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PETITIONER:

JAWAHARLAL NEHRU UNIVERSITY

Vs.

RESPONDENT:

DR. K.S. JAWATKAR & ORS.

DATE OF JUDGMENT12/05/1989

BENCH:

PATHAK, R.S. (CJ)

BENCH:

PATHAK, R.S. (CJ)

MUKHARJI, SABYASACHI (J)

CITATION:

1989 AIR 1577 1989 SCR (3) 273

1989 SCC Supl. (1) 679 JT 1989 (2) 538

1989 SCALE (1)1438

ACT:

Jawaharlal Nehru University Act 1966: Section 7--Univer-

sity-Establishing Centre of Post Graduate Studies at

Imphal--Whether a member of the teaching staff at Centre can

be transferred without his consent to the Manipur Universi-

ty.

HEADNOTE:

The appellant, Jawaharlal Nehru University, had set up a

Centre of Post-Graduate Studies at Imphal under s. 5(2) of

the University Act. The Respondent while he was working as a

temporary research Assistant in the School of International

Studies of the University was offered the post of Associate

Fellow at the Centre of Post-graduate Studies, Imphal, on ad

hoc basis which offer was accepted by him on 3 December,

1973. His term of appointment was extended from time to

time. On 21st March, 1979 the University offered him the

post of Assistant Professor in the Political Science Divi-

sion at the Centre at Imphal for a period of two years. The

respondent joined the post on 29 August, 1979. Later, he was

appointed as such on a regular basis from the date of his

initial appointment, and was confirmed with effect from the

same date.

The Centre of Post-graduate Studies at Imphal was to be

merged with the Manipur University as provided in the Mani-

pur University Act, 1980. On 3 February, 1981 the Syndicate

of the Jawaharlal Nehru University provided for the transfer

of the Centre to the Manipur University and resolved that

the members of the faculty employed by the Jawaharlal Nehru

University Centre of Post-graduate Studies, Imphal, immedi-

ately 'before its merger into the Manipur University would

on and from that date become members of the staff of the

Manipur University.

The respondent filed a writ petition in the Delhi High

Court praying for the quashing of the Resolution of the

Jawaharlal Nehru University whereby his services were trans-

ferred to the Manipur University. The learned Single Judge

allowed the writ petition holding that the respondent could

not be obliged to join the Manipur University, and that he

was confirmed as Assistant Professor in the employment of

the

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274

Jawaharlal Nehru University in its Imphal Centre and was

entitled to continue in service until he attained the age of

60 years.

In appeal, the Division Bench upheld the view that the

services of the respondent could not stand automatically

transferred with the transfer of the Centre at Imphal, from

the Jawaharlal Nehru University to the Manipur University.

Dismissing the appeal, this Court,

HELD: (1) The Centre of Post-graduate Studies was set up

at Imphal as an activity of the appellant--Jawaharlal Nehru

University. To give expression to that activity, the Univer-

sity set up and organised the Centre at Imphal and appointed

teaching and administrative staff to man it. Since the

Centre represented an activity of the University the teach-

ing and administrative staff must be understood as employees

of the University. [279H; 280A]

(2) The contract of service entered into by the respond-

ent was a contract with the appellant University and no law

can convert that contract into a contract between the re-

spondent and the Manipur University without automatically

making it, either expressly or by necessary implication,

subject to the respondent's consent, notwithstanding any

statutory provision to that effect whether in the Manipur

University Act or otherwise. The position of law is clear

that no employee can be transferred, without his consent,

from one employer to another. The consent may be express or

implied. [280B-C, E]

(3) The transfer of the Centre of Post-graduate Studies

to the Manipur University may be regarded as resulting in

the abolition of the post held by the respondent in the

appellant University. In that event, if the post held by the

respondent is regarded as one of a number of posts in a

group, the principle "last come, first go" will apply, and

someone junior to the respondent must go. If the post held

by him constitutes a class by itself, it is possible to say

that he is surplus to the requirements of the appellant

University and is liable to be retrenched. Since. however,

the respondent has been adjusted against a suitable post in

the appellant University during the pendency of the litiga-

tion, the appellant cannot be permitted to retrench him.

[280F-H; 281A]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2948 of

1984

275

From the Judgment and Order dated 20.1.1984 of the Delhi

High Court in L.P.A. No. 145 of 1982.

G. Ramaswami, Additional Solicitor General, S.C. Dhanda,

C.S. Vaidyanathan, P. Chowdhary and S.R. Sethia for the

Appellant.

Respondent No. 1 In-person, Girish Chandra, Ms. Sushma

Relan and P. Chowdhary for Respondents.

