Dr. Nirmal Singh vs Delhi Sikh Gurudwara Management ...
2004 Latest Caselaw 493 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Petitioner prays that the impugned order dated 16.3.2004 be quashed and a mandamus be issued to the respondent to allow the petitioner to serve up to the end of the fixed 5 year tenure service i.e. till 30.9.2006.

2. The first respondent is the Delhi Sikh Gurudwara Management Committee, a statutory authority constituted under the Delhi Sikh Gurudwara Act 1971. The second respondent 'Guru Nanak Institute of Management' is an institute affiliated to 'Guru Gobind Singh Indraprastha University', a university established under the Indraprastha Vishwavidyalaya Act, 1998. The University is respondent no.4.

3. By and under a contract of service executed on 1.10.1996 between the petitioner and the respondents 1 and 2, petitioner was appointed as the Director of respondent No.2 for a period of 5 years, extendable by two more years.

4. Two of the terms of contract of service are relevant and need to be noted. Clause 2 and 3 of the Contract stipulated as under:-

''2. The appointee shall be in service under the agreement for a period of five years with effect from 1st October, 1996 that is date of joining the post. Provided that if the appointee on conclusion of the period of service mentioned above is below 65 years of age his services shall continue till he attains the age of 65 years whichever is earlier.

3. The appointee shall be the Principal Academic and Executive Officer of the Institute and serve the Institute as the whole time Director of the Institute with power and duties provided in rules. He has been fully authorised to make necessary appointments, make changes in the existing staff and function independently as per norms and directions AICTE, Directorate of Technical Education and Training, Delhi State Government and Central Govt. DSGMC will extend its best cooperation and financial support to the appointee.''

5. 5 years would have come to an end on 30.9.2001. On 1.5.2001, the respondents issued a letter to the petitioner. By the said letter tenure of the petitioner was extended. Interalia followed was communcated to the petitioner:-

''The credit of further expanding the activities and starting BCA, BIS, BIT, B.CAM, B.Com all of 4 years duration and B.Com and B.Com (Professional) also goes to Dr. Nirmal Singh. Therefore, as per requirement of Guru Nanak Dev University and Guru Gobind Singh Indraprastha University, he is designated as Director General and his term is extended by another 5 years on the same terms and conditions.''

6. On 9.9.2002 an office order was issued by respondent No.2. Following was communicated under the said office order:-

''Prof. (Dr.) Nirmal Singh, Director of Guru Nanak Institute of Management, Punjabi Bagh, New Delhi is informed that the Governing Body of the Institute has considered the issue of granting extension to him. After due deliberations and considerations of all factors and exemplary services he has rendered, we, on behalf of the Governing Body of the Institute, do hereby reconfirm and affirm that the service agreement dated 1.10.1996 of Dr. Nirmal Singh, Director, GNIM is extended for another term of five years from the date of expiry of the first service contract i.e. 1.10.2001 to be valid up to 30.9.2006 on the same terms and conditions and with the same perks. The designation of Director also stands changed to Director General. This is issued with the approval of President and General Secretary DSGMC.''

7. Petitioner continued to function in terms of the original contract of service as extended by the letter of 1.5.2001, till the impugned order dated 16.3.2004 was passed. The order dated 16.3.2004 reads as under:-

''To

Dr. Nirmal Singh,

Director/Director General

Guru Nanak Institute of Management

As per your joining report dated 13.06.1996 and the subsequent contract of service dated 01.10.996, you stand superannuated w.e.f. 30.05.2003. As such, your tenure stands expired.

On the recommendation of the governing body you are, therefore, hereby directed to cease functioning as Director/Director General of the Guru Nanak Institute of Management and to handover the charge today i.e. Tuesday, 16th March, 2004, to Sh. Sham Sundar Sharma, who is a former Secretary to the Govt. of India and has vast experience in the field of business management as a former member of the Board of Governors of the Indian Institute of Management at Ahmedabad, Calcutta and Bangalore.''

8. As per the petitioner, on 1.5.2001 his appointment as Director General of respondent No.2 came into effect as a tenure appointment. Tenure being of 5 years. Concept of superannuation was alien to a tenure appointment as per contract of service. There was, thus no question of petitioner superannuating w.e.f. 30.5.2003.

