Madras High Court
N. Radhakrishnan vs The Registrar, University Of Madras And ... on 12 April, 1989
Equivalent citations: (1990)1MLJ88
ORDER Venkataswami, J.
1. This Writ Appeal is preferred against an order of Bakthavatsalam, J. in W.P.No. 8807 of 1988 dated 1.12.88 declining to issue a writ certiorarified mandamus to quash the resolution of the Syndicate, Madras University, dated 30.6.1988 and confirmed again in its resolution dated 23.7.1988. Brief facts relating to the matter are as under.
2. The Second respondent after serving the University for nearly 30 years was to retire on 30.6.1988. On 9.5.1988, the second respondent requested the Vice Chancellor of the University to grant him extension for two or three years to enable him to complete his Research work in Indian Private International Law and Ancient Hindu Jurisprudence which are pending completion. Before the said request was placed before the Syndicate and considered by it, the first respondent by communication dated 29.6.1988 informed the appellant as follows:
Sub - In-charge for the department of Legal Studies, University of Madras, Madras - Reg.
I am, by direction, to inform you that you are put as Head-in-charge of the Department of Legal Studies, University of Madras, Madras-5, in the place of Thiru. S. Rama Rao, who will be retiring on the afternoon of 30.6.1988.
You are requested to take charge of all the Departmental papers and articles from Thiru T.S. Rama Rao, Head, Department of Legal Studies.
The second respondent by his letter dated 30.6.1988 addressed to the first respondent stated as follows:
Sub: Charges handing over-Reg.
Ref: Your Letter No. D1 TE/88/1851 dated 29.6.1988.
With reference to your letter cited above, I am handing over charge of the department of Legal studies to Thiru N. Radhakrishnan, Reader in the Department. By letter dated 30.6.1988, the appellant informed the Registrar of Madras University as follows: Sub: Taking over of charges as Head in charge of Legal Studies Department - Reg.
Ref: Your letter D.1/TE/88/1851, dt 29.6.1988 With reference to your letter cited above, I am taking over charge of the department of Legal Studies from Prof. T.S. Rama Rao, Head of the Department of Legal Studies. Subsequently, in its meeting held on 23.7.1988, the Syndicate seems to have considered the same subject again, resolved as follows: Resolved that the action taken on the minutes of the meeting of the Syndicate held on 30.6.1988 be rectified, Resolved Also that the following resolutions of the previous meeting of the Syndicate be confirmed as follows: Resolved that Prof. T.S. Rama Rao be permitted to retire from the services of the University with effect from 30.6.1988 Resolved Also he be re-employed until further orders.
It is under these circumstances, the appellant has filed W.P.No. 8807 of 1988, challenging the resolution of the Syndicate re-employing the second respondent until further order.
3. Before the learned Judge, the resolution was challenged contending that the Syndicate had no power to re-appoint the second respondent, as neither the Madras University Act, 1923 nor the statutes, regulations framed under the Act would enable the Syndicate to re-appoint the Professor after retirement. It was contended before the learned Judge that the resolution re-employing the second respondent violates the fundamental rights guaranteed under Articles 14 and 16 of the Constitution. If at all a Professor can be reemployed after retirement, it can be as per law 3-A under Chapter IX which speaks of Emeritus Professors. Inasmuch as that provision has not been invoked by the Syndicate to re-employ the second respondent, the resolution or the Syndicate cannot be sustained under any other provisions of the Laws of the University.
4. In answer to the above contentions, it was argued on behalf of the University before the Learned Judge that the Laws of the University clearly support the resolution impugned in the writ petition. The contention to the contrary, according to the University's counsel was unsustainable. In support of his argument, the learned Counsel for the University pointed out the relevant provision in the laws of the University before the learned Judge.
5. The learned Judge (Bakthavatsalam, J.), on a consideration of the rival submissions held that the Syndicate has got ample power and jurisdiction to pass-the resolution impugned in the writ petition and the contentions raised on behalf of the writ petitioner, challenging the impugned resolution were all misconceived. Consequently, the learned Judge, dismissed writ petition.
6. Aggrieved by the order of the learned Single Judge dismissing the writ petition, the present writ appeal is preferred. Mr. K.P. Krishnashetty learned Counsel for the appellant with all fairness at the outset submitted that the appellant had absolutely no personal animosity against the second respondent and the second respondent's capacity and qualification are not questioned. According to him, this appeal has been preferred to have an authoritative decision on the powers of the Syndicate to re-employ the professors, after retirement.
