TaxTMI 
TaxTMI 
1973 (11) TMI 105
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....irst blush, the law of master and servant may apply to the present fact-situation but the statutory status of the employer substantially transforms the character of the master, the consequences of its ultra vires acts as well as amenability to types of relief like re-instatement and the applicability or writ remedies, alien to the legal chemistry of breaches of contract. However, in the light of the factual-cum-legal conclusions which appeal to us these thorny jurisprudential issues of deeper import in a socio-economic and cultural context where the State undertakes dynamic activities affecting citizens' rights and operates through corporate and other effective instrumentalities may not fall for direct decision. Enough unto the day is the evil thereof. 2. A chronological narration of the principal facts and events and legislative shifts and their implications must precede consideration of the legal contentions put forward by either side. 3. The Jammu and Kashmir University Act, 2005 (Samvat Year) created the University of Jammu and Kashmir. Several years later, the present respondent joined the University as a lecturer on contract basis, the law that governed his services....
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....ent of the Ordinance the services of teachers employed on contract basis were to cease, unless otherwise ordered by the Chancellor, No such order was issued by the Chancellor extending the respondent's employment. However, oblivious or heedless of the statutory cessation of the respondent's services he was allowed to function as Professor and his probation was again extended for a year by the Vice-Chancellor under Section 13(4) of the Ordinance (which had already been replaced on November 10, 1969 by the Jammu and Kashmir Universities Act, 1969). More incongruous with the appellant's present stand is the direction by the Vice-Chancellor to release the salary of the respondent and the request to him to serve on the Academic Council as an ex-officio member, being Professor and Head of the Department of History, While, thus, on the one side quiet flowed the stream of service as professor, on the other turbid eddies of threat to terminate surfaced up. For, based on the enquiry report the Vice-Chancellor issued a 'show-cause' notice on December 22, 1969, which elicited the respondent's explanation on January 31, 1970. Together, all the materials were considered b....
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....t's employment was on a contractual basis. By Section 51 of the 1969 Ordinance "all the statutes and regulations made under the Jammu and Kashmir University Act of 1965 and in force immediately before the commencement of this Ordinance shall so far as may be consistent with the provisions of this Ordinance continue to be in force in each University after the commencement of this Ordinance." 7. Thus we reach the position that, on a combined reading of Statute 2 framed under the 1965 Act (already extracted above) and Section 51 of the Ordinance of 1969, which is in identical terms with Section 59 of the Act which replaced the Ordinance, the respondent was an employee of the University serving under a contract. In fact neither party disputes this position. Our attention must now turn to a crucial provision in the 1969 Ordinance which is also reproduced in the ensuing Act. Section 52 thereof runs thus : 52. Continuance of service of the existing employees and their allocation :-Notwithstanding anything contained in this Ordinance or any Statute or Regulation made thereunder or in any other law for the time being in force :- (1) all employees of the University o....
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....of such tenure the further part of the section re-iterates that "all such contracts with...the University of Jammu and Kashmir shall stand terminated with effect from the expiry of the said period of 60 days." Thus, by the inexorable operation of the calendar, on November 5, 1969, the respondent made a statutory exit from the employment of the Kashmir University. This much even the respondent has reconciled himself to, and the High Court has accepted. 9. To retrieve the situation thereafter, the respondent had recourse to a plea which found favour with the learned Judges, that the actings and dealings of the higher functionaries of the University vis-a-vis the respondent eloquently testified to the claim of implied employment of the respondent subsequent to the statutory cessation. It is true that de facto the respondent functioned as Professor, drew salary as such, became a member of the Academic Council in that capacity and was treated as on extended probation by the Vice Chancellor. In view of these habiliments of professorate the High Court assumed the premise that the respondent was "admittedly in the employment of the University of Kashmir on the relevant date", and procee....
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....e is no case that the Selection Committee ever considered or recommended the respondent for appointment and there is no suggestion that the University Council appointed the respondent as professor. It follows that the only statutory authority empowered in this behalf has not appointed the respondent to the post claimed by him. There is an interim power vested in the Vice-Chancellor hedged in with limitations, as is contained in the third proviso to Section 22(f). He may make appointments of teachers as a temporary measure for periods not exceeding six months to carry on the work, and if the Selection Committee's recommendation is not received within that time he may extend the appointment for the duration of the academic session with the approval of the University Council. There has been no exercise of the narrow power of the Vice-Chancellor under this proviso and the conclusion is irresistible that the continuance of the respondent on the expiration of the statutory two months' period cannot be legitimated by law. Of course, he remained to teach and was paid for his work. He did many other things which a legally appointed professor would do, with the full knowledge and eve....