ** ** **
(e) ** ** **
(f) ** ** **
(g) ** ** **
(h) ** ** **
(i) ** ** **
(j) ** ** **
(k) ** ** **
(l) ** ** **
(m) ** ** **
(n) to exercise all the powers of the University not otherwise provided by this Act or the Statutes.
A look at section 20 shows that clauses (a) to (m) contain the specific powers of the Syndicate. But these clauses do not exhaust the powers of the Syndicate, for by clause (n) it has also been given the residaury powers of the University. The Syndicate by virtue of this clause can “exercise all the powers of the University not otherwise provided by the Act or the Statutes.” Even when the Syndicate exercises any power of the University which does not find place in clauses (a) to (m), the exercise of the power in view of clause (n) would be within the authority of the Syndicate unless it is shown that there is some otherwise provision in the Act or the Statutes in respect of such power. In other words, if such a power under the provisions of the Act or the Statutes made thereunder is to be exercised by a different authority, the Syndicate will not have authority to exercise the power. But if the Act or the Statutes do not specifically confer a power of the University on any other authority, the Syndicate will be competent to exercise such a power even though it is not specifically mentioned in clauses (a) to (m). The effect of enumeration of certain powers in clauses (a) to (m) is that these powers cannot be taken away by Statutes whereas a power that flows from the residuary clause (n) can be taken away if a Statute is framed conferring the same power on some other authority. This difference between the specific powers and residuary powers arises because though all the clauses of section 20 are subject to the provisions of the Act, clause (n) alone is controlled by any otherwise provision in the Statutes. Since the University has power to create administrative and ministerial posts, it has necessarily the power to abolish any of these posts. This power of abolishing the posts is not specifically conferred on any authority and, therefore, the authority to exercise this power must vest in the Syndicate because of clause (n). It is true that in clause (b) specific power is conferred on the Syndicate to abolish teaching posts and there is no similar clause specifically conferring the power to abolish administrative posts. That does not, however, lead to the conclusion that the Syndicate has no power to abolish administrative posts, for such a power falls under the residuary clause as there is no otherwise provision in the Act or Statutes.
5. Learned counsel for the petitioners then argued the same point from a different angle. He referred to Statute 26 which deals with removal of any officer of the University on certain grounds. One of the grounds is Breach of University Servants Conduct Rules as prescribed by the Ordinances. Learned counsel also referred to clause 18 of the Ordinance regulating conditions of service of University Employees. In clause 18 abolition of post is a ground on which the services of a permanent employee can be terminated. The learned counsel argued that Statute 26 read with clause 18 of the Ordinance is an otherwise provision relating to the abolition of posts and, therefore, the residuary clause of section 20 does not apply and the Syndicate has no power to abolish administrative posts.
6. This argument is without any substance. Clause 18 of the Ordinance, which we have later quoted in this order, provides that the services of an employee can be terminated on abolition of post. But this clause does not lay down as to who would be the authority competent to abolish the post. Similarly, Statute 26 only deals with removal of employees on certain grounds and confers power of removal on the appointing authority; it contains no provision for the abolition of posts. Thus, neither Statute 26 nor clause 18 of the Ordinance makes any otherwise provision which can take away the power of the Syndicate under the residuary clause of section 20 to abolish administrative posts. Moreover, the appointing authority of the petitioners was the Syndicate and even if Statute 26 read with clause 18 of the Ordinance contains an otherwise provision regarding the power of abolition of posts by conferring the same on the appointing authority, the Syndicate being the appointing authority could still abolish the posts held by the petitioners. We are, however, clearly of the view that Statute 26 and clause 18 of the Ordinance are not otherwise provisions regarding the power to abolish administrative posts which falls under the residuary clause (n) of section 20.
7. It was next contended by the learned counsel for the petitioners that the procedure adopted in abolishing the posts was defective.
8. Reference in this connection was made to clauses (5), (6) and (7) of section 42 of the Act which read as under :
Section 42 (5). The Finance Committee shall meet at least twice every year to examine accounts and to scrutinise proposales for expenditure.
(6) The annual accounts and the financial estimates of the University shall be laid before the Finance Committee for consideration and comments and thereafter submitted to the Syndicate for approval.