7. On merits, Mr. Krishna Shetty submitted that the learned Judge was not right in holding that Section 19 (g) of the Madras University Act, 1923 enables the Syndicate to re-employ the Professor after retirement. It is further argued that the learned Judge has not correctly interpreted the scope of the statutes 8, 9 and 29 (IV), as a result of which he has laid down wrong proposition of law. According to the learned Counsel, there is no express provision either in the University Act or in the Laws of the University enabling the Syndicate to re-employ a Professor, after retirement. By applying section 13 of the Tamil Nadu General Clauses Act to statute 8, the power to re-appoint cannot be inferred. Likewise, by applying the provision of statute 9 in Chapter IX of the Laws of University which is in the nature of a proviso to statute 8, the scope of statute 8 cannot be curtailed. On the other hand in Chapter XXIV dealing with certain conditions of the services of the establishments of the University, Ordinance 29 expressly enables the Syndicate to continue the service of an employee beyond 58 years and 60 years on certain special circumstances mentioned therein. If the intention of the legislature was to invest with power of re-employment after retirement with the Syndicate, it would not have been difficult to provide such a clause in Section 19 (g) of the Act itself. Therefore the only conclusion possible is that the Syndicate has no authority to re-employ a professor after retirement. In such circumstances, how is the provision (sic) to be interpreted? The learned Counsel cited the following decisions of the Supreme Court in 1. Indira Sohanlalv. Custodian of E.P. ; 2. Dulichand v. I.T. Commr. ; and 3. State of Maharashtra v. Narayan .
8. In answer to the above contentions, Mr. D. Murugesan, learned Counsel appearing for the first respondent - University submitted that a close and careful scrutiny of section 19 (g) of the University Act and the statutes 8, 9 and 29 (IV) in Chapter IX of the Laws of the University clearly indicate the 'express power' given to the syndicate to re-employ a Professor after retirement. If for any reason the express power could not be spelt out from the above provisions, by applying section 13 of the Tamil Nadu General Clauses Act to Section 19 (g) of the University Act, it can be reasonably concluded that the Syndicate possessed the power of re-employment of a Professor, after retirement. learned Counsel further submitted that it is not the case of the University that the second respondent was re-employed as an Emeritus Professor. He further submitted that the re-employment is until further orders. In other words, the re-employment is only for a temporary period. The learned Counsel invited our attention to Sub-Sections (4) and (19) of Section 4-A of the University Act, in addition to section 19 (g) of the Act. Mr. Singaravelan, learned Counsel appearing for the Second respondent while adopting the arguments of Mr. D. Murugesan, learned Counsel appearing for the University, further submitted that there is no express prohibition disabling the Syndicate in the matter of reappointment of a Professor. Therefore, the application of Section 13 of the Tamil Nadu General Clauses Act cannot be said to be against any canon of Interpretation of the statutes.
9. In reply, Mr. Krishnashetty, learned Counsel appearing for the appellant submitted assuming without admitting that the Syndicate has got power to re-appoint/re-employ a Professor it can be done only by adopting the same method and manner for appointment of a Professor. Inasmuch as the method prescribed for appointment of a Professor having not been followed for reemploying the second respondent, the impugned resolution has got to be set aside. Another argument advanced by Mr. Krishnashetty was that there is no guideline before the Syndicate to follow in the matter of re-employment after retirement, in the absence of which the power could be exercised in an arbitrary manner. Therefore until such guidelines are prescribed the Syndicate cannot exercise the power of re-employment.
10. To appreciate the rival submission, it is necessary to set out the relevant provisions relied on by both the sides.
Sub-Sections (4) and (19) of Section 4A of the Madras University Act reads as follows:
(4A) - The University shall have the following powers, viz.
(4) to institute professorships, readerships, lecturerships any other teaching post required by the University and to appoint persons to such professorships, readerships, lecturerships, and other teaching posts; (19) generally to do all such other acts and things as may be necessary or desirable to further the objects of the University.
Section 19(g) of the Act reads as follows:
19. The Syndicate shall have the following powers viz.
(g) to appoint the University Professors and Readers (and Lecturers) and the Teachers and servants of the University, fix their emoluments, if any define their duties and the conditions of their service; and provide for the filling up of temporary vacancies.
Chapter IX of the Laws of the Madras University reads as follows:
University Professorships Emeritus Professorships, Readerships and Lecturerships, University Lecturers
1. Powers to Institute Professorships, etc. The Senate shall have powers to determine from time to time, after considering from recommendations of the Academic Council and the Syndicate, the subjects for which Professorships, Readerships, Lecturerships, or other teaching posts should be instituted and the several terms and conditions subject to which such professorships, Readerships, Lecturer-ships or other Teaching Posts should be Instituted.