The Judgment of the Court was delivered by

PATHAK, CJ. This is an appeal by special leave against a

judgment of a Division Bench of the High Court of Delhi in a

Letters Patent Appeal upholding the judgment of a Single

Judge of the High Court in a writ petition filed by the

first respondent for a declaration that he continues to be

in the service of the Jawaharlal Nehru University.

The Jawaharlal Nehru University Act, 1966 sets forth as

the objects of the Jawaharlal Nehru University "to dissemi-

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nate and advance knowledge, wisdom and understanding by

teaching and research and by the example and influence of

corporate life, and in particular the objects set out in the

first Schedule." The powers of the University extend to

establishing within the Union Territory of Delhi or outside

that territory such Special Centres as may be necessary for

the furtherance of its objects, to create such teaching,

administrative and other posts as the University may deem

necessary, and to make arrangements thereto, and to appoint

or recognise persons as Professors, Readers or Lecturers or

otherwise as teachers of the University. Section 7(b) of the

Act declares that where the University establishes and

maintains any institution or body outside the Union Territo-

ry of Delhi then the powers and jurisdiction of the Univer-

sity will extend to such institution or body subject to the

rules and regulations of the University within whose juris-

diction the institution or body is situate.

On 21 September, 1970 the Additional Secretary, Ministry

of Education and Youth Services wrote to the Vice-Chancellor

of the University informing him of the intention of the

Government of India, to establish a Central University at

Shillong to serve the needs of the North Eastern Region of

India, and that in August, 1969, the University Grants

Commission had approved the proposal of the Manipur Adminis-

tration to have a Post-graduate Centre at Imphal under the

auspices of the Gauhati University, and considering the fact

that the

276

proposed Central University for the Hill Areas was also

intended to cater to the needs of Manipur, it would be

appropriate, he said, that the Jawaharlal Nehru University

should establish a Centre at Imphal also which could later

be made over to the proposed new University to be estab-

lished by the Centre. On 3 October, 1970, a resolution was

passed by the Executive Council of the Jawaharlal Nehru

University agreeing with the proposal of the Ministry of

Education to set up an Institute of Post-graduate Studies at

Imphal. A committee was set up to study the problems con-

nected with the setting up of such an Institute and to

submit concrete proposals in that regard. On 12 June, 197 1,

the Executive Council of the University recorded their

agreement in principle to the proposal of the Ministry of

Education to set up an Institute of Post-graduate Studies at

Imphal and noted that the committee had submitted its re-

port. Then on 12 June, 197 1, the Executive Council passed a

resolution that a Centre of Post-graduate Studies be set up

at Imphal under s. 5(2) of the Jawaharlal Nehru University

Act.

On 27 January, 197 1, the appellant University informed

the respondent that he had been selected for the post of

Research Assistant in the Department of South Eastern Stud-

ies, School of International Studies of the University, that

the appointment would be temporary for a period of six

months and his services could be terminated on one month's

notice on either side. On 25 April, 1973, the term of tempo-

rary appointment as Research Assistant in the School of

International Studies was extended by the appellant Univer-

sity for a further period of six months with effect from 4

June, 1973. Thereafter, by letter dated 29 November, 1973

the Vice-Chancellor of the appellant University offered the

respondent the post of Associate Fellow in the Post-graduate

Studies Centre of the University at Imphal for a period of

one year in the first instance, the appointment being made

on ad hoc basis, and his regular appointment at the Centre

of the Post-graduate Studies at Imphal or at the New Delhi

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campus of the University would be subject to the recommenda-

tions of the Selection Committee. It was stated that he was

expected to take part in the teaching and research pro-

grammes of the University. He was directed, in case he

accepted the offer, to join the Post-graduate Centre, Imphal

(Manipur) as early as possible. On the same date the re-

spondent accepted the offer of appointment as "Associate

Fellow", Centre of Post-graduate Studies, Imphal, under the

terms and conditions of the Vice-Chancellor's letter of that

date. On 3 December. 1973 the respondent reiterated his

acceptance of the offer of appointment as "Associate Fellow"