9. As per the petitioner he had rendered excellent service evidenced by the fact that his initial contract appointment was as a Director. While extending the tenure appointment by another 5 years he was designated as Director General. As per the petitioner under the Contract dated 1.10.1996, vide Clause 14, the respondent was obliged to issue a 6 months prior notice or pay to him wages for 6 months, if it was desirous of terminating the contract. Clause 14 of the contract reads as under:-

''14. The services of appointee may during the period of contract, be terminated by the Institute at any time by six calender months notice in writing given at any time during service under this contract. Provided always the Institute may in lieu of the notice herein provided to give the appointee a reason and a sum equivalent to the amount of his pay for six months. The appointee may terminate his service by giving to the Institute three calender months notice in writing.''

10. As per the petitioner, letter dated 1.5.2001 and the office order dated 9.9.2002 novated the original contract dated 1.10.1986, in that, the term of the contract that the service of the petitioner is for a period of 5 years or till the age of 65 years stood replaced by the term that the service of the petitioner was for fixed tenure of 5 years i.e. from 1.10.2001 to 30.9.2006.

11. As per the counter affidavit filed, respondent No.2 institute is affiliated to the respondent No.4 which receives grants from U.G.C. On 24.12.1998 U.G.C. had issued a directive, applicable to every university receiving grant from the U.G.C. As per the said directive following was stipulated:-

''16.1.0. Teachers will retire at the age of 62. However, it is open to a university or college to re-employ a superannuated teacher according to the existing guide-lines framed by the U.G.C. up to the age of 65 years.''

12. As per the further pleadings of the respondent under the Statute 24 of the Guru Gobind Singh Indraprastha University, any college affiliated to the university had to confirm to the requirements of the university pertaining to eligibility and other criteria of service of the employees appointed by respondent No.2. As per the respondents, petitioner attained the age of 65 years in the month of May, 2003 and that was the reason why the letter dated 16.3.2004 was written. It is stated that by oversight petitioner was allowed to continue to function as the Director General of the Institute. As per the respondent it was an illegal continuance in office and the same cannot create any right in favor of the petitioner.

13. Rebutting the defense, petitioner states in the rejoinder that the post of Director General is not provided for by the Act or Statute of respondent No.4. The U.G.C. guide-lines relied upon relate only to the teaching faculty. Petitioner as Director General was the Chief Executive Officer of the Institution and was not governed by the said notification.

14. The first and foremost issue which needs to be decided is whether the letter dated 1.5.2001 novated the contract dated 1.10.1996 as alleged by the petitioner. Incidental issue which would arise for adjudication would be the effect of the letter dated 1.5.2001.

15. Contract dated 1.10.1996, vide Clause 2 clearly stipulates that if on the expiry of the 5 year tenure appointment, petitioner is below 65 years of age, his services shall continue till he attains the age of 65 years. It is clear that the parties, when they entered into the contract dated 1.10.1996 had clearly contemplated that the petitioner would have no right to continue beyond the age of 65 years. Further, Clause 3 of the contract dated 1.10.1996 clearly spells out that the petitioner shall be the 'Principal Academic and Executive Officer'.

16. Letter dated 1.5.2001 while extending the term of the petitioner by another 5 years, clearly recorded that the said extension was 'on the same terms and conditions'. The said letter redesignated the petitioner as the Director General.

17. Effect of letter dated 1.5.2001 is that petitioners designation got changed from Director to Director General. His term got extended by another 5 years but on the same terms and conditions.

18. What were the terms and conditions on which the petitioner got extension of service by another 5 years? The same terms and conditions which are contained in the contract of service dated 1.10.1996.

19. Thus, there can be no matter of doubt that all the terms of the agreement dated 1.10.1996 continued to bind the parties, save and accept that the date of agreement which commenced the service of the petitioner w.e.f. 1.10.1996 got replaced and the designation of the petitioner from being a Director got replaced to, as being designated as Director General. All other terms and conditions remain the same.

20. Effect thereof would be that the term of the contract of service dated 1.10.1996 limiting the right of the petitioner to continue to be in service till he attain the age of 65 years or till the expiry of the contract, whichever is earlier continued to bind the parties.

21. The further stipulation contained in Clause 3 of the agreement dated 1.10.1996 that the petitioner shall be 'Principal Academic and Executive Officer' continued to bind the parties.

22. Thus, as per the extended contract, tenure of the petitioner was 5 years or till he attained the age of 65 years, whichever was earlier.