8. Terms of Office: Except in the case of experienced men who have already gained distinction in their subject and who are appointed as Professors, persons appointed to teaching posts of Lecturers, Readers, and Professors shall in the first instance be on probation for a term of two years in their respective post and such appointments shall be subject to confirmation at the end of that period on satisfactory completion of the period of probation. Thereafter, the appointment shall be permanent subject to an age limit, which shall be 60 years, subject however, to the teachers concerned being physically fit after the age of 58 and subject to the provisions in Law 8.
9. Short term appointments: Nothing in Law 8 shall prevent the establishment in Special cases of short term appointments with special arrangements as regards salary 29 (IV) The retirement of all University teachers shall take effect from the afternoon of the last day of the month in which they attain superannuation. Those who retire at the age of 60 after August 1st shall be continue till the end of the academic year. Those who are being extended beyond 60 years of age will be extended each time at the end of the academic year.
Chapter XXIV-Ordinance 29 of the Law of the University runs thus:
29 The date of compulsory retirement of a University servant in superior service shall be the date on which he attains the age of 58 years. He shall not be retained in service after that age except on public grounds, with the sanction of Syndicate which must be recorded in writing; but he must not be retained after the age of 60 years except in very special circumstances; and in regard to class IV (inferior service) employees, their age of retirement shall be 60 years.
11. We have carefully considered the submissions made by the counsel on both sides and looked into the relevant provisions. We regret our inability to agree with the arguments advanced by the learned Counsel for the appellant. Our reasons are as follows: Section 19 (g) as extracted above gives the power of appointment of Professors, Readers etc., to the Syndicate. The power to appoint itself carries the power to re-appoint. This conclusion can be supported by invoking section 13 of the Tamil Nadu General Clauses Act. Which reads as follows:
13 When powers and duties to be exercised and performed Where an Act confer a power or imposes a duty, then the power may be exercised and the duty shall be performed from time to time as occasion required.
The contention that section 13 should not be invoked to interpret section 19 (g) of the University Act as contended by the learned Counsel for the Appellant, in our view is not well founded. Likewise, the contention that there is no express power for reappointment of a Professor after retirement like reappointment of a sub-staff as provided by Ordinance 29 of Chapter XXIV of the Laws of the University (Vide Supra) and therefore the University cannot exercise the power of re-appointment in the matter of re-appointment of Professor is not also well founded. In this connection, the statute 9 which has been extracted above can be usefully referred to. A close reading of statute 9 clearly indicates that notwithstanding anything contained in statute 8, the Syndicate can make short term appointments. The contention of the learned Counsel for the appellant that statute 9 must be treated as proviso to statute 8 and if so read, the proviso cannot curtail the intention of the main section is not sound. The intention of statute 9 is clear and unaquivocal. It cannot be read as a proviso to statute 8. Assuming that statute 9 is to be read as a proviso to statute 8 even then, it cannot always be construed that a proviso cannot curtail the powers conferred under the main section. On many occasions provisos are introduced to curtail the power vested in the main section under certain given circumstances. Therefore, we are unable to accept the contention of the learned Counsel for the appellant that the statute 8 should not be read subject to statute 9.
12. The sub-section (iv) of the statute 29 extracted already also indicates that the Syndicate has power to extend the age of retirement beyond 60 years. Such extended services will not count for the purposes of pension, provident fund, gratuity, etc. Therefore, to make the position clear, the Syndicate has resolved to permit the second respondent to retire from his service on 30.6.1988 and further resolved to re-employ him until further orders. In our view, there is no infirmity in the resolution of the Syndicate in re-employing the second Respondent.
13. The contention of the appellant that the re-employment/re-appointment must be in the same manner and method cannot be accepted since he has already undergone the prescribed procedure. The fact that at the time of appointment a particular Professor was qualified for appointment will speak for itself for re-appointment as well, unless he has suffered any disqualification during the period of his professorship. The Syndicate being the Supreme body for the University, it cannot be argued that it will act arbitrarily in the absence of guidelines. If any particular instance is brought to the notice of the Court establishing the arbitrary exercise of the power that can be questioned. In this case, there is nothing on record to show that the Syndicate has arbitrarily exercised the power in the matter of re-employment of the Second Respondent. We have gone through the cases cited by the learned Counsel for the appellant.
We are of the view that the principles laid down in those cases will have no application to the facts and circumstances of this case.
14. For the foregoing reasons, we find no merit in the writ appeal and the writ appeal is dismissed, but without costs.