at the Centre of Post-graduate Studies, Imphal, and stated

that he was reporting for duty to the Head of the Centre for

Political Studies, School

277

of Social Sciences, New Delhi with effect from 3 December,

1973 so that after necessary briefing at the Centre he would

proceed to Imphal as early as possible. Thereafter by Office

Order No. 2376 dated 24 August, 1974 the term of appointment

of the respondent as "Associate Fellow" at the Centre of

Post-graduate Studies, Imphal, was extended for a period of

one year from 3 December, 1974 to 2 December, 1975. By

Office Order No. 2440 dated 23 September, 1974 the respond-

ent's term of appointment in the same capacity at the said

Centre was now enlarged from 3 December, 1974 to 2 December,

1976. His existing scale of Rs.400-40-800-50-950 was revised

to Rs.700-40-1100-50-1600 by Office Order No. 295 dated 21

June, 1975 with effect from 1 January, 1973. It appears that

the temporary appointment of Associate Professor in Politi-

cal Science at the Centre of Post-graduate Studies, Imphal,

was extended upto 3 August, 1987 or until the post was

filled on a regular basis whichever is earlier. Thereafter

on 23 December, 1977 an advertisement was issued by the

Jawaharlal Nehru University, Centre of Post-graduate Stud-

ies, Imphal (Manipur) for appointment to, inter alia, the

posts of Associate Professor/Fellow and Assistant

Professor/Assistant Fellow in the Political Science. The

respondent applied for the post of Associate Professor but

the Selection Committee did not find him suitable for that

post and recommended him for the lower post of Assistant

Professor. By letter dated 29 April, 1978 the Jawaharlal

Nehru University offered him the appointment of Assistant

Professor in Political Science on an ad hoc basis in the

Centre of Post-graduate Studies, Imphal, for a period of one

year or until his services were required by the Centre,

whichever was earlier. The respondent, however, wrote back

on 2 May, 1978 stating that he had not applied for the post

of Assistant Professor in Political Science and that he

deserved to be appointed as Associate Professor at the

Imphal Centre. By letter dated 21 March, 1979 the Jawaharlal

Nehru University offered the respondent the post of Assist-

ant Professor in the Political Science Division at the

Centre of Post-graduate Studies of the University at Imphal

for a period of two years. He was informed that in all

matters relating to leave and other conditions of service he

would be required to enter into an agreement with the Centre

of Post-graduate Studies, Imphal. This agreement was never

executed. On 29 August, 1979 the respondent joined as As-

sistant Professor in accordance with the terms mentioned in

the University's letter dated 21 March, 1979. Thereafter the

respondent was appointed as Assistant Professor by a Resolu-

tion of the Jawaharlal Nehru University dated 29 October,

1979 on a regular basis with effect from the date of his

initial appointment dated 29 August, 1979 and he was con-

firmed with effect from that date.

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278

In 1980 proceedings were taken to transfer the Imphal

Centre from the Jawaharlal Nehru University to the Manipur

University. To effectuate this the Syndicate of the Manipur

University passed a Resolution on 19 December, 1980 detail-

ing the terms for the transfer of the Centre to the Manipur

University, and the Manipur University and the Manipur

Government requested the Jawaharlal Nehru University for

transferring the Centre accordingly. The Jawaharlal Nehru

University by its Resolution dated 3 February, 1981 accepted

the proposal and authorised the Vice-Chancellor to transfer

the Centre to the Manipur University. The date for transfer

was fixed as 1 April, 1981. Meanwhile, the Manipur Legisla-

ture passed the Manipur University Act, 1980, which was

assented to by the Governor on 28 May, 1980. Section 1(4) of

the Act provided that on and from the date on which the Act

came into force in respect of post-graduate education and

research, the Jawaharlal Nehru University would cease to

exercise jurisdiction over the Centre of Post-graduate

Studies in Imphal, and that the State Government of Manipur

may make provision for the transfer of employees from the

Jawaharlal Nehru University, Centre of Post-graduate Stud-

ies, Imphal to the Manipur University. Thereafter an order

dated 31 March, 1981 was made by the Governor of Manipur

providing that the members of the faculties of the Jawahar-

lal Nehru University, Centre of Post-graduate Studies,

Imphal, immediately before its merger into the Manipur

University would, on and from the 1 April, 1981, become

members of the staff of the Manipur University on the same

terms and conditions of service as they were entitled to

immediately before that day. Meanwhile on 3 February, 1981,

the Syndicate of the Jawaharlal Nehru University provided

for the transfer of the Centre to the Manipur University. It

was resolved that the said Jawaharlal Nehru University for

Post-graduate Studies would cease to exist as such and the

Divisions of the Centre would become the Divisions of the

Manipur University and function accordingly. It was further

resolved that the members of the faculty employed by the

Jawaharlal Nehru University, Centre of Postgraduate Studies,

Imphal, immediately before its merger into the University

would on and from that date. become members of the staff of

the Manipur University.

The respondent filed a writ petition in this Court on 27

March, 1981 challenging his transfer from the Jawaharlal

Nehru University to the Manipur University, and that peti-

tion was dismissed as withdrawn on 21 September, 198 1.

Thereafter the respondent filed a writ petition on 22 May,

1982 in the Delhi High Court praying for the quashing of the

Resolution of the Jawaharlal Nehru University on 3 February,

198 1 transferring his services to the Manipur University.