(7) The annual accounts and the financial estimates shall be considered by the Senate at its annual meeting and the Senate may pass resolutions with reference thereto and communicate the same to the Syndicate which shall take them into consideration and take such action thereon as it thinks fit and finally adopt the accounts and financial estimates. The Syndicate shall inform the Senate at its next meeting of the action taken by it.
9. To appreciate the contention it is necessary first to mention the steps that were taken in connection with the abolition of posts. In the meeting of the Syndicate held on December 4, 1967, when the estimates sent by the Finance Committee were taken up for consideration, a letter of the Chancellor dated November 15, 1967, recommending postponement of consideration of the estimates till a new Vice-Chancellor was appointed was read. Acting upon this letter, the Syndicate postponed the consideration of the estimates. Thereafter the financial estimates prepared by the Finance Committee for four months of the year 1968-69 (April 1, 1968 to July 31, 1968) were considered by the Syndicate in its meeting held on March 10, 1968. The estimates were accepted for being forwarded to the Senate. The Senate considered and approved these financial estimates in its meeting held on March 24, 1968, subject to a cut motion suggesting reduction of the estimates by abolishing certain posts including the posts of Deputy Registrar and Secretary to the Vice-Chancellor. The matter again came up before the Syndicate in its meeting held on March 25, 1968, and the financial estimates for four months of 1968-69 with the reduction suggested in the resolution of the Senate were finally accepted and it was decided to abolish the posts as suggested by the Senate. It was also decided to terminate the services of the incumbents of these posts. The argument of the learned counsel for the petitioners on these facts is that the Syndicate itself did not decided to abolish the posts but the matter originated in the Senate and it was the decision of the Senate that was accepted by the Syndicate.
10. In our opinion, there is no substance in this argument. We have already quoted clauses (5), (6) and (7) of section 42 which deal with the manner of adopting the accounts and financial estimates. The accounts and financial proposals are first examined by the finance Committee and they are then submitted to the Syndicate for approval. The accounts and estimates are also to be considered by the Senate and the resolution of the Senate are communicated to the Syndicate which takes them into consideration while finally adopting the accounts and the financial estimates. Abolition of posts to bring about reduction in the budget is a matter connected with the financial estimates and the Senate while considering the financial estimates is competent to recommend reduction of the estimates by suggesting abolition of posts. The Syndicate under clause (7) of section 42 is no doubt the final authority for adopting the accounts and financial estimates, but it is bound to take into consideration the resolutions passed by the Senate on the budget estimates. The Syndicate was, therefore, bound to consider while finally adopting the financial estimates whether the recommendation made by the Senate for abolition of the posts in reducing the budget should be accepted or not. The final decision of acceptance of the budget and abolition of the posts was that of the Syndicate, although in reaching that decision it took into consideration the resolutions passed by the Senate. We are, therefore, of opinion that there was no irregularity in the procedure adopted for passing financial estimates or for abolishing the posts.
11. It was then argued by the learned counsel that no action could be taken till the appointment of a new Vice-Chancellor in view of the Chancellor's letter. We will assume that the Chancellor's letter, which has not been exhibited in these petitions, directed the Executive Council not to take up financial estimates till the appointment of a new Vice-Chancellor. We, however, do not find any authority in the Chancellor to suspend the normal powers of the Senate or Syndicate by issuing any such order or direction. The Chancellor's powers are contained in section 9 of the Act. Learned counsel relied upon clause (5) of this section. Clause (5) must be read along with the previous clauses. Under clause (1) the Chancellor has been given power to cause an inspection of the University and an inquiry into its affairs. Clause (2) entitles the University to have notice of the inspection or inquiry ordered by the Chancellor and to appoint a representative to represent it in such inspection or inquiry. Clause (3) deals with the result of the inspection or inquiry undertaken under clause (1). The Chancellor, as provided in that clause, may address the Vice-Chancellor, with reference to the result of the inspection and inquiry and the Vice-Chancellor shall communicate to the Syndicate the views of the Chancellor with such advice as they may offer upon the action to be taken thereon. Under Clause (4) the Syndicate is to communicate through the Vice-Chancellor the action, if any, as is proposed to be taken or has been taken upon the result of the inspection or inquiry which is referred to in the previous clauses. If no action is taken to the satisfaction of the Chancellor by the Syndicate, the Chancellor after considering any explanation of the Syndicate can, under clause (5), “issue such directions as he may think fit and the Syndicate shall comply with such directions.” The directions that the Chancellor can issue under clause (5) are those which are relevant to the action which the Syndicate has to take on the result of inquiry or inspection ordered by the Chancellor under clause(1) and communicated by the Chancellor through the Vice-Chancellor to the Syndicate under clause (3). In our opinion, clause (5) does not confer any independent power of issuing direction which has no connection with any inspection or inquiry referred to in clause (1). Thus, it is quite clear that the direction issued by the Chancellor to the Syndicate not to consider the budget estimates till the appointment of a new Vice-Chancellor did not fall under any of the clauses of section 9 and was beyond his authority. The Syndicate was, therefore, not bound to abide by that direction.