23. In view of the contract of service dated 1.9.1996 and the letter dated 1.5.2001 as interpreted above, it is irrelevant for me to decide whether the UGC guidelines that teachers would superannuate on attaining the age of 62 years and can be granted extension not beyond the age of 65 years would or would not apply to the petitioner. However, one fact may be noted. In clause 3 of the agreement dated 1.10.1996, petitioner has been referred to as the ''principal academic and executive officer'' of the institute. The inspiration for the said description of the petitioner clearly comes from the statutes of the Indraprastha Vishwa Vidyalaya Statutes, 1998. It refers to the Vice-Chancellor being the ''principal academic and executive officer''. The Vice-Chancellor is contemplated as a teacher. The Statute clearly stipulates that the term of the office of Vice-Chancellor shall be 5 years. The Vice-Chancellor shall be eligible for re-appointment but would cease to hold office on completion of age of 65 years.

24. The Statute contemplates the Vice-Chancellor to be a teacher. This seems to be the motivation which probably led the parties to insert conditions 2 and 3 in the agreement dated 1.10.1996. The petitioner was also referred to as the ''principal academic and executive officer''. Tenure of the petitioner was fixed for 5 years, it was made extendable with a stipulation that petitioner would cease to be in employment on attaining the age of 65 years or till expiry of the contract period whichever is earlier.

25. Petitioner even otherwise, in my opinion cannot enforce his right by way of a proceeding under Article 226 of the Constitution of India. As per the petitioner, his appointment is under a contract. As per him, Indraprastha Vishwavidyalaya Act or the Statutes of the University as also the guidelines issued by the UGC do not apply because the post of Director General is not contemplated by the Act, Statute or UGC guidelines. If this be the position, it would be a case of a contractual appointment not impregnated by any statutory provisions. Remedy of the petitioner would be to seek damages for breach of contract.

26. The common law principal that the remedy of an employee in case of breach of contract of personal service is to seek damages for breach of contract is subject to 3 well recognized exceptions to the rule. The said 3 exceptions were stated by the Supreme Court in the decision reported as Bank of Baroda Limited v. Jeevan Lal Mehrotra. In para 3 of the judgment, following was observed.

''........The law as settled by this Court is that no declaration to enforce a contract of personal service will be normally granted. The well recognised exceptions to this rule are (1) where a public servant has been dismissed from service in contravetion of Art.311(2) where reinstatement is sought of a dismissed worker under the industrial law by Labour or Industrial Tribunals, (3) where a statutory body, has acted in breach of a mandatory obligation imposed by statute....''

27. In the context of a service dispute pertaining to the Principal of a college where the claim of the Principal was based on statutory provisions to be observed by the college, the Supreme Court in its decision reported as Executive Committee of Vaish Degree College, Shamli v. Laxmi Narayan and Ors. held that no declaration could be granted to the Principal that termination of his services was illegal on the ground that it violated provisions of the Agra University Act and the Statutes made there under. The Supreme Court recognized the common law principle that a contract of service was incapable of being specifically enforced. AIR 1987 SC 1607 Shri Anandi Mukta Satguru v. V.R. Rudani and Ors. related to a dispute pertaining to the stay scales demanded by the respondents who were employees of a public trust which was running a college. The college was affiliated to Gujarat University. The University teachers were paid salary in the pay scales recommended by the UGC. The University required the trust to pay to its employees, salary as per the pay scales recommended by the UGC, which scales were applicable to the University employees. While deciding the issue, the Supreme Court referred to its earlier decision in Vaish Degree College (Supra). In para 12 and 13, it was held by the Supreme Court that it was not dealing with a dispute of dismissal and, therefore, the common law principle that a service contract cannot be specifically enforced was irrelevant. The Supreme Court noted that it was dealing with a dispute pertaining to payment of wages. After so holding, on the question whether the trust could be compelled to pay by writ of mandamus, the court held:-

''If the rights are purely of a private character no mandamus can issue, if the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. The law relating to mandamus has made the most spectacular advance. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is striking departure from the English law. Under Article 226, writs can be issued to ''any person or authority''. It can be issued ''for the enforcement of any of the fundamental rights and for any other purpose''. The term ''authority'' used in Article 22, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art.32. Article 226 confers power on the High Court to issue writs for enforcement of the fundamental rights. The words 'any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be adjudged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied. It may be pointed out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. The judicial control over the fast expaning maze of bodies affecting the rights of the people should not be put into water tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available ''to reach injustice wherever it is found''. Technicalities should not come in the way of granting that relief under Article 226.''

28. The writ petition is dismissed. There shall be, however, no order as to costs.