The learned

279

Single Judge of the High Court held that the respondent

could not be obliged to join the Manipur University, that he

was confirmed as Assistant Professor in the employment of

the Jawaharlal Nehru University in its Imphal Centre and was

entitled to continue in service until he attained the age of

60 years and that the services had not been specifically

terminated. Accordingly, the writ petition was allowed and

the respondent was deemed to continue, in the service of the

Jawaharlal Nehru University and if no equivalent post was

available for him in 1981 in the Jawaharlal Nehru University

had he had become surplus, the said University was at liber-

ty to dispense with his services. In appeal, the Division

Bench of the High Court upheld the view that the services of

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the respondent could not stand automatically transferred

from the Jawaharlal Nehru University to the Manipur Univer-

sity with effect from 1 April, 1981 by operation of law and

that the order dated 31 March, 1981 transferring the employ-

ees at the Imphal Centre to the Manipur must be considered

as implying or assuming that the concerned employee had

exercised an option to join the Manipur University. The

learned Judges also rejected the contention of the appellant

that there was an automatic termination of the respondent's

service without notice or order or discharge or dismissal.

They held further that the Centre at Imphal was commenced

and conducted as part and parcel of the Jawaharlal Nehru

University that the respondent must be regarded as an em-

ployee continuing with the Jawaharlal Nehru University even

upon the transfer of the Centre from that University. They

further observed that if, in the result, the strength of the

staff should be surplus, the principle of "last come first

go" had to be applied, and that the application of the

principle was to be effected with reference to the cadre to

which the respondent belonged and also to the discipline in

which he was competent. In the event of it being found that

he constitutes a class by himself, his services could be

absorbed in some suitable post in the Jawaharlal Nehru

University.

In this appeal the main contention of the appellant is

that the respondent was appointed at the Centre of Post-

graduate Studies, Imphal, and when the Centre was trans-

ferred to the Manipur University, his services were automat-

ically transferred to that University, and consequently he

could not claim to be an employee of the appellant Universi-

ty. The argument proceeds on the assumption that the Centre

of Post-graduate Studies at Imphal was an independent entity

which existed by itself and was not a department of the

appellant University. The submission proceeds on a fallacy.

The Centre of Postgraduate Studies was set up at Imphal as

an activity of the appellant University. To give expression

to that activity the appellant University set up and orga-

nised the Centre at Imphal and appointed a teaching

280

and administrative staff to man it. Since the Centre repre-

sented an activity of the appellant University the teaching

and administrative staff must be understood as employees of

the appellant University. In the case of the respondent,

there can be no doubt whatever that he was, and continues to

be, an employee of the appellant University. There is also

no doubt that his employment could not be transferred by the

appellant University to the Manipur University without his

consent, notwithstanding any statutory provision to that

effect whether in the Manipur University Act or elsewhere.

The contract of service entered into by the respondent was a

contract with the appellant University and no law can con-

vert that contract into a contract between the respondent

and the Manipur University without simultaneously making it,

either expressly or by necessary implication, subject to the

respondent's consent. When the Manipur University Act pro-

vides for the transfer of the services of the staff working

at the Centre of Postgraduate Studies, Imphal, to employment

in the Manipur University, it must be construed as a provi-

sion enabling such transfer of employment but only on the

assumption that the employee concerned is a consenting party

to such transfer. It makes no difference that the respondent

was not shown in the list of Assistant Professors of the

appellant University or that the provision was not indicated

in its budget; that must be regarded as proceeding from an

erroneous conception of the status of the respondent. The

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position in law in clear, that no employee can be trans-

ferred, without his consent, from one employer to another.

The consent may be express or implied. We do not find it

necessary to refer to any case law in support of this con-

clusion.

Inasmuch as the transfer of the Centre of Post-graduate

Studies from the appellant University to the Manipur univer-

sity could not result in a transfer of the employment of the

respondent from the one to the other, it must be concluded

that the respondent continues in the employment of the

appellant University. The transfer of the Centre of Post-

graduate Studies to the Manipur University may be regarded

as resulting in the abolition of post held by the respondent

in the appellant University. In that event, if the post held

by the respondent is regarded as one of a number of posts in

a group, the principle "last come, first go" will apply, and

someone junior to the respondent must go. If the post held

by him constitutes a class by itself, it is possible to say

that he is surplus to the requirements of the appellant

University and is liable to be retrenched. But it appears

that the respondent has been adjusted against a suitable

post in the appellant University and has been working there

without break during the pendency of this

281

litigation, and we cannot, therefore, permit the appellant

University to retrench him.

In the result, the appeal fails and is dismissed with

costs.

R.S.S. Appeal dis-

missed.

282