12. It was also argued for the petitioners that no inquiry was held by the University before terminating the services of the petitioners and that an inquiry was essential under clause 18 of the Ordinance.
13. Clause 18 of the Ordinance to which reference is made is as under:
18. The services of a permanent employee shall not be determined or he may be dismissed from service unless after proper enquiry, he is found guilty of
1. Wilful neglect of duty.
2. Misconduct includine disobedience of the orders of the competent authorities.
3. Physical or Mental unfltness
4. Abolition of the post
14. The aforesaid clause is somewhat inartistically worded and literally read it does not mean that there should be some inquiry even when an employee's services are terminated on the ground of abolition of his post. Indeed, literal reading of this clause requires not only that there should be an inquiry but also that the employee should be found guilty of abolition of the post. It is difficult to contemplate as to how an employee whose services are to be terminated on the ground of abolition of his post would himself be guilty of abolition of the post. It is also difficult to understand what inquiry is needed in finding out whether in fact there has bean an abolition of the post, the matter being within the knowledge of the Syndicate itself. Thus, literal reading of clause 18 leads to absurdities which could not have been intended by the makers of the Ordinance. The literal construction of clause 18 must, therefore, be rejected. The clause seeks to restrict the rights of the University to terminate the services of an employee or to dismiss an employee from service. Termination of services and dismissal from service have different connotations. Dismissal from service conveys the idea of some fault or blemish of the employee; but termination of services as distinguished from dismissal involves no such fault or blemish. Out of the grounds mentioned in clause 18 the fourth ground of “Abolition of the Post” does not fit in with dismissal from service, for it involves no fault or blemish of the employee. Abolition of post is, however, a well-known ground for termination of services. Thus, the intention of the makers of the Ordinance in clause 18 seems to be to prohibit termination of services except on the ground of abolition of the post and similarly to prohibit dismissal from service except on the grounds of neglect of duty, misconduct or unfitness, mental or physical. Inquiry contemplated under the clause can be relevant only when action taken is one of dismissal on some fault or unfitness of the employee. It is only in such cases that the employee can be found guilty. But when the only action taken is termination of services on the ground of abolition of post, the employee cannot be found guilty and no inquiry is needed. In our opinion, therefore, the learned counsel is not right in contending that an inquiry under clause 18 was necessary before terminating the services of the petitioners.
15. It was lastly argued that the services of the petitioners were terminated on the ground that the Registrar was prejudiced against them for various reasons and he being the Vice-Chancellor influenced the members of the Syndicate to abolish the posts. Even assuming that the Registrar who was then also functioning as Vice-Chancellor was prejudiced against the petitioners we do not find any basis to hold that he was in a position to influence the voting in the Senate or Syndicate. It may be recalled that the proposal to abolish these posts emanated in the meeting of the Senate held on March 24, 1968. In that meeting nearly 90 members were present. It is difficult to believe how the Registrar could influence such a body like the Senate of the University. Moreover, no material has been placed before us to show that the Registrar took any action to prejudice the members of the Senate or Syndicate against the petitioners.
16. In the result, the petitions fail and are dismissed. There shall, however, be no order as to costs. The amount of security deposit shall be refunded to the petitioners.
Petitions dismissed.